Revolt Against Authority [1 ed.] 9789004273832, 9789004268203

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Revolt against Authority

Studies in Critical Social Sciences Series Editor David Fasenfest (Wayne State University) Editorial Board Chris Chase-Dunn (University of California-Riverside) G. William Domhoff (University of California-Santa Cruz) Colette Fagan (Manchester University) Matha Gimenez (University of Colorado, Boulder) Heidi Gottfried (University of Bremen) Karin Gottschall (Warsaw University) Bob Jessop (Lancaster University) Rhonda Levine (Colgate University) Jacqueline O’Reilly (University of Brighton) Mary Romero (Arizona State University) Chizuko Ueno (University of Tokyo)

VOLUME 65

The titles published in this series are listed at brill.com/scss

Revolt Against Authority By

Laura Westra

LEIDEN | BOSTON

Cover illustration: “Massacre” by Caoimhghin Ó Croidheáin, (http://gaelart.net/) Library of Congress Cataloging-in-Publication Data Westra, Laura.  Revolt against authority / by Laura Westra.   pages cm. -- (Studies in critical social sciences ; Volume 65)  Includes bibliographical references and index.  ISBN 978-90-04-26820-3 (hardback : alk. paper) 1. Protest movements. 2. Social movements. 3. Human rights. 4. Authority. I. Title.  HN17.5.W47 2014  303.48’4--dc23 2014008066

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, ipa, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. issn 1573-4234 isbn 978-90-04-26820-3 (hardback) isbn 978-90-04-27383-2 (e-book) Copyright 2014 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Nijhoff, Global Oriental and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper.

For my son Peter Christopher Westra

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Contents Foreword XI Introduction 1

part 1 The (Il)legality of Protest Movements 1 Introduction to the Authority of Law and Social Protest 7 Introduction 7 The Basis of Authority 8 Civil Disobedience or Conscientious Obligation? 12 Self-Determination and Legal Protests 18 State Authority and the Importance of the Rule of Law 21 The Rights of Citizenship and Collective Human Rights 24 2 The Occupy Wall Street Movement: Attack in a “Lawless” World? 29 Introduction 29 The Occupy Movement’s Legal Aspects: Symbolic Speech and Practical Difficulties 32 The Geopolitical Aspects of Free Speech 36 Expressive Conduct and the Law 40 Occupy as Revolt against Law and Injustice 42 Collective Human Rights against Authority 45 Resistance to Plunder 48 Protests, Injustice and the Rule of Law 51 3 Non-Governmental Organizations and Social Movements: Substance and Roles 53 Introduction 53 unesco, the Common Heritage of Mankind and the Principled Defense of Humanity’s Arts and Sciences 57 The Civil Rights Movement: Restoring Justice in Legality 61 Civil Disobedience and Non-Violence 64 “Civil Resistance” and the Law 67 Citizens’ Resistance and Declining Allegiance to State Sovereignty 70 Community over Individuals and Justice 70

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The End of Politics and the Rise and Role of Social Movements 73 Corporate Power and Cosmopolitan Democracy 74 Corporations, the State and the “Two Constitutions” 75 4 International Citizenship under Siege 79 Introduction 79 Constructing Global Citizenship 81 Citizenship, Authority and the Law 85 Idle No More and the Canadian First Nations: “Frozen Rights”? 86 The Crown’s Obligations: Local Issues or Fundamental Principles? 88 Civil Disobedience against Environmental Harms: Forceful or Not? 92 Revolt and Self-Defense beyond the Right to Survive 94 Citizens’ Misinformation and Misguided Activism 98 Transnational Citizens: Further Considerations beyond their Legal Status 100 5 The Limits of the Power of ingos, Social Movements, and Associations, and the Authority of Law 103 Introduction 103 The Security Council and the Mandates and Principles of the un Charter 104 The Weakened United Nations and the Struggles of the “Multitude” 107 The Collective and the “Multitude” 110 The Commons and the Collective 111 The Multitude and the “Common” 115 Protest for the Rule of Law 117 Illegalities Sustain Protests: Structural Violence against Society 120 Self-Defense? The Moral Response to “Threats” 121 Self-Defense and Protests against Violence in International Law 124 Concluding Thoughts for Part I 127

part 2 Victims of Structural Violence 6 Victims of “Non-Intimate Violence” and the Law 133 Introduction 133 What is Protected by International Human Rights Charters and Jus Cogens Norms? The Question of Shue’s “Basic Rights” 135 Galtung on Structural/Cultural Violence 140 Conclusions 413

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7 Victims of Human Rights Law and of Legal Persons: Where Justice and Equal Rights Do not Apply 145 Introduction: The “Original Sin” 145 Corporate Responsibility and Accountability 149 Multinational Corporations: Their Nature, Their Role, and Their Victims 154 Crimes against Humanity? The Principles of Nuremberg and the Victims of Corporate Crimes 158 Nuremberg and Equality: Victims of Non-Observance of Principles 160 Victim Protection and Corporate Rights: Deterrence or Compensation? 163 Victims of Corporate Power and Inequality 165 Victims of “Toxic Trespass” 166 8 Victims of Legal Bombardments, Drone Attacks and Other Forms of Collateralism 170 Introduction 170 International Law Eliminated and Betrayed: The Case of Bombardments as Unlawful Means of Combat 172 Non-combatant Immunity and the Victims of Collateralism 173 Victims of Illegal Weapons, Indiscriminate Means of War, and Environmental Hazards 175 Victims of Drone Attacks 177 The “War on Terror” and Its Victims 179 Victims of the Conduct of War 181 State Terrorism and Its Victims 183 Aggression and Terrorism in International Law from 1972 to 2005: Working on an Impossible Definition 183 One Source: Two Major Global Phenomena 186 The Issues: Terrorism and Collective Human Rights 188 More Victims of State Terrorism and Counter-terrorism Measures 191 George W. Bush “Indictment for Torture” 193 Khalid El-Masri and the Case of Extraordinary Renditions 196 The Background of “Extraordinary Renditions” and Some International Implications of the “CIA’s Long-Term Detainees” 199 The Canadian Position: Maher Arar and State Interests 200 Concluding Thoughts on “Abandoning the Victim” 201 “Abandoned” Victims in Other Countries 204

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9 Responsibility to Protect or Obligation to Prevent: Whose Responsibility? 207 Introduction 207 The Argument of the Previous Chapters: Victims in a Lawless World 208 Legal Redress for Victims? 210 Responsibility to Protect for Collective Obligations 212 Sovereignty as Responsibility? 214 Responsibility to Protect: Downward Spiral or Best Hope for Victims? 216 The “Crime of Silence” and the Activities of the Russell Tribunal on Palestine 220 The Responsibility of Global Civil Society 225 The “Criminalization of Dissent” 228 10 Current Changes and Concluding Thoughts 234 Current Changes: Positive and Negative 234 Concluding Thoughts 239 Appendix I Cases 241 Appendix II Documents 243 References 246 Index 263

Foreword Participants in the demonstrations outside the global climate talks that took place at the Bella Centre in Copenhagen in December of 2009 were shocked to find themselves confronted by 6000 militarized police in full riot gear. After all, they were only demonstrating peacefully in an effort to persuade the world’s leaders to adopt stricter greenhouse gas emission controls in order to save the planet for this and future generations. They were equally shocked to learn that the Danish government, in the lead-up to the conference, had passed new laws for police to arrest and detain people on mere suspicion of trying to enter the conference and that they could be held in a series of cells (preventive detention) set up for that purpose in an abandoned warehouse for up to forty days. What had happened to traditionally peaceful Denmark to elicit such a draconian response from the government? For that matter, why have we seen equally militarized responses to largely peaceful protests by civil society in cities like Seattle, Washington, DC, Berlin, Paris, London, New York, Quebec, Madrid, Genoa and cities in other supposedly liberal, democratic states? Aren’t freedom of speech and assembly among the bedrock values of the liberal state? Weren’t these and other human rights guarantees what we had fought the Second World War to preserve? These are among the questions Laura Westra asks and seeks to answer in this remarkable book which examines the intersection of social protest and the law. The literature on social movements is voluminous, as is the literature on international law. What has been largely missing in the literature, however, is the mutual interrogation of these two distinct bodies of scholarship one by the other, a feat this volume admirably achieves. No one is more qualified than Laura Westra to undertake this task. A legal theorist as well as a philosopher by training, she is no arm chair scholar, but one whose wide-ranging, interdisciplinary scholarship has always been in the service of a just moral order. Revolt against Authority begins with the recognition that the so-called “liberal, democratic” state has lost its legitimacy in a double sense. No longer a product of the social contract between citizens, the democratic state is increasingly “democratic” only in a narrow, procedural sense, having been captured and corrupted by a supranational corporate elite who manipulate elections and pass laws to favor their own class. The law, formerly the province of the nation-state and of nation states collectively through the un and other transnational vehicles, has to a great extent shifted its venue to a number of unaccountable, opaque, transnational bodies, such as the World Trade Organization, .

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the International Monetary Fund or the G8, leaving the liberal state less able, or less willing, to protect its own citizens from the predations of multinational corporations whose only raison d’être is that of profit, as well as leaving international human rights covenants and treaties as mere pieces of paper. As the state loses its own raison d’être—that of protecting its citizens—it loses the consent of its people; and if law is no longer backed by the consent of the governed, then can it be called “law” at all, or rather, has it become simply, “authority.” The use of raw authority, without the underpinning of legitimacy, amounts to the practice of a police state. Indeed, the ugly and coercive authority of a police state is exactly what thousands of people who have participated in the many protest movements that we have witnessed in the last two or three decades—from the anti-wto protest in Seattle in 1999 to the Occupy Wall Street movement and the many movements against the G8, the G20 and imf, as well as various indigenous efforts to achieve self-determination and environmental campaigns to save the commons—have experienced. The proliferation of civil society protests like these attest to the presence of a new transnational global polity—a kind of transnational citizen—that has arisen as a response to the private global governance structure that now dominates much of the world. As the nation with the largest military arsenal in the world, it has fallen to the United States to be the coercive authority that enforces the illegitimate, private global governance structure against the will of the majority of the world’s people. Thus, the United States, which was once hailed as the bastion of the “free-world,” has now become the rogue nation, employing draconian tactics—torture, “rendition,” extra-judicial assassinations, totalitarian surveillance mechanisms—all too reminiscent of the crimes for which Nazis were prosecuted at Nuremburg. If the rule of law no longer resides in the liberal nation-state or un, where then does it reside? This question is the crux of the argument in the first part of Revolt against Authority. Examining the key forms of civil society organization, such as ingos and social protest movements, Westra finds in them, not the illegality with which the dominant powers label them, but a new location for the rule of law and moral right however limited in its efficacy and incomplete in its articulation. It is in these formations that she discerns the appeal to natural law and the concept of the “Common Heritage of Mankind.” This is where hope lies in the present context. But how efficacious are these social movements in achieving the justice they strive for? Not very, is her response. She points to some victories that have been won, but always these have been partial, particular victories. The “new world” to which these movements point is still far from achievement.

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At the end of the first part, after defining the multiple assaults on human rights and the environment perpetrated by the neoliberal order as “structural violence,” Westra, citing natural rights, international human rights norms as well as case law, makes the case for understanding the protests and even forceful civil disobedience of the victims of this violence as legitimate “self-defense.” Although the motivations support both moral principles and the major tenets of law, the most significant issue that moves collective protests is self-defense, rather than simply the support for principles against illegal and immoral practices…Unlike the defense of principles, which should be a common erga omnes obligation, but is not, self-defense is recognized in both domestic and international law as a basic human right. The second part of the book is taken up with a detailed examination of the victims of structural violence perpetrated by states and transnational corporations which claim to be acting “legally.” In detailing this victimhood, Westra bolsters her case for viewing protests as different as the Occupy Wall Street movement and the Palestinian Intifada as examples of legitimate “self-defense.” Despite the flagrant violation of so many national and international human rights norms and treaties as documented in this section, Westra still finds hope in the fact that these norms still exist on paper. In a world in which structural violence is “legalized,” the only defense we have against such violence is for the human community to reform the law “to admit a wider range of corporate harms.” She finds a precedent for this in gender law. Another possible source of legal reform is the collective international “responsibility to protect,” adopted by the UN General Assembly in 2005. While the actuality of reform still seems a long way off, Westra has provided all those who yearn for a more just and environmentally safe world order with an arsenal of tools with which to make the good fight. Lawyers who defend social protest movements now have a possible new argument to make in court against the narrow procedural rulings that seek to exclude anything related to the moral intentions of the defendants. Victims of structural violence can now see themselves, not as lone individuals caught in a paralyzing web of authority, but as part of a righteous, international collective struggle for a new rule of law. Those seeking to make the United Nations a more efficacious body have been presented not only with evidence of the gross violations of some of its most cherished doctrines, but with clear-eyed ways to make those doctrines more effective. Still, the question remains, how do we struggle for such change when all legal avenues appear to be closed? The answer provided by this book is that

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protest and dissent remain the only alternative. Those unable to take to the barricades (because of age, disability, lack of freedom, etc.) have no excuse for opting out. Even though the ability to dissent is becoming harder and harder, “the obligation to state clearly our dissent remains”; silence is culpability. We can only hope that this book is widely read. Sheila D. Collins Professor of Political Science Emeritus William Paterson University

Introduction The work I completed before researching and writing this book focused on the corporation, primarily on its relation to governance (Westra 2013a). That volume was the last in a trilogy devoted precisely to various aspects of world governance, with particular emphasis on the goals of freedom and democracy. However the latter was mostly found to have been replaced by unfreedom and by the controls exerted by trade and economic interests, in a world directed and governed by neoliberalism and its goals pursued through globalization. The conclusion of that book did not offer much hope for a return to the respect for human rights and democracy itself. In fact, the only hope for change was found in the strength of the many emerging social movements, from the US, to Europe and other nations in all continents. It is for that reason that I thought it important to study these emerging social movements, their strengths as well as their weaknesses, in order to understand whether it was indeed right to expect that these movements could help to achieve the radical changes required. The main problem, basic to all issues I had discussed in my earlier work, was the increasing “lawlessness” to be found in all governments and institutions globally: states are presumably bound by regulatory regimes that give priority to human rights, due process, and the principles enshrined in the Charter of the United Nations. These and other basic principles were intended to govern not only international relations (e.g. relation between states) but also, increasingly, the relations between states and citizens. However, when democratic practices and universal principles are thwarted by the overwhelming economic power of the corporation, both directly, through lobbies and other intrusions into the governing and legislating process, and indirectly, by the well-funded and organized misinformation campaigns, the allegiance of citizens to their country, their flag, and their traditions, suffered a serious blow. Neither the cherished traditions, nor the governance of the countries themselves were now what they had been historically. The gravest crimes, from torture, to apartheid, to genocide, all proscribed by non-derogable international law instruments, adopted by most civilized countries, were treated like tax regulations: they were studied for specious exceptions and interpreted in ways that would render them consonant with various economic and imperialistic goals, primarily in the US, where most of the powerful multinational corporations are located. Hence the paradox we face: appeals to the rule of law must start by ascertaining what the letter and spirit of the law really intended, that is, what is

© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004273832_002

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really “law” after twisted interpretations, changes and inappropriate additions have been discovered and acknowledged. This is the central issue in this book: authority, especially in the US and other western countries, is not necessarily (or even most often) the embodiment of the law. Therefore many social movements, starting with protests at the meetings of the Group of 20, and recently, the Occupy movement, are protesting this situation. They normally start their protests peacefully, but are sometimes forced to defend themselves against the violent responses of the authorities. But the main point is that these protesters are in fact representing the principles of justice and fairness that normally form the basis of legal regimes worthy of respect. Like the earlier civil rights movement, the protests of which clearly had human rights and morality on their side; so too today’s protesters against G8, G20 and many social movements, defend human rights, principles and morality against the “legal” authority of governments. These governments today have retained the formal aspects of democracy and legality, while they have increasingly forgotten, sold or simply discarded the substantive principles upon which those formalities were based. Thus protesters and social movements should be considered the defenders of law and order, rather than being viewed as attacks on both, whether they act peacefully or are forced to defend themselves. In fact, all those protests include a strong element of self-defense, since the current practices of corporate led governments and institutions, entail attacks on several aspects of their human rights, including the right to life, to health and to transparency regarding the conduct of their leaders. Self-defense, at least in the physical sense, is an acknowledged principle in both law and morality, and perhaps on that basis alone, aside from the democratic right to free speech, peaceful assembly and demonstration, the protesters are clearly on the side of the law. Their position is stated in Chapter 1, as civil disobedience is contrasted with conscientious objection. The social movements are assessed from the standpoint of the principles they defend and to what they object. Chapter 2 focuses on the Occupy movement and on the specific resistance of that group to Wall Street, its aims and practices, and the resulting harms to the 99% that follows those practices. Chapter 3 considers other social movements, various NGOs and their role in relation to citizens resistance, as they support community and human rights over present state rule, and they acknowledge the declining role of political involvement endemic to democratic institutions. This decline is due to the increasingly close ties existing between politicians and corporate interests. Chapter 4 shows that the important role of the citizen in a democracy is eroded, not only in the US, but in several other countries and communities,

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including the native communities, or First Nations of Canada, who recently demonstrated across the country through the Idle No More movement. Finally Chapter 5 reviews the position of the global collectivity, as all citizens find themselves increasingly under attack as they protest in order to regain democracy and the rule of law, against illegal violence and the deprivation of their rights. In Part II, Chapter 6 discusses what we mean as we speak of structural violence against the world’s citizens, as we defend the position that the violence to which they are exposed in several ways, fully justifies their right to selfdefense, and the protests themselves. The violence discussed is not intimate violence, within a family or related to gender issues or codified and acknowledged crimes. It is the structural, accepted and “legalized” violence that is found both in developed and developing countries, albeit with different aspects. The next two chapters (Chapters 7 and 8) explain in some detail two egregious examples of illegal violence, perpetrated by authority against citizens: the practices of corporate legal persons, who proceed with almost complete immunity to harm and to deceive, through a plethora of harmful products and processes, from industrial chemicals to tobacco and other harmful foods, and to the deliberate denial of climate change with grave consequences, from glacial melts, to multiple fires and conditions of famine in much of the world. Chapter 8 considers the “new” rules of war, the “war on terror,” and the socalled “Bush doctrine,” in support of anticipatory self-defense, that is, the “legality” of attacks on suspects, with no due process or court authority, ending in death or unjustified unlimited imprisonment. Chapter 9 asks whether the so-called responsibility to protect (R2P) really offers the protection it claims to victims of war crimes and illegal aggression; or whether it represents only another form of corporate-funded imperialism, promoting economic and neocolonial interests through the attacks launched. Another question should also be raised: do we have the obligation to voice our dissent, to protest in various ways, not necessarily in the trenches, but within our abilities? The answer is clearly affirmative, as silence in the face of illegal victimization renders us complicit in the crime (after Nuremberg). Yet we face another grave obstacle: the ongoing “criminalization of dissent,” especially obvious in the United. States and some other northern countries, where legal instruments are adopted that call protests against industrial practices and environmental harms forms of terrorism, and attacks against the state. As well, recently, those who disclose many of the harmful illegal practices of their governments, are not hailed as good citizens and responsible human beings, but are treated as

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traitors and pursued to the full extent of the law, as in the fascist regimes of earlier times. Chapter 10 reviews briefly some possible improvements in the current situation, but the conclusions drawn are not likely to foster much hope in the reduction—let alone the elimination—of the current structural violence practiced by present leaders and authorities.

PART 1 The (Il)legality of Protest Movements

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Chapter 1

Introduction to the Authority of Law and Social Protest Introduction Arguments along these lines do not challenge the coherence of the notion of authority nor do they deny that some people are believed to have authority or actually have de facto authority. They challenge the possibility of legitimate, justified, de jure authority. Raz 2009: 4

To question authority, especially the reasons or motives behind some manifestations of the authority imposed by government bureaucracies, is not only to express a protest, but to practice, essentially, civil disobedience. Joseph Raz separates the latter sharply from “conscientious objection,” but, although his argument and his distinctions may well have been on target at the time when the first edition of his volume was published in 1979, they remain logically correct but they no longer fit completely the subject matter to which they are intended to apply. The problem starts with his understanding of the “liberal state,” and the consequences that follow upon that understanding: Liberal states do not make the legitimacy of political action dependent on the cause it is meant to serve. People may support political aims of all complexions. Raz 2009: 268

No doubt, even his visions of a “liberal state” may well prescribe certain forms of civil disobedience, and limit the forms of permissible action (Raz 2009: 269). But, without repeating all of Raz’s argument, it is he considers the United States to be a “liberal state,” while, for instance, the Soviet Union is not, so that the latter merits the appellation of “illiberal state” instead. Hence, the Soviet Union denies the right to express views contrary to that of its own Communist Party (Raz 2009: 265). Thus, in principle, civil disobedience, should be a right, where the expression of protest or of views contrary to those of the governing bureaucracy cannot be a part of the citizen’s right to political participation. In contrast, in liberal states, the expression of such © koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004273832_003

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contrary views, cannot be seen as a protest, let alone civil disobedience, when that expression is nothing more than citizens exercising their right to public political participation, which is therefore a lawful political activity (Raz 2009: 269): “every person has a right to political participation in his society. Let me call this the liberal principle” (Raz 2009: 271). Raz’s understanding of the “liberal principle” is, primarily, that “it should be recognized and defended by the law” (Raz 2009: 272). So his starting point entails that “the illiberal state violates its members’ rights of political participation,” and that “individuals whose rights are violated are entitled, other things being equal, to disregard the offending laws and exercise their moral rights as if it were recognized by law” (Raz 2009: 272–273). This situation, he argues, is reversed in liberal states, so that what we call incorrectly “civil disobedience” is nothing but a lawful political act. We have now reached the crux of the matter: the incorrect fit today of the definition of the “liberal state.” In fact, if, as we shall argue, the present global situation reflects a desperate attempt part of the marginalized majority (largely prevented from lawful participation in public policy), to regain the legitimacy to which, according to Raz they have a clear right in the “liberal state.” That is no longer the case, since the advent of globalization, supported by an imperialistic power impervious to lawful protest. Such a world is now described as a “lawless world” (Sands 2006), a world where most citizens are subject to the rule of “plunder” rather than the rule of law (Mattei and Nader 2008), and where so-called “liberal states” practice terrorism with impunity against their own citizens and those of other, weaker countries (Westra 2012a), and in the US itself, civil disobedience against powerful legal persons, corporations, is now identified with an attack on the state itself, with the concomitant loss of civil liberties. These topics and related themes will be discussed in the following chapters. In this chapter, the main focus should be the understanding of the basis, strength and reach of authority, a clearer understanding of the nature of civil disobedience, the importance of the rule of law and the primacy of collective human rights over the rights of legal persons.

The Basis of Authority [I]t makes sense to refer to the authority of the law and that of its analysis involves the notion of effective authority it also involves that of legitimate authority. This may seem sufficient to show that the notion of authority is inextricably tied up with that of law. Raz 2009: 29

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Authority, then, is the legitimate claim of law. However many legal systems have specific articles that will permit those who have strong arguments for not obeying the law, to do so with impunity because of the principle of freedom of conscience (Raz 2009: 30–31). This issue is particularly hard to assess for Raz, given his strong position of “legal positivism” as the main, if not the only source of international law (Raz 2009: 37–52). We need to focus on international law and its roots primarily, because the phenomenon to be discussed in these pages, that is the nature and status of protests, are not circumscribed to one or another nation but, increasingly, they represent a global movement. International law textbooks clearly see the foundations of international law in the common practices of states, as legal positivism would have it and, as Raz argues, but not only there. The sources of international law, originally intended to govern exclusively the relations between independent states, are clearly stated in Article 38 of the Statute of the International Court of Justice: 1.

2.

The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

This list, as well as modern practice appears to conflict with Raz’s interpretation, limiting the authority of law to (a) and (b) above. The sources that are not covered by Raz’s interpretation are listed in (c) and in Article 38 (2). The “general principles of law” are generally understood to refer to natural law principles (Ragazzi 1998), whereas the possibility of decisions reached ex aequo et bono, also indicate the possible presence of principles of justice, beyond those engendered by current state practice. Strictly speaking, that is only lex lata at this time, with no possibility of judicial or scholarly attempts to develop lex ferenda beyond established precedent. But the most significant reason to restrict the authority of the law to legal positivism alone, is the fact that the recent proliferation of human rights conventions, through which the United Nations clearly includes individuals, groups and communities within states within its legal reach. State practice is

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not sufficient if—for instance—it includes racial or other forms of discrimination, torture or genocide, as these practices are clearly proscribed by jus cogens norms and codified in such instruments as the Convention on the Prevention and Punishment of the Crime of Genocide, the Convention on the Elimination of all Forms of Racial Discrimination, and other such instruments. That is the main reason why conventions among states are not and cannot be the only source of legal authority: conventions based on jus cogens norms are indeed agreed upon and ratified by states, but their norms are intended to supersede all other conventions’ mandates, therefore their authority is not based upon them. Raz acknowledges that “the courts applying the law” do so using standards which are “publicly ascertainable,” which is an activity which differs from that of courts “developing the law relying on moral and other rational considerations” (Raz 2009: 52). Raz cites Kelsen’s critique of natural law and his reliance on a “basic norm” as “natural law” (Raz 2009: 129). It seems more constructive instead, to contrast Raz’s legal positivism with natural law itself rather than with someone’s critique of that position and doctrine. Lloyd Wenreb says: Beyond the range of positive law, justice is not confined to principles of social order deliberately enacted for a community’s organization and governance. It expresses without restriction the idea of what a person is due, what he ought to be and to have. Wenreb 1987: 234

In natural law, “freedom and responsibility are essential to the categorical distinction between person and things” (Wenreb 1987: 236), and justice as “desert” is the “normative, non-causal consequence of a self-determined action” (Wenreb 1987: 235). The freedom which is constitutive of the human person is the basis of responsibility. That responsibility is, in turn, the real basis of protests and social movements. It is far more than a disagreement about a specific aspect of state laws or policies, and it is not simply based on “the principles of liberty and equality” viewed as “prior” and “independent” to the principle of justice, as Raz has argued. In contrast, Wenreb believes that “liberty and equality” acquire their normative content “from reference to justice” (Wenreb 1987: 248). As we saw in the sources of international law, both principles, and the presence of the possible resolution of issues ex aequo et bono indicate that it is not sufficient to adopt legal positivism as the final position, because the law itself is intended to include principles that are part of and basic to its authority. Wenreb adds: “The very heart of legal positivism is the separation of law and morality” (Wenreb 1987: 261).

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Hence, he states, “the practical danger of legal positivism arises from its inability to find a place within its system for the idea of moral order” (Wenreb 1987: 261). Yet the positivist acknowledges that there might be at times overriding obligations not to obey the law. But these obligations invalidate the law itself, so that the division between what the law would require on one hand, and what our moral judgment renders obligatory, on the other, represent two sides of the same coin. The very topic we are exploring in these pages, that is, the legality of social protest movements, depends primarily on the presence of collective moral judgments that arise in stark contrast with present laws and the status quo. Therefore, it seems clear that legal positivism as such is insufficient to explain to movements of protest that proliferate today, against the declared authority of various governments including especially liberal governments, and against the system of laws intended to defend and enforce that authority: There is no error in the stance that subjects all laws to moral criticism and disapproves or condemns adherence to an immoral law. The guard of a concentration camp, or someone who accepts the benefits of an unjust expropriation may appropriately be assailed for failing from lack of courage or will to oppose the application of the law. wenreb 1987: 162

Still, correct as the last paragraph is, the situation it describes is far more complex today, as we shall see, than it was in 1987, when that paragraph was written. We will discuss in more detail the situation in the chapters that follow but, essentially, the law today, particularly in the US, Canada, and the UK (somewhat less so in the EU), is not the expression of the will of the citizens, in a system ratified and rendered legitimate by democratic institutions. In contrast, it is increasingly the “legal” expression of the will of powerful corporations, whose accumulated rights buy them control of elections, of candidates, of legislators and judges, with impunity (Westra 2013a: ch. 6; Sands 2006; Mattei and Nader 2008). Even worse, and even harder to criminalize, is the increasing corporate power over “hearts and minds” to use the expression of US army’s spin doctors, to describe their ongoing (but failing) attempts to sanitize the conquest, oppression, and racism that follow their imperialistic wars. The corporate control of the media entails also control of the very choices of citizens, from early childhood on, regarding what they choose to eat, the lifestyle to which they aim, their preferences from music to electronics, and the very political parties they “choose” during “free” elections. Preferences, the

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“freedom” to choose (but only within a carefully orchestrated number and range of choices) indicate the presence of freedom and democracy. In contrast, the presence of moral principles to allow us to discriminate between right and wrong, or justice and injustice, hence to demand adherence to moral standards on the part of politicians and governments, has been downplayed, if not eliminated, and substituted with the orchestrated “preferences” offered by social institutions, themselves controlled by corporate interests. Wenreb says: “If we have relegated moira and the Christian God to the domains of myth and religion, we have nothing to put in their place” (Wenreb 1987: 267). Those who refuse to exercise their “freedom” in the allowed way, by simply choosing from a pre-arranged “menu” in which nothing strikes the right chord, nothing reflects true justice, equity and respect for human rights, are precisely those who protest at G8 meetings, or in the Occupy movements, those who protest against environmental or other abuses, who throw rocks at Israeli occupying soldiers in Palestine, and all the many others whose efforts appear as futile as those of David against Goliath. As they attempt to fight, peacefully or not, for justice, they are characterized as illegal, bad citizens, lacking in discipline, courage and patriotism. We will examine those actions and these claims in what follows.

Civil Disobedience or Conscientious Obligation? Civil disobedience is a political act, an attempt by the agent to change public policies. Conscientious objection is a private act, designed to protect the agent from interference by public authority. Raz 2009: 276

The sharp distinction between civil disobedience and conscientious objection that Raz proposes, seems to be somewhat superficial. Civil disobedience indeed represents an effort to change public policies. But, increasingly, an element of conscientious objection is present in the protests, as there is more to most protests than the effort to change public policies. The legal practices in place may often offend one’s conscience, hence there is more at play than the simple desire to shift from one legal policy to another. In that case, the role of protest is more than a private act aimed at selfprotection, which remains—at most—a minor concomitant aspect part of the main object of the conscientious objector. We can turn to a somewhat dated, but thorough examination of “third party protest” to clarify further aspects of the simple dichotomy cited above (Harvey

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1996: 156–171). Rather than starting from the standpoint of the protestor, and before considering her motivations, it might be useful to consider the import of the protest, as Harvey starts her analysis by asking what “are the various ways of being complicitous in a moral wrong” (Harvey 1996: 156). The forms of complicity in moral wrongs include: (a) (b) (c) (d) (e)

“being fairly involved in bringing it about”; “sustaining those more directly involved”; “capitaliz[ing] on the wrong”; “compound[ing] the harm to the victim”; and being “in a position to prevent any of the above and yet not do so” (Harvey 1996: 156).

The final and most common form of complicity is that of being guilty “by silence” (Harvey 1996: 156). The main question about protestors often cited is the uncertainty of the expected consequences. That is, when persons ask themselves whether they ought to protest, or to get involved, one of the oftenvoiced excuses is that our involvement will not help to stop the abuse or the harm, or bring about the desired result. But our abstaining bring about its own “wrongs” in addition: first, it contributes to our own “self-serving selfdeception” (Harvey 1996: 157); second, the absence of protest in general, creates “an escalation of power” (Harvey 1996: 158). Harvey adds: One may therefore protest in situations that are apparently unfavorable (sic) just in case it contributes to bringing about the reduction of these two undesirable consequences. Harvey 1996: 158

Moreover, the gravity of the situation one is intending to protest, should determine whether the protest, aside from its possible consequences, will be an expression of conscientious objection to the practice or policy that generated situation. For grave situations, such as human rights violations, “Protest here is an expression of the person’s moral value and—roughly speaking—moral integrity” (Harvey 1996: 159). Hence, the emphasis on the moral beliefs and the integrity of the protester, clearly blurs the distinction between “civil protest” and a “conscientious objector.” Almost by definition, both these groups exclude those who are most obviously involved in protests, many of which have been violent especially in recent times, that is the group that combines both categories, adding the further character of victimhood.

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The violent protests of the Arab Spring, for instance, or those of Palestinian people against Israel, combine the aspects of civil disobedience, with the moral outrage of the conscientious objector against “legal” regimes and practices that contradict both the spirit and the letter of international human rights and humanitarian laws. Oppression, colonization and the denial of selfdetermination, with the negation of the human rights to participate in the political process, are all forms of illegality and injustice, no matter where and by whom they are practiced. It is unfortunate that the protests against such heinous violations of both human rights and humanitarian law, when they result in violent acts against the representatives of the law of the culpable authority, immediately become “terrorist acts,” and the important causes that gives them impetus is quickly forgotten in the efforts to restrain or minimize the effects, while the cause is quietly forgotten, and the disease itself is therefore left untreated. The step from “terrorist acts” to that of defining both protestors and conscientious objectors as “terrorists,” is a short one, and it is one that the US for instance, is willing to take quickly, whether it is a state institution or even a corporate practice that is under attack (Terrorist Surveillance Act of 2006). Therefore, in a bizarre reversal of sorts, often the protesting victims are termed “terrorists,” and both their victimhood and their legitimate causal impetus are forgotten through the over-inclusive use of a pejorative term that still remains undefined in international law (Westra 2012a: ch. 1). The motive behind this lack of definition, is also worthy of note: The newcomer to the field of terrorism research as to find his way with little to guide him. There is no clear and generally accepted definition of what constitutes terrorism to begin with. Its relationship to other concepts like political violence, guerrilla warfare, political assassination, etc. is insufficiently clarified. Schmid 1984: 1

A further difficulty lies in the fact that writings and research material on the topic are dispersed “in the psychological, historical, sociological, criminological and political science literature” (Schmid 1984: 1) in various languages. At any rate, “political violence” is a recurring theme, although both “war” and “crime” are viewed as components of the understanding of terrorism, as we acknowledged earlier. Schmid is intent upon researching what is available through multiple databases. We will recap some of his findings; but the final conclusion is (a) that there is no single, definitive understanding of the concept, and (b) that the most influential and accepted definition (through by no

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means exhaustive or precise), is based on definitions proposed by powerful states and the media on which they depend as we noted when we considered the legal literature. Perhaps the most pervasive and expected aspect of terrorism is the presence of violence. That connection is explicit, for instance, in the British Prevention of Terrorism Act (Temporary Provision Act of 1974): “For purposes of the legislation, terrorism is the use of violence for political ends” (Schmid 1984: 11). The analysis of van der Dennen is particularly apt. It reads, in part: Violence has been defined in terms of force, coercive power, authority, (il)legitimacy. It has been defined in terms of behaviour, motives, intentions antecedents and consequences. It has been defined in terms of violation: violation of corporal integrity, violation of territorial or spatial integrity, violation of moral and legal integrity, violation of rules and expectation, even violations of self-esteem, dignity and autonomy. Van der dennen 1978: 118

There are also many other interesting attempts to define terrorism in literature, all of which touch on one or another aspect of political violence, basic to both terrorism and counter-terrorism. For instance, Rubin speaks of “a rational motivation” and a “usage where (personal) material gain is absent” (Rubin 1970; Schmid 1984: 20). Other attempts at definition include the following by Nieburg: acts of disruption, destruction, injury whose purpose, choice of targets, or victims surrounding circumstance, implementation, and/or effects have political significance, that is, tend to modify the behaviour of others in a bargaining situation that has consequences for the social system. Nieburg 1969: 13

Another scholar, Ted Gurr, describes “political violence” as “acts of disruption, destruction, injury.” Mars opts for the following conception of political violence: The concept of political violence as distinct from violence in general has come to represent a combination of all or most of the following elements: • activities carried out by aggregates of individuals, such as groups or collective movements; • activities which tend to challenge the legitimacy of the governing regime, thus threatening the stability of political system as a whole;

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• activities involving a high probability of resistance and coercive reaction by the governing regime; and • activities involving a high degree of risk of injury and economic cost to both participants and the opponents in the political violence process. Mars 1975: 221–239

What is striking about these and many other similar attempts at circumscribing the concept of political violence, is that they all see it as directed towards governing bodies by their subjects, in the quest for social justice and recognition. The question of counter-measures does not yet exist, but the basic motivation appears to be understood more clearly in these early discussion than it is now, when the reason and the rationality behind terrorist attacks have been obscured and twisted by Western states and the media they control. As well, the violence perpetrated by the states themselves, which initiates, most often, the causal chain that leads to forceful rebellions that represent most (though not all) of the instances of terrorism today, are not even envisaged at the time of Schmid’s exhaustive work on the topic. The second aspect of terrorism that has been widely discussed but is still not conclusively defined, is that of “political crime.” We will review briefly the historical background of that concept in the early literature and reserve a more general discussion of “crime” in relation to terrorism, in the next chapter. Some of Schmid’s examples include: What was regarded as a political crime in extradition law was generally the violence exercised as “part of an organized attempt to overthrow the government and seize power in its place.” Schmid 1984: 25

Thus the political violence in the crime discussed arises from a revolt against the standing government, whereas the possibility of a government committing political crimes is not as well represented. But “crimes” by victimized people “might consist of nothing more than exercising rights laid down…by the UN Declaration of Human Rights” (Schmid 1984: 26). Two definition of such forceful political acts stand out. The first is by one of the foremost experts in human rights law, Cherif Bassiouni, who defines a “purely political offense” as follows: one whereby the conduct of the actor manifests an exercise in freedom of thought, expression and beliefs…freedom of association and religious

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practice which are in violation of law designed to prohibit such conduct. Bassiouni 1975: 408

In contrast, “Anglo-American law” does not distinguish political crime from other categories of crime (Schmid 1984: 27). Once again, a number of definitions are available, ranging from “An illegal act with political motivation or purpose. It is not necessarily violent”; to “When undertaken against or on behalf of government for the purpose of influencing the authoritative allocation of values”; or “If civilians are killed or injured in a diffuse act of terror such as bombing in a crowded market” (Schmid 1984: 28). An advantage of the material found in the early literature is the recognition of “crimes of government,” which include “illegal means utilized to influence the allocation of the social product or the occupation of positions of power” (Hess 1976: 3). Hess describes several types of “crimes of government,” including the following, which are most relevant to our research: 1. 2. 4. 5. 7.

Illegal measures of pre-industrial upper classes (such as the repression of Negros in the South of the United States after the Civil War); Illegal measures of entrepreneurs (such as hiring of gangsters to “solve” the firms’ problems with trade unions); Illegal transgressions of the police (such as entry without search warrant, torture or aggravated interrogation procedures); Acts of terror by organizations close to the police force (such as the offduty death squads of the Brazilian police);… Colonial crimes (such as those of Portugal in Angola and Mozambique). Hess 1976: 5–11

Overall Schmid’s review of available literature tends to reinforce the first impression one gathers from turning to Schmid’s research in general: prior to 9/11, most of the available studies discuss primarily revolting minorities and other groups resisting unfair conditions of oppression and economic and civil rights deprivations, fostered by governments. Included is the open description of violence perpetrated by states and—in general—the imposition of circumstances best described as forms of state terrorism. However: To hold an individual accountable for a crime under international law, it must first be determined whether that crime does in fact exist. Even if a crime is recognized under international law, universally recognized legal principles such as nullum crimen sine lege will bar ex post facto

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prosecutions if the crime came into existence after the allegedly wrongful acts were committed. Vanzant 2010: 1059

Hence the presence of the ongoing illegalities practiced by Israel remains the gravest and most obvious example of illegality practiced with impunity, and supported by the protectionism of the Great Powers. This phenomenon has been termed “qualified sovereignty” as Palestine has been recognized as an independent state only by some nations, not by every state in the international community, whereas the illegality of the Israeli occupation has been clearly shown by numerous UN resolutions and declarations.

Self-Determination and Legal Protests

Self-determination, and the respect for ethnic/ cultural and religious groups are the strongest reasons for revolt against oppressing states and governments, and the motive most likely to spur violent protests and terrorist attacks, as well as the most likely basis to elicit public support for that “cause.” The right to selfdetermination of peoples” alongside the equality of nations, large and small, has been recognized as a basic norm of international law (Van der Vyver 2004: 421; UN Charter, article 15). Historically, the disintegration of the great empires, Ottoman, German, Russian and Austro-Hungarian, fostered the concept of self-determination of peoples, based on distinct territories and political independence (Van der Vyver 2004: 423). But after the Second World War, the emphasis shifted to the elimination of colonial rule (Western Sahara, 1975; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), Notwithstanding Security Council Resolution 276, 1970). At any rate the virtual elimination of colonization is one of the clearest successes of the UN system, whereas securing adherence to the principles of its Charter, such as the principle of non-aggression have not met with as much success. In 1970, the general assembly declared that “emergence into any political status freely determined by a people constitutes a mode of implementing the right of self-determination” (Kirgis 1994: 305). As well, its Declaration on Principles of International Law Concerning Friendly Relations supported the concept of “internal self-determination” (Kirgis 1994: 305), another aspect of a situation that may well give rise to insurrections and violent protests, if not terrorism. Thus, there is no problem with establishing a strong legal and normative basis for the right to

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self-determination; the problem that arises is one of compliance and enforcement instead (Van der Vyer 2004: 430 ff.). As well: While…[a] state-centered model has been eroded in international criminal law developments that eliminate the state action requirement, nationality remains central to personal identity within the international system. Castellino 2008: 504

Thus many groups fight to defend their “personal identity,” that is their cultural uniqueness, from indigenous peoples in all continents, to the Kurds, Basques, as well as the Palestinians. Culture and religion are basic to the movement, beyond the bare territorial requirements of state formation (Anaya 2000: 3, Westra 2011b). Castellino adds, “In order to retain its legitimacy, international law must re-conceptualize the doctrines of territoriality and self-determination” (Castellino 2008: 505). Even more important is to clearly establish the right of peoples and communities to have redress when their rights have been breached on either of those two issues, and the extent and limits of so doing in international law. That is, the most vexed question is not whether people have the right to be free from colonial domination, or even from the indirect economic oppression of imperialism. Rather, the main problem is the weakness of the UN regarding enforcement. Both the Covenant on Economic, Social and Cultural Rights (art. 16) and the  Covenant on Civil, Political Rights (art. 40) require periodic reports of State  Parties on measures adopted and progress made in achieving the rights  enunciated in the covenant. As well, the latter has an additional First Protocol which includes provisions for complaint procedures (Optional Protocol to the International Covenant on Civil and Political Rights, 1976), which has not been ratified by the US. Individuals who remain in breach of  human rights provisions might be prosecuted in the International Criminal Court (37 TLM 1002 (1998) art. 7(1) (h) and art. 7(2) (g); Van der Vyver 2004: 432). But the ICC is subject to limitations regarding who, precisely, may trigger a prosecution: “Security Council of the UN, a State Party, or the Prosecutor acting proprio motu” (Van der Vyver 2004: 432). The US has not ratified the ICC, and it also has the right to veto any prosecution that may be harmful to itself, its allies, or the countries with which good relations are desired. Equally problematic may be a situation calling for the elimination of “cultural genocide” from threatened communities or peoples, and neither it nor

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“physical destruction” (of a people) are part of the definition for genocide in the ICC statute (see art. 6) or the Convention on the Prevention and Punishment of the Crime of Genocide (Sec. 9, 1948). The ICC cannot extend the definition of cultural genocide: as “deliberately inflicting on ethnical groups conditions of life calculated to being about its physical destruction in whole or in part,” by analogy. A present example that clearly fits that category, that is the treatment of the Palestinians by Israel, with the active support of the US, could not be brought to court, even if the Security Council would not force a veto, as neither Israel nor the US have ratified the ICC; Van der Vyver concludes that “Enforcement of the right to self-determination through international mechanisms is problematic, but not hopeless” (Van der Vyver 2004: 435). Nevertheless, I suggest that it is the reality of the situation on the ground, the very hopelessness that some peoples encounter in their daily life, with no redress in sight, that is the most fertile ground for terrorism, the place where suicide bombers are born to die. In a recent talk, Archbishop Desmond Tutu asked the South Africa University, in the name of a principled commitment to justice “not to turn a blind eye to the suffering of the Palestinian people,” thus to end the University of Johannesburg’s relations with the Israeli Ben-Gurion University of the Negev because of the latter’s support of the Israeli military. He says “When we say ‘Never again!’ do we mean ‘never again!’ or do we mean ‘never again to us!’?” (Tutu 2010). He adds: Together with the peace-loving people of this Earth I condemn any form of violence—but surely we must recognize that people caged in, starved and stripped of their essential material and political rights must resist the Pharaoh? Surely resistance also makes us human? Tutu 2010

That, of course, is the question. How much “resistance” is too much? When a people’s basic and cultural rights to self-determination are denied, what are the limits of self-defense in their case? The UN system and the international community are well aware of their plight, and of the immorality and illegally of  the position and the increasingly blatant activities of Israel. The latter flaunt the law and all UN pronouncements, as they continue to bask in the support of the US, while largely ignoring the rest of the world. Thus once again, the question that requires an urgent answer is when a people’s forceful resistance to the violence to which they are subjected is too much, or—essentially— what are the limits to self-defense to oneself, one’s family, one’s culture, one’s community.

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State Authority and the Importance of the Rule of Law The principle of self-determination is also closely linked to the notions of state sovereignty and intervention. Sterio 2009: 13

Sterio adds that sovereignty itself is not only “qualified” according to the power and the decisions of the Great Powers, but it is both “earned” and shared at times with other institutions (Sterio 2009: 13). I have argued elsewhere that the “bundle of authority and functions” that accrues to state sovereignty (Hooper and Williams 2003: 355–357), are increasingly shared, and especially in the US, directed by other legal persons, primarily MNCs and other associations of such corporate persons (Westra 2013a). Hence, when the UN and the Security Council give special powers especially to the five “super states” (US, Russia, France, Great Britain and China), and consider three other G8 countries (Germany, Italy and Japan) to have increased powers as well (Sterio 2010: 14), the result is that supranational corporations acquire a degree of power which is totally inappropriate. The reasons for that lack of “fitness” to be, essentially, governing partners of the Great Powers, particularly of the United States, have been discussed and supported in detail elsewhere (Westra 2013a). Without repeating the details of the research emerging from that work, the arguments that arose can be summarized in part as follows: (1) There is no democratic foundation for the “rule” of corporations which, by definition, act solely in the interests of their shareholders, not in the public interest; (2) The largest and most powerful among the corporations, that is, the ones with the strongest influence on governmental policies and decisions, have a history of criminal activities or at least legal precedents that indicate clearly their negligence and willful blindness in regard to human rights; (3) Their legal history often includes major violations of human rights, including those supported by jus cogens norms, such as those against racial discrimination, worker abuses in practices similar to slavery, and the infliction of punishment to non-compliant workers, that can be termed forms of torture; (4) Their products and operations are often used by governments to avoid being technically responsible for some of the worst human rights violations and abuses, such as torture, extraordinary renditions, or the

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destruction of legal Palestinian homes to accommodate illegal Israeli settlements, as a glaring example; this renders them culpable of complicity which, since Nuremberg, represents a separate crime. Therefore, most of the Great Powers “outsource” their criminal activities to MNCs and to associations of other legal persons, then compound the crime by passing laws which actually identify governments with corporations, such as the US Terrorist Surveillance Act of 2006. Thus, on one hand certain countries enjoy an enhanced status as Great Powers, while on the other, internally, their power is limited and eroded by the intrusion of others, seemingly stronger powers. It follows that even Great Powers have a diminishing control of their own policies and decisions, whereas, on the international stage, they can “‘cross theoretically unbreachable frontiers wither individually or collectively,’ in a variety of differently justified state interventions” (Sterio 2010: 14, quoting Kelly 2005). The result is that there are no clear boundaries or any specific understanding regarding which social unrests merit support, and which do not. In each case, the interests of the Great Powers are the main impetus behind each decision, not a specific set of criteria codified in international law. Ostensibly, “interventions,” including those grounded in the responsibility to protect (R2P), follow some high principle that is being breached internally by the rulers of the country in question, hence the appellation of “humanitarian intervention.” But the major norms of international law can be breached with impunity by the US and its friends and allies (Westra 2012a), so that even “humanitarian interventions” are often simply the spin put by media on the pursuit of then interests of the Great Powers, especially the US, and their Corporate “partners.” Although there are different interpretations of the diminished power and authority of state sovereignty itself, the existence of that diminished power is generally accepted. Hooper and Williams discussed sovereignty-based conflicts, which proliferate in recent times: To date, the “sovereignty first” international response to these conflicts has been unable to stem the tide of violence, and in many instances, may have contributed to further outbreaks of violence. This article will argue that the “sovereignty first” doctrine is slowly being supplemented by a new conflict resolution which we dub “earned sovereignty.” Hooper and Williams 2003: 355

Hooper and Williams provide a number of examples where lesser authorities have been temporarily established to govern and direct, until such time as a

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freely, democratically chosen legal authority can be reconfirmed, Their list of cases demonstrating this “emerging approach” include “the Road Map for Peace” for the Israeli/Palestine conflict; the Good Friday Accord for Northern Ireland, and several others (Hooper and Williams 2003: 357). While the Good Friday Accord and the UN Resolutions involving Kosovo and Timor, as well as the “Dayton Accord for Bosnia” (Hooper and Williams 2003: 357) appear to have met with some success, the Road Map has been a dismal failure, and the reasons for that result can be easily traced to the real conflict underlying Israel/ Palestine, that is, the conflict between the Great Powers (primarily the US) and the law itself. Essentially, there is no way that Palestine may “Earn sovereignty” as long as the interests of Israel and of the US supersede both the letter and the spirit of international law. It is important to understand that major (in fact, determinant) aspects of the conflict at this time, give rise to the ongoing revolt and forceful protests of the Palestinian people represent the longest, most serious and most visible protest today, for the self-determination and even the survival of a people. A brief review of the principles upon which the UN is based, its Charter, and the very impetus to eliminate war, aggressive conquest and colonization impermissible in the global community, confirm the complete and unquestionable illegality of Israel’s position. In addition, the proliferation of resolutions and declarations, as well as the continued presence of rapporteurs, placed in Palestine to report on the conditions on the ground of those unfortunate people; as well as the final insult to international law and the UN in the expulsion of the latest UN appointed rapporteur, Richard Falk, on the part of the Israeli authorities. Of course it is in Israel’s interest to continue to claim they want “to talk,” or to “negotiate,” while maintaining and even increasing through illegal settlers their untenable position regarding a territory occupied in a war of aggression intended to annex illegally lands beyond their recognized borders. There is no international legal instrument that supports their position, or the complicity of the US in their war crimes, through financial support and the provision of weapons and equipment after Nuremberg. Yet, because Israel is their “friend,” somehow war crimes that would be denounced and punished in “lesser” sovereign nations, are committed with impunity, under the eyes of the whole international community, that is apparently unwilling or unable to contain the most belligerent “sovereign state” on Earth today, Israel. Their crimes include the proliferation and the very presence of nuclear weapons, while they sanctimoniously call for sanctions and even war against Iran, who may have the intention to develop such weapons in the future; and while they quietly proceed to assassinate the Iranian scientists that might add

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in any aspect of nuclear power development, including the peaceful uses Iran insists it wants. Israel could not support itself or its multiple illegalities without the support and complicity of the great Power,” whose interests it serves in the Middle East. The fact that the major and most justified local protest internationally, that is that of the Palestinian people manifests clearly the conflict between the authority of law and the interests of the Great Powers, is basic to a full understanding of what should separate illegal protests, from those that are supported in both their motives and their aims by the foundational principles of the United Nations, as well as by the strongest moral principles (Westra 2011a: ch. 6). It is no longer sufficient to accept State sovereignty as the ultimate authority. It has been compromised by the increasing power of single legal persons and association of such persons who, increasingly, affect state power with the consent and active participation of the very state they have weakened deliberately. When that “weakened” but still powerful state acts in the international arena, then not only its own foundational and constitutional principles are compromised, but its appropriate role in international fora is affected not only by its own interests as a country, but by those of its “silent partners.” The result of this situation is that the obligations arising from a Great Power’s membership in the international community remain a distant third option behind the first two main motives for their actions. In the chapters that follow, it will be necessary to keep in mind the true import of the authority of the state, in the light of its true abilities as we consider those who share in that power, but who do so without the political, legal or other qualification to enable them to rule.

The Rights of Citizenship and Collective Human Rights [T]he shrinking welfare state that is part of the neoliberalizing of liberal states: in eliminating a range of citizens’ entitlements, it reduces the number of relations/interdependencies between citizens and their states. That is to say, it is not just a matter of shrinking social rights and shrinking state obligations. It is also a question of a reduced set of interactions between citizens and the state: they have less to do with each other. Sassen 2006: 319

Sassen’s remarks help to sum-up the argument of this chapter. The authority of the state is shrinking; on one hand, it is diminished because of the growing

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intrusion of corporate power not only directly through its bureaucracies, but also through other legal and borderline illegal means, into the state’s legal regimes and the judiciary (Westra 2013a); on the other hand, international law itself has changed from a purely inter-state system of regulations, to the UN system of human rights protection, which reduces the authority of states, now contingent upon their human rights performance, at least in principle. But there is yet another aspect of state power which is being constantly eroded, that is, its democratic legitimacy. That is further corroborated by Sassen’s point: it is not only production of all kinds, including war-related products and activities, that are being outsourced because of globalization. The neoliberal thrust to privatization of services, and of many of the traditional functions provided by the state, removes the most basic connection between nations and their citizens. Global civil society is now comprised of “trans-national citizens,” whose strongest attachment and allegiance is no longer necessarily that to their home countries, but it may well be to a specific transnational community, cultural group, or it may even consist in a somewhat cosmopolitan commitment to groups whose principles they share. These may be groups committed to the environment, to the reduction of global warming, or to social and legal justice. Examples include many who are committed to protesting groups and associations, such as Greenpeace, Amnesty International and the like. These associations represent commitments that supersede national loyalty as the focus of these commitments is the human collectivity, or even the community of life on Earth, as is the case for instance for Greenpeace or any climate change network or Indigenous rights groups. It is from the standpoint of any of those principled, global platforms, that the newly emerging transnational citizen judges and often convicts his home country. When, as is most often the case, the governance of her own national base is found wanting, the citizen feels not only entitled, but obligated to speak out, to contest a regulatory regime that is found wanting from the standpoint of human collective rights: “If there is one theme that brings together today’s many citizenship dynamics it is the lengthening distance between the citizen and the state” (Sassen 2006: 319). Sassen emphasizes the role of the internet to expand and re-define the role of the transnational citizen, that is, that of the citizen who belongs to a specific country, but whose allegiance is primarily to global causes, often disseminated via the internet, and bringing together the citizens of multiple countries, but also of varying status and occupations. In some sense, therefore, these associations and social movements are—increasingly—replacing the single state as the focus of citizens’ allegiance and shared beliefs.

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A vast amount of information is available about almost all issues and processes, perhaps culminating in the wonderfully political Wikileaks, which unmasked many of the facile explanations and motivations provided to a global public by US government official sources. The rage expressed by the cruel and unusual punishment meted out to Corporal Manning (including several aspects of the treatment reserved for “terrorists” at Guantanamo and Abu Ghraib), coupled with the ongoing efforts to co-opt Sweden’s judiciary in order to have Julian Assange in hand, demonstrate clearly the desire to preclude the public from knowing the realities of the US government’s machinations. Sassen remarks: The Internet may continue to be a space for democratic practices, but it will be partly as a form of resistance against over-arching powers of the economy and of hierarchical power, rather than the space of unlimited freedom that is part of its romantic representation. The images we need to bring into this representations increasingly need to deal with contestation and resistance to commercial and military interests rather than simply freedom and interconnectivity. Sassen 2006: 374; see also Calabrese and Burgelman 1999; Warf and Grimes 1997: 259–274

I am not sure that the appellation of “democratic practices” is an accurate description of either the interactions emerging in the internet or of the results of those interactions. “Democratic practices” entail the presence of a specific form of governance and the action of citizens within that national or other specific governance. The results of interactions fostered by the internet, be they the formation of new social movements, or simply the convergence of like-minded persons and communities in new or previously established associations, represent forms of dissent and protest far exceeding the governance of one country alone. These citizens acquire the knowledge and information to establish, or reenforce their own positions, as independent critical thinkers. One might say, with Raz, that these citizens, now better informed, increasingly view their “liberal” state as illiberal instead. But they no longer view themselves only as protesting democratically against their own internal government. Their protests are much more far-reaching, as they encompass both political and class allegiances extending globally, as Sassen herself acknowledges as she notes the counterhegemonic nature of many of the protests that ensue. I have argued that corporate power, in general, has far exceeded not only its own original mandate, but also the acquired “rights” the US legal infrastructures

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have progressively granted to it (Westra 2013a). That power is now supranational for two main reasons: first, through US-based multinational corporations (MNCs), the geopolitical and hegemonic aspirations and practices of that country now belong for the most part to corporate power; second because of the inappropriate level of US influence on international legal regimes and outcomes, that power has spread exponentially. The citizen and her groups, are now pitted against various facets of global “lawlessness” and human rights abuses, so that often the peaceful protests erupt in the forceful rejection of the status quo, as they capture further adherents through the media exposure that such strong protest elicit. Potentially, their very number is their strength: the 99 percent who celebrated one year of existence on September 17, 2012, are stronger and louder, if we transcend their present (2012) “dormant” status in New York, and we count instead the multiple eruptions following the 2011 Arab Spring primarily, but not exclusively in the Middle East. Hence, we can conclude, because of a variety of causes and precedents, social protest movements exist, they are potentially very powerful and have often transformed the relation between citizen and state in several ways. One and all, these movements protest against “authority,” although the “authority” at issue is not immediately obvious in all cases. More than a specific authority, these movements tend to take issue with an entrenched or new policy, position or philosophy. Theirs is, for the most part, more than civil disobedience: it is a form of conscientious objection. They are not saying they dislike a certain law or local policy, they are—in effect—saying that they object strongly to the immorality or even the illegality of that policy. Therefore, the question that arises is whether they attack “authority” or at least the representatives of local “law and order,” and are they truly attacking the authority of law, or are attempting to support it instead. This, I believe, is a foundational question, and it needs serious consideration, backed by research, before an answer can be attempted. That consideration and research will be the task of the chapters that follow, They will include a detailed discussion of many of these movements, as it is far more obvious to discern what a social movement is fighting, than what it intends to put in the place of the policy or practice it wants to eliminate. In some cases, for instance in the case of Greenpeace, the answer is obvious, and other questions, such as methods and even leadership questions can be equally answered with a degree of certainty. The same is not true of many other movements including the Occupy movement itself. As well, one cannot generalize about all such movements, not only as far as their desired aims are concerned, but also about their leadership and

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the methods they prefer to use to achieve their aims, whatever these may be, as these answers are far from clear. One hopes that some answers will emerge in the pages that follow, not only regarding the relation between social movements and “authority,” but most important, regarding their relation to law itself.

Chapter 2

The Occupy Wall Street Movement Attack in a “Lawless” World?

Introduction [A] big reason for the movement’s rapid and continued takeoff went widely unnoticed in the hue-and-cry about how Occupy did or didn’t resemble past movements on the American left in at least three-quarters of a century, this movement began with a majority base of support. gitlin 2012: 32–33

The US was witness to many protest movements with global consequences, especially the Civil Rights Movement, but also to some extent, the protests against the Vietnam War and others. Ugo Mattei and Laura Nader remark: Dissenters founded the United States. In the nineteenth century, abolitionists were the ones who were willing to criticize the powers of the time for the end of slavery. The suffragettes were dissenters and today women have political rights. In the 1960s the dissenters forced re-thinking of the Vietnam war at the same time as the civil rights movement wanted to finish the job begun in the nineteenth century for equal rights irrespective of color (sic), gender, or class; while the consumer movement fought fraud and hazards and the environmental movement sought to address the slippery slope threatening the future of the planet. mattei and nader 2008: 193

Dissent has been at the very heart of American civil life and in most cases, it was a beacon of what democracy should be like, but, although on the fact of it, the US was the ground and the starting place for the enthusiastic acceptance of dissent, which clearly placed moral principles above procedures and even existing legal regimes. The main figures of the past, such as Martin Luther King, may not have been the first to stand for human rights, as at least the principles of that movement had been in existence for some time, and had even been entrenched in law in the UK since the Le Louis case (Le Louis, 2 Dobson Rep. 238), at a time when slavery and the transportation of slaves from Africa to the United States were routine, but the

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British authorities found the practice to be both repulsive and morally wrong. In the 1960s and 1970s protest was common in the US, particularly in schools and universities. Those activities appear slightly less common today, when students are scrambling to pay soaring tuition costs, while they look forward to an uncertain future, as youth unemployment is at its highest point in several decades, both in the US and in Europe. Part of the reason for the reduced activism also depends on the collateral effects of the so-called “war on terror” after 2001. Muzzling of journalists and— in general—of the media, is common after 9/11, as anything that is not simply a repetition of the official government’s interpretation of events, is cause for reprimand or even for the firing of journalists or newscasters: “The need for legitimate dissent was dismissed in favour of ‘balanced’ reporting. Dissident positions are dubbed ‘offensive, irresponsible, unpatriotic’ by government officials” (Mattei and Nader 2008: 192). Academia, once the bastion of free speech, is now equally controlled, especially for those attempting to express any critique of the relations between US and Israel, for instance, including the illegality of Israel’s treatment of Palestine. While a critique of government’s policies in general brings forth the charge of anti-patriotism, critiques of Israel’s policies bring out predictably the accusations of anti-Semitism in almost all campuses. The 2001 Patriot Act, with its extreme, and most often misplaced concerns about “national security,” is now primarily used as the foundation of ongoing intimidation of citizens’ protests, while covering illegal government policies and activities with the mantle of legitimacy: But patriotism may turn violent and ugly and have lasting consequences long after the crises have passed. It might even be the most powerful ally of plunder, when the rule of law loses credibility thus failing to perform as a legitimizing influence. mattei and nader 2008: 193

The arrogance and insularity of the US in regard to other countries’ ethnicities and religions, is almost unparalleled in the world today. An example of both intimidation and arrogance is the document issued in October 2001 by the American Council of Trustees and Alumni (ACTA). It is “a piece about 40 pages long in which more than a hundred allegedly unpatriotic campus incidents were described. In the process they accused more than 40 professors of encouraging what the ACTA called un-American activities” (Mattei and Nader 2008: 194; see also Gonzales 2004: 262; Sands 2006).

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When such practices are viewed as defining both “civilization” and the “rule of law,” both need to be brought into question, especially the rule of law itself, as its existence has spawned “development as legal imperialism” (Mattei and Nader 2008: 2), as well as the illegal excesses of the “war on terror” (Westra 2012a: ch. 2). This discussion and these questions are basic to the argument of the present work. In simple terms, how truly “legal” is the authority of law that protesters are apparently fighting today? Thus questions about proples’s right to protest against the authority of law may be understood as the effort of people to support legal principles and morality against lawlessness and the perversion of authority. Citizens’ rights, basic in any civilized state, such as the right of accused persons to be either released or charged with a crime, was largely eliminated after the US Patriot Act of October 26, 2001 was enacted (Agamben 2005: 3). Giorgio Agamben traces the similarity between the present situation as a global civil war based on a “state of exception” and the “willed state of exception” that was enacted by Nazi jurists “for the sake of establishing the National Socialist state” (Agamben 2005: 3). The “state of exception” emerges from the “military order” of the US President (November 13, 2001), authorizing “indefinite detention and trial by ‘military commission’ (not to be confused with the military tribunals provided by the law of war) of noncitizens suspected of involvement in terrorist activities” (Agamben 2005: 3). In the current situation, non-Americans, but also some Americans of Muslim origin or sympathies, become completely devoid of the rights of citizenship, as they are “neither prisoners nor persons accused, but simply ‘detainees’” (Agamben 2005: 3), a legal position close to that of Jews in Nazi concentration camps, who also lost both their citizenship and their “legal identity” (Agamben 2005: 4). The Nazi government of the time, like the present US government, acquired “full powers,” that is, it acquired “the conferral on the executive of the power to issue decrees having the force of law” (Agamben 2005: 5). That “exceptional power,” however, persists, as it expands to US citizens themselves, if they do not comply with the new rules of patriotism, which simply entail blind acceptance and obedience. This attitude, when enforced, according to Raz (as noted in the previous Chapter) turns a liberal state into an “illiberal” one, that is into a state where dissent is no longer a citizen’s right, but is proscribed a priori. At any rate, this reversal of sorts, is understood in most parts of the world, even if it is not explicitly discussed as such. On October 19, 2012, BBC News reported the case of Trenton Oldfield, who was jailed for interfering with a boat race between Oxford and Cambridge on the River Thames (BBC 2012). When pulled from the water and arrested, he said “as inequalities grow in the

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UK and everywhere, there is a corresponding rise in the criminalization of protest.” The argument of this work will show that this “rise” demonstrates far more about the illegalities and criminalities of states than about that of protesters.

The Occupy Movement’s Legal Aspects: Symbolic Speech and Practical Difficulties The October 2008 stock market crisis—together with bank bailouts, high unemployment and the increasing income disparity between the highest earners and everyone else—had fostered discontent and hopelessness among those who bore the brunt of disastrous financial decisions that appeared to have enriched the few at the expense of the many. To occupy Wall Street was an empowering way to give voice to this outrage. It was also an assertion of control over Wall Street as a symbol, and the power of the people to change its meaning. kunstler 2012: 989

Aside from principles of justice and fairness that clearly support Occupy’s main slogan, “We are the 99%,” the movement, after occupying Liberty Square (or Zuccotti Park, its more recent name), encountered many problems of definition but also of legality. The first question that must be considered is “What is their purpose?” The protesters were organized through general assemblies, but even those were not ready to respond to that question with the specifics of what the movement was asking (Kunstler 2012: 989). Those who help to organize the protest in New York City “include the US Day of Rage, Anonymous, New Yorkers Against, and the NYC General Assembly.” Kunstler argues that the “demand” of the movement was simply “the occupation itself” and the direct democracy that was taking place (Schneider 2011). The presence of protesters around the clock at one location, physically occupying one location, not only in NY, but also in Washington DC, Augusta (Georgia), Fort Myers (Florida), Minneapolis (Minnesota), and many other cities, is indeed an unprecedented event, but one which has been spreading globally, as the protests from the Spanish “indignados,” the Italian “indignati,” as well as the protesters from Greece, Portugal and other European countries, made similar claims, and followed similar practices to those of the Occupy movement. However, the sympathy and support, real though they are, remain as unfocused as the movement itself. Structurelessness is its main characteristic, despite the pressure of general assemblies and working groups formed

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according to the interests expressed by the participants. The general assemblies were required to make even the simplest decision, and—given the openness to everyone who wanted to express an opinion—even the most banal move required an inordinate amount of time for a decision to be reached. The very people who chose this mode of operation ended up angry and frustrated. Worse yet, what had started as the most inclusive of movements, ended eventually developing an equally strong desire for exclusion: “As in other communities—political, religious, cultural—where the will to belong overpowered the sense of commonality with those who did not belong, these groups drifted toward self-enclosure” (Gitlin 2012: 94). Lack of structure and agreement lead to a group that was and still remains largely leaderless, relying instead on “facilitators,” who—no matter how able— were unable to promote a direction for Occupy (Gitlin 2012: 103–104). Thus, as we cannot start by stating their precise aim, we should start by considering the legality of their position, under the claimed protection of the US First Amendment, including the “boundaries” claimed for the “protection of expressive conduct” (Kunstler 2012: 990). Such a procedural examination might help to clarify to some extent their true aims. Essentially, then, even as we consider the procedural aspects of “symbolic speech,” it is necessary to keep in mind that such “speech” is the symbol of something, it is “expressive conduct that coveys messages or ideas” (Kunstler 2012: 990). Many of the examples that can be adduced to explain what qualifies for First Amendment protection and why, are for the most part different in kind from Occupy: flying a red flag as a gesture for the support of communism, the staging of a sit-in by black patrons in a “white only” library to protest segregation, and the wearing of black armbands by public school students as a protest against United States policy in the Vietnam war, are all expressive acts to which the Court has extended Constitutional protection. kunstler 2012: 990

Occupy refers to the aspirations of the “99%” as a reaction to the primacy and control of corporate wealth, over justice. While easily understood, this does not represent a well-defined presence (let alone one with an explicit history), despite the clear connections to socialism and even democracy it represents. In fact, the US Court did not accept any and all “speech acts” as worthy of Constitutional protection. For instance, in 1966, David Paul O’Brien “burned his Selective Service registration certificate (‘draft card’) on the steps of South

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Boston’ Commons in protest of the Vietnam War and the military draft” (Kunstler 2012: 991). The O’Brien court did not really explain which “speech acts” were deserving of the protection of the First Amendment, although in Spence v. Washington (1974) in 1974, the court gave some guidance, through: a two part test for determining when conduct is to be treated as speech. The first factor is whether there is intent on the part of those engaging in the conduct to communicate a message through the conduct; and the second factor is whether it is likely that those observing the conduct will understand the message. kunstler 2012: 991

Hence, while it is clear that the first part of the test can be easily passed by Occupy, the second is somewhat doubtful, as even the sympathetic supporters are not able now to clarify the specific message or “program.” Robert Cover argued that the importance of a speech act is that it can only be understood “with reference to a norm,” from which the act receives its meaning (Cover 1983: 7–8). His interpretation helps to clarify the reason why even the burning of a flag is only condemned in US jurisprudence when the sentiments expressed clearly communicate a symbolic message offensive to the state or to others, whereas for instance the burning of an older, used flag, carries no such connotations (Kunstler 2012: 994). Not only a specific act, but also an ongoing one, such as sleeping in a chosen location may convey a meaning, hence it can be covered by the First Amendment, although this is not the norm. In Community for Creative Non-Violence v. Watt (CCNVI), the court of Appeals for the district of Columbia found that sleeping in symbolic tents was consistent with “the use of symbolic campsites,” which was permitted under the regulation. Holding that “in this case sleeping itself may express the message that these persons are homeless and have nowhere else to go.” kunstler 2012: 994

In contrast, in 1976, the case of United States v. Abney, Stacy Abney was a sixtyfour-year-old farmer from Texas who had been involved in a thirty year battle with the Veterans Administration (VA) over disability benefits. After travelling to DC, Mr. Abney occupied—in a sense—Lafayette Park, close to the headquarters of VA, in order to protest their negligence of his claim. But in that case, the court did not apply the Spence test in his favor, despite the fact that the sign he was carrying, referring to his “VA rights,” was clearly expressing his

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point. The Court still found that sleeping in the park without a permit was unconstitutional. In contrast, Federal Courts considering the Occupy movements “have either found or assumed that overnight sleeping tent cities and temporary shanties can be a form of symbolic communication protected by the First Amendment” (Kunstler 2012).1 In New York City, the Occupy movement occupied Zuccotti Park from September 17, 2011 to November 15, 2011, when they were forced to leave by the intervention of police: There is no city regulation barring camping and sleeping in the park. Instead, protesters were evicted on the basis of unofficial rules posted by Brookfield Properties, the park’s private landlords, several days after Occupy Wall Street began its occupation. kunstler 2012: 1003

The movement, like most social movements in protest of ongoing government practices in most nations, are exposed to the political interests of the authorities in power, even when the law might be on the side of the protesters, or at least uncertain on the issues involved. It is worth repeating that such protests are characterized by Raz, as the hallmark right of all citizens in liberal states, and we will return to this topic below. At this time, we can acknowledge that the practice and effects of free speech most often result in what Haroon Siddiqui terms “unequal fallout” (Siddiqui 2012: A28). His article discusses the different responses that are elicited by insults to different religions, for instance, insults to Muhammad, in a US-made movie offensive to the Prophet and the Muslim faith, or the cartoons in French or Danish magazines, in contrast with the lesser “offenses” such as paparazzi-style pictures breaching the privacy of the British Crown family, or the sort of “unpatriotic” speech to which we have referred above. Siddiqui adds:

1 See US v. Gilbert, 920 F. 2d 878 (1st Cir. 1991); Acorn v. City of Tulsa, Okl., 835 F. 2d 735, 742 (10th Cir. 1987); Occupy Columbia v. Nikki Haley, Governor of South Carolina, No. 3: 11-CV-03253, 2011 WL 631858 (DSC December 16, 2011); Occupy Minneapolis v. County of Hennepin, No. 11-3412, 2011 WL 5878359 (D. Minn. November 23, 2011); Occupy Fort Myers v. City of Fort Myers, No. 2: 11-cv-00608, 2011 WEL 5554034, at *5 (MD Fla. November 15, 2011); Metropolitan Council Inc. v. Safir, 99 F. Supp. 2d 438 (SDNY 2000); Students Against Apartheid Coalition v. O’Neil, 660 F. Supp. 333, 337 (WD Va. 1987); University of Utah Students Against Apartheid v. Peterson, 649 F. Supp. 1200, 1202 (D. Utah 1986).

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In the US, where there is ostensibly no limit on free speech, there is. The permissible zone of debate in the US is so small that you get a suffocatingly narrow range of views especially on American foreign policy. siddiqui 2012: A28

Hence the citizens of the “liberal state” may well be subject to grave restrictions on their freedom of speech and other civil rights, which are not motivated by domestic law as such, but by geopolitical concerns and by the interests of other legal persons beyond the state itself. This reality is particularly hard on the new “transnational citizen,” that is, the recent reality affecting citizens of all countries. This phenomenon is very relevant to the Occupy movement which, after all, has now spread globally, from its inception in the US, and which actually protests conditions which are more than the results of domestic regimes and policies: they are global, even though some of the power that occasioned their inception may well be originary to the US.

The Geopolitical Aspects of Free Speech The changing uses and meanings of the concept of citizenship as a political and legal instrument have been rightly understood by a large number of scholars to be the result of the “postnational situation.” The weakening of the nation state and the loss of its monopoly over the determination its members’ rights, their ability to participate in politics and public life and their primary group affiliation and loyalty. blank 2007: 411–412

The question of citizenship and its novel meaning in a postnational world is a vast topic, well discussed in the recent literature (Bosniak 2002: 979; Sassen 2006). Hence, there will be no attempt at this time to do justice to the vast literature on the topic. But the supranational governance that is our main topic demands that we consider the civil and political aspects that follow upon it, and their effect on individuals and communities. Legal persons’ rights are increasingly broad, while those of natural persons appear to shrink, at least in practice, despite the proliferation of human rights declarations and related legal instruments. It seems clear that this dissonance originates from the ascendancy of supranational governing institutions.

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Natural persons’ rights, broadly speaking are primarily connected with their citizenship. The latter, in turn, is traditionally based on the state, hence they are most affected by postnationality at a time “when national forms of public life have simply lost their assured authority and predominance” (Bosniak 2002: 984). States’ authority has been undermined, and the circumstances of outside interference and control, have “constrained their ability to insulate themselves from the effects of environmental degradation, infectious diseases and other social disorders” (Bosniak 2002: 984). But the ability to exercise their authority and control, has always been based on sovereignty, which entails: supreme legitimate authority within a territory (Bosniak 2002: 985; Philip 1995: 368). This classical definition, no longer holds true, and this affects both the rights and the duties of citizenship. The latter tend to be determined primarily by territoriality (Blank 2007: 413), but Blank argues, in addition, that citizenship includes “three dominant spheres: local, national, and global” (Blank 2007: 413). These “spheres” should be understood as containers, whereby the final, largest one of the three (that is the virtual or global aspect) contains the other two; that means that the “local” is included in the “state” sphere, while the “global” remains the largest unit of citizenship. This construct reminds one of a set of Russian dolls, each a self-contained unit, although each one fits within the next, larger one. But this analogy is somewhat misleading, as none of the “dolls” is, in effect, self-contained, as the largest “container” determines the conditions and the situation of the smaller ones. Hence the “citizen” of old is now forced to “re-position” herself, to paraphrase Saskia Sassen (2003: 41), in a situation that represents a significant loss of the previous rights and obligations. We have noted elsewhere the effects of globalization which undermine the basic identification with, and loyalty to a nation-state, as “the worldwide spread of an ideology and practice of deregulation” produces “the emergence of individuals and groups who are ‘increasingly unwilling automatically to identify with a nation as represented by the state’” (Blank 2007: 416; Sassen 2003: 41). Yet it seems perhaps premature to define those who no longer fully identify with a state as “decentered citizens” (Blank 2007: 416), as the very core of the rights and even the duties of citizenship appear to have been negated by the loss of the state. When the major interaction between the citizens of so-called democratic countries today, is that of joining in vociferous, violent protests, when major global meetings take place, it seems that territoriality as such is an insufficient warrant for citizenship. Even the “community” link, or “local” citizenship, to which Blank adds religious and other community aspects, has lost almost all its power, as interdependence is hardly possible or fruitful when the

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human collectivity (Westra 2011b), is vulnerable and seems to have no recourse against multiple corporate attacks. What is left, then, is the largest “container,” the global aspect of citizenship, but from the standpoint of the protection of rights, and even the presence of civil obligations, that seems to remain an empty category. We have shown elsewhere that global institutions have no appeal mechanisms, nor transparency, leaving aside the case of the un, which is the only global institution that might be amenable to appeals to the rights of citizenship, and toward which natural person might still owe some duty of loyalty. In contrast, global economic institutions known chiefly by initials (WTO, NAFTA, IMF) do not include individuals with whom debate or even discourse might be possible, no one whom citizens could either boycott or support, and no openly stated policies or transparent procedure. In the previous chapters we have seen the effects of these conditions, coupled as they are, with a less than admirable character and plan of action on the part of those powerful legal persons. As well, there are no flags around which to rally, no “global hymns” and—most of all—no recognizable principles and traditions associated with those symbols of nationality which still exist, and which might inspire. Hence, not only are the rights of citizenship trampled and diminished by corporate supranational power, but even the duties of citizenship appear to have become vacuous in turn. Thus it is insufficient to ask whether it is our basic, or our civil or political rights that are at stake. The further question is what happens to our citizenship as such, and whether there remains any space for political debate and for the exercise of real citizenship, as defined form the times of the Greek polis, as participation in the polity and in its governance, in the interest of all citizens. The answer seems to be a negative one. Thus the losses of natural persons reach even further than the danger to life and health. Civil and political rights are equally under attack. One example that ties the corporate disregard for human rights to political rights, for instance, can be found in yet another story from Monsanto. That corporation won the right to begin planting genetically modified (GM) corn in Mexico’s Yucatan Peninsula (Michaels 2012). Corn originated in Mexico over 10,000 years ago and farmers have developed several natural forms of corn. If Monsanto wins, the farmers will be forced to plant GM Roundup Ready corn, despite its hazards and costs. The pesticides and other chemicals involved, led to a bee colony collapse in Poland, after similar GM crops were planted, with grave damage to the honey industry in the area. As well, a new law would empower a “Monsanto police force” to make

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“site visits, demand information from farmers and impose administrative penalties for infractions” (Michaels 2012: 2). Some other countries (non-NAFTA countries) have been able to resist: In June 2012, 5 million Brazilian farmers launched an unprecedented class action lawsuit against Monsanto. The legal action, estimated at $7, 8 billion dollars, was organized in response to continued exploitation by the corporation. michaels 2012: 2

Since NAFTA was established, in 1994, “an estimated 2 million farmers” have been forced out of corn production, while 5 million tons of US corn pour into Mexico instead (Michaels 2012: 2). Thus Monsanto is doing more than harming farmers financially and physically through genetically modified organisms (GMOs): it is interfering with the cultural rights of a people to their own traditional forms of agriculture, in direct contradiction with their social and cultural rights under the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the mandate of the United Nations Educational, Scientific and Cultural Organization (unesco). If we consider the “spheres of citizenship” of these Mexican farmers, it is clear that the local/community aspect of their citizenship cannot be used in their defense, nor can the national/state aspect which, like the former, is powerless vis-à-vis the supranational effects of NAFTA. Whether the reasons for the changes present in the attitude of citizens is the internet, as Sassen argues (Sassen 2006), the media in general, or simply a combination of multiple causes affecting the diminishing presence of human rights, both basic and civil/political acquired over several centuries, the reality of the situation affecting the “postnational” or “transnational” citizen, is undeniable. Perhaps we should leave it to anthropologists, historians and social scientists who study this phenomenon to propose reasons and causes for the current situation. The present work, in contrast, seeks to situate present events against the background of current legal regimes, both domestic and international, thus attempting to better understand the meaning and the role of Occupy and other current social movements, especially in regard to the law, which is flaunted by the movement’s activists. Given their informality and the lack of explicit requests and manifest positions, this may be, at best, a tentative effort to impose in some sense form and structure to a movement which declines to accept either, thus far. Hence we can only try to extract from their explicit declarations and even their “speech acts” what their position might be. Further, as their clear

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anti-government stance implies, it will be useful to ascertain which laws and rules, specifically, the movement intends to flaunt. The question that will follow then, is whether those rules and regulations are actually worthy of being obeyed. Following Sands’s (2006) understanding of a “lawless world,” that becomes a very relevant question, in fact, perhaps, the most basic question of all.

Expressive Conduct and the Law Today’s business leaders see themselves as populist revolutionaries, liberating the world from labour unions, environmentalists, anti-globalists, and other malcontent “elitists” who dare challenge the “democratic” verdicts of the market. bollier 2003: 47

Is this what Occupy intends to protest? Is it what Bollier terms “the imperialism of market values”? (Bollier 2003: 46) Essentially we need to work out answers to these questions, extrapolating from the slogans and placards that today form the only explicit representation of the movement. A recent article by Janos Marten titled “Representing an idea: how Occupy Wall Street’s Attorneys Overcame the Challenges of Representing Non-hierarchical Movements” (Marten 2012: 1107–1143), lists in detail the experience of activists and their lawyers, in over 20 US locations, as the developing lives of both occupiers and their legal representatives are traced to the period. Yet the whole article is simply portraying a series of encounters and defenses based on purely procedural grounds. Even the section titled “movement victories” reports on procedural victories only: various groups in many cities were in fact permitted to continue to occupy and demonstrate. In Nashville, Judge Aleta Trauger allowed the occupation of the Legislative Plaza as “a quintessential public forum”; in Cleveland, Mayor Frank Johnson personally visited and issued ongoing monthly permits to the occupy; in Olympia (Washington), New Orleans, and several other cities, at least temporary victories were also won, as well as in Fort Myers (Florida) and Columbia (South Carolina) (Marten 2012: 1124). What remains common to all those experiences, is the ongoing lack of any programmatic utterance, or the issue of a common manifesto, or any other effort to make their conduct truly “expressive.” In fact, given the “test” required for First Amendment protected speech, it is surprising that any of the Occupy movements are or have been allowed to protest on that basis. It is clear they

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intend to protest some unjust present conditions, as they intend to present themselves as an overwhelming majority, or the “99%,” against a rapacious minority, out of touch with the problems of the rest, who does not allow them their legal rights, be they civil, political, economic or social. But even this vague sentence is simply an extrapolation from the slogans and from a general sympathetic understanding that prevails, not from anything that derives directly from any utterance on the part of Occupy’s general assemblies or any other representative group of the movement. Gitlin, who has studied the Occupy in depth, suggests the following main points, as representative of the movement: (1) “we are standing up to Wall Street over here at Zuccotti Park. You can do this yourself” (Gitlin 2012: 185); (2) “It’s so clear that people everywhere were duped into predatory loans, and there are homeless people who can be matched up with unoccupied homes” (Gitlin 2012: 185); (3) “some, especially outside New York City, want to work the levers of normal politics to elect officials and push them to make reforms. Some want to change the political system through constitutional amendments or direct action, or a Combination” (Gitlin 2012: 186); (4) “Some…want to disrupt corporate business as usual and work toward creating assemblies that can sweep aside conventional political structures, and, on their own, rule” (Gitlin 2012: 186). As further confirmation of the position of no more than 10% of the movement who embrace position no. 4, Elizabeth Warren, dubbed “poster lady of Occupy” (Gitlin 2012: 189), adds: Occupy Wall Street is an independent movement, organic, moving in its own direction. And that’s how it should be. It’s its own voice. What I am doing is what I’ve been doing for a long time and that is protesting the activities on Wall Street, trying to hold these groups accountable, and now trying to take that fight to the United States Senate. gitlin 2012: 190

Essentially, then, (1), (2), and (3) demonstrate that citizens of the US still trust that the means to achieve the radical program that only a minority of Occupy appear to accept as foundational, may still lie within activism within the legitimate political boundaries that are typical of what Raz termed a “liberal state,” that is, possible within the options available to motivated citizens.

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I am not convinced, however, that radical change is indeed possible by the means that Gitlin ascribes as part of the plans of Occupy (see (1), (2) and (3)): it seems somewhat naive to believe that a government like that of the US, afflicted by the almost total penetration of corporate legal interests within its operating regimes, bureaucracies, legislative and executive branches, might be open to reverse its present path at the request of its citizens (Westra 2013a). Yet Gitlin is right, that is indeed the most common general perception of the main goals of Occupy, although the means to achieve those ends are much more obscure. Perhaps we might start by positing the general position suggested in (4), in order to see whether such a goal merits the attacks and resistance it finds within the present US representatives of “law and order” today. The means to accomplish such a monumental global feat are even more worthy of careful discussion and even debate.

Occupy as Revolt against Law and Injustice A just law is in conformity with reason and nature, hence also natural law, and is binding in conscience. A law is unjust if it is “contrary to human good”; it is “no law at all,” and does not bind us in conscience. wenreb 1987: 60; see also aquinas: Q. 96, art. 4

According to Thomas Aquinas, a “ruler” who imposes laws that are not designed to ensure respect for the dignity of all human beings and their freedom to pursue their aims within morality and the aims of natural law has no right to do so. Aquinas is also explicit regarding any law that does not support the good of all citizens: it is not a law, it is simply someone’s violence, therefore not only it should not be obeyed but—all people are morally obliged to fight against it. In fact, this is the main point linking natural law to Occupy and other forceful social movements intent on resisting the status quo. The “human good” that Aquinas envisioned has far wider implications than today’s interpretation of “everyone’s good.” To be fair, we need to understand that Aquinas’s “good” includes the freedom to seek God, that is the freedom to develop as Christians and as Catholics. Today this “obligation” of the rule, means simply permitting “freedom of religion,” something Aquinas would not accept. Barker summarizes the legal implications of natural law as follows: the doctrine that law is the true sovereign and that governments are the servants of the law; the doctrine that there is a fundamental difference between the lawful monarch and the tyrant who governs by his arbitrary

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will: the doctrine that there is a right inherent in the people by virtue of their collective capacity of judgement to elect their rulers and to call them to account. barker 1973

Under “2. Characteristically Human Values,” “knowledge and sociability” are listed. The first clearly implies the right to education and to the pursuit of knowledge, including religious knowledge. The second implies the right to associate with others and form communities (Harris 1990: 104; Aquinas: Q. 94, A.2). War is permitted as a just extension of self-defense, to the defense of one’s community and rightful state. But when the State is radically unjust, then the obligation is to disobey, not to be in any way complicit in its wrongful aims, because the state’s legitimacy is lost when the “common good” is not served by its rulers. Speaking of man’s obligation to obey a “prince,” Aquinas says clearly, “if he commands what is unjust, his subjects are not bound to obey him” (ST I-II, Q. 104, A. 6, reply obj. 3). This excursion into the history and substance of natural law is not out of place, in order to understand the true import of Occupy. Although in no.4 that Gitlin proposed, Occupy appears to be protesting grave global issues giving rise to injustice, so that a battle against injustice appears fully in line with natural law. The avoidance of injustice is basic to the understanding of legitimate “human law,” according to natural law doctrine. In addition, natural law itself is one of the acknowledged sources of international law. Thus it should not be inappropriate to appeal to natural law, in order to understand what renders law legitimate (Hyman and Walsh 1974: 532). As we consider the details of natural law, the interface between it and injustice becomes clearer. we can also find a more recent statement of that connection in the words of Martin Luther King, Jr.: A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. king [1963] 2000: 146

Some might dismiss an appeal to justice that is not neutral in regard to both morality and religion. But we must recall first that indeed natural law, with its heavy moral implications, is one of the sources of international law. Second, that although Aquinas is hardly a modern hero, Martin Luther King certainly

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is, and that the latter’s heroism was part of the most important social movement witnessed within the US: the civil rights movement. Gitlin and others explicitly refer to the civil rights movement as a precursor of the Occupy movement itself. In that case, if we can set aside some of the prejudices that are part of the modern mindset in regard to religious beliefs and the absolutes of morality, we can see that Occupy demonstrates not only a global validity, but also a legitimacy that dates back to the 13th century, and therefore , does not lack precedent. Most important of all, it acquires a legitimacy that is no longer present in the laws and regulations the movement is formed to resist. This is perhaps the main point I am attempting to make in this work: Occupy’s activities are now viewed as illegal, their position is considered to be that of rebels fighting against the orderly functioning of society. Yet, if one stops to consider their motivation, then, like so many so-called “terrorists,” their position can be seen to be based on principles. No one attempts to understand or even question in depth the motivation of terrorists, any more than the position of Occupy is ever seriously discussed (Westra 2012a: ch. 2). One of the basic principles of good parenting is not to simply punish a misbehaving child, but to attempt to understand the underlying causes of her bad behavior. Surely one of the bases of good governance ought to be the effort to seek the reasons for dissent and revolt, especially when the basic components of those reasons appear openly stated, even if not fully clarified. It is unfair for a government to promote and support the well-being of banking institutions at the expense of that of citizens and communities. Justice requires that individual persons receive equal treatment, not that legal persons be treated as superior or worthy of more consideration, through the numerous “rights” they acquire beyond those of natural persons (Westra 2013a). Therefore, if the general sense of the goals of Occupy attempts to achieve is to re-establish justice in governance; and if the present regulatory regimes are opposing reforms that might lead to more satisfactory results, then it would seem that “right” and justice may well be on the side of Occupy, not on that of the law that opposes the protesters. The rest of this work will be devoted to a discussion of the goals of Occupy, as well as those of other related social movements, because the justification of such movements, especially when their procedures are forceful and confrontational vis-à-vis a country’s government, should be carefully evaluated before being condemned. Thus far Occupy’s victories have been exclusively procedural: the injustices that originated the protests are not even discussed or debated in the public fora, as one would expect in “liberal states” that present themselves as bastions of democratic, and free governance.

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Collective Human Rights against Authority In the financial sector, for instance, there will be conflicts of interest and excesses, credit, excess, leverage, excess risk taking, and bubbles. But those in the business sector see things differently: without restraints, they see increases in profits. They think not of the broad, and often long term, social and economic consequences, but their narrower, short-term self-interest, the profits they may garner now. stiglitz 2012: 90

The appeal to natural law in the previous section, simply demonstrates that those who ostensibly resist and defy present law, are supporting established laws and principles instead. The US Glass–Steagall Act of 1933, after the Great Depression, was intended to enact strong financial regulations, thus preventing the recurrence of a crisis due to various excesses. But these regulations were dismantled in 1999, when “the excesses returned with even greater force” (Stiglitz 2012: 90). Like all other forms of deregulation, emblematic of the neoliberal agenda, when corporations are given free rein, the interests of the “1%,” of the wealthy, prevail, as they use their economic power to shape not only politics, but public opinion (Stiglitz 2012: 89). Regulations in all fields are intended to protect the public from harm: Clearly deregulation protects corporate actors instead, and not only in the economic field, but even in the most basic areas, such as that of our collective rights to life and to health (Westra 2012b: 7–19). The Occupy movement does not address the details of the historical developments preceding the situation they protest, or those of the specific policies that aid or obstruct the move toward equality they appear to advocate: As the Occupy Wall Street Movement drew attention to the growing inequality, the response of the Right was to say almost proudly that, unlike the Democrats, who believe in equality of outcomes, they were committed to equality of opportunity. stiglitz 2012: 116

The so-called “Right,” or the representatives of the Republican party in the US, do not clarify why the equality of opportunity they support is nothing but a pleasant fable that does not live up to the reality of the US today. Corporate power controls the media, hence it directs public opinion; it has infiltrated the government to the extent that regulatory regimes—when they are not eliminated—are modified to ensure that the corporate agenda may unfold without

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impediments; it has corrupted existing law by acquiring increasing legal rights surpassing those of natural persons, and including the right to contribute to election’s finances without the limits of earlier times; it has advanced to the point of ensuring for itself, as a legal persons most of the rights of natural persons, something that Occupy was quick to point out graphically, with their placard saying “I will believe that a corporation is a person when Texas executes one” (Gitlin 2012). Hence, even without explicit arguments, listing various propositions leading to a conclusion regarding corporate power, all the damning and harmful intrusions of corporate power into the life of the 99 percent, indeed originate, at least symbolically, from Wall Street, the first target of Occupy. It is both fitting and ironic that the other major event that was intended to attack the heart of US power was that of al-Qaeda, against the Twin Towers, on September 11, 2001. It, too, was a clear attack against the core of corporate power as well as the US, which, increasingly, are viewed as one and the same. It is noteworthy that although the Pentagon was also attacked, the major targets were the twin towers. Obviously, even the “terrorists” knew well where the main power directing and delivering injustice was located (Westra 2012a). The main difference however, remains equally clear: unlike al-Qaeda, Occupy’s activists still believe in the US Constitution and legal systems, as they hope that radical democratic change may still be effected despite the unresponsiveness of present government institutions. They were encouraged in their hopes by the fact that some of the state representatives in various cities where Occupy protested, actually attempted a sympathetic, though limited response, at least respecting explicitly Occupy’s procedural rights. Journalist Glenn Greenwald outlines “the perils of blind obedience to authority” in his article on the film Compliance. That work documents the proven research on how people are comfortable with following uncritically figures of authority, because “trusting authority is easier and more convenient than treating it with skepticism” (Greenwald 2012a: 2). Building on the infamous experiment in which psychologist Stanley Milgram demonstrates how cruel and sadistic instructions by a man dressed in a doctor’s white lab coat easily convinced two-thirds of people who were requested to do harm to others by remotely administering electrical shocks. Then, in 2004: at a McDonald’s in Kentucky…a man posing as a police officer manipulated a supervisor to abuse an employee with increasing amounts of cruelty and

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sadism, ultimately culminating in sexual assault—all by insisting that the abuse is necessary to aid an official police investigation into petty crimes. greenwald 2012a: 1

This tendency to trust in authority and, most of all, to be willing to follow, obey and comply, is entrenched in most people, busy with their lives, and willing to keep things “simple” by refusing to question. That, of course, is yet another reason why a movement such as Occupy represents a watershed event, particularly at a time when, increasingly, the “multiple institutions” that are entrenched in society with the task to critique the status quo, no longer perform their normal functions. The institutions Greenwald lists are, first and foremost, journalism, which should serve “as a check against political authority by subjecting its pronouncements to skepticism and scrutiny” (Greenwald 2012a: 3). The second such “counter-power” is Academia: it is supposed—at least when faculty is tenured—to nurture persons who are free to question authority explicitly, and without fear of retribution. Finally, the highest court in the land should be able to impose limits on authority, in order to protect the most vulnerable (Greenwald 2012a: 3). However, these institutions no longer perform their expected tasks, do as they tend to align themselves with the prevailing power structures: There is virtually no counter-weight to the human desire to follow and obey authority because the institutions designed to provide that counterweight, media outlets, academia, courts, do the opposite: they are the most faithful servants of those centres of authority. greenwald 2012a: 3

Greenwald does not add that a further incentive to comply on the part of those institutions, at least in the US, lies in the newly minted regulatory regimes of the last ten-twelve years, that now view dissent as lack of patriotism (Terrorist Surveillance Act of 2006), even as terrorism itself. In fact: So pervasive and reliable is the rule of elite immunity—even in the face of the most egregious crimes—that one finds extreme examples on a weekly basis. Six weeks ago, the Obama justice department forever precluded the possibility of criminal accountability for Bush torturers by refusing to bring charges in the only two remaining torture cases, ones involving the deaths of the detainee-victims by torture. greenwald 2012a

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What the Obama administration has also done, is to grant retroactive immunity to telecom giants, which ensures that AT&T, Verizon, Sprint and others will not be charged for their “eavesdropping programs” the Bush administration “was spying on the telephone calls and emails” of US citizens. AT&T had even built a separate room with no purpose but to permit the National Security Agency unfettered access to all of its customers’ communications (Greenwald 2012a: 2). Clearly these activities go far beyond the possible “wiretaps for potential terrorists” (Greenwald 2012a: 3). As well, the persistence of such affronts to civil rights in favor of the governing elites and their corporate accomplices, indicates that there is no strong voice of dissent, or even of critique of the present illegal policies. It is against this background of fearful or indifferent silence and compliance, that we can truly appreciate the importance of movements such as Occupy, which are willing to align themselves with non-compliance and risk illegality and disdain, as they continue to stand physically and morally against a threatening reality that none of the expected institutions (media, academia, courts) are now free or even willing to challenge.

Resistance to Plunder Belief in America’s essential fairness, that we live in a land of equal opportunity, helps bind us together. That at least is the American myth, powerful and enduring. Increasingly it is just that, a myth. Of course there are exceptions, but for economists and sociologists what matters are not the few success stories but what happens to most of those at the bottom and in the middle. stiglitz 2012: 17

Thus the unequal treatment that Occupy targets includes far more than unfair housing deals, unfair wages contrasted with bank bailouts. It starts with the start of life, where poor children cannot benefit from the best in healthcare and a healthy diet. In addition, according to the statistics from the Economic Mobility Project: Poor kids who succeed academically are less likely to graduate from college than richer kids who do worse in school…Even if they graduate from college, the children of the poor are still worse off than low achieving children of the rich. chait 2011: 14–16; see also stiglitz 2012: 18–19

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In the best colleges in the US “only 9 percent come from the bottom half of the population” (Stiglitz 2012: 19). Thus the divide between the rich and the poor is inherent in US society and the myths of equality of opportunity are only part of a history and tradition that no longer exist. Rather than being a beacon of “freedom and democracy” the US situation is inferior to many Western countries: “the difference between the rankings with and without inequality was the largest of any advanced industrial country” (Stiglitz 2012: 22), in fact, the Scandinavian countries fare much better and the children in those countries not only enjoy free education, but also free healthcare (Stiglitz 2012: 22). Although Occupy does not protest specific issues and situations, this reality shows the necessity for strong protest on the part of thinking Citizens, and most of all, the desperate need for radical change. Stiglitz summarizes the dire situation in the US economy, demonstrating that the ongoing plunder (Mattei and Nader 2008) is all pervasive, and reaches much further than Wall Street and the effects of corporate greed. Once again we can reach to Stiglitz for information regarding the present economic situation: (a) Recent US income growth primarily occurs at the top 1 percent of the income distribution. (b) As a result there is growing inequality. (c) And those at the bottom and in the middle are actually worse-off today than they were at the beginning of the century. (d) Inequalities in wealth are even greater than inequalities in income. (e) Inequalities are apparent not just in income but in a variety of other variables that reflect standards of living, such as insecurity and health. (f) Life is particularly harsh at the bottom—and the recession made it much worse. (g) There has been a hollowing out of the middle class. (h) There is little income mobility—the notion of America as a land of opportunity is a myth. (i) And America has more inequality than any other advanced industrialized country, it does less to correct these inequities, and inequality is growing more than in many other countries. stiglitz 2012: 22

The picture that Stiglitz paints confirms the diagnosis defended by Mattei and Nader: “Neoliberalism [is] the Economic Engine of Plunder” (Mattei and Nader 2008: 35). Masquerading as the guest for “sustainable development” and as the extension of the rule of law, the situation Stiglitz describes is far from a purely

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domestic phenomenon, it is, instead part of an ongoing global policy, based on “lending for both the purpose of development and for the purpose of servicing the debt,” thus supporting the imposition of economic policies based on conditionality: this policy uses the law to transform the Bretton Woods institutions from financial stabilizing entities into destabilizing political actors of the contractually imposed neo-liberal world governance. mattei and nader 2008: 59

The IMF, the World Bank, the WTO, and the United Nations itself project an image intended to defend the public interest, but, as it is the wealthy countries that hold the major votes in these organizations, their activities serve the interests of the majority shareholders, like any corporate entity in Wall Street (Mattei and Nader 2008: 59). Like the local “1%,” the MNCs and the global organizations depend on “free markets,” they fight regulation and legal control, while fostering privatization instead (Mattei and Nader 2008: 62). The history of plunder is not a recent development: it initiated with the outright colonialism practiced in North America and Africa for the most part. Its elimination represents one of the major successes of the United Nations system. But in its present re-incarnation, neocolonialism is hidden behind the benign mask of “development” and aid. Development is the process whereby other peoples are dominated and their destinies are shaped according to an essentially Western way of conceiving and perceiving the world. The development discourse is part of an imperial process whereby other peoples are appropriated and turned into objects. tucker 1999

The history of the “rule of law” can be seen as a history of legalized plunder, according to Mattei and Nader (2008). Still, as we discuss the way things are now, and the roots of their historical development, we cannot forget the universal promise of international law as Martti Koskenniemi presented it. Now the glass is more than half empty, thus presenting a discouraging picture to the world-be optimist, but even that reality should not force us away from the promise of a cosmopolitan universalism, for which international law provides the only hope. The paradox today is that international law is complicit in the worst problems, while at the same time it is also the only possible road toward just world institutions. At any rate, we can start by eliminating from consideration the

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rosy perspective of those who believe in “the dominant corporate capitalist model of development” (Mattei and Nader 2008: 24; Fukuyama 1992). That is the vision that fosters today’s gross inequalities and violations of human rights. According to Mattei and Nader, the “other side” believes: that is precisely because of the current model of corporate capitalist development that the divisions between the “haves” and the “have nots” is so dramatic and irremediable. Thus freedom and prosperity for the rich, with their exaggerated patterns of consumption and waste, is possible only by a conscious effort to avoid liberation of the poor and disenfranchised. mattei and nader 2008: 24

Simply put, the question is: can the rule of law help to remedy a situation that its current instantiations have helped to create? The parallel question concerns the ongoing misuse and abuse of the “right to democracy” (Franck 1992: 46), when it is contrasted with what “democracy” is now and what it was intended to be (Engel 2010). While colonization in its original war-like sense is now illegal, neo-colonialism is an ongoing phenomenon, most often presented as beneficial to those who are exploited and colonized: A strong emphasis on freedom, democracy and the rule of law as deeply rooted American values has accompanied almost all US foreign interventions, invariably presented as in the service of the public good rather than in the interest of the intervening power. mattei and nader 2008: 32

This “narrative” is imposed on the victims “by means of propaganda and manipulation” (Mattei and Nader 2008: 32), and its racist component is obscured as the “enemies of freedom” are always portrayed as part of a different and hostile ethnicity.

Protests, Injustice and the Rule of Law No one is either above or below the law, which poses a mission impossible if directed at contemporary realities, given the radical inequalities that exist in relation to all dimensions of concern within the current system of world order, however labeled. falk 2003: 28

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Democracy used to characterize a desirable form of internal, domestic governance. But, as we noted in the previous section, international Organizations do not reflect democratic ideals any more than corporate legal persons do. As we shall see in the following chapters, numerous social movements of protest emerge everywhere now, especially in relation to the regular meetings of those major organizations, such as the G8 or the G20 meetings, starting from Seattle, then Geneva, Quebec City, Davos, and many other chosen locations for the glorification of the power of global economic and trade institutions, like the IMF and the WTO. Those protests, like those of Occupy, denounce injustice and the power of wealth. They do so using force, or at least responding to police attacks with violent resistance, so that their use of force separates their practices from those of Occupy. As well, another major difference emerges: global protests have no hope of convincing US legal power to introduce radical changes into the US system, as Occupy hopes to do. The other movements of protest denounce injustice and—also unlike Occupy—they openly point to the illegalities that accompany globalization. The rule of law, they believe, is nothing but the exercise of power with impunity on the part of wealthy countries. The main issue under consideration in this work, is which side actually defends not only justice, or moral principles, but also the rule of law itself. It seems clear that Occupy’s “side” is the one we can identify with justice. In the next chapter we will see how various social movements and protesting ngos also fit the category of just protests. One thing remains clear; all those ngos and protest movements claim to act on the side of justice and principle. Although it seems that we can concur with Occupy’s self-assessment, we will need to examine other movements making similar claims. The major institutions traditionally meant to alert us to illegalities and inappropriate practices in our governments no longer perform those functions in a satisfactory manner, hence that task is apparently left to these movements, whose reliability and practices are therefore worthy of close scrutiny.

Chapter 3

Non-Governmental Organizations and Social Movements Substance and Roles Introduction Counter-hegemonic globalization I define as the vast set of networks, initiatives, organizations and movements that fight against the economic, social, and political outcomes of hegemonic globalization, challenge the conceptions of the world development underlying the latter, and propose alternative conceptions. de sousa santos 2005: 29

The Occupy movement is the latest movement of social protest, but it is not the only one that has achieved global resonance. Several NGOs are immedi­ ately recognizable worldwide, and their goals and functions are equally obvious to all, although they differ radically from Occupy, as they are hierarchically organized, clearly definable and based on a small organization rather than being an amorphous popular group. At any rate, most of these NGOs are “social movements” only in the sense that they are widely, in fact globally, acknowledged, not in the sense that they have spawned multiple small versions of their main grouping at various other locations. In fact, Saskia Sassen argues that the global popular adherence and allegiance to many of these organizations gives  rise to a recent phenomenon: the creation of transnational citizens (Sassen 2003). These individuals no longer view their national home as a source of their strongest attachment or committed allegiance: in contrast, the principles they embrace and believe in—in most cases—transcend national borders and parochial interests. Sassen sees the internet as the basis for this radical change, but it seems that, while the internet is indeed the main source of information regarding associations based on a similarity of interests, instead, the issues and principles of these organizations embody the tie that joins the citizens of all countries, although they use the internet as their mode of communication. The new allegiances, therefore, transcend a specific flag, or national tradition and history, although these aspect of former citizenship remain, at least in two separate senses: (1) in the traditional cultural sources of the very principles © koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004273832_005

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espoused and chosen; and (2) in the possible local roots and education that generate the commitment to the issues that transcend national borders. Some current examples include Greenpeace, Amnesty International, the Goldman Prize, Doctors Without Borders, and numerous NGOs and charitable organizations that support peace, expose the corporate support of GMOs, or propose sending various forms of assistance and support to the people of Palestine and distribute material critical of Israel and its government, and these are only a few examples of what elicits the attachment of citizens. The main task of this chapter will be to examine some of the most significant issues of concern and the reasons for these movements and organizations, in order to ascertain the extent to which they adhere to their stated intent and support their stated commitments and goals, rather than collaborate with either corporate or governing bodies and support the status quo instead. Like journalists who were “embedded” in the US army during the US wars in Afghanistan and Iraq, reporting its movements without any attempt at divergence or critique from the expected reports, some NGOs or other movements may well eventually moderate their original mandate, and hence modify their position significantly. In that case they may no longer be worthy of the commitment their name generates. But the starting point lies in reaching an understanding of the main goals and the principles guiding the best known movements. De Sousa Santos calls the World Social Forum the source of “processes of counter-hegemonic globalization” (De Sousa Santos 2005: 30). This “counter” movement arose after the mid-1970s, as “radical” questions arose regarding the limits of socalled democratic governance. Such new movements as “the feminist and the ecological movements,” together with student movements, show the “exclusionary aspects” of the forms of governance that excluded the rights of social groups such as minorities and immigrants, and gave no support to the defenders of “Cultural diversity and the environment” (De Sousa Santos 2005: 33). The crisis of democratic legitimacy was growing, as “three formal rules were put into place: privatization, marketization, liberalization,” which De Sousa Santos terms “the three pillars of neoliberalism and neoliberal globalization” (De Sousa Santos 2005: 34). Essentially neoliberal governance denies most of the basic aspects of democracy: participation, equal standing and respect for human rights as both the state itself and the majority of excluded people are “absent” (De Sousa Santos 2005: 36). A society that is controlled by (and in fact embedded in) the economy will only support corporate interests and values, despite the efforts of

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the UN to instill principles into organizations that are simply unable to reflect morality. The UN “Global Compact Primer” states: the rationale is that a commitment to corporate citizenship should begin with the organization itself by embedding universal principles and values into the strategic business vision, organizational cultural and daily operation. united nations 2000: 3

However, these laudable sentiments are expressed as aspirational goals rather than as binding rules of conduct, therefore they are not observed nor are they likely to be, as long as they address legal entities that are more used influencing, or even designing the “rules” than they are prepared to obey them. De Sousa Santos places his hopes on the ongoing presence of the phenomenon he terms “counter-hegemonic globalization”: In the last ten years and most clearly since the Seattle protests of 1999 WTO meetings, another form of globalization has been emerging by force of the social movements and society organizations that, through local/global linkages, are conducting a global struggle against all the forms of oppression brought about or intensified by neoliberal globalization. de sousa santos 2005: 43

Despite its lack of stated goals, the Occupy movement certainly shares the “counter-hegemonic” goals of the World Social Forum (WSF), as the movement’s actions align it with the resistance to G8 protests since Seattle in 1999. The similarity of aims between the two movements, despite their superficial differences emerges as De Sousa Santos defines the WSF: the WSF is the set of initiatives of trans-national exchange among social movements and NGOs, articulating local, national and global social struggles conducted in accordance with the Porto Alegre Charter Principles, against all forms of oppression brought about or made possible by neoliberal globalization. de sousa santos 2005: 44

The main slogan of the WSF is “Another World is Possible,” but after its inception eventually principles were designed and adopted in the 2001 Porto Alegre declaration. The WSF is intended to speak in a voice different from that of the

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World Economic Forum, and the movement has acquired a momentum today through its yearly meetings and even a connection to international law via unesco. The unesco link is particularly relevant, as that is one of the few organizations of international law that appears to be entirely governed by moral principles rather than political expediency, and we’ll return to that theme in the next section. At this time it might be useful to touch upon a few points of the WSF’s Charter of Principles, adopted at Sao Paolo, Brazil, on April 9, 2001, and approved by their international council on June 10, 2001.1 It is the existence of this Charter that immediately distances the WSF from the Occupy movement which, as we saw, offers no formal expression of its common goals and aspirations. As well, the WSF is far more organized, as it has an international council which speaks for all with one voice, or—at least— opens the space for the multiple stakeholders that comprise the Forum, and their discourse. Principle 1 includes not only the relations among humankind, but also those “between it and the Earth,” and Principle 4 speaks of “respect [for] universal human rights, for all citizens of all nations and the environment.” Nevertheless, Principle 5 says outright that the WSF does not intend “to be a body representing civil society,” nor will it express opinions purporting to represent “world civil society” as a whole (Principle 6). In contrast, the WSF intends to be a forum where the dissemination of diverse opinions will be facilitated and “alternative proposed to solve the problems of exclusion and social inequality that he process of capitalist globalization” is creating with all its “destructive dimensions” (Principle 11). Another clear difference between the WSF and the Occupy movement is its apparent legitimacy. Its meetings are not disrupted by the presence of the police forces of the country where they occur, so that one of the main claims of this work, that is, the fact that the claimed “illegality” ascribed to occupy and other global social movements in fact represents a better, more principled affirmation of both legality and justice, does not appear to apply to the meetings of the WSF through its history to date. De Sousa Santos outlines what separates the WSF from other political groupings and associations. He terms it “a new critical utopia” that manifests “a very broad conception of power and oppression,” as it privileges “rebellion and nonconformity” rather than revolution: in fact, it supports “radical democracy” (De Sousa Santos 2005: 44–48). As the WSF is an umbrella organization which 1 See http://www.forumsocialmundial.org.br.

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houses a number of other movements and NGOs, this discussion can be understood as an introduction to other associations which were, or still are, unable to claim they have been treated as illegal, let alone having been persecuted as such. In the next section we will see the principled link between WSF and unesco through the historical origins of the latter regarding art and other cultural property.

unesco, the Common Heritage of Mankind and the Principled Defense of Humanity’s Arts and Sciences Quatremère stated very clearly that to remove is the same as to destroy. He gave this concept a general sense, which covered both war and peace. In fact, the république des arts et des sciences existed only Quatremère’s mind and it is likely that it will never exist in an international community composed of sovereign states. scovazzi 2011b: 346

unesco is not a protest or even a social movement, but it is important to note the significance of an appeal to the collective values of humanity regarding its intangible and artistic patrimony (Quatremère de Quincy 1815; Scovazzi 2011b: 344). Quatremère spoke eloquently in 1815 in defense of the irreplaceable art works and volumes that Napoleon had removed from major museums and art centers in Italy, Germany, and even from the Vatican. Perhaps surprisingly for a French man, Quatremère argued for the return of priceless works of art which belonged in the countries and in the collections where they had originally been. Signed treaties allocating them to the “winners” of current wars were no more significant than agreements simply declaring that one country won the war, hence it had the power to purchase or even plunder the cultural and artistic patrimony of another. There were no popular protests at that time, although probably the people of each town or region enjoyed a sense of satisfaction when artworks and books were returned to their original home, especially in the case of religious artifacts and statues that might have been identified with specific locations. From our point of view, what is relevant, is the general acceptance not only on the part of the population, but also on the part of the authorities of both winners and losers, of the primacy of moral right, even over the prevailing conventions of the time. The significance of the human rights of citizens to their own artistic or cultural patrimony, not as property, but as heritage beyond legalities or commercial values, provides a link to modern social movements,

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who also do not accept either the primacy or the control of economic interests on multiple aspects of their lives. Speaking of the return of cultural property, Tullio Scovazzi says “Culture is too important to be addressed only in the light of legal technicalities. In this field, the distinction between morality and law becomes blurred” (Scovazzi 2011b: 341). It is surprising to note that, in the work of a French scholar published in 1796 for the first time, one finds the expression of a belief in a “republic of arts and sciences” ruled by “the principle of universal brotherhood” (Quatremère 1815; Scovazzi 2011b: 344–345). Neither the presence of legal regimes in defense of commercial exchanges of property, nor yet the presence of a war (and the concomitant common practice of looting conquered cities), should prevail. At stake was “the heritage of all peoples” (Scovazzi 2011b: 345), as the separation of these artifacts from their place of origin would only present a grave obstacle to local culture, its continuity and the education of citizens. As well, the “destruction” of the separated and removed artwork reduced greatly its significance. Even at that time, the main principle was that not everything can and should be treated as a commercial good (Scovazzi 2011b: 346), a belief that eventually became foundational to the principles of unesco today. Prue Taylor sees an important connection between the principle of the common heritage of mankind and the public trust doctrine, although neither has been used to their full potential in international law: The “common heritage of mankind” (CH) is a controversial principle or concept of international law. Properly understood, it has the potential to overcome some of the grave deficits of state-centric international (environmental) law. taylor 2013

Taylor recognizes that, despite its “failures” of usage in the in the context of the current emphasis on property rights and economics, rather than moral considerations, the CH retains its “continued relevance” because of its connection to natural law, a legitimate source of international law itself (Taylor 2013). She traces the Search for the roots of CH to Father Peter Serrecino Inglott (1936– 2012), a Catholic priest familiar with the work of St. Thomas Aquinas, hence an expert on natural law principles, also foundational to the Public Trust doctrine. It is significant that both the public trust doctrine and the related common law parens patriae doctrine formed the basis of the only successful appeal on

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the rights to public health of US Citizens afflicted by the conditions of climate change (Connecticut et al. v. American Electric et al. 2009). The decision and final judgment in that case (September 21, 2009) was a clear win on the part of the citizens of Connecticut, New York, Vermont, California and other states, as well as several trusts and conservancies, on the basis of the public trust doctrine: states and other public institutions were responsible for the health of their citizens, and had the obligation to protect them from the effects of corporate activities that produced ongoing conditions noxious to public health, with no effort on their part to mitigate these effects. Unfortunately, in July 2011, the US Supreme Court reversed the judgment of the appeal, without offering any substantive argument to disprove the claims advanced in 2009, but simply stating that judges were not experts on those issues, whereas it was the function of the EPA to make such decisions. This weakness was to be expected, as several powerful corporations are in fact “embedded” in some guise or other in the EPA, or have been instrumental to designing the weak laws that should protect citizens (Westra 2013a). Both the public trust and the parens patriae doctrines are radical, each in its own way. Both imply a complete divergence from the general and present direction of international law and global governance. Tullio Scovazzi says: [T]he concept of common heritage of mankind has a revolutionary character. It presupposes a third kind of regime which is completely different from both traditional concepts of sovereignty, which applies in the territorial sea, and of freedom, which applies on the high seas. scovazzi 2013

It is precisely this “revolutionary” character that shows the connection between such important international law concepts and the social movements we are considering. Aside from earlier philosophical discussions of the concept of CH, its actual introduction as a proposal to the United Nations General Assembly (UNGA) dates back to November 1, 1967, and the proposal itself came from Arvid Pardo, Malta’s representative (Scovazzi 2013). This proposal was followed by the adoption of Resolution 2749 (XXV), on December 17, 1970. At that time the UNGA stated: the seabed and ocean floor, and the subsoil thereof beyond the limits of national jurisdiction, as well as the resources of the area, are the common heritage of mankind. Resolution 2749 (XXV), Art. 1

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The concept of heritage itself conveys a meaning which includes a duty of keeping and transferring something of value to those who would, by right, inherit, without the usual connotation of “property” which, as Scovazzi notes, “could have recalled the jus utendi et abutendi (right to use and misuse) that private Roman Law gave to the owner” (Scovazzi 2013; Borgese 1975: x). As well: All the basic elements of the concept of common heritage of mankind can be found in Part XI of the UNCLOS. The Area and its resources are the common heritage of mankind (Art. 136). No state can claim or exercise sovereignty over any part of the Area, not can any state or natural or juridical person appropriate any part thereof (Art. 137, para.1)…All right over the resources of the Area are vested in mankind as a whole, on whose behalf the International Seabed Authority (ISBA) which is the international organization created by UNCLOS (Art. 137, para. 2), is entitled to act. scovazzi 2013: 5

Many of the developed countries did not want to see the text of UNCLOS adopted, as it was seen as an impediment to commercial enterprise, and as direct conflict with state sovereignty. Hence the UN agreed to negotiate Part XI and an Agreement was produced, which was annexed to Resolution 48/263, adopted 17 August, 1994. This Resolution maintains the CHM, but only with substantive changes (such as the 2000 “mining code to permit exploration and prospecting on the seabed”; Scovazzi 2013: 6). The provisions of UNCLOS were also insufficient to govern fisheries to ensure “institutional cooperation on fisheries conservation” (Birnie and Boyle 2002: 672). Questions relating to straddling and migratory fish stocks would require serious, up-to-date scientific information and monitoring, and UNCLOS could provide neither. Thus it is important to note that simply relying on old rules was and is insufficient. Birnie and Boyle add: “The most radical alternative to the “old rules of the game” would involve extending the common heritage concept to high seas fisheries” (Birnie and Boyle 2002: 672). Hence, whether the topic is fisheries or the deep sea “commons,” the prevailing regimes support property and economic as primary: the one remedy to the inequities and the irreversible damage to the environment that routine governance produces, seem to be radical change and the doctrines we have discussed seem to offer an alternative. These foundational principles re-emerge today in the expressive actions of the Occupy movement, the principles of the WSF, and the basic beliefs of a number of NGOs and other social organizations, whose agendas and activities will be considered below.

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Mattei and Nader (2008) noted that the US was “built on protests,” and the most important of them was undoubtedly the civil rights movement. The latter is the epitome of a principled, just resistance to immoral laws, hence it is worth reviewing briefly the history of civil rights, with all its implications. Thus is it against that standard that we can assess the social movements, NGOs and organizations upon which, it would seem, much of humanity’s future may depend. That movement may provide the “gold standard,” against which others may be judged, while many may not pass our “test” instead, either by supporting corporate activities, or by accepting the support of legal persons, whose interests are in direct contrast with the aims originally stated.

The Civil Rights Movement: Restoring Justice in Legality Though the republican Justice [Stone] would later become famous for suggesting that the constitution be read to protect “discreet and insular minorities” in 1938, the parties most responsible for bringing questions of minority rights to national attention in 1932 were Communists. walker 2009: 390

The attempt to question, let alone overturn existing laws is and has been present in judicial activism in the US and elsewhere, hence the quest for “neutrality” in legal principles is not necessarily a boon (Miller and Howell 1960: 661), but that was indeed the approach of Herbert Wechsler (1959), who tapped into labor rights, rather than attack directly the “depth of racism” present in the South (Brief for the Appellant, Herndon v. Georgia, 295 US 441 [1935], no. 665). In so doing, Wechsler avoided the political backlash that would have followed upon too strong a stance in favor of black rights. The eventual triumph of the civil rights movement, a striking example of justice restored in the history of the US, however, should not blind us to the fact that it was the economic interests of the south, which initiated the sordid story of black slavery in that country. Hence a long history of justice denied preceded the eventual movements of labor and communist workers that initiated the hard-won eventual (though partial) success of civil rights (Wechsler 1959).2 Yet, as late as 1960, a Yale law journal published learned papers on “The Lawfulness of the Segregation 2 Citing “The Communist Party USA, the Young Communist League…the International Labor Defense,” all of which took up the case of nine African American Defendants who had been falsely accused of raping two white women in Scottsboro, Alabama.

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Decisions” (Black 1960; Heyman 1961: 104). Aside from the legal opinions of the early 1950s, perhaps an anecdote may add context. The author recalls travelling from New York to Texas on a Greyhound bus, in order to rejoin her (then) US army husband, only to be faced with segregated drinking fountains at restaurant bus stops; also being told by a benevolent bus driver that “a nice girl like you should not be sitting in the back of the bus with those colored soldiers,” a friendly group that was singing country music accompanied by a guitar. Both events were utterly incomprehensible for a young woman freshly arrived from north Italy. One needs not review the historical development of the civil rights movement, something that has engaged many different scholars over the years. What is significant is the fact that a social and human rights movement was initially reviewed as a revolt against the government’s position against such rights. That stance was predicated upon the economic interests of certain states, that is on a position that is repeated today in almost all protest cases, that is human rights versus economic interests. Walker cites a case that illustrates this point: The community, an African American named Angelo Herndon, had been arrested by Georgia authorities in 1932 for possessing documents advocating a black-led revolution in the deep South: an act that led him to be charged with inciting insurrection. walker 2009: 394; sitkoff 1978: 139–168; Brief for the Appellant, Herndon v. Georgia, 295 US 441 [1935], no. 665

What can actually be seen as a threat to the US government? Any speech which may “tend to subvert or imperil” the present-day government was sufficient to be defined as a “clear and present danger” and states were not required “to measure when a defendant’s conduct would actually lead to revolt, if it ever did” (Walker 2009: 396; Gitlow v. New York, 268 US 652(1925)7; Rabban 1997: 284). When we consider the present situation, when simply distributing leaflets at the corporate offices of companies contravening animals’ rights, or environmental regulations, can be construed as an act of terrorism (Terrorist Surveillance Act of 2006; Westra 2013a), the historical continuity becomes clear. Particularly significant is the role the law plays and has played in the movement: state and federal statutes, as well as court decisions, provided an important impetus, or at the very least a validation for racial change—first for

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white Southerners as they created the Jim Crow legal regime and later for segregation’s opponents as they re-inscribed racial equality onto the core narrative of American life. mack 2009: 658

In fact it is the social history of the civil rights movement, that the phenomenon we are studying first developed. Kenneth Mack terms it “a new model that emerged” and which “trained its sights on community-level protests and reorganizations” (Mack 2009: 658). The interesting point is the interplay of law and activism, as often local movements were not supported by the law: the central focus of the latter was “the NAACP, the Supreme Court, Congress, Martin Luther King Jr, and the Congress of Racial Equality (CORE)” (Mack 2009: 658; Morris 1984: 35–37; but also work focused on the North, where “explicit legal segregation” did not exist, such as Sugue 2008). The question that arises is whether courts and legal regimes could, on their own, bring about social change (Rosenberg 1991: 336–342). In addition, Nancy MacLean has written on these questions (MacLean 2005). Her starting point is former US President Lyndon B. Johnson, whose speech at Howard University in 1965 stated clearly that “freedom is not enough” (Mack 2009: 662). Racial equality requires far more than formal equality. That question was raised and sometimes answers were attempted in the years that followed. But it is still a live question today, and one that is thoroughly controversial in the US. During the recent campaign for the reelection of the first African American US President, Barack Obama, part of the argument which most clearly differentiated democrats from republicans, was the declaration of Mitt Romney, the republican contender. He stated repeatedly that he and his party believed in “equality of opportunity,” rather than “equality of outcomes,” as the democrats did. Lyndon Johnson had been clearly speaking about the distinction between “formal equality” (or removing explicit barriers to participation in the law), and substantive equality (actual African-American participation in the nation’s workforce and institutions; Mack 2009: 663; Carhado and Weise 2003: 116). It would seem that substantive equality has been well and truly achieved, when a US President is African American; but the substantive “equality” that is needed now must be more inclusive yet. Those who have no clear hope of achieving it, are not only Blacks, but the legions of poor, often homeless whites and Hispanics, with no jobs, no health care, no future for their children. Their presence confirms the disvalue of “equality of opportunity”: whites have never suffered either de facto segregation or discrimination. But both the position of the WSF and the Occupy movement demonstrate that the right skin color is not

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enough in the USA in recent times, if it ever was: both groups now suffer from overwhelming, institutional inequality of outcomes. In that sense, Occupy in the US has clearly inherited some of the issues and the fight of resistance to inequality, unfairness and—ultimately—injustice, whatever the laws and courts are affirming. That discrimination is not only racist, it is an all-pervasive depreciation of the rights of the forgotten 99 percent, who are not even laboring slaves, but are simply ignored by laws and policies that do not protect them or even attempt to advance their cause. There is also another aspect of the civil rights movement that appears o have been inherited by both Occupy and the WSF, as well as by most other such movements: its uncompromising stance on non-violence. Given the violence African Americans have endured their position is particularly admirable, and in the next section we will consider briefly their non-violent protests and the values they epitomize.

Civil Disobedience and Non-Violence [sources of violence can be found] not in esoteric groups but in the very culture itself, its mass media, its extreme individualism, and competitiveness, its inflated myths of virility and toughness and its overwhelming preoccupation [with means of destruction]. merton 1980

It is precisely by reviewing and striking difference between the way “man,” his role and status is described in the work of American authors like Henry David Thoreau, or Martin Luther King Jr., and the way he is considered today in domestic and international law (for instance in the work of Richard Falk), that we can fully appreciate the full and “just” legality of protests. Henry David Thoreau (1817–62), in his work on “civil disobedience,” discusses what man is and should be in relation to what his government (at the time) expected of him. He offers a strong critique of that relation, and he starts by separating clearly citizens’ obligations to the state and even to the law, form the obligations to his own conscience: “It is not desirable to cultivate a respect for the law, so much as for the right” (Thoreau 2000: 172). His argument is that individuals must stand with their own conscience, neither blindly obeying the laws of their state, nor biding their time, hoping to convince the “majority” to follow the “right” they believe in. Citizens who simply follow directions, without standing up for their moral convictions, are no better than machines, and they are so treated, that is, they are considered to be

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no more than material or equipment, rather than thinking individuals. It is telling that Thoreau adds: “A very few, as heroes, patriots, reformers in the great sense, and men, serve the state with the consciences also, and so necessarily resist, for the most part: and they are commonly treated as enemies by it” (Thoreau 2000: 172). The emphasized sentence indicates that little has changed since his time: those who stand with their conscience and refuse to obey immoral, unjust laws, are the true “heroes,” even if the current government views them as enemies of the state. Thoreau could not count as “his” a “government” who claimed power over slaves: that gross immorality was sufficient to eliminate the legitimacy of a state’s rule. That government was no longer qualified to order others and to be obeyed: “Action from principle, the perception and the performance of right, changes things and relations; it is essentially revolutionary and does not consider wholly with anything which was” (Thoreau 2000: 173). Thoreau’s words resonate strongly today as moral action in increasingly missing from the legal regimes of the US government especially while some vestiges of morality are still present in international legal regimes, international courts, and EU documents, all venues where the oppressive hand of multinational corporate mafia has not fully penetrated, although that immoral push in increasingly felt. But Thoreau is a true North American citizen: he believes first of all in individualism. While that stance is indeed uncompromisingly moral in his case, and moral at all costs (even facing jail), it also misses the most important aspect of modern social movements; the communitarian aspect that drives them today. And it is indeed the community that leads today as it joins transnational citizens from all continents, and we’ll return to this aspect of citizens’ movements below. In contrast, extreme individualism is also the main driver behind such American barbarisms as the current interpretation of the second Constitutional Amendment, on the “Right to bear arms,” which produces regularly terrible massacres in schools and universities (see for instance the school children massacre in Newtown, Connecticut, in December 2012, by one disturbed individual whose own mother, another victim, collected guns and assault rifles). At any rate, the civil rights movement was a model of peaceful assembly and protest, while the governing bodies of the early sixties resorted to violence to prevent them: the Kennedy administration in the early 1960s acquiesced in the illegal imprisonment of Freedom Riders in Mississippi during 1961, and declined to intervene on behalf of civil rights demonstrators in Albany, Georgia, who were illegal impeded in their exercise of federal rights. klarman 1994: 142

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Martin Luther King Jr., in contrast, saw himself as an important part of a great community, rising peacefully but forcefully against injustice: he could not remain in Atlanta, he says, while injustice was rampant in Birmingham, Alabama (King [1963] 2000: 145). As King pointed out: “We are caught in an inescapable mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly” (King [1963] 2000: 145). The time is ripe for a “direct action” campaign, he states, as he adds: “We have waited for more than 340 years for our constitutional and God-given rights…[as] justice too long delayed is justice denied” (King [1963] 2000: 145). A just man, he understood he had to explain and justify breaking some existing laws, while urging respect for others. He reminds us that “everything that Adolf Hitler did in Germany was legal,” hence it is not sufficient to say “it is the law,” but we must separate just from unjust law. The latter is no law at all, he states, citing Thomas Aquinas (as I noted earlier): An unjust law is a human law that is not rooted in eternal and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. king [1963] 2000: 146

In fact, as Aquinas puts it, it is not law, but someone’s form of violence (violentia cuiusdam). The letter King pens is addressed to communities and to the brotherhood, all of which are advised to rise and protest in order to restore the beauty of “our great nation” (King [1963] 2000: 148) thus viewing the protest less as one man’s call of conscience, and far as an acknowledgment of the community to which we all belong. In this, King was far more modern than Thoreau, as his was a call to universal human rights, a call to which the United Nations was eventually to respond, and which formed the basis of international law. Martin Luther King Jr. was speaking of justice and human rights as the basis of any law that merits its name. Since the Second World War, and the 1948 Declaration of Human Rights, there has been a proliferation of human rights legal regimes, declarations and conventions, although the most powerful nations, primarily the US and its allies, have employed a whole industry of legal advisors committed to twisting the meaning of the most important instruments, to allow them to pursue their own interests with impunity (Westra 2012a). As King and David Barash state, and most international law textbooks affirm, natural law is in fact one of the sources and an integral part of international law (Barash 2000: 149–150). At any rate, human rights are not a panacea, especially as they are currently understood and applied.

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Hence the current and ongoing instances of “civil resistance” (CR) are quite different from the carefully targeted and directed “civil disobedience” (CD) of old, which resulted in the triumph of human rights and justice over unjust laws. CD worked steadily to eliminate unjust laws within a largely respected and desirable body of laws. CR in contrast, indicates that: large numbers of American citizens have decided to act on their own cognizance by means of civil resistance in order to demand that the US government adhere to basic principles of international law, of US domestic law, and of the US constitution in its conduct of foreign affairs and military operations. Mistakenly, however, such actions have been defined to constitute classic instances of “civil disobedience” as historically practiced in the United States. boyle 2012

It is not immediately obvious that—for instance—the Occupy movement has such lofty and global ideals and that the radical reforms they seek are based on international law, although those ideals are clearly present in the other social movements we have discussed. But it is important to keep in mind the intimate connection between the local and the global, as both arise as problematic issues from the US quest for global dominance based on the disregard for human rights and the law.

“Civil Resistance” and the Law Civil resistors disobeyed nothing but to the contrary obeyed international law and the United States Constitution. By contrast, the US government officials disobeyed fundamental principles of international law as well as US criminal law and thus committed international crimes and US domestic crimes as well impeachable violations of the US Constitution. The civil resistors are the sheriffs enforcing international law, US criminal law and the US Constitution against the criminals working for the US government! boyle 2012: 4

It is useful to understand that the law, as such, may well support and defend conflicting positions at different times, so that it is imperative that individuals and communities be prepared to approach it in a critical vein, and that their right to do so, may not be curtailed. It is not enough to say that we must

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support human rights, even in the context of civil resistance. Douzinas points out that the Fourteenth Amendment of the American Constitution, or “equal protection of laws clause,” “established the principle of colour segregation and apartheid in Plessy v. Ferguson, and the principle of desegregation and equality in Brown v. Board of Education of Topeka” (Douzinas 2000: 252). In Plessy, equality of treatment was achieved by providing “separate but equal facilities.”3 Hence “human rights” appears to be entirely context dependent (Douzinas 2000) in relation to equality; and the same is true regarding the right to free speech: What we can say with a degree of confidence is that the rights of anarcho-socialists and Socialists were violated in the twenties, the rights of communists in the fifties and those of anti-Vietnam war protesters in the sixties. douzinas 2000: 252–253

We can further expand this litany of rights violations by affirming that the critics of corporate power, or of the ongoing support of Israel’s illegalities, also do not have their speech protected, and neither—eventually—do the participants in the Occupy movement. Critical thinking is what is necessary to distinguish fact from myth, and simple observations regarding the presence of legal regimes are useless. Corporations and governments rely on “greenwashing” to keep the facts about the true import of globalization and its price from emerging (Brennan 2012: 246–247): The fact is that globalization is about securing more oil to keep profits going at the expense of the young and the unborn. In addition, globalization is about cheap labor markets and forcing down wages and salaries. It is about the reduction in corporate tax, increases in taxes for the employed and cuts in social services. Most of all, it is about using up the earth’s resources at increasing speed and at a massive environmental price. brennan 2012: 247

Brennan covers some of the expected grounds in her critique of globalization and its total, uncritical embrace of the primacy of economic theory. She also 3 Plessy v. Ferguson, 163 US 537 (1896). In contrast, in Brown, the Supreme Court stated that for public education, “separate but equal” is not an acceptable principle (Brown v. Board or Education of Topeka, 347 US, 483 (1954).

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aligns herself with William Rees and his ecological footprint analysis (EFA), although she does not mention his work directly. Rees also speaks of “myths” but his emphasis is on “social myths,” which he contrasts with the “ecological reality” that ought to be the basis of both governance and law (Mickelson and Rees 2003). Rather than emphasizing the role of governing elites as Brennan does, or even that of corporate interests, as I have argued myself (Westra 2013a), Rees emphasizes our own psychological make-up, the inherited, comfortable myths that do not allow us to transcend the status quo and face the dangerous ecological reality with which we live today. Mickelson and Rees state: The neoclassical (neoliberal) economic paradigm’s upon which so much economic policy in the industrial north is based, ignores the biophysical basis of life. Inspired by Newtonian physics neoclassical economics was conceived as a sister science, “the mechanics of utility and self-interest.” As a result, the economic process is abstracted from nature and viewed as an independent and “self-sustaining circular flow between reproduction and consumption” in which “complete reversibility is the general rule, just as in mechanics.” mickelson and rees 2003: 5

The “ecological worldview” (Mickelson and Rees 2003: 7) in contrast acknowledges that “the ecosphere is the source of all material resources” (Mickelson and Rees 2003: 7) and therefore both the separation and the primacy of neoliberal neoclassical economics ensures that both legal regimes or governance based upon that separation and that primacy can only lead us further away from true sustainability and into dysfunction and collapse instead (Westra 2013b). Brennan notes that “the realities of natural time, the environment and healthcare” are today viewed as “externalities” (Brennan 2012: 252), and—while appealing to Marx, she re-interprets “socialism” as she says “localism is a better term, because local economies go to the heart of the spatio-temporal profit imperative and overturn it” (Brennan 2012: 253). As well, Karl Marx critiqued “the rights of man,” which belong to “abstract, universal man,” distinct from the rights of the citizen, a social being. Marx argued about the flawed individual rights “based on a society of isolated monads who see each other as a threat and hindrance to their ends. The private property of the means of production separates people from the tools of their labour and divides them into capitalists and wage laboring slaves” (Douzinas 2000: 159). But, despite his good intentions, Marx erred as he assumed that “all local or petty commodity production” simply “paves the way for big business” (Brennan

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2012: 255). In yet another acknowledged point of connection with Rees, Brennnn sees the regional/community approach as the “localism” that alone could provide the needed remedy and contrast to globalization itself. The greedy, individualistic capitalist man, insisting on his “rights,” is not the member of a community of civil resistors, united in their critique of illegal and immoral governance that has forgotten the principles upon which it was originally based, has abandoned its Constitution and the other legal instruments it has embraced over the years.

Citizens’ Resistance and Declining Allegiance to State Sovereignty One speaks of the gaps or disjunctures that currently exist “between the formal domain of political authority” and the actual, increasingly limited scope and effectiveness of state power in various political, economic and social domains. Others emphasize not merely the de facto, but also the formal decline of the sovereignty principle in the face of the ascending authority of supranational norms and institutions. bosniak 2001–02: 986–987

Saskia Sassen indicated the internet as the main source and location (as well as the clearest means) of new connections and allegiances, designed to take the place of the previous allegiance of the citizen to her own nation-state (Sassen 2006). Carl Boggs traces the historical antecedents of the present situation, as he describes citizenship as “an atomized society of disengaged individuals who feel alienated and powerless” (Boggs 2000: 12). Politics has long lost the original Aristotelian meaning of the most valued and valuable participatory activity of citizens, in a democracy intended to achieve “the good life” for all (Aristotle 1932; Barker 1973). Both the importance of political activities and the need for limits in the desire for external goods, clearly define Aristotle’s political thought, in direct conflict with today’s socalled Western democracies.

Community over Individuals and Justice One can even say that those who are most responsible for the well-being of the community bear the clearest resemblance among political leaders, to the unmoved mover. For the divine is, in its own way, a cause of the goodness of the universe and the more responsible one is for the

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goodness of one’s community, the more closely one approximates this condition. kraut 1989: 100; see also barker 1973: 11–25

Political power and office should be shared equally among equals, but it is certain virtues, a certain excellence, that makes specifically every one of these citizens “equals” who must share power for the greater benefit of the community, hence, who must govern in turn: Justice, construed as a specific virtue, required equal treatment (Nicomachean Ethics, V, 1–2), and so when citizens are equally deserving of political power, they must take turns governing and being governed. barker 1973: 23–27; see also kraut 1989: 98

Hence the first vast difference between Aristotelian governance and today’s (mostly) neo-liberal “democracies” emerges clearly. Citizens should participate in the governance of the state for the common good, but only when they are deserving: each person must be habituated to virtue, and be determined to seek it for the whole community of fellow citizens. Today, in Western “democracies,” the holders of public office are determined by a combination of wealth, his own, and that of whoever else can be convinced to add to it, but also by the untiring work of the “orators”—that is, the spin doctors, the speech writers, the political advisors, who work to ensure the “win” of their candidate. I want to emphasize that I believe the European Union is somewhat better than North American and other countries in this regard, because of the predominance of the transnational aspect that can be found in its governance, and I have so argued in my second doctoral thesis (Westra 2004). For the most part, in democratic political campaigns, the high-sounding words, the commitment to the “people” (unspecified), the assurances of high moral standards when elected, all come from paid promoters, speech-writers, and others. Essentially then, those who rule today do not need to develop their highest intellectual virtues, contemplating (practicing) the theoretical disciplines, such as mathematics, physics and—most of all—theology, or, as Aristotle terms it, first philosophy. The most important of these is the study of the first cause, but the study of nature (physics) is only somewhat lower than that and although all of these are superior to the choice of practical sciences, the latter are also necessary in order to pursue the political life (Kraut 1989: 74–75). The point is that not everyone is suited to pursue the ideal of happiness involving the highest virtue and

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the highest subjects of study. Doing one’s best in “the realm of theory or the realm of practice” (Kraut 1989: 75) is what is required. The latter, intended as one’s choice to pursue the political life, permits one to achieve happiness insofar as one can. But the pursuit of happiness through moral or intellectual activity is basic. And only by making the interests of the community primary, the political ruler is also seeking his own happiness, but, first and foremost, that of his community. We need to keep in mind however, that in order to even attempt a comparison, the community today, must include the community of humankind, wherever they might reside, as a ruler who ignore global implications of his actions in order to promote his own state’s advantage, at the expense of any and all others, cannot be moral or just. Throughout Aristotle’s writings, and with particular frequency in the biological works, we find the rule that “Nature does nothing [in] vain”, or “to no purpose”. In a well-known passage of the De Caelo [On the Heavens]… there is a variation on this: God and nature, Aristotle tells us, do nothing in vain (Aristotle, De Caelo)…That is nature, not only in the natures of individual things but an immanent god (not dissimilar from that of On Philosophy), must work in a law-like fashion. rist 1989: 125

We need to pause here and review in our mind the three examples of grave environmental harms we have chosen to address. All three demonstrate the hazards to which we are exposed, based on four fundamental lacunae in globalized governance: (1) the lack of principles that recognize the basic importance of human nature; (2) the lack of understanding of the interconnectedness and the teleology in the laws or nature, and their relation to human nature itself; (3) the lack of emphasis on limit (horos) as a basic requirement of a human life worth living; and (4) a better understanding of true “democracy” (since although it is considered the ideal form of governance today, its weaknesses and flaws stand out in contrast with Aristotle’s understanding of its reach). These four “missing” aspects of governance are also additional to the basic necessity for international or transnational legal instruments, that is, for cosmo­ politanism that supports universal principles. We still have laws for individual

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states, but the problems we are addressing are global in scope, and no state can solve them on its own. Municipal laws must internalize international legal rules within their constitutions, in order for these principles to be operational within the state. But the formulation of these instruments must first be international, and only secondarily, they must be incorporated in municipal law. All four “lacks” stem from the total lack of appropriate limits to growth and to enrichment, as goals. This fundamental lack results for instance, in climate change, and the ferocious resistance of some of the greatest polluters to the imposition of any “limit” whatever, as this is viewed as a limit to economic growth and corporate enrichment, tells the story. The history of the US resistance for decades to even admitting the existence of climate change, let alone to the acceptance of limits, is a clear example (Westra 2007: ch. 8). Lack of acceptance of the interconnectedness of natural systems is equally vital to the problems. It is in conflict with reality, and with the pursuit of growth/enrichment that is the ultimate goal of most of our so-called “democratic” governance. Corporate crime, including crimes against humanity and even genocide, runs apace with so-called “development,” especially in the case of extractive and mining industries. The latter’s operations often spell the demise of the indigenous and local communities who depend on the services of the same ecosystems that are instead exploited for gain, with little or no regard for the consequences (Westra 2007: ch. 4). Most of all, no system of governance today fully accepts the existence of definable “human nature,” let alone one with the Aristotelian connotations of moral and intellectual excellence. If it is considered at all, today human nature is the subject of self-serving, individual and non-universalizable, except insofar as “choosing” and “consuming” appear to be its defining characteristics, in an increasingly homogenized/globalized world. Unrestrained, unprincipled and limitless choice, therefore, represents the ideal, and the “democratically” chosen leadership that follows this analysis, clearly does not include any of these aspects of justice that Aristotle recommends.

The End of Politics and the Rise and Role of Social Movements “Politics” has become the most denigrated and devalued of all enterprises, robbed of the visionary ennobling, and transformative qualities that not so long ago were associated with the great popular movements of the 1960s and 1970s (which found their own original inspiration in the earliest civil rights demonstrations). boggs 2000: 12

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The “electronic thing, the wired society” (Boggs 2000: 13), encourages the individual to be isolated, living her “privatized lifestyle,” but also encourages  the quest for other social groupings, where the empowerment might be  found that is so significantly missing from the political scene (Boggs 2000: 13). Nor is the public to be blamed for their powerlessness in the face of  the almost total absence of real political debate, especially in the United States, where “corporate colonization” (Boggs 2000: 11) has taken the place of real debate between the parties that are almost indistinguishable, except perhaps, for the respective amounts of corporate funding they manage to attract. Boggs’s point about “colonizing corporations,” while correct, does not go far enough today. Indeed citizens rightly place the blame on corporate power, as they see dominant economic interests replacing any possible social interest that might move them to return to political concern and dialogue. But, after 2000, the most dangerous development yet in the growing trend of overwhelming, ubiquitous corporate presence, is the infiltration of that power right into the government elites intended to protect the citizens, via the presence of “embedded science.” These corporations now have complete confidence in their immunity form the legal consequences of any and all crimes they might commit, especially after the advent of the US Terrorist Surveillance Act of 2006, where the practical identification of large corporations with the US government itself is clearly enshrined (Westra 2013a: ch. 4). The huge spread of corporate power transcends the global limits as well as those of the US domestic constitutional law.

Corporate Power and Cosmopolitan Democracy [N]ow as then, no world executive power exists. As a result, at the world level a huge gap exists between the solemn statements of principle and bleak daily reality. The violation of human rights, conditions of extreme poverty, periodic recourse to war, and environmental degradation are but a few of the many problems facing humankind today. archibugi 2008: 2

Daniele Archibugi notes the vast gulf between the affirmation of principles and the bleak—and I would add paraphrasing Philippe Sands—“lawless” reality we face. He proposes “cosmopolitan democracy,” based loosely on the West’s vision of democracy. He proposes a cosmopolitan democracy transcending the democracy he believes exists in the West. He says:

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The West is an entity composed of countries that have a market economy and consolidated democratic institutions. With the sole exception of Japan, the West involves Europe and its ancient settlements. archibugi 2008: 3

He thinks that—in addition—beyond the material power, we can observe the domination of the US and its ideology. Yet “freedom and democracy” are no longer the values that once carried basic universal connotations. Increasingly, these high-sounding concepts “have been turned into ideological screens to defend vested interests and attack enemies” (Archibugi 2008: 4). Hence that “world power” ought not to be the sole (or the greatest) source of power as often the West “claimed to have values [e.g. freedom and democracy] for itself and denied them to others” (Archibugi 2008: 5). Democratic regimes are not the only ones of unworthy of carrying on the torch of civilization, as autocratic regimes may be equally, or even more likely to be aggressive and to disregard human rights. This is not the appropriate place to follow Archibugi’s sophisticated analysis of all aspects of the possible achievement of a real global democracy, while evolving “meta-state law” (Archibugi 2008: 228). But we should consider the effect on “the West” of corporate persons, given the power these ubiquitous legal entities possess in the international community. Archibugi is correct as he says that “no world executive power exists,” at least if he refers to an officially sanctioned or elected “executive power.” The questions we are raising in this work refer to the possibility that a supranational power does exist, especially in the West, but ultimately affecting the whole global community, which does not represent either “democracy” or “freedom.” This power does not possess a true political ideology or a democratic mandate: it is only unashamedly limited to the aggressive pursuit of its own interests. As we continue to examine the corporate legal persons’ power, together with their influence on public policy globally, we should keep in mind what institutions and organizations might have a legitimate claim on a true cosmopolitan democracy instead.

Corporations, the State and the “Two Constitutions” The rise of the giant corporations during the past century has been the  principal influence in the creation of a second—the secret— constitution. Corporations, at least those of giant size, are private governments and should be recognized as such. miller 1987: 242

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Although Miller’s argument pertains exclusively to the US Constitution, the fact that the “giants” to which he refers are indeed the supranational powers that intrude in global governance, entails that his position supports the argument of this work, even beyond its application to US governance. His starting point is radical: It seemed obvious that the Court in Santa Clara did not want to discuss the personhood question, and were quite satisfied taking it for granted as a starting point, without any philosophical or political argument in its support. Some of the commentators suggested personal motives, other simply carelessness, even negligence. In contrast, Miller proposes that in fact, the Santa Clara court knew precisely what it was doing, although it could not predict all the ramifications and consequences of its decision over time. Miller says: Santa Clara, accordingly, is best seen as one of a clutch of decisions in which the Supreme Court was a willing ally of the property-owning class in the United States-those that Alexander Hamilton called “the rich and well-born” in the Constitution Convention of 1787. miller 1987: 243

The attack on the Fourteenth Amendment is considered to be especially heinous, as it transformed a landmark document designed to protect freed slaves, into one for the protection of those that needed it the least, as “the state action doctrine added to corporate privilege, rendering the firms immune from constitutional norms” (Miller 1987: 243). Nor do we need to wait for the racially motivated repressions in S. Carolina or Florida (Bullard 1994), or the repression of Indigenous revolts against mining and extracting industries today (Westra 2007). August 2012 sees the violent battle of South African policemen against the miners at America mine, who protested for non-payment of wages and poor working conditions, resulting in four murdered individuals. But the use of federal troops to repress protesting workers, in the US, dates back to 1895 (In re Debs, 158 US 564 (1895); Miller 1987: 243), when a strike by Pullman workers in 1894 “stopped trains and the mail,” killing “some of the mob”: a result that was seen as acceptable as a solution to the problem (Miller 1987). Not only does the working class, one that includes African Americans, suffers from the constitutional dualism Miller decries, but every US citizen is affected by it. The US is governed by a type of “democratic elitism” but the secret institutions of the corporate-directed second constitution “have marked antidemocratic authoritarian tendencies” (Miller 1987: 246). Miller does not discuss the

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actual detailed results of this duality, but he does state that the separation between the economy and the polity is only functional, as they are complementary instead. Hence a truthful understanding of the situation would be to term it the “corporate state.” This intimate relation entails that he most important aspects of democratic citizenship are eliminated Mark Kesselman notes: The hidden face of power is exercised not so much by the suppression of specific issues from the political agenda as by the exclusion of the most fundamental matters of public concern form the political sphere. kesselman 1982: 571

The corporate control here acknowledged, could not persist without an additional control, one we have neglected in this work given its wide reach and the public awareness of its results: the corporate control of the mass media. That is the final form of supranational control: neither the control of the law, of governance, nor of the markets exerts such widespread power. It is the ultimate social control of people’s wants and preferences, so that unhealthy and even injurious choices become the “real” preferences of US citizens to begin, but of people everywhere, eventually, as the “better way” is spread, from harmful McDonald’s hamburgers and Coca-Cola, to mind warping computer games and other such “necessities,” promoted to the public from childhood on. Thus corporate control is not simply tolerated and accepted by the law. In contrast, again primarily in the US, the home base of most MNCs, the identification of corporate interests and legal regimes completes the structure of a “lawless world” (Sands 2006), which explains and amply justifies public apathy and disinterest in what is left of “politics,” while the mass flight to other, more reliable social movements and groupings attract the interest and allegiance of disenchanted transnational citizens, trying to recapture elsewhere the significant public “good” that has long since eluded them in their Western democratic national homes. Politics, “in modern society,” is conceived “in terms of elite action” (Boggs 2000: 119), and “The result was an impoverishment of the public sphere and political discourse that lingers on in many parts of the world even today” (Boggs 2000: 118). The withdrawal of the state, both as a purveyor of public goods and as a referent of traditional principles and national values, left the citizens adrift. The void created was quickly filled by various social movements, presented and promoted through the internet. However, like the rest of the plethora of information that is found in the internet, not everything there is

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either truthful or valuable, and it is extremely hard to discriminate among the multiple offerings one can find, in order to be sure that one is truly in touch with a principled organization, rather than yet another “greenwashed” or otherwise altered version of the same corporate colonizers the citizen is attempting to escape.

Chapter 4

International Citizenship under Siege Introduction How does the switch from economic globalization to military empirebuilding by the United States bear on these diverse citizenship trends? What types of resistance to such a prospect are likely to take hold around the world, with what impacts on traditional and poet-modern forms of citizenship? Falk, 2003, p. 1

Boggs views the decline of politics as primarily based on the collapse of the values of democracy and citizenship (Boggs 2000: 111). Elections are-for the most part-empty spectacles, whereas the real power lies in “private structures and their empires made up of lobbyists, PACs, media networks, financial services conglomerates, experts” (Boggs 2000: 111). The belief in the need for technical expertise and “professionalized knowledge” carries with it strongly “disenfranchising consequences” (Boggs 2000: 111). It is because of the empty postures and promises of politicians, especially in the US where the real issues and concerns are simply ignored, that the population tends to leave behind the whole political enterprise, and retreat in multiple other directions, such as “paramilitary militias, and an urban gang culture, the spread of domestic terrorism, the increased popularity of identity-based movements, widespread new-age and therapeutic fads” (Boggs 2000: 112). In addition, the universities, after the 1990s, adopted post-modernism with its themes of chaos, fragmentation, local knowledge, and, most of all “the futility [of] political action” (Boggs 2000: 112). Thus we can see the “end of politics” as disinterest, disenchantment, and as an escape from the futility of participation in domestic governance. The old-time belief that “you cannot fight City Hall” has now become the much more powerful and truthful conviction that you cannot fight Shell, Exxon, Monsanto, Dow Chemical, and all MNCs, with their multiple tentacles and their stranglehold on both law and governing institutions. But, pace Boggs, it seems that there is another set of powerful motivators, beyond the desire to escape futility and powerlessness. Beyond militias, gangs, fads and nihilism, there are still in existence the individual conscience, and the communitarian concerns that motivate people to seek elsewhere the virtues

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and values that are lost in the empty rituals of organized politics. Some of the major NGOs and social movements propose and offer precisely the motivation that has been lost. This motivation comprises the goals and represents an escape to more meaningful allegiances. Environmental and health concerns are universal, and only global movements like Greenpeace may begin to address them, while also matching the communitarian concerns offered by various local movements. Human rights are equally universal as they encompass both the local and the global, and such INGOs as Amnesty International, for instance retain and emphasize the lost values of former local politics. The World Social Forum and the Occupy movements combine to offer tentative answers, or at least to raise the awareness of the flaws and the emptiness found in the World Economic Forum and the G8 meetings against which much of the anger and the distaste of citizens is focused. It seems to be much more than an escape from disillusion, to fads and nihilism: it is instead a growing awareness of the need for human solidarity across borders and beyond narrow parochialism, and toward the recognition of the commonality present in the collective, although the latter does not have a formal form of governance, beyond the UN in its weakened state, at least partially controlled by the same corporate power and the same rogue states that have destroyed the significance of local politics. Thus, as Sassen acknowledges, citizens transcend their national commitments and interests, for the most part, using the internet (Sassen 2006). Boggs sees the citizens’ preoccupation with the internet as part of an individualized, privatized lifestyle that eliminated democratic political concerns. But it is indeed through the internet that citizens achieve their global dimension as they find lost relevance in NGOs and social movements. Perhaps, then, the prevailing democratic deficit and the lack of political commitment to the state, is a step forward as the global citizens acquire and exercise the capacity to think critically rather than accept authority as it is, even when justice and respect for humanity are missing from its current instantiations. Thus the time has come to empower the global collectivity, as we see the growth and development of “global citizenship” as Richard Falk terms it (Falk 2003: 179). Hence, in this chapter we will consider the alternatives facing transnational citizens in their quest for new communities worthy of support and commitment. Global citizenship under the authority of the UN Charter and its principles is one alternative. But the UN itself is not always free or able to enforce its own principles, as the Security Council (SC) is geopolitically controlled, so that Western (mainly US) interests prevail over most principled efforts on its part. Indigenous peoples’ rights—especially in Canada—are a prime example of

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returning to both the letter and the spirit of the law, and one recent movement, “Idle No More,” has spearheaded that return (see below). Indigenous and local communities are often sacrificed to the interests of corporations and states, as we shall see in the section where the presence of these problems in the IUCN is discussed. Finally, another example will demonstrate that even some of the best-sounding associations found through internet may well reveal a dark side, when investigated. The conclusion will re-evaluate the choices and options of transnational citizens.

Constructing Global Citizenship There are the “one World” postulates of world federalists. Those seek to achieve by steps or through a leap in political consciousness, a centralized form of world order capped by “World government.” Falk, 2003, p. 180

The “one World” or world governance ideal, far as it may be from our own immediate reality, is the only global citizenship option that incorporates beliefs such as the unacceptability of wars, the importance, and in fact the primacy of human rights, the value of a world authority based on the authority of law embodied in a constitution. It is the only other choice, for citizens mired in the amoral reality of world economic order “who view[a] the world as essentially a borderless market” (Falk 2003: 180). The latter is the world that global citizens are prepared to fight, to resist, as they correctly see the states as subservient to the markets, as they follow the dictates of the World Economic Forum. Increasingly, these are becoming actual war zones, from Seattle to Davos and all the various G8 yearly meetings, all of which evoke strong protests and stronger resistance that include riot squads armed guards and violent attacks on protesters. Clearly, then, this is not the source of global citizens’ allegiance: the increasingly distant promise of “trickle-down” goods, in the form of jobs and affordable housing, contrast strongly with the “empty and sterile commonality…of popular culture, consumerism, franchise capitalism” (Falk 2003: 181), all of which are associated far more with “American global ambitions” than with real citizenship. Governments are weakened both from inside corporate penetration, and from the power of outside global economic institutions, thus they are becoming entrenched in their “refusal…to respond to normative(moral and legal) challenges of global scale” (Falk 2003: 181). Hence it is important to review just how much of the sought “moral and legal” content may be found in the

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alternative of a global state beyond the traditional territorial nation. Even a brief overview of the existing situation with the UN and its “constitution” (i.e. the Declaration of Human Rights, 1948) at the helm will show the multiple flaws and cracks in a facade that still appears to be the only possibility for global centralized unity. With all the convulsions of global society, only one power is left that can impose order on incipient chaos. It is the power of principles transcending changing perceptions of expediency. Secretary-General Boutros Boutros-Ghali, Statement at Security Council Summit Meeting, SC/5360/Rev.1, January 31, 1992

Secretary-General Boutros Boutros-Ghali was indeed prophetic in his words to the Security Council. Today’s situation, combining multiple unjust and unprincipled ongoing conflicts is a clear demonstration that, failing the imposition of principled restrains, the alternative is a violent and lawless world. Yet the Security Council, even after its restructuring in 2005, is still firmly bound by the “expediency” of interests of its own major powers, with no regard for the moral or philosophical basis that should govern its activities, or even by the basic principles and foundational aims of the UN. Global security and the very aims of the United Nations, for instance, are totally dependent on the return to the principles of jus ad bellum and jus in bello, and the peremptory norms governing human rights (Franck 1995: 218– 283; Lamb 1999: 361–388). We are seeking a “World Law” capable of redressing the present “unfairness” and illegalities, as well as the lack of principled action globally. The United Nations appears to be the most likely candidate to provide a centralized focus for such principled action, and as the locus of a “World Law” however designed. But the Security Council clearly has the final word on any practical application of any UN declaration, instrument, or report. Many different conclusions have been reached as to whether the ICJ has powers of judicial review over acts of the Security Council…In what is meant is an automatic constitutional process review with compulsory effect, both the UN Charter and the Statue of the International Court are silent in this respect. Lamb, 1999, p. 363

Thus, although our argument leads to the need for a centralized organization, with ultimate powers, as the locus for a “World Law,” and that the UN is

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the only present actor able to fulfill that role, the organ with overarching authority, that is, the SC is not subject to final review of its decisions, nor is its power based on the will of a strong majority of States. However the fact that there is no “automatic review” of its decisions, together with the reason of its limited “democratic” presence, renders such an authority suspect as the ultimate locus of power. As well, the SC may reach decisions beyond its procedural limits and, at least in the 1995 ICJ case, it was viewed as subject to the possibility of review The Security Council is an organ of an international organization, established by a treaty which serves as constitutional framework for that organization. The Security Council is thus subject to certain constitutional imitations, and neither the text nor the spirit of the Charter conceives of the Security Council as unbound by law. (Prosecutor v. Dusko Tadic ( Jurisdiction), 1995)

Another important aspect of the SC powers can be found in Articles 24–26 of the charter. Article 25, for instance, which “functions to give Chapter VII resolution their binding force”; however, the SC is “bound by the Purposes and Principles of the Organization, so that it cannot, in principle, act arbitrarily and unfettered by any restraints” (Lamb 1999: 366; Bowett 1982: 33). Member States are obliged to accept and carry out the decisions of the Security Council in accordance with Article 25 of the Charter (Lockerby Case 1992). But the language here is somewhat ambiguous, as it may imply the primacy of the Charter principles regarding the mandates of the SC, or it may simply refer to the obligations of the member states of the UN. One would think that as the UN is the matrix of the SC, the UN principles ought to prevail. Yet there is no specific mechanism, to my knowledge, to either support the decision of the SC to confirm it, or to challenge it. This lack of supervisory authority appears to apply to what the SC does and what it does not do, and it is the latter aspect of the exercise of its powers that can be found to be most at fault. In fact, despite the language of Article 2 of the Charter, which states that he “purposes and principles of the UN Charter shall bind the Organization and its members” (Lamb 1999: 368), the omissions of the SC often contrast with the UN purposes and principles. The primacy of the Charter includes the “Principles of International Law and Justice,” according to Article 1, hence the SC should be obliged to prescribe and enforce certain measures in response to any instance of aggression on the part of a state, something that does not appear to occur in all cases. But the SC “discretionary powers” are not unlimited, at least according to Ian Brownlie

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(1995: 216–217), hence the determination that there is a “threat of aggression,” must still remain “within the broad framework of the UN Charter” (Lamb 1999: 375–376). A fortiori, then, all the determinations of the Security Council, including the decisions that certain situations do not, of themselves constitute a threat to peace, must, (or should) observe closely the Charter Articles that refer to such situations. Hence it is hard to understand why so many ongoing conflicts, as well as other obvious breaches of jus cogens norms (such as the prohibition of the practice of apartheid for instance) remain unremarked and, even when condemned by Advisory Opinions or other UN Declarations, unpunished for years. The principal organs of the UN “are empowered under the Charter, to establish subsidiary organs which then, both by design and in practice, possess a high degree of autonomy from the parent bodies” (Lamb 1999: 377). Thus the Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY) could exercise its judicial functions after having been established by the SC (SC Res. S/RES/827 [1993]; Res. S/RES/808 [1993]). At any rate, the possible misuse of the powers of the SC have been acknowledged by well-known scholars. For instance, speaking of possible limitations to the SC powers, Judge Fitzmaurice said: Without these limitations, the functions of the Security Council could be used for purposes never originally intended…[such as where] there was no threat to peace and security other than such as might be artificially created as a pretext for the realization of ulterior purposes. Fitzmaurice, 1950

The argument of this work has tended to focus on the opposite danger, that is, the possibility of special “purposes,” which might produce the opposite result, that is, convincing the SC not to recognize a “threat to peace and security” that is obvious, or even an ongoing situation of conflict, for political motives. To my knowledge, the SC has not been formally questioned for its omissions. Lamb recognizes that for both States, organizations, and even for UN organs, “the legal regime is primarily one of self-limitations” (Lamb 1999: 387). She adds: “the inherent and fundamental difficulties in subjecting the Security Council to legal controls are not diminished and in this regard…the identification of the problem is easier than the prescription of a cure” (Lamb 1999; see also Brownlie 1995: 26).

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Citizenship, Authority and the Law The most essential function of authority is the issuance and carrying out of rules expressing the requirements of the common good considered materially. …But when a power pretends the moral personality of citizens, their beliefs, their tastes and their loves, the time for anger has come. Simon, [1962] 1980, p. 57, 15

That is the rightful, legal, anger of citizens deprived of what should be their “natural” allegiance and obligations, which now transcend the national borders instead. The “virtual community” (Falk 2003: 174), to which both allegiances and obligations have been transferred, do not share any form of authority which state citizens are leaving behind in their quest for more principled forms of authority and legality. Falk suggests that some—albeit limited—meaningful participation in political life may be present in the Statute of the newly formed International Criminal Court (ICC), which represents a global instance of the rule of law (Falk 2003: 174). Yet the one of the ICC, is a form of universality that omits the presence of the most aggressive, amoral (and criticized), as well as negligently illegal states: neither the US nor Israel are signatories of the ICC Statute, hence many of their ongoing activities, which are in direct conflict with the mandates of the UN, are beyond the reach of that court’s universal “rule of law.” This is a reality that also conflicts with the existence of jus cogens norms and the non-derogable obligations they generate. Although those two countries have not formed a “pact” to ignore the erga omnes obligations, by omitting to recognize the statute of the ICC and to abide by its rule, they achieve essentially the same unacceptable and illegal result (Westra 2012a: 167–188). Falk sees the reliance on internet-promoted communities and associations as the perfect counterpart to “the neoliberal sentiments that were dominating global economic policy” (Falk 2003: 174). But that similarity only reflects a super­ficial commonality, that is, the need to transcend the failing state boundaries, no longer capable of supporting the citizens’ needs and aspirations. The latter seek net-disseminated NGOs and social movements that represent the opposite, that is, the deliberate flight from and battle with the economic policies of globalization, as we can see in Davos in 2013, and in all the G8 meetings since 1999, and Seattle. Neither the rock-throwing protesters, nor the riot squads sent to restrain and discourage them, indicate any desire on the part of citizens to follow

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globalization, let alone their economic power as legitimate authority. It seems obvious that the quality of citizenship is changing drastically: the patterns of citizenship in such a world beset by disruptive and confusing tensions are in the process of undergoing fundamental Change, which will lead to a dynamic of growing differentiation as to the quality of citizenship for at least the next several decades. The regionalization of political community around normative ideas in Europe contrasts with their inscription of imperial nationalism as the basis of political community and identity in the United States. Falk, 2003, p. 176; see also kagan, 2001, pp. 3–28

Perhaps what best characterizes the new forms of committed citizenship is the absence of institutional authority, coupled with the strong desire for the authority of law and morality, and the value of community, in fact, the very traditional values that had been rejected by the intellectuals and post-modern thinkers, in the quest for freedom and democratic ideals. The authority of the law and of morality no longer represented by state institutions, especially in North America, have not lost their vitality or their appeal: simply their presence can now only be found in some of the movements embraced by the transnational citizens of today.

Idle No More and the Canadian First Nations: “Frozen Rights”? In ways that we may not fully recognize or appreciate, native Canadians represent our society’s only deep historical links to the land, consolidated over millennia. If their land is now our land as well, their relationship with that land is particularly worthy of our understanding and respect. Slattery, 1987

We must understand and respect their relations with the land, and that relationship must also be respected through entrenchment in the law, for their protection. But some question this entrenchment and the effects that follow upon it. John Borrows terms Aboriginal rights based in their traditional relationship to the land “frozen rights” (Borrows 1997–1998: 37–64). The Constitution Act (1982s. 35(1)) states “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” Tests for defining the import and scope of aboriginal rights may be found in

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Vanderpeet (R. v. Vanderpeet, 137 DLR 4th 289, 9 WWR1 (Can. 1996); R. v. Gladstone, 137 DLR 4th 648, 9 WWR1 1996), under ten headings intended to specify what constituted a “distinctive culture.” Borrows isolates the following: (1) “the perspective of Aboriginal peoples themselves on the meaning of rights at stake”; (2) “the tradition, custom or practice being relied upon to establish the right”; (3) “the centrality of the practice to the group claiming the right”; (4) is the practice under consideration “integral to a distinctive culture,” and does it have “continuity with activities which existed prior to the arrival of the Europeans in North America” (Vanderpeet, 137 DLR 4th 289; see also Pamajewon, [1996] SCC); (5) the evidence offered should be accepted even if “it did not conform precisely with evidentiary standards in private litigation”; (6) Aboriginal rights are not “general and universal, but related to the specific history of the group claiming the right”; (7) the practice contains “independent significance to the community”; (8) “Aboriginal rights” involved the “distinctive nature of the Aboriginal practice”; (9) “a distinctive practice does not derive solely as a response to European influences” and it “can arise separately from the aboriginal group’s relation to the land”; (10) “the right may arise from the prior social organization and distinctive culture of Aboriginal peoples” (Borrows 1997–1998: 49–51). Borrows finds the several aspects of the Vanderpeet test problematic. His critique includes several issues that seem to diminish rather than enhance the content of Aboriginal rights in some way. The starting point ought to be the two principles that are internationally recognized to be basic to the protection of indigenous rights: “self-determination” and “cultural integrity,” and the implication of those principles. The first thing to note is that these are two equal domains but they are interconnected; and that both are collective in nature. Hence, for instance, individual self-determination is not part of the protected basis upon which Aboriginal communities can rely. Several cases appear to bring into question individual choices: the right to fish using “contemporary implements” for instance, although fishing is certainly an activity that was practiced since time immemorial, as Borrows notes: the Musqueam “always fished for reasons

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connected to their cultural and physical survival” (Borrows 1997–1998: 49; see R. v. Sparrow, 70 DLR 4th (1990)385 401). That court also acknowledged that those rights could be enjoyed equally by fishing in a more contemporary manner than by using more traditional ways. But the conflict between Aboriginal activities “integral” or “distinctive” to the culture at the original time of first contact with Europeans, and one of the activities they seek to pursue in modern times persists. For instance the establishment of casinos and gambling places is a fairly recent kind of activity, with no “continuity” with pre-contact culture (Borrows 1997–1998: 49). Nor is that practice “central” to any group’s distinctive culture, or even part of any distinctive Aboriginal national identity: “incidental practices, customs and traditions cannot qualify as Aboriginal rights through a process of piggybacking on integral practices, customs and traditions” (Vanderpeet, at para. 40). But it is modern-day Aboriginal people who come before the courts with current problems and issues, hence it seems unfair to “freeze” any Aboriginal rights to those present several centuries ago, from both substantive and procedural points of view. In other words, equity considerations suggest that both evidentiary rules and subject matter in each case ought to incorporate first and foremost the Indigenous point of view today, and Borrows emphasizes this approach. Nevertheless it seems that not every aspect of the “essentialism” practiced by the courts should be judged as inappropriate: the existence of land-based cultures of Aboriginal Peoples is not an outmoded “frozen” form of their rights, it is a basic and fundamental aspect of their existence as a people, totally aside from individual preferences or non-collective choices. Therefore, this is not only a “Western, non-Aboriginal perspective,” it is a basic foundation of their rights in international law, the best and strongest argument that Aboriginal groups can advance for their own protection. The emphasis on different hunting or fishing techniques or equipment, or whether or not a Casino on reserves is appropriate and should be permitted (R. v. Pamajewon, 138 DLR 4th 204; Borrows 1997–1998: 52–55) ought not to be judged solely from the stand point of antiquated choices and lifestyles.

The Crown’s Obligations: Local Issues or Fundamental Principles? But, at the least, the following sorts of regulations would be valid: (1) regulations that operate to preserve or advance Section  35 rights (as by conserving natural resources essential to the exercise of such rights);

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(2) regulations that prevent the exercise of Section 35 right from causing serious harm to the general populace or native peoples themselves (such as standard safety restrictions governing the use of fire-arms in hunting); and (3) regulations that implement state policies of overriding importance to the general welfare (as in time of war or emergency). Slattery, 1987, p. 782

The most important point to keep in mind, is emphasized by the wording of Section  35(1) and the underlying principles dating back to the Royal Proclamation of 1763 and re-emphasized in Delgamuukw, Sparrow and other cases (Delgamuukw v. British Columbia [1998] 1 CNLR 14, December 11, 1997; R. v. Sparrow [1990] 1 SCR 1075). The Crown’s fiduciary duty and the Aboriginal peoples’ right to their lands, are based on principles, not on specific examples. They are universally valid, despite the attempts found in some cases to restrict and specify them as “distinctive” or specific to this or that national culture, as we noted in the Vanderpeet test. The cases deal with individual hunters or fishers, or others involved in specific forms of trade. The universally valid rights they all share represent the Crown’s non-specific obligation: it is the sui generis land-based rights discussed above: rights to the land that will not impair “the ability of the land to sustain future generations of Aboriginal peoples” (Delgamuukw v. BC [1998] 1 CNLR 14, para. 21). The Crown’s fiduciary duty is not a temporary contract, as neither s. 35(1) nor any other instrument dealing with these issues states time limits to those obligations, nor is the duty owed only to one or another nation. That duty, by its very nature, demands respect for the integrity of the land, in perpetuity. That in turn requires protection of the land from both internal and external threats, starting with the addition/protection of a buffer zone to ensure the existence of bio/ecological integrity, on which alone can future generations rights depend. In addition, that fiduciary duty should have strong negative as well as positive components. The negative protection should be exercised by denying firmly the individual economic rights of natural or legal persons who would pursue their own interests at the expense of the health, safety and integrity of Indigenous peoples. Hence the question should not be, was a casino part of pre-confederation Indian lifestyles, but can the casino be built in a way that is less deleterious to the environment than other enterprises, and can it be built in a way that does not have an adverse impact on the health and integrity of Aboriginal lands in the area? Conversely, a case involving land leased for a golf club (Guerin v.

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Canada [1984] 2 SCR 335) should involve more than the more obvious issues discussed in the case: lack of information, lack of consent by the Band, and the concomitant breaches of fiduciary duty of the Crown as well as breaches of trust and agency. The main issue should have been the presence of the “inherent limit” for Aboriginal enterprise, no matter who approved the deal although this might be viewed as a paternalistic approach, it is instead one of respect for their uniqueness that depends on ecologically sound choices. Golf clubs are among the most hazardous areas on earth, as the amounts of pesticides, fungicides and other chemicals involved in keeping their “greens,” sound the death knell for the area’s integrity and will multiply the cancers and other grave diseases of nearby inhabitants. If the Crown has a fiduciary duty to protect the integrity of Indian lands and the supporting lifestyle these lands can provide for present and future generations, then that obligation cannot give priority to the interests of individuals or collectives inside, or even right outside Indian lands, without contradicting its own proclaimed intent. Hence any project or proposed activity within or without the lands where Aboriginal peoples reside, ought to be judged first from that point of view. If it is not, then the commitment to ensure the lands for all Indian generations is meaningless. The scientific research available in support of this argument is uncontroversial, and both lawyers and judges sitting in such courts ought to be prepared to assess cases and situations in the light of that knowledge (Westra 2006: esp. ch. 1, 5). Returning for a moment to Slattery’s summation of The Crown’s obligations listed above, his first point (1) totally supports the conclusions advanced here. The second point (2) is equally important: the harms suffered by the proverbial “canary in the mine” are only the portent of what will befall the miners, unless they cease their activity immediately. The same is true in this case: the harms perpetrated on Aboriginal populations by disregarding ecological and epidemiological evidence of the effects of hazardous industries, is more visible first in non-mobile populations that live directly on the land. But it is also a foregone conclusion that all humans will be adversely affected in some measure. Hence policies concerned with the general welfare (3) could simply learn to comply with the basic tenet of the proclamation and of the Constitution Act. The duty of protection exists for all citizens, and the implied commitment to future generations of Aboriginal people should support a reconsideration of all general welfare policies in order to protect all people in Canada. Hence, another example of revolt against state authority, representing a return to both law and justice, is the 2012–2013 native resistance movement,

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emphasized by the hunger Strike of Chief Spence and the Idle No More movement. In 1763, King George addressed the citizens in his colony of Canada: Nations or Tribes of Indians…should not be molested or disturbed in the possession of such Parts of our Dominions and Territories as not having been ceded to or purchased by Us, are reserved to them…as their Hunting Grounds…We do…strictly enjoin and require, that no private Person do presume to make any purchase from the said Indians of any lands reserved to the said Indians…but that if, at any time any of the said Indians should be inclined to dispose of the said lands, the same shall be Purchased only by Us in our Name, at some public meeting or Assembly of the Said Indians. Royal Proclamation, October 7, 1763, 1985 RSC Appendix II, No. 1, in part

Thus England’s rule of law was clearly prepared to protect the inhabitants of the many trading posts along the St. Lawrence River and in the region of the great Lakes. That proclamation was to become the law in Canada, as it was incorporated in the Constitution Act of 1982, as s. 35(1) of that Act. Indeed, the respect for Canadian First Nations (FNs) and the obligation to ensure their right to lands that would support their traditional hunting and fishing in perpetuity, are part of the obligations of the Canadian government: these rights are protected under the “fiduciary” obligations and the “honour” of the Crown, in principle, against those who would exploit those lands, thus harming aboriginal rights (Westra 2007: ch. 6). In Canada Indigenous Peoples, or First Nations, were not “colonized,” and— as King George’s proclamation indicates—they were and are partners, together with other cultures and nationalities, of other Canadian citizens. Prime Minister Steven Harper appears to have forgotten Canada’s obligation to consult and to include FNs in the decision-making process, so that their consent may be obtained, as he supports industrial activities such as tar sands which are contrary to FN’s treaty rights. Idle No More forcefully reminds all Canadians, through temporary blockades and road closures, as well as through the Chief’s hunger strike, of the fundamental obligation of Canada. As Bruce Erickson said: “As non-aboriginal who is part or those treaties by virtue of living on Canadian soil, I would not want to lose that reminder of the debt and partnership I have with aboriginal people” (Erickson 2013: A15). Once again, the law is not observed, roads are closed off by blockades, and people are inconvenienced. But what is basic to that protest, even more clearly than in the case of the Occupy movement,

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is that the protest aims at restoring, justice and respect for the law of the land, despite the fact that those in charge of governing Canada appear to have—by and large—convenient1y forgotten the basic tenets of that law and the constitutional rights of the FNs, in order to favor business and industrial activities.

Civil Disobedience against Environmental Harms: Forceful or Not? Few changes on this planet have taken place solely because of non-violent action. To remain non-violent totally is to allow the perpetuation of violence against people, animals and the environment. Watson, 1982, 26

Thus speaks the radical activist of the Sea Shepherd Society, Paul Watson. His thought is echoed by Dave Forman (representative of Earth First!): Wilderness for its own sake, without any need to justify it for human benefit. Wilderness is for wilderness. For grizzlies, and whales and titmice, and rattlesnakes and stinkbugs. And…wilderness for human beings. Because it is the laboratory of three million years of human evolution and because it is home. Forman, 1993, p. 188

This radical line of argument supports my argument: ecoviolence is violence indeed, it is unwarranted, unprovoked, totally disproportionate aggression. Hence the question at issue now is a twofold one: first, is it morally and legally permissible to respond to violence with some degree of force, at least when all other approaches appear to fail (appeal to self-defense); second, is it morally and legally permissible to respond with some degree of force in defense of principle or in protest against immoral laws and activities. It is to the second of these questions that we will turn at this time. Although resistance to tyranny in defense of human rights has a long history, many representatives of this defense are and have been, traditionally, nonviolent. Among these are Gandhi, Martin Luther King and David Thoreau stand out. Yet civil disobedience may be defined as “the deliberate violation of law for a vital social purpose” (Zinn 1971: 103). But this definition does not address the “means of disobedience”: must they be entirely non-violent to retain their justification? Zinn notes that Thoreau in “A Plea for Captain

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John Brown” argued that “It was Brown’s peculiar doctrine that a man has a perfect right to interfere by force with the slaveholder, in order to rescue the slave. I agree with him” (Zinn 1971: 105). In addition, Gandhi himself in Young India said: “I do believe that where there is only a choice between cowardice and violence, I would advise violence” (Zinn 1971: 105). Camus, in The Rebel, like many others, reluctantly faces the dilemma of those who stand against unjust laws and principles. The first point to consider, even for non-consequentialists, is what is at stake. If human rights are at issues, especially the basic rights of the most vulnerable, then, when the force is directed against property rather than life, we might need to reconsider absolute prohibitions against force. We noted that self-defense is morally and legally acceptable provided it is both focused and proportionate. Might it not be the case that a similar argument might be made in support of the defense not only of the human life in general, but even of all life-support systems and all life within them, beyond humankind? Zinn argues that “Planned acts of violence in an enormously important cause, (the resistance against Hitler may be an example), could be justifiable” (Zinn 1971: 111). The principles to be protected are such that, even if national laws do not explicitly embody them, they are clearly present in International Law instruments. Christian Bay expresses this point well, in regard to the right and the duty of civil disobedience: A strong case for exalting the law (and indirectly the lawyer) can be made from my own political ground of commitment to no system but to the sanctity of life, and the freedoms necessary for living, in so far as laws (and lawyers) were to operate to protect all human lives, in the priority for those most badly in need of protection. Bay, 1971, p. 74

He does not encourage or even sanction force even in the support of such an obviously desirable project. But we also need to consider what we mean by “violence” as an integral part of civil disobedience. As have used the term “ecoviolence” to characterize unjust and too permissive laws, and practices that constitute attacks perpetrated (legally) in and through the environment, it might be best to refer to “force” instead for our possible response. In this manner, we need not confuse attack (ecoviolence) with self- or principled defense (I have referred in a different context to self-defense 1 and self-defense 2 respectively for the self-defense of physical self and of one’s principles; Westra 1989). Hence I will continue to use the diction “force” to refer to the alternative to peaceful demonstrations.

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Nevertheless even the most radical strategists among the proponents of Earth First! describe “monkey wrenching” as “non-violent self-defense of the wild.” Forman says: Monkey wrenching is non-violent resistance to the destruction of natural diversity and wilderness. It is not directed toward harming human beings or other forms of life. It is aimed at man-made machines and tools. Forman, 1993, p. 193

In fact, although these tactics are illegal in most nations, they are not necessarily immoral: these activists are well aware of the seriousness of their mission and the necessary limits to their activities (unlike those who direct and command the corporate and institutional activities these environmentalists are committed to halt): “They remember that they are engaged in the most moral of all actions protecting life, defending the Earth” (Forman 1993: 194). Therefore, the question of proportionality will have to be foremost in the mind of activists: no one should put lives at risk for a right that is not as grave, or to prevent an action that is not irreversible.

Revolt and Self-Defense beyond the Right to Survive [W]hat are the responsibilities of nation-states when issues of sovereignty and national security confront environment and species protection as well as the integrity, culture and life of a particular village? Where do human rights and democracy stand when confronted with millions of dollars in development and investment. Kintzele, 2012

The question here raised is the status of “superior” concerns beyond basic rights or even democracy, that is, the question of “national security.” It is a familiar refrain: the “political question” trumps any human rights issue in the US courts, as we saw for instance in the sage of the people of Chagos, forcefully evicted from their island, in fact from their traditional life, because the US and UK wanted to secure a basis in the Indian Ocean. In this case, Bancoult v. Robert McNamara includes war crimes, forced relocation, cruel, inhuman and degrading treatment as well as genocide. It is particularly important to establish the presence of one or more international crimes, in this case, given the Court’s conclusion that Bancoult had “failed to allege an international environmental tort” and also given their additional

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statement that “corporate policies…however destructive, do not constitute torts in violation of the law of nations.” The corporation, Halliburton, was alleged to have supported the Indonesian military and to have fostered “a symbiotic relationship” between them and its own security guards and employees (Westra 2009). The appeal to cultural genocide is no less grave than the actual genocide that best describes the results of the listed corporate activities, but it might be better grounded in indigenous peoples rights law. Aside from the presence of an otherwise notorious corporation, Halliburton, and the presence among the defendants originally cited, of Robert McNamara, Donald H. Rumsfeld and others from the US Department of Justice, this is a case where the US government was instrumental in bringing to fruition a plan to place a military base in the Chagos Archipelago (“In the middle of the Indian Ocean”), with the complicity of the British government. It is impossible to claim that there was no intent, planning or complicity present. In order to set up a military base, the first step envisioned was to remove to local indigenous population: “During the late 1960s and early 1970s, the Chagos population was forcibly removed to nearby Mauritius and Seychelles to make way for a US Military facility” (Bancoult v. McNamara, 217 FRD 280, 2003 US Dist. LEXIS 17102 [DDC, 2003, #2]). The whole operation started as in 1964 the governments of Britain and the United States “entered into secret negotiations to establish a United States military facility in the Indian Ocean.” Note that the two governments also “conducted a survey and concluded that the construction of a military base in Diego Garcia would require the displacement of the indigenous population living in the island” (Bancoult v. McNamara). There are a number of problems in the handling of this case under ATCA, and with the resulting judgment, especially the question of the “individual defendants,” and the court’s conclusion that “this case raises a non-justifiable political question as to the potentiality of embarrassment and multifarious pronouncements by various departments on one question” (Bancoult v. McNamara; Baker v. Carr, 369 US 186, 217 2d. 663, 82 S. Ct. 691 [1962]). But at this time, the main concern is to demonstrate that not only was genocide committed as well as war crimes, but that intent and premeditation were also present, even if the Court cannot “second-guess the initial and continuing decision of the executive and legislative branches to exclude civilians from Diego Garcia” (Bancoult v. McNamara). Aside from raising additional questions about whether the actions of the US “executive and legislative branches” are thus to be considered to be acting outside the law, it is undeniable that planning intent and knowledge were indeed present.

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This is a recurring theme in most cases involving corporate activities and “development” in decisions involving US courts. But what makes Kintzele’s observation even more significant, is that it is not the US or any other government who is prepared to flaunt human rights to life, health and a livable environment, but a representative of one of the best known environmental NGOs today, the International Union for the Conservation of Nature (IUCN); Younbae Suh, Chair of the IUCN National Committee said “This is none of your concern. This is national security.” This simple sentence raises a whole range of additional questions regarding the situation facing transnational citizens. Citizens have lost their trust in their national governments and have turned to social movements and NGOs in order to find again and recapture the values and common interests they have lost at home. But even in this change, citizens encounter several problems. First, not all movements and NGOs are represented by a clear mandate that guarantees that certain goals and principles will be present in all their activities: for instance, the Occupy movement, or even the World Social Forum itself, which bills itself more as a stage for global discussion, than an actor for a specific platform. Second, even a clear manifesto or declaration may not be sufficient, if that disclosure does not include additional transparency regarding the support the group may be receiving from corporate sponsors. In the case of the well-respected and established IUCN, Samsung and Hyundai were found to be “congress partners” of a naval military base in Gangeong, South Korea, that had nothing in common with the “conservation of nature,” in contrast, it posed a grave danger to the rare corals present on and around Jeju island where the IUCN Congress was taking place (Kintzele 2012: 7). It is worthy of note that in the previous IUCN Congress in Barcelona, the membership of the IUCN, “unsuccessfully called for the organization to break its 5 year collaborative partnership agreement with Shell, due to the company’s record of harm to Communities and the environment” (Kintzele 2012: 7–8). That partnership is especially heinous, given the fact that the nefarious activities of Shell (as Royal Dutch Shell Petroleum), were judged to be criminal by a US Court in 2009, for their activities in Ogoniland, Nigeria, and their collaboration with the dictatorship of Sani Abbacha, culminating in the murder of Ken Saro-Wiwa and the Ogoni Nine (Westra 2007: 281–287). That case was confirmed on January 30, 2013, as the International Court in The Hague confirmed the criminal charge against Shell, in a case filed by Environmental Rights Action and Friends of the Earth (Netherlands). Environmental Rights Action pointed out:

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While we commend the Court’s ruling, it is now time the western Countries pass laws compelling companies to enforce the same environmental responsibility standards abroad and at home. Shell‘s argument in the face of incontrovertible evidence has again shown the double standards of the oil companies in treating spill incidents in Nigeria differently from their pollution in Europe or North America. We are still optimistic that this landmark judgment will instigate more communities to seek justice. Shoraka, 2013

Thus the presence of a criminal corporation as a “partner” of an Organization like IUCN Clearly demonstrates the obstacles encountered by citizens seeking communities to provide legal and moral support. As far as the South Korea issue is concerned, a local newspaper, the Gangeong Village Story, on August 1, 2012, featured an article which stated: not only have national security interests blinded South Korea’s justice system, they appear to have silenced the world’s oldest and largest environmental organization from taking a more principled stand to protect nature and traditional livelihoods. Christine Ahn and Anders Riel Mueller, Cited in Kintzele, 2012, p. 8

Throughout the time of the IUCN Congress, and the presentation of motions asking the leadership to divest from the support of South Korea and the military base, the main concern appeared to be possible “harm” to the status of the IUCN, rather than the obvious harms to Indigenous peoples in the area and the environment (Kintzele 2012: 9). In fact, the whole operation recalls the attacks on the Chagossian people for the interests (“national security”?) of the US and UK, mentioned above, and discussed in detail in the work of Peter Sand (2009a). Finally, another obstacle is the deliberate infiltration by “greenwashed” corporations in otherwise desirable associations with attractive mandates. For instance, the groups fighting the presence of GMOs in food almost had a victory in California with Proposi­ tion 37 (The Right to Know Campaign) that would have imposed labeling on all foods containing GMOs, amounting to almost “80 percent of all non-organic processed food sold in Supermarkets” (Greenway 2012). The corporations involved included “The Big 6” pesticide makers—BASF, Bayer, Dow, Dupont, Monsanto and Syngenta—but also included PepsiCo and other food and beverage brands that sell products that contain “GMO highfructose corn syrup, soy lecithin” and so on (Greenway 2012; Figure  1).

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$.75M

$1.5M

$2.25M

$3M

$3.75M

$4.5M

Monsanto ($4,208,000) Dupont ($4,025,200) PepsiCo ($1,716,300) BASF Plant Science ($1,642,300) Bayer Cropscience ($1,618,400) Dow Agrosciences ($1,184,800) Nestle ($1,169,400) Coca-Cola ($1,164,400) Conagra ($1,076,700) Syngenta ($821,300) Kellogg ($632,500) General Mills ($519,401) Hershey ($395,100) J.M. Smucker ($388,000) Council for Biotechnology Information ($375,000) Grocery Manufacturers Association ($375,000) Hormel ($374,300) Bimbo Bakeries ($338,300) Ocean Spray Cranberries ($301,553) Pinnacle Foods Group ($266,100) Grist.org Figure 1

Breakdown of the 20 largest donors as at Wednesday August 15, 2012

In addition, many brands recognized as “health food” involve GMOs and the list of involved food producers show where they stand by the amounts they have donated to ensure that voters do not vote for Proposition 37.

Citizens’ Misinformation and Misguided Activism Patel believes in using the exponentially growing number of internet users to his advantage with online petitions and propaganda slogans; as well as the ability to syphon donations from ignorant members to the tune of $13.5 million annually and $3 million during fundraising events. While Avaaz claims to facilitate the individuality of protesters, it uses

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mob-mentality tactics to create a large online community of people who will defend the organization. Posel, 2012

Activism, in the “digital era,” can be a home industry of sorts, as a great number of people who have neither the time nor the right age to protest on the barricades, may do so in front of their computer, as we are all bombarded by countless internet petitions espousing (and asking for support for) various causes, more or less clear, legitimate, and worthy of support. Like all the reams of information available on the internet, it is hard to evaluate all the information that is available. Avaaz both looks and sounds highly believable and legitimate: “Patel (Avaaz) consults with the UN; the Rockefeller foundation; globalist colleges like Harvard University, Oxford University; and CARE International” (Posel 2012). In addition, the International Crisis Group (ICG), also founded by Patel, supposedly another independent group, has “an annual budget of $20.5 million,” and both aim for “political coercion under the guise of advocacy,” their members “include foreign ministers, European commissioners and George Soros, but also Shimon Peres” (Posel 2012). Avaaz is a corporation with a fairly large budget of $3 million which in 2010 included $500,000 in internal salaries, and a $100,000 to Res Publica and ICG, all of which reside at the same address in New York. Avaaz is a 401(c)(4) in Delaware, a designation which allows them political lobbying as well as the right not to disclose their donors. Somewhat more ominous, is the presence of certain “globalists” in both Avaaz and the ICG: • Stanley Fisher, governor of the Central Bank of Israel; • Matthew McHugh, Congressman and counselor to the World Bank; • Shlomo ben Ami, former Foreign Minister to Israel (Posel 2012). This group of “protesters” in early 2012 started to protest against the BDS (“boycott, divestment, and sanctions”) movement against Israel, until it complies with international law and Palestinian rights…initiated by Palestinian civil Society” (Posel 2012). It is clear now that rather than standing on the side of legality and justice, it aims to protect powerful interests instead. This information was sent to the author by a friend, and for a time it appeared to be believable. When it aligned itself with the illegal, genocidal ongoing activities of Israel, clearly it indicated its real interests, and its bias. It seems clear that “the backing of the occupation of Israel in Palestine is foremost to Avaaz,” so that a Canadian author who had backed the efforts of Canadian flotillas to bring aid to Palestine, would have to cut all interest

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in Avaaz instead. This simple example shows clearly how ephemeral is the trust that can be placed on any of the numerous “activist” associations available on the internet to those who are disqualified for various reasons form protesting in the “trenches,” especially given the combination of limited time and limited technical abilities to do the deep searches necessary to uncover the possible duplicity of other seemingly trustworthy organization and movements.

Transnational Citizens: Further Considerations beyond their Legal Status [M]any conventional understandings of citizenship extend beyond legal status altogether. In the sociological tradition…the idea or citizenship is employed to refer to an individual’s possession and enjoyment of fundamental rights in society. In the civic republican tradition, citizenship names a state of active engagement in the life of a polity. And finally, in psychological or cultural terms, the term citizenship is invoked to refer to an experience of identity and solidarity that a person maintains in collective or public life. Bosniak, 2001–2002, p. 1000

Are these possible separate and distinct aspects of citizenship as commonly understood, that is as pertaining to the legal status of individuals in community or society in general such that they can form a coherent whole? In contrast it seems as though that particular designation, intended to encompass all aspects of citizenship, serves instead to emphasize the multiple failures of the national state regarding it civil society, its incapacity to fulfill the roles previously required to define a citizen. The aspect listed above as being additional to the legal status, and arising from the “sociological tradition,” appears to define the content of the legal citizen of a nation instead: that is, the possession of a bundle of fundamental legal rights, specific to a national society, as well as some of the general internationally recognized rights conferred upon the citizen by some of the major treaties and binding declarations originating from the UN. This, I believe, is the basic, defining concept of citizenship and the one which indicates most clearly the failure of governing bodies to fulfill their obligations. The “enjoyment and possession of fundamental rights in society” (Bosniak 2001–2002: 1000), represents the basic “glue” that holds the citizens attached and committed to their country. But today, for the most part, these

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basic rights are in question, citizens are victimized by the structural violence condoned by state institutions, which themselves fail to acknowledge and respect the authority of the law. Whether the governing bodies authorize “sustainable development” promoted by corporations who pursue their own economic interests with no regard for the basic rights of local communities, beyond their Western “homes” either in developing countries or in the brownfields inhabited by racial minorities and Indigenous peoples in North and South America; or as the victims of the illegal “war on terror” (Westra 2012a), through which grievous harms are inflicted on innocent civilians, ranging from drone attacks that deprive citizens of their lives without due process or the possibility of appeal, or to the loss of civil liberties in the home country, citizens’ rights are not respected. That sponsorship and support of illegalities define the withdrawal of the state from its major obligations to its citizens, that is, the duty to protect their basic rights. A similar “withdrawal” and dereliction of duty can be found in the state-supported increase in the rights and powers of the corporation which parallel comparable decreases in citizens’ rights, as those legal persons supersede, through various institutions including economic tribunals such as NAFTA for North America, or the WTO globally, the very core of constitutionally sanctioned decisions of the elected governments of various countries (Westra 2013a). Corporate power further affects the “active engagement” of citizens “in the life of the polity” (Bosniak 2001–2002: 1000), in contrast with the Aristotelian understanding of the meaning of citizenship. when corporate power is allowed to interfere with the legislative and administrative aspects of governance, citizens’ input is limited to the participation in periodic elections which, because of the same corporate intrusion (including the unlimited power to buy political clout), is reduced to a largely meaningless exercise of “choosing” between parties with similar platforms, all of which are far more responsive to the economic interests of business, than they are to the legitimate concerns of citizens. The last aspect of citizenship present in Bosniak’s list, is that of “identity and solidarity” with the citizens’ community. Once again, that is largely lacking. The quest for important values that in earlier times informed national responsibilities, represented by a flag, national hymn or other symbol of nationality, now are scattered among various groups. NGOs and associations that represent singly and collectively, the many values that citizens attempt to recapture after the nations’ failure to provide the meaning and significance of citizenship at all those levels. Thus the authority of the law is corrupted in various ways: the laws exist and they correspond to the values and principles now missing from the national

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arena. Yet, what is also missing first of all, is the will, then also the ability to stand by those laws and enforce them. Bosniak argues that national citizens may be in a position to embrace dual citizenship in the EU, as both national and supranational citizenship are in place, as states openly surrender some parts of their sovereignty to the Union. These are the clearest transnational citizens (Bosniak 2001–2002: 1001): and the clearest exercise of political activity on the part of all citizens in that case is transnational. More than “the threat to state sovereignty” (Bosniak 2001–2002: 1003), what we observe is a response to the non-performance of the specific obligations that states may find hard to fulfill in regard to their citizens. Thus, the citizens thus engaged are not simply transnational, they are postnational instead. Yet, satisfactory as these aspects of transnationality may be, the focus of citizens allegiance is still problematic. We noted the main reasons why weakened, absent states have become unwilling and unable to fulfill the legal expectations of national citizens. Corporate infiltration into legal processes and outcomes, international economic organizations and the newly emerging Western imperialistic drive, all have conspired successfully to limit and almost eliminate the ability of states to be what they should be. Whether former national citizens became transnational citizens for satisfaction from groups and organizations simply because of their disillusion, or because they actively seek lost values elsewhere, their quest will remain—to some extent—futile. The same penetration and infiltration of economic interests in state institutions that has frustrated them at home, still lurks beyond the national borders, as the existing international institutions may not be able to deliver what the national states fail to do any better than the latter can.

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The Limits of the Power of ingos, Social Movements, and Associations, and the Authority of Law Introduction International human rights law…refers to the body of international law aimed at protecting the human dignity of the individual. Developed in largest part since World War II, it principally seeks to guarantee the rights of persons vis-à-vis their own government, but also protect them to various degrees against other actors in the international community that might violate those rights, whether guerilla groups, business entities or terrorists. Ratner et al., 2009, p. 10

Seeking for congenial international associations who support and represent— more or less accurately and reliably—the values and principles that can no longer be found in the national state, helps transnational citizens achieve a measure of satisfaction as they now participate, albeit vicariously, and in a new way, in the life of the global polity. In contrast, it is vital to remember that the transnational citizens do not seek, join and participate for theoretical purposes only, but also for practical reasons: they seek reinforcement in their believes, protection, justice and fairness for themselves and their peers. Some associations are in fact international organizations with some degree of power in the international arena. But, for the most part, their power and control over international legal structures is limited at best to blowing the whistle on certain issues, governments or even countries, but their success is extremely limited. Even though these groups are able to develop a large following from different countries and continents, that mass is insufficient, in most cases, to advance the worthwhile cause each group may support. International law, is simply·not made to respond efficiently even to democratic campaigns originating from diverse countries and continents. There is, indeed, a global constitution, at least in principle, it is the UN Charter; there is also a legislative body, the General Assembly; and there are the International Court of Justice (icj), and the International Criminal Court (icc). In turn, the General Assembly acts through numerous specialized agencies, each

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controlling a sector of international lawmaking, intended to represent the interests of all countries each of which commands one vote. That arrangement is intended to provide the UN with “credibility and legitimacy” (Bennis 1996: 46). But every year, before the UN General Assembly convenes, the US Mission to the UN “publishes a compendium of issues. It includes a clear statement of which issues Washington considers priorities and what the US position is on each” (Bennis 1996: 47). All other countries, especially the weaker ones in the south, discover what are the expectations of the US in their regard, and those that are the poorest are most vulnerable to that indirect pressure. Most of the UN Declarations and Resolutions of the General Assembly do not have the force of international law, whereas the Security Council does (Bennis 1996: 48). Article 10 of the UN Charter mandates that the UNGA has the power “to discuss” any questions that might arise from the “powers and functions” of any of the UN organs, which clearly include the Security Council. However this tentative power of oversight and monitoring has been abandoned for some time.

The Security Council and the Mandates and Principles of the UN Charter Article 24 (1) In order to ensure prompt and effective action by the United Nations its members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility, the Security Council acts on their behalf. (2) In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations.

This Article is neither clear nor uncontroversial, and the same can said about the role of the SC in general, and the legal discourse on topic reflects both lack of clarity and diverse sides to the debate regarding its role and function. In the Commentary I, Jost Delbrück notes several difficulties in the wording of the Article, starting with the meaning of “primary responsibility”: in principle, the organs charged with the peace-keeping function of the organization of the UN as a while, i.e. the SC and the General Assembly, would act in parallel and concurrently, but that in discharging its peacekeeping function in a given situation the SC would only be granted

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priority over the General Assembly with regard to the time of taking the first step and/or in political terms. Delbrück, 2002, p. 445

Yet if, as it appears to be the case, the SC enjoys “priority” over the General Assembly, it is indeed “designated as the politically more important organ which, according to the intention of the authors of the Charter, it is supported to take prompt action for the maintenance of peace. However, because the SC does not enjoy priority over the ICJ, and the principles and purposes of the UN as a whole, are necessarily the boundaries within the SC can legally act, despite the fact that its decisions rest primarily on ‘political criteria’ (Delbrück 2002: 447), it is difficult to decide the SC is truly ‘unbound.’” It cannot act “arbitrarily,” and its discretion is not “completely unlimited” (Delbrück 2002: 448). Some smaller states have proposed that the SC should report to the General Assembly, which would then hold the stronger position, but it seems that he SC is not subordinate to the General Assembly in any way. This ambiguous situation is aggravated by the fact that (a) “its composition is no longer representative of the overall membership of the UN”; and (b) it is still dominated by the so-called “great powers.” Despite the guarded language of this “interpretation,” the very fact that the legitimacy of the SC is questioned, and that the author concludes that “reform” has become an urgent “necessity” attests to the “increasing number of grave violations of human rights” (Delbrück 2002: 452) that are occurring almost daily. Against the background of this official understanding, and given the silence and inaction on the part of the SC in relation to a long list of violations of the Charter’s principles, we will turn to a fairly recent work that questions the relation between the SC and the law embodied in the UN Charter and its other organs: Playing the Devil’s advocate, it is argued that ultimately there are no international legal limits to the UN Security Council’s enforcement powers…the conclusion reached is that the UN Security Council has unfettered powers when dealing with the maintenance of international peace and security issues. Oosthuizen, 1999, p. 549

Gabriel Oosthuizen acknowledges that even if we conclude that this is the case, the very notion that a UN organ may operate legibus solutus (unbound by law) is problematic in itself, although it is certainly easier to agree that not all

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SC decisions constitute, ipso facto, international law (Oosthuizen 1999: 550). The UN has been viewed as a primarily political organization, yet its “principles and purposes,” no doubt, define the legal parameters within which its organs must operate. The author cites a telling discussion arising in the travaux préparatoires for the important Article 1(1). Speaking of a proposed requirement that Article 1(1) “must conform with the principles of justice and international law” (which was eventually rejected), Wolfrum says: This notion, however, was rejected on the grounds that it might unduly limit the functions and powers of the SC. The view was expressed that it was important that the SC should have the power to bring about an end to hostilities without considering whether one side could legally have recourse to armed force. Wolfrum, 2002, p. 52

Nor can any specific mention of the limits imposed by international law be found in other Articles which direct or explain the functions of the SC. Chapter VII, starting with Article 39, outlines the heavy responsibilities of the Security Council: The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. It is worthy of note that this difficulty and the legal implications it entails, were already noted some time ago. Kelsen writes that “the purpose of the enforcement action under Article 39 is not to maintain or restore the law, but to maintain or restore peace, which is not identical” (Kelsen 1951: 294). Since 1951, however, one can list many issues where the SC was unable or unwilling to protect or restore the peace by any means, which renders the acknowledged lack of legality that emerges even more troubling. Oosthuizen argues that the UN members may have the right to determine whether the SC decisions “were arrived in accordance with the UN’s procedural rules” (Oosthuizen 1999: 556). However, it seems as though no one, that is neither the members, nor the General Assembly itself may judge whether the SC actually acts in accordance with either international law, or the principles and purposes of the organization of which it is an organ.

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The Weakened United Nations and the Struggles of the “Multitude” The “state of exception” is a concept in the German legal tradition that refers to the temporary suspension of the constitution and the rule of law, similar to the concept of state of siege and the notion of emergency powers in the French and English traditions. A long tradition of constitutional thought reasons that in a time of serious crisis or danger, such as wartime, the constitution must be suspended temporarily and extraordinary powers given a strong executive or even a dictator in order to protect the republic. Hardt and Negri, 2004, p. 7

However, the US “exceptionalism” has now become “permanent and general” (Hardt and Negri 2004: 7), both in international relations, and within the country itself. The “war on terror” is a misnomer (Westra 2012a: 5–33), but it works, increasingly, as a tentative but convincing justification and excuse for any number of “exceptional” measures, from the suspension of civil liberties within the US, to the specious interpretation of some of the major international legal instruments such as the convention Against the Use of Torture, or the Conventions relating to the treatment of prisoners of war (Westra 2012a: 120–134). Thus, given the present global situation, it is clear that the transnational citizens, the “multitude” (Hardt and Negri 2004), or, as I have termed them, the collective (Westra 2011b), enjoy no more democratic power in the international arena than they do within their own nation. In fact, their international powerlessness is directly related to their powerlessness within their own nation, and this is especially true in the US, and wherever else US power is exercised. Originally “exceptionalism” represented “an exception from the corruption” of some European monarchies. But the main present meaning of exceptionalism is “exception from the law”: The United States for example increasingly exempts itself from international agreements, on the environment, human rights, criminal courts and so forth and claims its military does not have to obey the rules to which others are subject, namely, on such matters as preemptive strikes, weapons control, illegal detention. Hardt and Negri, 2004, p. 8

It is worthy of note that the US relies on its earlier regulations at the time of the Second World War, as being both powerful and “good,” but those times have

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long passed. The exceptions listed by Hardt and Negri are war crimes, crimes against humanity and gross human rights breaches: as well the political activities of the US are most often criminal,and they deliberately align themselves with rogue states (states that do not respect international law such as Israel), and corporate criminals, claiming “immunity” for themselves and their partners and “friends” in many instances (Westra 2013a: ch. 4). Thus, although transnational citizens are able to join many others globally to follow any number of ingos, social movements and associations committed to various moral goals and causes, their ability to influence events within and without their home countries is limited at best. In some cases, mobilizing large numbers of protesters in the name of a worthy cause, will be reported in the media, thus lead to a possible favorable outcome, as long as the cause promoted does not impinge on the power/corporate relations of the US. An example would be that of the large protesting crowds in India in early 2013, after the brutal gang-rape and beating of a young woman and her fiancé in a local bus. The angry crowds of both men and women were widely reported not only locally, but in international media, thus helping to advance new regulatory measures for the protection of women. Of course this issue is not one that affects any of the economic or geopolitical interests of the US, the North, or their allies. In contrast, no number of angry protesters, “indiñados” or “indignati” (Italy) against the G8 or G20 in any city, starting with Seattle in 1999, succeed in moving these meetings toward a consideration of human rights: The reason was the preeminence of economic and trade concerns, thus no success can be expected. But these protest were and are still proof of the ongoing revolt of global citizens against the US determination to “remake global rules”: With the election of George W. Bush in November 2000, a US Administration took office that was outspoken in its determination to challenge global rules. Soon it turned into a full-scale assault, a war on law. This began even before 9/11, although that day’s appalling events provided an added spur with the argument that international rules were somehow not up to the new challenges which the world now faced. Sands, 2006, p. xii

Of course, just like other unilateral moves by the US, the attack on the global rules of international law (like the wars in Afghanistan or Iraq), did not really reflect a considered position on what would replace that which the us was determined to destroy.

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In 2003, Giorgio Agamben wrote an article in which he likens US policy since 9/11 to Hitler’s rule of permanent exception. Agamben noted: Today, in the face of the continuous progression of something that could be defined as a “global civil war,” the state of exception tends more and more to present itself as the dominant paradigm of government in contemporary politics. Agamben, 2003

In Nazi Germany, Hitler’s words had “the force of law,” but since their function was to suspend the law (and that for all of the 12 years of the Nazi regime), only “force” was left in the state of exception (Agamben 2003). In 2013 as well, 12 years of US exceptionalism (although it certainly existed though less explicitly before 9/11), have dealt severe, if not mortal blows, to international law. These blows have left it weak and—like the UN itself—a captive of the controlling US interests that continue their efforts to eliminate the power of law altogether. It is this unacceptable situation that global civil society is fighting and protesting regularly: Legal structures have traditionally provided a more stable framework for legitimation than morality, and many scholars insist today that national and international law remain the only valid basis for legitimate violence. Hardt and Negri, 2004, p. 28

Yet we need to remember that the distinguishing characteristics of the law are the pursuit of justice and the presence of equality before it for everyone. In contrast, the US will and does use the law to “impose sanctions on others” but “it will not allow its own to be subject to other national of supranational legal bodies” (Hardt and Negri 2004: 29). Mahmood Mamdami traces the history of US action intended to dispense of “the rule of law internationally,” reaching a peak of sorts with the administration of George W. Bush, whose attacks on law “was unmatched in the history of Western Imperialism” (Mamdami 2004: 202). But long before Bush, at least after the cold war, the US felt that, as the sole existing “superpower,” it could safely leave all UN agencies it opposed, and even felt free to abandon treaties that did not fit with its interests. In addition: Top level civil servants who have insisted that America abide by the rule of law have been targeted and left with one choice: resign or get sacked. The most prominent of these was, of course, the former secretary-general of the UN, Boutros Boutros-Ghali. Mamdami, 2004, p. 203

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His stance in defense of UN authority was unparalled, but as he noted, “the UN proposes, on Washington’s initiative, and the US disposes” (Mamdami 2004: 204). Boutros-Ghali’s attempts to assert his independence from us policies, included a critique of US’s “preoccupation with Bosnia” as far less dangerous than both Somalia’s starvation and the situation in Rwanda, where, he noted that “appalling massacres” were about to take place, as predicted by Canadian General Romeo D’Allaire (Mamdami 2004: 205). In another such example, Mary Robinson’s endorsement of Israel’s racist treatment of the Palestinians as a crime against humanity, so that additionally defining Zionism as racism, led to the US and Israel’s withdrawal from the 2001 UN World Conference Against Racism (Mamdami 2004: 205). Finally, even US’s Secretary of State Colin Powell was replaced because “he insisted on the independence of his office” (Mamdami 2004: 206). It is remarkable that the great number of authors who write eloquently about US exceptionalism and immunity, limit themselves to observing the resulting attacks on democracy in general, but do not really consider in detail the plight of the transnational citizens, who protest and fight to escape the unprincipled limits of their national leaders only to find that associations, organizations and movements to which they escape, may be far more welcoming and congenial, than what they leave behind, but offer no serious hope of change or redress through the international legal arena. Therefore, we should turn to a consideration of this situation, in relation to the citizens’ efforts, to evaluate what their power of any might be, and what might be their potential for the promotion of radical change.

The Collective and the “Multitude” The people is one. The population of course, is composed of numerous different individuals and classes, but the people synthesizes or reduces these social differences into one identity. The multitude, by contrast, is not unified but remains plural and multiple. This is why, according to the dominant traditions of political philosophy, the people can rule as a sovereign power and the multitude cannot. Hardt and Negri, 2004, p. 99

The multitude thus represents the next level beyond what I have termed the “collective” (Westra 2011b). The multitude describes an “active social subject” which unites the singularities it comprises, and it involves “all aspects of social life, including communication, knowledge, and affects,” and it

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can be compared to the concept on which feminism and “antiracist politics” are based (Hardt and Negri 2004: 101). It is based on the new, global rule of capital. Hence, even Hardt and Negri’s thorough and insightful book starts on a level beyond the most basic one, with what the authors term “the common.” But the first level, the basic need for the “commons” remains inescapably the source of life and survival for the collective, as I have argued.

The Commons and the Collective

Many centuries ago, capitalism arose in agrarian England as the economic motive and competitiveness replaced traditional values in the “enclosure movements.” The “enclosures” provided “the most famous redefinition of property rights”: they eliminated the commons, with no regard for human rights (Wood 1999: 67–94). Philosopher John Locke defended the right to property above all, although he predicated his defense upon ensuring that enough would be left to be held in common. But he also espoused the defense of “improvements” as needed to impose value upon nature, an argument that supported the policies of his master, the Earl of Shaftsbury. Through Locke’s friendship with Jefferson, the Lockean arguments filtered into the American Declaration of Independence. But these enclosure movements, brutal though they were in their effects against the people, only started what eventually became known as the “Tragedy of the Commons” (Hardin 1968: 1243–1248). What we encounter today, in the primacy of the economic motive over and above human rights including the right to a safe and healthy habitat, is the final “enclosure movement”: it is once again mostly the poor and dispossessed of the world who are shut out of the natural global commons. The benefits that would accrue to them are no longer available: whatever is left of the commons has become someone’s property, and is used as such. Even the simplest “natural goods” are no longer available freely: clean air, pure water, safe sunlight, safe foods, all are unavailable to the poor. Drinking water must be bought; sunscreen is needed to protect us against the sun; both travel to the few locations that can boast of “clean air,” and housing that is removed from hazardous industrial operations are expensive; food in areas of famine and safe, organically grown food are marginally more available, but often laced with toxic substances. All are commercial goods. What was at stake then, as it is now, was first and foremost the existence of the most basic human rights—that of respect for human life, for human

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“security and subsistence” (Shue 1996)—long before questions of religious or sexual rights were at issue. Dispossessed farmer/tenants in seventeenthcentury agrarian England had no way of supporting themselves of their families. Today many of us, especially in developed Western democracies can in fact support ourselves, but our life and health are under attack nevertheless. The language of “attacks” to describe the results of unsafe, unhealthy habitats upon us, is particularly apt as it emphasizes two main points connected to the law, one historical, the other moral. I have described the relation between what I term “ecoviolence”—that is violence perpetrated in and through the environment elsewhere (Westra 2004). [S]hould we continue to think about human rights and the environment within the existing framework of human rights law in which the protection of human rights is the central focus—essentially a greening of the right to life, private life, and property—or has the time come to talk directly about environmental rights—in other words a right to have the environment itself protected? Should we transcend the anthropocentric in favor of the eco-centric? Boyle, 2007, pp. 471–473

One can only applaud the motive behind the question raised by Boyle: the protection of human rights when these are isolated from their ecological basis, is, increasingly, insufficient, as the effects of climate change reduce whole cities and areas to rubble, or even eliminate them altogether. Or perhaps we need to ask ourselves what human rights are protected when the unfortunate inhabitants of these areas are forced to flee, as they become environmentally displaced persons (EDPs), a group including hundreds of thousands of persons, all of whom—at this time—have no protection under the law (Westra 2009: esp. ch. 1, 6; Michelot 2006: 428)? Similarly, what of the local and Indigenous communities whose inhabitants are either harmed within their own territories, or forced to relocate by the pressures of unwanted and unconsented “development” (Westra 2007)? As well, all those in developing countries whose resources are no longer there because of desertification, or eliminated and replaced with the products desired by those in affluent countries, and many others who are the victims of economic oppression and the neoliberal policies of globalization: what of their rights under present laws? In these and most other cases were environmental rights might be invoked because of the environmental degradation’s impact on human beings,

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however, the question is not whether to give primacy to the ecocentric viewpoint at the expense of the anthropocentric perspective: science today clearly indicates that—at the level of basic human rights—the two are one and the same (Atapattu 2002–03). In other words, protecting human rights starts with the protection of the ecology of their habitat, as we are, as Aldo Leopold put it, part of the commonality of life: All ethics so far evolved rest upon a single premise: that the individual Is a member of a community of interdependent parts…the land ethic simply enlarges the boundaries of the community to include soils, waters, plants and animals, or collectively, the land. Leopold, 1949, 261

According to Vasak, “the last generation of Human Rights would be of more collective nature” (Vasak 1977: 29–32). These rights include “the right to development…the right to environment, the right to peace, the right to co-ownership of the common heritage of mankind and the right to communicate” (Galenkamp 1998: 20). At this time the important issues that concern us are (1) the right to the environment; and (2) the common heritage of mankind as the right to development is often that of corporations and that of neo-liberal states, not that of local and Indigenous communities which, most often, have not been fully informed, let alone asked to consent, regarding the “development” imposed upon them and bringing harms rather than benefits. Stavenhagen argues that Indigenous peoples “must be regarded as the victims of the so-called right to development which states attach to themselves and with which they are destroying any number of peoples within the borders of their territory” (Stavenhagen 1990: 258). Stavenhagen here criticizes one aspect of collective rights, viewed from three separate angles, the “globalist,” “statist” and “nationalistic” aspects, and we will return to the issue of political regimes and appropriate governance perspective on collective human rights below. At any rate, the existence of the rights of states, point to the presence of one “collectivity” already existing in law, and provided with rights, together with minority rights, peoples’ rights and Indigenous rights (Galenkamp 1998: 38). At this point, we could also note another collectivity possessed of great and undisputed rights today, that is the MNC, a collectivity that should not, I believe, possess such extensive rights, and I will argue that point below. At this time it might be best to start by explaining the focus of this work: neither States nor MNCs are biological entities, although they are certainly legal entities, and are, in fact, composed of biological individuals. Hence they are,

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prima facie, potentially in conflict with the rights of the biological individuals  of which they are composed. The simplest examples are those of wars for  the former, and hazardous industries, for the latter. A state’s interest (and right) may well be to wage a war of conquest, requiring the use of soldiers, whose individual survival will be at risk. For the latter, a corporate operation for the production of chemicals, for instance, will put at risk the individual workers, as well as those living in the surrounding area (see Guerra v. Italy, 1998; Lopez-Ostra v. Spain, 1994; Fadeyva v. Russia, 2005 for some related cases). When these two “collectivities” are eliminated from the present discussion, what remains are minorities and Indigenous communities for now, and the argument I will propose will be appropriate to both. I propose to consider the importance of viewing “collectivities” and “individuals” as two aspects of the same cosmopolitan rights, when viewed from the perspective of basic rights, and as such, from an ecocentric point of view. Most of the existing scholarly work on either collective rights or community rights such as those of Indigenous peoples, do not start from an ecocentric perspective, nor do they demand it in support of their arguments (Newman 2004: 127; Kymlicka 1995; Gewirth 1978; Anaya 2004; Shavarsh 2007: 639; Isaac 2002: 431), although some acknowledge the increasing presence of community or collective rights in the law. For instance, in his seminal work on Indigenous peoples’ rights, James Anaya characterizes human rights as mainly “individuals’ demands of freedom, equality, participation and economic and physical security vis-à-vis the state,” but he recognizes that “concepts of group or collective rights have begun to take hold in the new articulation of human rights norms” (Anaya 2004: 52–53). At any rate, two basic questions emerge: (1) what is the status of collective rights in relation to individual human rights; and (2) can and should the policies of aggressive Western liberal governments regarding individual rights be reconciled with the existence of collective rights? The first question can further be refined, for clarity: (1a) are collective rights the same as communitarian or group rights? The clarification portion of the first question can be answered more easily than the question itself: the rights of communities and groups (and Indigenous peoples, who represent the paradigm case of this category) are part of the “collectivities” here envisioned, yet they do not exhaust that category although they are often spoken of as if they represented the sum total of collectivities. These groups are increasingly present in international and domestic law, as the growing case law related to such rights indicates, and we will discuss these special collectivities in the next chapter, as they provide the best introduction

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to the questions under consideration. But the general term “collectivities” exceeds the concept of communities as we shall see below. For now it might be best to return to question as that answer, I believe, will also help to clarify an even more basic question, that is, what is the basis and nature of human rights as such, whether individual or collective. Dwight Newman’s definitive argument embodies and supports my own conclusion by a different path. Newman says: My argument is that certain individual interests that ground duties are meaningful interests and can be fulfilled only on the precondition that certain collective interests are also rights. We can put this statement in simplified terms: if we accept certain individual rights, we presuppose certain collective rights. Newman, 2004, p. 158



The Multitude and the “Common” The closer we look at the lives and activity of the poor, the more we see how enormously curative and powerful they are and indeed, we will argue, how much they are a part of the circuits of social and biopolitical production. To the extent that the poor are increasingly included in the process of social production, they are becoming, along with all the traditional labouring classes, participants in a common condition and are thus potentially part of the multitude. Hardt and Negri, 2004, p. 129

Even without entering into the specifics of what Hardt and Negri mean by “social and biopolitical production,” it is clear that what is meant entails the relation between the individuals or communities of the poor and society in general. Hence the social relations, they are involved in, rather than their bare, basic human condition is what makes them part of the “multitude.” In contrast, the significance of the term “the collectivity” (Westra 2011b), is that there is no specific argument needed to include the poor, those in so-called developing countries, or any other sub-category of humanity: the basic rights (Shue 1996) of all are simply determined by their humanity. Of course, the rich escape some of the worst hazards of globalization, or have the means to seek a successful cure when they are affected by harms that are specific to that group, such as obesity, cardio-vascular disease, and certain

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cancers. Thus the effects of globalization and corporate power affect public health globally, but in different ways, and the lack of legal regimes that address this issue makes the problem even worse (Westra 2013a: ch. 1). The difference between my argument and that of Hardt and Negri lies precisely in this issue; the importance of global citizenship, the importance of all citizens, including the marginalized and the poor is based upon their humanity itself (Cole 2006). As David Cole argues, in the alien, we meet the face of humanity itself, as we all share the same basic needs as biological entities, long before we need to consider our various possible social or political roles. Thus one could argue that the basic rights to the “Commons” and the cardinal roles they play in providing the necessities of life, are the precondition of the needs of the “multitude” (Gewirth 1982). As this work is intended to examine the conditions and the protest of transnational citizens in global society, their multiple associations and the goals to which they aspire, it is appropriate to turn to the social roles and the issues confronting the multitude, as long as it is understood that the preconditions for any social role whatever, is the presence of conditions necessary for the basic survival of all, and that such conditions remain, therefore, primary. At that second, social level, global citizens participate in the “material production” of “the means of social life” (Hardt and Negri 2004: 146). Many also participate in “immaterial production”: “including the production of ideas, images, knowledge, communication, cooperation, and affective relations, tend to create not the means of social life, but social life itself  ” (Hardt and Negri 2004: 146). This immaterial production produces “the means of interaction, communication” and it is thus representative of the “foundation in the common” (Hardt and Negri 2004: 147). This position is acceptable, as long as the primacy of biological humanity and its protection is accepted. However we must part company with Hardt and Negri, when they do not appear to understand the primacy of life and biological integrity, as they do not accept arguments against the corporate take­over of food production and of public health itself, by such giants as Monsanto, for instance (Westra 2013a: ch. 4). They do not understand the importance of “the authenticity of nature or the integrity of the seed,” as they counter: “To us this has the smell of a theological argument about purity” (Hardt and Negri 2004: 183). Their proposal of “open and democratic” control of “scientific experimentation, in contrast, is naive at best, and extremely superficial in the context of their whole argument in the book, and of the corporate control of most state and global decisions that is clearly part of their own argument. For instance:

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Economic production, on the other hand, is increasingly biopolitical, aimed not only at the production of goods, but ultimately at the production of information, communication and cooperation—in short—the production of social relationship and social order. Hardt and Negri, 2004, p. 334

Despite their laudable goals, I am not sure that these authors have truly accepted the extent of the all-pervasive power of corporate/military governance today. In 2013, a commentary on the death of Venezuela’s Hugo Chavez in a Canadian editorial stated: Hugo Chavez was a complex, hugely polarizing figure in Venezuela and around the world. Part populist caudillo, part anti-American gadfly, part socialist visionary, part crank, he was a democratically elected autocrat who embodied the Occupy movement’s concern for the 99 percent long before it became fashionable. Toronto Star, 2013

In contrast, it seems that the 2004 work of Hardt and Negri has not truly understood, let alone embraced, the reality of the concerns of the Occupy movement at all: in the face of the overwhelming power and control of Wall Street, it is futile to speak of “open and democratic control of scientific experimentation,” especially in connection with one of the strongest and most impervious corporate criminal lobby, that is, the food industry (Westra 2013a: ch. 4).

Protest for the Rule of Law The corporations no longer participate in the public debate. They simply buy it. Boggs, 2000, p. 282

The Occupy movement’s chosen area and location for their original protest, as is appropriate, as Bin Laden’s main target was. The heart and center of neocolonialism, imperialism, and the multifaceted assault on law, both domestic and international, is indeed Wall Street, and the very buildings attacked in 9/11. Any naive hope that a democratically minded social multitude could direct and control any aspect of the production and activities of big business is bound to fail. This is one of the major recurrent issues that emerge pretty much in all

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recent works on social and political assessments of globalization and neoliberalism, that is, the supremacy and the de facto control of both governance and public opinion on the part of multinational corporations and the organizations they own or direct. This aspect of the current violent globalization is surely the most important one. The second most important issue that dominates globalization is the powerful militarism that defines today’s US policies, and in general the power of the West, In direct contrast with the principle and the goals of the UN, and all humanitarian and human rights law instruments. The third issue, based on the other two, but especially dependent on the first one, is the presence of environmental harms first of all, climate change. We will consider the impact and results of all these issues, as they foster increasingly the rage felt by citizens all over the world, coupled with the powerlessness in the face of all three problems and the effects they generate, primarily felt by the poor, and those in the working classes and in developing countries, but also by students, academics, arid most people who are not in a position of power in either corporate or government bureaucracies. Pease’s in depth examination of American exceptionalism traces a history of “fantasy state” symbols, intended to entice civil society into considering these fantasies to be the continuation and embodiment of a glorious and unique historical past, such that it provided the basis for a justification of exceptionalism no other country could aspire to. Pease traces the background for George Bush’s proposed “New World Order” through a series of displays of force which were intended to offer “the visual representation of a military victory that the conclusion to the Cold War lacked” (Pease 2009: 40). These “victories” included Hiroshima, and the Persian Gulf War, both of which were to help overcome the “Vietnam Syndrome,” and all of which were fought in front of a steady media coverage, crucial to the aims of the US administration: And once the war’s enactments were articulated to the nation’s patriotic fiction, that fiction represented the state’s show of force as an expression of the sovereign will of the US people to propagate the US model of democracy worldwide. Pease, 2009, p. 41

In fact, according to Pease, the New World Order was not something that Americans would recognize as their own aspirations; in contrast, the “New World Order” linked the norms and values forged with American civic order into the basis for a global civil society, which was to comparably organized

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(Pease 2009: 68). This, like any other “state fantasies” are intended to serve to justify the rules of their own governments, and to help manage the local population (Pease 2009: 70). But other nations and citizens, with different histories, could not be prepared simply to accept the US geopolitical logic of exceptionalism. Bill Clinton’s “New Covenant with America” reached out to those who were disenfranchised and proposed a new multiculturalism, which recognized the opposition of the “Religious Right.” Pease argues that Clinton’s acknowledgment of a monocultural US past, which required a radical change, in order to accept other cultures and ethnicities, could not simply be accepted but people with different histories and backgrounds. In contrast, Richard Rorty maintained that “as long as the American left remains incapable of national pride, our country will only have a cultural left and not a political left” (Rorty 1998: 38). In essence, respect for one’s country and national pride are required to generate the pride which is necessary in order to see the country, “as a beacon of hope” (Pease 2009: 133). But we already noted that many of today’s US citizens are both disconnected from any “emotional connection to their country” (Pease 2009: 133), and therefore both disenchanted with politics in general, and unconvinced by any state fantasy their governments are concocting. Perhaps the second Bush presidency, or his advisers, might have sensed this lack of connection, so that what was required was more than a victorious war to reinforce the myth, but also, even more important, was to restore an emphasis on patriotism, promoted side-by-side with the ongoing “war on terror.” The “pinnacle” of that effort to restore patriotism, using the justification of terrorism was, perhaps, John Ashcroft’s Patriot (“Provide Appropriate Tools to Intercept and Obstruct Terrorism”) Act (Pease 2009: 151). That act, and the general policies enacted in the US since 9/11, “legally violated the civil liberties specified within the Constitution, they enabled the Patriot act to demonstrate the State of Exception’s power to protect the Constitution as a whole from the threat it understands to have been posed by an alien system of legality” (Pease 2009: 151). It is hard to tell whether social movements, and protest movements of one ilk or another, understand and accept fully the true consequences of the State of Exception, when the latter is invoked as justification for the ongoing elimination of any number of legally guaranteed rights and civil liberties. In contrast with global special movements and protests in all countries and continents against Davos or the G8, the Occupy movement separates their strong protests against Wall Street from their ongoing belief in the US Constitution, and in the ability of that institution and its government to effect radical change. In the

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next section we will consider whether their optimism is well placed and whether there is sufficient morality present in the “guardians” of the constitution to justify their beliefs.

Illegalities Sustain Protests: Structural Violence against Society At the bottom are millions of young people alienated and without hope. I have seen that picture in many developing countries; economists have even given it a name, a dual economy, two societies living side by side, but hardly knowing each other, hardly imagining what life is like for the other. Stiglitz, 2012, p. 289

The previous chapters have shown that protests and social move­ ments include  citizens who do not accept the authority of government decisions based on corporate interests, any more than they accept the almost constant state of war and—in the US—even the ongoing state of exceptionalism is becoming increasingly suspect. Hardt and Negri might say that the “fantasy state” is steadily losing ground as the “ideal” conditions in which US citizens are told they are living in show their far-from-ideal side in the life of the 99 percent. In Canada, the Idle No More movement indicates the unacceptable reality of a government that has abandoned the principles that are foundational to their relation with First Nations, and which has forgotten its clearly established fiduciary obligations. Globally, both corporate and military power are basic to the anger and distaste that fuel protests in all continents. Both corporate and military power exert a control on civil society that touch us as deeply as they affect hard-fought for and won civil rights. Equally frustrating, especially in the US, is what citizens believed was not a “fantasy state,” but a reality that was theirs to achieve through work and commitment. When civil and political rights are withdrawn, whether by the spurious exceptionalism created by the so-called “war on terror,” or through the unexpected harsh living conditions that are a necessary part of what Stiglitz terms “the price of inequality” (Stiglitz 2012). He says: The top 1 percent have the best houses, the best education, the best doctors, and the best lifestyles, but there is one thing that money doesn’t seem to have bought: an understanding that their fate is bound with how the other 99 percent live. Throughout history this has been something

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that the top 1 percent eventually do learn. Often, however, they learn it too late. Stiglitz, 2012, p. 288

Stiglitz proposes several moves that might alleviate the current situation in the US, but given the extreme control that corporations exert over legislature and governance, his excellent idea about making corporations “more accountable to their shareholders,” or forcing them “to go to their shareholders for a vote on campaign contributions” (Stiglitz 2012: 285) appear doomed to failure. Corporations as he himself admits, like things the way they are, so that a “new social compact” (Stiglitz 2012: 281) does not appear possible, even as a remote possibility. Stiglitz insists we all need a “rule of law” and therefore, the present protests against authority that is bought and paid for by the corporate/military establishment are evidently on the side of legality and principles. Their present position, that is, that of the 99 percent, whether or not they are part of a protest movement, is that of victims of illegality and injustice. This position enables us to add another link connecting their protests to the side of law: the acknowledged right to self-defense on the part of victims of violence. The violence to which we refer here is more than violence inflicted upon one individual, or even a whole community. It is an all-pervasive form of structural violence, sanctioned by the pervasive exceptionalism that is basic to the legal structures that ignore human rights. Thus, in the second part of this work, we will turn to some of the gravest forms of victimization suffered by too many in today’s civil society within the US and beyond, before attempting to propose a way forward in the conclusion.

Self-Defense? The Moral Response to “Threats” [Culpable threats] are people who pose a threat of wrongful harm to others and have neither justification, permission, nor excuse. They may intend the harm they threaten, or the risk they impose, or the threat may arise from action that is reckless or negligent. Mcmahan, 2009, p. 159

The first thing to note is that the definition here proposed by McMahan is not intended to refer to categories with a war context; it is simply viewed as individual cases discussed as “limits to self-defense” (McMahan 2009: 159). For instance, the example of an unequivocal “culpable threat” is someone

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attempting to kill his wife for financial gain: both the wife and any bystander are not only permitted but obliged to use force to prevent the killing, even to the point of killing the attacker (McMahan 2009: 159). It is hard to tell whether such fully “culpable threats” exist within a war situation, where it would seem that both sides would have both permission and justification for their violence. It is even harder to imaging the moral right to a lethal response when neither terrorists nor counter-terrorists can offer such a clear example of prima facie culpability. Both require an analysis of their motivation, before their culpability might be assessed. The second category McMahan proposes is that of “partially excused threats” as “people who unjustifiably pose a threat of wrongful harm to others, but whose action is excused to some extent, though not fully” (McMahan 2009: 159). Such diminished culpability may include lack of full knowledge, diminished capacity, error, or a threat to the life of the “threat” himself. In all these cases proportionately is recommended, but the right to self-defense remains (McMahan 2009: 160–163). The Canadian Criminal Code for instance, considers self-defense in mitigation of the crimes committed against others in crimes based on predicate offences—namely, according to the Supreme Court, unlawful act manslaughter (s. 22(5)a) (R v. Creighton [1992] 3 SCR 3); unlawfully causing bodily harm (s. 269) (R. v. DeSousa [1997] 2 SCR 944); aggravated assault (s. 268) (R. v. Goodin [1994] 2 SCR. 484); and, in lower court rulings, assault causing bodily harm (s. 267) (R. v. Emans [2000] 35 CR (5th)386, Ont. CA). These crimes presently require in addition to proof of fault for the underlying crime, only proof of dangerousness in the form of objective foresight of nontrivial bodily harm (Stuart 2008: 1). With reference to dangerous driving, the court considers the mental state of the accused, in order to decide “whether a reasonable person would have been aware of the risk” (Stuart 2008: 1). Of course the above specifies what can be understood to be a crime, and as we read the list and consider what situations actually give rise to protests, it is obvious that many of these crimes are committed routinely through the activities that give rise to the protests. More relevant however, is whether the ongoing occurrence of activities resulting in many of these crimes represent some evidence of provocation. In R. v. Mayuran (2012, SCC 3I) a woman was accused of murdering her sister-inlaw, and the question was raised whether “reasonableness” was present in her understanding of “provocation,” as apparent insults, leading to the crime. “Reasonableness” constitutes a legal requirement of self-defense under s. 34(2) of the Criminal Code. Reasonableness involves considering whether the accused person’s perceptions, thus her reactions, were such that “an ordinary person would entertain

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similar perception (though not necessarily react in the same extreme faction as in this case where the accused committed murder with 45 knife wounds to the victims).” Provocation might, if viewed as “reasonable,” result in a partial defense (Stuart 2013: 1). Of course Occupy and other protesters do not commit brutal murders, but simply respond to the provocation present in the numerous harms to which they are exposed, through attacks on their physical integrity and their civil rights, with more or less focused and forceful civil disobedience. Thus, mutatis mutandis, the ongoing provocation of the relentless attacks and deprivations we have outlined in the earlier chapters, surely the moderate response of protesters may be termed completely reasonable, thus it should be judged to be entirely legal. Nor is the concept of what is “reasonable” limited to the domestic criminal realm. It occurs regularly in the decisions and opinions of various courts, such as the International Court of Justice and the European Court of Human Rights. However: In the words of Jean Salmon, “what characterises notions such as ‘reasonable’ is that they cannot be defined objectively.” Consequently, what is reasonable “requires an assessment which goes beyond the law.” Similarly Perelman, for the notion of reasonable rests on criteria which are more sociological than legal in nature. Corten, 1999, pp. 613–625

Thus, without engaging in a thorough analysis of all possible meanings of what is “reasonable,” I submit that protesting against ongoing harms and oppression appears to fit the “common man” understanding of the notion. As we saw the main reasons for protests in the revolt against overwhelming corporate power, with its most obnoxious results, its fairness and hardships for workers and escalating unemployment, coupled with diminishing or missing social support. Although the motivations support both moral principles and the major tenets of law, the most significant issue that moves collective protests is selfdefense, rather than simply the support for principles against illegal and immoral practices. Occupy and other social movements could not be sustained, unless the basic impetus were as it is—intensely personal and practical. People are being harmed by corporate-directed and supported practices. In many cases, such as that of the ubiquitous EDC exposures, these harms are irreversible (Grandjean 2013). Unlike the defense of principles, which should be a common erga omnes

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obligation, but is not, self-defense is recognized in both domestic and international law as a basic human right. Even aside from the excesses in some areas of the US that enshrine the right not to protest, but actually to shoot when “feeling threatened” as in the Trayvon Martin case in Florida in 2013, which prompted President Obama to say of that African American boy: “it could have been me, thirty-five years ago” (Democracy Now! 2013). In morality, self-defense is part of a very long tradition. St. Thomas Aquinas declared that keeping and defending one’s life was not only a right, but a duty prescribed by natural law, provided that (a) the attack/lethal danger was immediate; and (b) the force used to repel it was proportionate; but it was morally right even if the result as the death of the assailant. The motive, however, could not be revenge, hate, or retaliation, but simply the commitment to the sanctity of one’s own life. Throughout history the right to self-defense remained accepted, not only as it applies to individuals, but also to communities or even to nations. It was intended to apply to immediate clear threats, immediate violent attacks, certainly not to the various measures practiced by the West against so-called terrorism, that is attacks violence imprisonment, even torture, predicated on the targets’ possible “plans” or “intentions” on the part of the targeted individuals. That extreme approach to self-defense (so-called) will be discussed in Chapter 8 below. At any rate, the right to self-defense appears to be a clear and unexceptional principle, strong enough to apply to protesters intending to defend their basic rights.

Self-Defense and Protests against Violence in International Law The prohibition of the threat of force stands alongside its loftier counterpart, the prohibition of the use of force in Article 2(4) of the United Nations Charter (UN Charter, art. 2, para.4). Yet although states continually reference the prohibition of the use of military force (even while breaking it) the scope and nature of the prohibition of the threat of force has found little articulation in state practice. Green and Grimal, 2011, p. 286

The situation is even less clear when we consider the right to self-defense on the part of groups and communities, and the right to the use of force (or its threat) on the part of governing bodies and states, than it was in the case of

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individuals. The main focus of the paper by Green and Grimal is to contribute to “the debate over the lawfulness of “anticipatory” and “pre-emptive selfdefense” (Green and Grimal 2011: 286), But they acknowledge that “the lawfulness of the threat of force is contingent upon the prospective lawfulness of the force threatened” (Green and Grimal 2011: 294). The threat is a “message,” more or less explicit, as green and Grimal limit themselves to a consideration of state actions: For example state A threatens State B with force unless it complies with state A’s demands (Green and Grimal 2011: 295). Both this situation and other related ones are almost daily occurrences, based on US’s exceptionalism, as that country uses the threat of withholding desperately needed support from impoverished countries, unless they do or abstain, in line with US interests. “Equally illegal is (or should be) any threat based on the war on terror,” which is both illegal in itself and a misnomer (Cassese 2005). Hence counterterrorism, both as a threat and as actual form of violence, should be deemed to be illegal (Green and Grimal 2011: 296).1 In contrast, in the dissenting opinion of J. Weeramantry (“Legality of the Threat or Use of Nuclear Weapons,” Advisory Opinion, 1996, ICJ 226, 541 [July8]), “A secretly harboured intention to commit a wrongful or criminal act does not attract legal consequences unless and until that intention is followed through by corresponding conduct.” This is not the appropriate place for a discussion of general issues in international law, and I have argued against the US position on pre-emptive attacks termed “self-defense” elsewhere (Westra 2012a), and I will reprise that argument to clarify that particular aspect of “legal” victimization in Chapter 8 of this work. At this time, the discussion allows a better understanding of what legal selfdefense means in the case of groups, individuals and communities against violent practices occurring with the support, or at least with the permission of governments of democratic Western countries. In contrast, when we speak of individuals or groups being victims of “attacks,” we need to acknowledge that the UN Charter, Art. 51 speaks of “armed attacks,” and adds that “the measures taken in self-defense must be reported to the Security Council, and the forceful self-defense must cease after the SC has taken measures to alleviate the defensive necessity,” apparently, whether or not such “measures” have been effective (Green and Grimal 2011: 299, n. 80).

1 However, consider US-led sanctions or threats of such sanctions against states, groups or individuals, such that they cannot be viewed as “an unlawful threat.”

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However, while we are considering the legal aspects of self-defense, we need to acknowledge that the SC is a political organ instead, whose decisions are often in direct conflict with the principles of the UN, therefore, in conflict with the only source of international law we should accept (Westra 2012a). The SC is largely controlled by the US, thus by the very corporate infrastructure that social movements target with their protests. Hence, the “attacks” to which we refer are not actually armed attacks by a state, but they represent violently harmful and/or repressive states of affairs, initiated or sustained by non-state legal persons, with state permission and approval are as described. Nor is the legal remedy proposed adequate or at least useful to redress the situation of which we speak. One of the first discussions of self-defense—the 1841 letter by Daniel Webster (then US Secretary of State), “concerning the 1837 sinking of the steamship Caroline” (Green and Grimal 2011: 300)—defines it as follows: Show a necessity of self-defense, instant, over­whelming, leaving no choice of means and no moment of deliberation. It will be for it to show also that…[it] did nothing unreasonable or excessive, since the act justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it. Webster, 1841, pp. 1137–1138

This well-known statement implies “the concepts of necessity and proportionality” (Green and Grimal 2011: 300), since both developed and became accepted in international law since that time. As an aside, both exclude clearly the anticipatory and pre-emptive self-defense claimed routinely by the US and its Western allies in response to so-called terrorist threats. However, in a similar vein, the conceptual basis of the self-defense of social movements remains equally at risk as a legal concept. Indeed, the situations that trigger the protests and, eventually a forceful response, have developed increasingly over time and—at least in principle— there should have been plenty of time and many opportunities to seek other solutions, beyond protests, resistance and civil disobedience. Had other solutions been found, there might have been no need to initiate forceful resistance to the efforts of the forces of “law and order” to disperse, confine and even eliminate the protests. I have discussed elsewhere the reasons why these alternative tactics do not work, even in so-called democratic countries (Westra 2013a: ch. 4). At this time we are simply evaluating the claim that the major and strongest principle justifying civil disobedience, thus rendering most forms of protest, including

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those that include forceful means, truly based on legality in contrast with the illegality of state responses, is the principle of self-defense. The situations leading to what occurs in the Occupy movement and others, is based on different circumstances, from those that existed when these legal regimes were drafted to deal with civil disobedience and protests. Still, we noted above, that at least the Occupy movement still appears to believe that the US Constitution and the courts could and may actually want to help redress the grave injustices they face. However, this position, even if true applies only to domestic rather to international law, a switch that is hard to accept, as the global reach and spread of social movements is undeniable. At any rate we have discussed criminal law as a Canadian example in order to consider domestic law and its approach to self-defense, because of the difficulties arising from the international legal instruments and the UN Charter itself. In both cases despite the technical difficulties to be expected in circumstances so novel as the ones that have led to the present social movements, the strength and the basic validity of the principle of self-defense cannot be denied. See also “Civil Disobedience Against Environmental Harms: Forceful or Not?” in Chapter 4 for further considerations that are pertinent in the present context.

Concluding Thoughts for Part I

The previous sections proposed self-defense as yet another aspect of the rights to demonstrate, protest, and fight, even forcefully, against the status quo. The previous chapters argued for both moral reasons for protests and legal reasons for the deprivation of civil rights. The last two sections proposed an even stronger position in defense of protests: the right to self-defense from the imposition of physical harms. In sum, the “illegal” protests we see locally and globally, are based not only on moral principles, on justice, as the civil rights movement was, and that remains perhaps the strongest motive. They are also based on self-defense and that in several related ways. First, principled self-defense is more than the defense of one’s biological existence. The example suggested, that of a nun defending herself from rape, which would be more than a physical outrage as any rape would be, but additionally, an attack on her life’s commitment to chastity, is clear. That is the position taken by forceful and even violent protests against the brutal Israeli occupation of Palestine; protesters defend themselves against the intolerable living conditions imposed by the apartheid state of Israel upon them, but also for their right to freedom and self-determination: both legal principles entrenched in the UN Charter. Similarly many of the global protests fostered by

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Greenpeace to save whales and other marine mammals; according to the dictates of international law, the support of the latter is obvious on the part of the protesters, no matter how forceful their protest. The attacks on human biological integrity, and the ecological integrity of the environment that supports it, are no less violent and harmful, despite the fact that the harms are not as immediately visible as is the killing of whales. Most chemical exposures engender risk of diseases and stunt normal development, from early childhood to older adulthood, although these attacks are most often ignored in the courts because of several factors, which include first and foremost, the power of the chemical corporations themselves (Westra 2013b; Grandjean and Landrigan 2006). The ongoing corporate control of public health therefore, renders the citizens’ protests doubly significant: based on self-defense they are protesting the attacks against their biological existence, but also the corresponding attacks against their civil and political rights to life and health. Hence the Occupy movement itself chose the correct target in Wall Street, and other protesters of G8 meetings are equally correct in their own choice of targets. Part II will start with a clarification of which victims are being considered and why. The main focus will be on those who are victims of present legal practices, not of the many victims of acknowledged and recognized crimes. Legal instruments, whether domestic or international, fail to protect humanity, for a number of causes: (1) Even when they are well-drafted and explicit, in international law there are no institutions designed to ensure their enforcement; often that remains in doubt even when the international regime has been adopted in a national constitution. (2) Many important treaties are not ratified by the most powerful Western nation (the US) and its “friends” (e.g. the 1998 Statute of the International Criminal Court). (3) The language of the most serious instruments, universally ratified, is often treated as an accountant might treat tax law: that is, as a fertile grounds for possible loopholes, and this is inconsistent with the status of the Geneva Conventions, for instance, which embody peremptory norms as they define genocide, crimes against humanity and torture. (4) US domestic courts manifest strong political ties to the governing administration, and tend to uphold national interests over impartially adopted and applied international standards. (5) The overarching influence of the US is also present through the veto power it exercises on the Security Council Resolutions.

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The combination of self-interest, coupled with almost unrestrained imperialistic power, emerges in the lacunae present in many Conventions, which are not adapted easily to recent situations and circumstances, such as the 1951 Convention on the Status of Refugees, the Convention on the Rights of the Child, and the UN-supported Declaration on the Rights of Indigenous Peoples, among others. The same combination re-emerges when the shortcomings of existing legislation results in harms that force the victims to appear before the Courts with grave substantive claims, only to be dismissed with superficial or procedural rebuttals. The second part of this work is intended to research and discuss the resulting victims in several fields, that is, those who are harmed by perpetrators who claim to be acting legitimately, and not to be involved in criminal activities, no matter how severe the effects of their “legal” practices on human rights: These will be examples of the gravity of this issue. A major exception to this dismal assessment of the worldwide violations of human rights is the presence of several treaties on women’s rights, which are strong, at least on paper and in the courts. As well, the presence of gender laws and laws against discrimination on sexual choices is also solid in the literature on victims, primarily in Western domestic laws and commentaries, but also increasingly everywhere. This book will not add to the existing literature on that topic, although I realize that women’s rights are certainly not respected everywhere. Chapter 6 will set the stage for the two examples that will follow, of victims of legal activities by (1) the corporate and (2) the military establishment, chosen because of their overwhelming presence globally, which makes resistance and even protest difficult, if not futile. Chapter 7 will consider the former (i.e., victims of corporate legal activities), and Chapter 8 will turn to the victims of militarism, coupled with the exceptionalism discussed above. The Conclusion will consider what, if anything, can be done by global, transnational victims everywhere, to combat the persistent legal power to harm. Our right to self-defense is joined to the obligation of all the human collectivity to continue to fight, so that democracy itself does not become the victim of structural violence.

PART 2 Victims of Structural Violence

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Victims of “Non-Intimate Violence” and the Law Introduction Contrasted with the realist view of human rights is the “normative” view that sees rights as universal moral and legal norms which serve as a check on nation-state power rather than simply as an expression of such power. The normative view takes human rights as an expression of our common humanity that the nation-state is bound to respect. Vogel, 2006, p. 445

Upendra Baxi argues that human rights law should respond directly to the “voices of suffering” (Baxi 1999: 125–169), and it is that approach that will help to distinguish and define the victims who are our focus. The first question is “who are these victims?” Victimology has existed for several decades as a discipline, and it has an established history: we will review it briefly in order to isolate the limits of this enterprise. One of the earliest scholars to research the question of victims was Hans von Hentig. They are: (1) the young; (2) females; (3) the elderly; (4) the mentally defective; (5) immigrants; (6) minorities; (7) dull normals; (8) the depressed; (9) the acquisitive; (10) those who are lonesome and seek companionship and intimate relationships; (11) those who have a history of “tormenting” their families (after abusing and assaulting their families for long periods, they are eventually victimized—attacked—themselves); and (12) those who are “blocked” or exempted from bringing their plight to the police or authorities because of a previous record, or criminal history (Hentig 1948: 404–438). Most of these categories rest upon interpersonal relationships and they can all be characterized as victims of recognized crimes. Another early attempt to define victims can be found in the work of Mendelshon (1963). This typology explains victimization through “structural victimization factors” (Meadows 2010: 40–43). Mendelsohn’s typology includes “the innocent victim” (such a young children and those “who are in the wrong place at the wrong time”); but the rest describe “victim-precipitated crimes,” and comprise the “victim with minor guilt” (e.g., those frequenting high-crime areas, or prostitutes); the “victim as guilty as the offender,” when both victim and offender participate in criminal activity; the “victim more guilty than the offender,” as when the victim himself

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“provokes or attacks another”; and finally, the “most guilty victim,” as when a person is killed by another in self-defense (Meadows 2010: 43). Once again, the victim in all categories—even if we accept his somewhat dated understanding of possible degrees of guilt on the part of a victim—are all victims of recognized criminal acts and result from interpersonal relations. In contrast, the work of Sellin and Wolfgang (1964) comes a lot closer to the categories we want to explore in this work, as they address situations beyond the interpersonal, that is, beyond relationships. According to the categories outlined by these authors (primary victimization, secondary victimization, tertiary victimization and no victimization), at least two types are almost precursors of the sort of victimization that will be discussed in this work: “secondary” and “tertiary” victimization. The former occurs when the victims “are impersonal targets of the offender,” as “when a corporation or business sells faulty products,” or when “church officials embezzle the offerings of a church’s congregation” (Meadows 2010: 43). The latter involved “the general public or society” as victims: “Crimes committed by the government, as opposed to businesses are included in this category” (Meadows 2010: 43). At first sight, it might seem as though the last two categories described say it all: as one might perhaps elaborate further these categories, but the basic understanding appears to be already present in this early work. Yet, as we reflect upon “secondary” and “tertiary” victimization, we note that both types rest comfortably upon the commission of commonly accepted criminal activities. In contrast, the situational victims we will discuss result—for the most part—from unaccepted and often uncodified forms of structural violence, based on flawed “structural arrangements in our culture” (Galtung 1996). Structural violence will be an important and recurrent theme and more will be said about it. For now, the first step is to start by setting clear limits to the present enterprise. That “structural violence” that is present in violent home situations or in abusive relationships, is not what we intend to discuss. Hence, all sexual and gender-related victimization, real and important though it is, lies beyond the scope of this work. In fact, both in the scholarly literature and in the law itself, these forms of victimization are well-represented, and all aspects of that violence are explicitly criminalized both in domestic and international law, including rape, assaults, sexual harassment, stalking and pornography. Equally outside the planned topics of this part are the victims of robberies and other violent crimes. The main concern at this time is the plight of the victimized, suffering people who fall between the cracks, those who are not viewed as victims of acknowledged, codified crimes, that is, the millions of individuals who are victims with neither recognition, nor any hope of redress.

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Perhaps the most obvious category of victims seeking to be recognized, are the millions of those who suffer increasingly because of climate change and other environmental hazards. The violent attacks they suffer (tsunamis, tidal waves, glacial melts) may, at best, be compensated in part much later, but only if they can prove that the harms they encountered can be made to fit under some other euphemism or description that might cause their plight to be recognized as something else. Particularly obvious are the cases where environmental harms befall women or children because of noxious effluents resulting from some industrial operations. Consider, for instance, any one of the meager list of environmental cases successfully argued at the European Court of Human Rights such as Guerra v. Italy (1998, echr 14987/89) or Lopez-Ostra v. Spain (1994, echr 16798/90). Both cases were not recognized as grievous attacks on the life and health of children and others, near hazardous chemical industrial operations, but were eventually decided favourably on the basis of Article 8(1) of the European Charter of Rights and Freedoms (Convention for the Protection of Human Rights and Freedoms, Rome, November 4, 1950, TS 71 [1953]), as “loss of family life,” a politically correct term, but a particularly vacuous description of what happened in each case. No doubt, certain categories like the poor, or, in North America, African Americans or Native Americans, are especially prone to be victims of environmental attacks or, as I have termed them, “ecocrimes” (Westra 2004). But it is not only these groups who belong to the category of victims. As we shall see, billions of people in all continents and regions, are exposed to that single, but complex category of harms: those caused by ecological circumstances, including climate change. Nevertheless it is not only ecocrimes that represent the activities that victimize, most often with no redress. In the next chapters we will consider the example of some other categories, but it is useful to start with the victimization affecting the largest collectives, humankind, directly, indirectly, both carelessly and negligently, with no consideration for their present rights, or those of their descendants.

What is Protected by International Human Rights Charters and Jus Cogens Norms? The Question of Shue’s “Basic Rights”

When we consider the language and intent of both International Human Rights and Humanitarian Laws, including International Covenant on Civil and  Political Rights (iccpr, 1966), as well as the International Covenant on Economic, Social and Cultural Rights (icescr, 1966), both of these

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instruments assert that their Articles are based on “the inherent dignity of the human person,” and that the “ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights,” as well as his “economic, social and cultural rights” (my underlining). It is important to consider what these “conditions” might be. An Arab proverb says that, “The palm tree is beautiful, but only when a man’s belly is full of dates.” Hence the conditions for physical survival are primary, before cultural or political considerations enter the picture. These conditions must include what Shue calls “subsistence rights.” As Shue puts it, these basic rights: are the morality of the depth, that is, they show us the limits below which they cannot sink in our treatment of all people. They are “basic,” as the enjoyment of them is “essential to the enjoyment of all other rights,” they are “everyone’s minimum reasonable demands upon the rest of humanity.” Shue, 1996, p. 19

These “demands,” minimally, include “Security Rights” and “Subsistence Rights” (Shue 1996: 20). Ecoviolence represents an attack on both. The right not to be “threatened with murder, rape, beatings,” ought to include the right not to be exposed to chemicals and toxics, radioactive materials and every substance that produces morbidity, mortality and may alter immune, reproductive and other human functions at the present time, or even affect through dna changes, future generations (Carson 1962; Colborn et al. 1996; Westra 1998; Gbadegesin 2001). Similar arguments can be made for “subsistence” rights. But although there appears to be an unprecedented proliferation of human rights instruments (and we will examine some of the details of those documents below), some raise serious questions about the validity and even the “universality” of universal human rights (Baxi 1999: 125; De Sousa Santos 2002: 337). Some of these questions take the form of attacks on the traditional concept and understanding of human rights. The aim of this chapter is to (a) show the closeness between ecoviolence and other forms of institutionalized violence; (b) demonstrate that the well-developed and well-established literature on war morality shows clearly the limits within which such violence may be legitimately used and imposed upon others, by showing the specific conditions and circumstances that may render a war legal and just; hence, by analogy, minimally that the need to find similar circumstances if ecoviolence is to be allowed to continue; (c) argue that not only direct causation of violence but also complicity, toleration and even silence may entail responsibility for its effects, on the part of states, institutions and individuals; and (d) that both humanitarian

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laws, intended to mitigate the horrors of armed conflict, and “international human rights laws,” intended to protect social, economic, cultural, civil and political rights must rely and be based on respect for basic rights, defined by Shue as “security” and “subsistence” rights. When we consider the language of International Treaties and Covenants, it is surprising that, amidst a proliferation of Charters, Covenants and Declarations, there is very little that pertains directly to “basic rights.” Environmental violence attacks human beings in many different ways (Westra 2004). It might be useful to list some of these forms of assaults and their expected a consequences here, as a frame of reference: (1) Increased exposure to uva/uvb because of ozone layer thinning. (2) Exposure to direct impacts of global climate change, such as floods, extreme temperatures, and other weather changes. (3) Exposure to toxic wastes. (4) Exposure to toxic/hazardous by-products of industrial production, ranging from nuclear power to high-input agriculture. (5) Exposure to food additives and chemical residues in food production. (6) Long-term, low-level exposures to various chemicals and processes. (7) Exposure to climate-induced health threats from new or renewed infectious diseases. (8) The loss of “nature’s services” through loss of biodiversity, fragmentation of natural landscapes, and deforestation. (9) Increased presence of particulates and other pollutants in the air. (10) The diminishing supply of safe water. (11) Direct contact with pathogens through encroachment on the wild (Colin Soskolne, personal communication 1997). (12) Increased hazards from the presence of bioengineered foods and transgenics, which may range from unexpected allergic reactions to unlabeled bioengineered food with unpredictable side effects (as in bse), to the hidden antibiotics in transgenic fish. (13) Exposure to antibiotic-resistant strains of pathogens. (14) Increase in communicable-disease risks through migration of persons based on immigration policies of governments and to accommodate refugees, to seek out qualified labor, and to travel (Westra 2004: 287). A brief survey will disclose how little addresses directly the right to health and the right to non-interference of our physical biological systems, in any of these instruments.

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We noted that of the two of the major covenants (iccpr, 1966; icescr, 1966) could be interpreted in a way that could address this concern to some extent. Slightly more explicit is the Convention off the Rights of the Child, although its provisions remain weak and ambiguous. For instance, the Convention states that “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.” Although Article I (Pt. I) defines a child as “every human being below the age of 18” and Article 3 (1) states that “in all actions concerning children,” whether public or private (including those undertaken by legislative bodies), “the best interests of the child shall be a primary consideration,” both these laudable statements leave open the question of what protection might be accorded to a child before birth. Although present “political correctness” consideration force the avoidance of in depth consideration of the morality and the justice of decisions that only consider the (adult) women’s rights and choices, when these may come into conflict with the requirements of the unborn, we must remember that endocrine disruptors and other toxic and chemical substances attack the fetus in ways that are disproportionate in comparison with the dangers imposed on adults of either gender (Colborn et al. 1996). In addition the rights to protection of the female fetus, appear to be even less “acceptable” than those of their male counterparts, given that females are aborted with even more frequency than males are, in some case. The European Convention for the Protection of Human Rights and Fundamental Freedoms, after the expected statement in Article 2 (S. 1 Rights and Freedoms) “Everyone’s right to life shall be protected by law,” has an Article (5.2) that uses some interesting language. Addressing the “right to freedom of speech,” 5.2 acknowledges that: the exercise of such freedoms, since it carries with it duties and responsibilities; may be subject to various conditions, prescribed by law, as these may be deemed necessary for “public safety” or “for the protection of health or morals.” Perhaps then the “freedom to advertise,” market and manufacture products that represent an attack on public safety and health, such as certain chemicals, or bioengineered foods, might be restricted under the provisions of this article. The American Convention on Human Rights is clear and decisive in the protection of life. Part I, Chapter 1, Article 4, states:

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Every person [previously defined as “human being”] has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall arbitrarily be deprived of his life. Article 5.1 adds, “Every person has the right to have his physical, mental, and moral integrity respected.” Another interesting point—one that has not been found in the other Charters and Covenants considered so far, is Chapter V, Article 32 (with my emphases): Every person has responsibilities to his family, his community, and mankind. …The rights of each person are limited by the rights of others, by the security of all, and by the just demands of the general welfare, in a democratic society. If the provisions of Article 32 were fully implemented, the production, marketing and waste disposal related to all toxic, chemical and nuclear substances, hazardous from “cradle to grave,” that is, presently manufactured, traded and disposed with a cavalier disregard for the life and rights of others, would be eliminated. Finally, the African Charter on Human and Peoples’ Rights, adds some novel considerations, not formally explicit elsewhere, to its principles. For instance, the concern for “human and peoples’ rights” (Preamble), and the explicit inclusion of the concept of “duties” on the part of everyone, as the complementary concept to “rights,” are a welcome development in the right direction. Both of these innovative considerations re-appear and are reinforced in several articles beyond the Preamble. “Duties” are the subject of a whole chapter (Chapter II, Duties); Articles 27, 28, and 29 require that the exercise of one’s rights take place, “with due regard to the rights of others, collective security, morality and common interest” (Art. 27). The consideration of “human peoples’ rights,” repeatedly joined in the text in this manner, is particularly interesting, and uniquely apt to protect whole populations from ecoviolent crimes, such as those who decimated the peoples of Ogoniland (Westra 1998). However, neither “duties” nor the protection of “peoples” are specifically directed to the safeguard of the health, and the environmental protection of the habitat of either individuals or “peoples.” This “duty” would be particularly relevant for the bureaucracies and the leaders in a continent where toxic trade is rampant (Cranor 1993; Gbadegesin 2001).

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In sum, even the language, let alone the practices of all these legal instruments, reflecting the concerns of their respective countries and institutions, are not truly conducive to a serious consideration of “ecocrime” or institutional violence imposed through the environment, nor yet to the legal restraints that are necessary to limit the vast damage inflicted upon all, but primarily on the vulnerable and the disempowered in developing countries by commercial and technological practices that are ruled, for the most part by economic considerations. It has been my argument that all these related points are and can be clearly supported in both law and morality, by a full understanding of the principles of natural law, and that these basic rights should be defended by jus cogens norms, and the duty to do so should be firmly enforced. This position is necessary because all forms of ecoviolence can be demonstrated to represent “crimes against humanity,” forms of “genocide” and “attacks on the human person,” as defined and discussed in the work of Bassiouni (1975) and Schabas (2000).

Galtung on Structural/Cultural Violence By “cultural violence” we mean those aspects of culture—the symbolic sphere of our existence—exemplified by religion and ideology, language and art, empirical science and formal science (logic, mathematics)—that can be used to justify or legitimize direct or structural violence. Galtung, 1996, p. 196

Galtung’s detailed analysis examines each of these “cultural” aspects, as they often lead to a whole culture being structurally violent, because, singly or in combination, they facilitate the transition from a “symbolic sphere” to very practical oppression and other forms of structural violence. In fact, the cultural, or “symbolic” aspects actually legitimate the use of violence by making it at least-acceptable: One way cultural violence works is by changing the moral colour of an act from red/wrong to green/right or at least to yellow/acceptable; an example being murder on behalf of oneself wrong, murder on behalf of the country as right. Another way is by making reality opaque so that we do not see the violent act or fact, at least not as violent. Obviously this is more easily done with some forms of violence than with others; an example being abortus provocatus. Galtung, 1996, p. 197

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Like the preceding section indicated, society’s structural violence is “willfully blind” (R. v. Pappajohn, (1980) 2 SCR 120) to whatever its cultural beliefs accept as right and appropriate. Ultimately, whenever the right to life, to normal development, and to health in the case of children, must be cloaked under misleading euphemisms, as we noted in the two cases cited above (Guerra and Lopez-Ostra), in reverence to another basic form of violation of the right to life, we can see precisely the results of Galtung’s conclusion. If life cannot be respected even in the words used in legal instruments purported to support and defend human rights, then what we find instead is tacit (albeit conditional) support for its elimination, under the mantle of the defense of other, inferior, values (privacy, convenience and respect for choices). We noted a similar form of avoidance in the earlier section of this chapter, as ecocrime was discussed, as it is practiced in and through nature: Galtung terms nature “the sine qua non for human existence” (Galtung 1996: 197). He argues that his proposed table of “a typology of violence” (Table 1) should add a column on “ecological balance,” or, as I would prefer, “ecological integrity.” Support for the latter would then correspond to “survival + well-being + freedom + identity for human basic maintenance” (Galtung 1996: 197). Similarly, its opposites are “ecological degradation” and various aspects of imbalance, and its clear consequence, human degradation. The addition he proposes would then also encompass “ecocide,” as the extreme of ecological degradation, or “omnicide,” as Ken Saro-Wiwa also proposed (see earlier section). Table  1 is self-explanatory, but some additions might improve it. Galtung treats “maiming” as a simple category. I submit that, according to recent scientific research “maiming” is no longer only the obvious act resulting in the use of guns, bombs or machetes on individuals, whose life is therefore not immediately taken, as they may survive in a diminished state. Today we know that maiming may also be an attack on the normal mental and physical development of an individual, especially in the case of the Table 1

A typology of violence (Galtung 1996) Survival needs

Direct violence Killing

Structural violence

Exploitation  A (strong)

Well-being needs Identity needs

Freedom needs

Maiming Siege, sanctions Misery Exploitation  B (weak)

Repression Detention Expulsion Marginalization Fragmentation

Desocialization Resocialization Secondary citizen Penetration Segmentation

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preborn or young infant, through the occurrence of a toxic exposure (Grandjean and Landrigan 2006: 2167–2178; Westra 2006). The “maiming” in these cases corresponds to a plethora of harmful effects, including the development of neurological diseases in the child (witness the new “epidemic” of autism in elementary schools), childhood cancers, as well as diseases of old age such as Alzheimer’s and Parkinson’s disease, as Grandjean and Landrigan suggest (Grandjean and Landrigan 2006: 2167–2178; Westra 2006). In all these cases, the “maiming” centers on the immune system’s capacity to resist, as well as on the fetus or young child’s neurological system and its abilities, including the developing/young brain. Instead, Galtung’s focus is on the “human needs’ deprivation,” which might be erroneously described/accepted as “nonviolence”: To the victims, however, it may seem slow but intentional killing through malnutrition and lack of medical attention hitting the weakest first, the children, the elderly, the poor, the women. By making the causal chain longer, the actor avoids having to face the violence directly. Galtung, 1996, p. 198

At this point, we need to reconsider the question of a “causal chain,” basic to domestic criminal law, but largely absent in the legal instruments of international law hence, a fortiori, equally missing from the case law and legal documents purporting to decide on specific issues of environmentally related attacks/crimes, or public health issues. As we saw above, at best, if a case reaches a competent and willing court, what is judged is (a) what happened at a specific time and location; (b) what procedures might have been followed to ameliorate the situation, by all actors; and (c) who, specifically, might be guilty of the event causing the harm. Clearly the question of the “culture” or the “structure” within which certain hazardous practices are not only tolerated, but often welcomed (as business advantages, progress, job creation), as the cultural coloration of the “desirable” practices lead inexorably to the structurally approved operations, whereby “collateralism” (Leader 2004: 53–68) renders all actors blind to the true impact of such practices. But it is not by confining our examination to the immediate actual components of a case or an issue (let alone its procedural aspects), that we can truly engage with an issue, to understand why it is occurring, who is the original perpetrator, and what are its complex and perhaps remote causal aspects, leading to the final violent result that confronts us. Speaking of militarism and its proliferation, Galtung adds: “Yet structure and culture are usually not included

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in ‘arms control studies’ both being sensitive areas. Those taboos have to be broken” (Galtung 1996: 201). Essentially, one might say that the “breaking” of such taboos is what this work is about. When life cannot be an explicit right, when the protection of our habitat is only considered—for the most part—in economic terms, when legal persons are granted (and expect) far more power than natural individuals and collectives, it seems that the time has come to go back in time and trace the beliefs, both individual and culturally engendered, that have led to the present all-pervasive and legally accepted violence, starting once again with environmentally designed regulatory offences. Conclusions It was necessary to start the second part of this work by showing which actions result in harms that are considered grave enough to fit under the category of non-derogable obligations under international law. The language of such important instruments is either inclusive enough or vague enough to permit subsuming the grave harms here described as “ecocrimes,” under international law. This is true especially if we consider such documents as the Nuremberg principles or the Convention Against Genocide, and, of course, if we limit our consideration only as lex ferenda, that is, as the way the law should be understood and interpreted in the light of the primacy of human rights, rather than as existent present law. There is a great difference between the way harms inflicted through the environment (including chemical and industrial exposures) are treated both in international law and in domestic criminal law. That is because harms caused through the environment are viewed as part of the accepted “culture” of globalization, neoliberal development and capitalism in general, with minimal concern for the effects that follow the new hazardous circumstances that now accompany that “culture,” as we will see in the chapters that follow. The introductory review of this chapter starts with a general examination of the discipline of victimology, followed by the most obvious ongoing cases of unpunished harms: those arising from climate change and other environmental “crimes.” I had termed such harmful acts as forms of ecoviolence, or ecocrimes (Westra 2004). Beyond the descriptive aspects of that form of violence, we noted the similarity of the harmful effects that arise, to crimes against humanity, and even in some ways, to genocide, as the impacts of ecocrimes most often single out the poor and vulnerable in all continents and people in the global south.

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Thus, although some specific activities that give rise to the harms and victimization are not prohibited by law, the effects that follow resemble the consequences of some of the most heinous acts proscribed by international law. The next section after that discussion, argues that those rights that Shue terms “basic rights,” should elicit protection, that is, should be treated as a binding obligation for states as well as for legal or natural persons. The fact that this is not so may be blamed on the general acceptance of violence in our society’s culture, as John Galtung argues, as is the transition he traced from cultural to structural violence, where the latter is normalized and accepted as a consequence of the former. Yet one aspect of cultural violence, that which is based on sexual discrimination, has been eliminated right from start from this study, at least in principle, as all sorts of gender based crimes are now explicitly proscribed in law, ranging from sexual harassment in the workplace, all the way to rape, now declared a war crime in international law, and a form of genocide in some cases. Clearly, the spread and range of today’s victims is based on two major problems: the first is non-observance of existing legal regulatory regimes in domestic law and the declarations and charters in international law regarding human rights. The second is the non-existence of such prohibitions, so that these legal lacunae continue to impede the application of just standards to an extensive list of criminal attacks. Thus, despite the inescapable principle nullum crimen sine lege, the magnitude and the gravity of the breaches of human rights that occur, leads us to conclude that we should turn to analogy with the caselaw decisions rendered about these victimization crimes. A similar approach might help to bring justice to the millions whose harms appear to be caused with total impunity. The preliminary discussion of this chapter has shown what is missing from one of the major underlying causes of global harm, that is from ecoviolence, in all its multiple aspects. This particular form of victimization—as we shall see—will underline many of the problems discussed in the following chapters.

Chapter 7

Victims of Human Rights Law and of Legal Persons Where Justice and Equal Rights Do not Apply



Introduction: The “Original Sin” Mr. Chief Justice Waite said: the court does not wish to hear argument on the question whether the provision of the Fourteenth Amendment to the Constitution, which forbids a state to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does. 118 us 394; 6S. Ct. 1132; 30 Led. 118, May 10, 1886, Decided

This banal us Decision has been widely recognized as the first step in the ongoing assumption of parity between natural and legal persons. As well, this case is a clear precursor of a long history of dubious decisions, purporting to defend justice, fairness, equal treatment, and the rule of law, while manifesting a number of common characteristics. Typically, the Chief Justice ignores and bypasses the major, substantive issue of principle, while the discussion focuses on minor facts and on procedural issues instead. Another leitmotif in the decision is the assumption of the public interest as the basic motive of the corporate goals, without discussion or debate, thus automatically legitimizing any and all activities pursued for the achievement of those goals. In this specific case, the opening of the railroads from the East to the West of the us was probably a desirable goal, promoting the eventual well-being of people that would follow upon the opening of those frontiers. However, for the most part, corporate activities are not so generally benign to all involved stakeholders. Beth Stephens cites a recent book on the role of ibm in Nazi Germany during the Second World War (Black 2001): In his book, Black condemns ibm and its management for selling a revolutionary data management system to the Nazis. Black concludes that this system enabled Nazi Germany to organize information about the ten millions of people under their control, a key tool without which they would not have been able to implement their brutally efficient extermination program. Stephens, 2002, p. 45

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This position may be contrasted with that of Richard Bernstein (Bernstein 2001: E8), who argues that the Nazis could have conducted their “business” also without the assistance provided by ibm, and that “Such business decisions… were reasonable, morally neutral choices” (Stephens 2002: 46), thus presenting an oft-repeated position in support of business as usual. Yet, it is precisely after the Second World War that human rights law came into its own, with a number of new declarations and instruments for their protection and, at least in principle, corporations are increasingly under scrutiny with regard to their impact on human rights. Indeed: Large corporations magnify the consequences of the amoral profit motive. Multiple layers of control and ownership insulate individuals from a sense of responsibility for corporate actions. The enormous power of multinational corporations enable them to inflict greater harms, while their economic and political clout renders them difficult to regulate. Stephens, 2002, p. 46

There are several aspects of the corporate enterprise that belie their presence as simply amoral organizations, intent upon pursuing economic gain (and most often claiming that it corresponds to the common good), through their operations. First, their “corporate internal decision making structure” (French 1979: 58–69). Second, the often unrecognized but real harms they impose on countless victims, vulnerable people and communities, unable to defend themselves. For the latter, one example may suffice, as it elucidates the ubiquitous presence of mncs and the disturbing extend of their power. Despite the presence of remarkably protective national constitutions in Columbia and Ecuador, legal instruments that explicitly guarantee the support of Indigenous and environmental rights in both countries, those affected could not get justice and redress in their own countries. Despite their protected position within the country, the us and the Colombian governments established a contract to combat the illegal drug trade in the area: “the agreement, labeled Plan Colombia, involved the eradication of illegal crops in Colombia, using the aerial herbicide Roundup, which was produced by the American chemical company Monsanto” (Mayers 2009). Can we consider this “plan” an effect of development? Perhaps not in principle; but neocolonialism or the economic/political power of a stronger and richer state against a poorer and weaker one, is indeed a major aspect of globalized development. The problem is that “glyphosate,” the major component of Roundup, cannot be directed only to the coca plants slated for eradication, as it is sprayed aerially. The un Commission on Human Rights states that

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“Reports indicate that the mixture likely contains herbicide concentrations that are more than five times greater than levels [permitted] for aerial application” (Mayers 2009: 15). Because the airplanes fly over the border region  between Colombia and Ecuador, the Indigenous population of Ecuador is constantly at risk, far more than the coca growers of Colombia. In addition, the Indigenous peoples of this impoverished region have little or no access to health care or other social services (Congressional Research Service 2001: 9). The position of the us agencies in this regard, is that any possible negative results caused by their activities, “would be more than compensated by their extensive financial contributions, in the name of social and economic development” (Congressional Research Service 2001; Mayers 2009: 16). Can these activities be considered in any way as forms of “advancement” or as positive “development” for the affected countries? The health and the very physical survival of the Indigenous communities around the border area and Ecuador are gravely at risk, as are the basic necessities of their survival: their crops and their water, both of which are affected (Oldham and Massey 2002: 3). The violations of human rights are obvious, and the un High Commissioner for Refugees recognizes the reality of the situation: Ecuador is arguably Colombia’s most vulnerable neighbor and has suffered profound effects from both Colombia’s internal conflict and Plan Colombia. Problems on the border include drug-related violence, increased rates of crime, kidnappings, the forced migration of Ecuadorians from their homes, effects on human health and the environment from the aerial spraying of coca that drifts across the border, and food insecurity. United Nations High Commissioner for Refugees, 2008, p. 5

Hence, it is Indigenous peoples who have been gravely affected, not “drug lords,” and even the Plan Colombia (us/Colombia Project) has not achieved its goals, other than to promote, hence enrich Monsanto (a us based mnc), as it is often the case, at the expense of the health, safety and cultural integrity of the affected and displaced persons in the local Indigenous communities. These activities and their results are in direct conflict with the mandates of the un Declaration of the Rights of Indigenous Peoples (Article 7), ensuring them, “life, physical and mental integrity, liberty and security of person” (un Declaration of the Rights of Indigenous Peoples, Article 7). In addition, the survival of the traditional culture should be equally protected, as all activities that might affect their lands or resources, are in violation of Indigenous rights (un Declaration of the Rights of Indigenous Peoples, Article 8).

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Nor is this particular case unusual or the first “attack” on Indigenous Rights and survival, as oil companies have also carried out their “development” in the region for some time, with grave effects on the health of the local populations, especially in Ecuador and the Amazon region (Acosta 2007; Tenebaum 2002: A236; Anaya 2004: 134). Despite the efforts of the us government to maintain secrecy, the substance sprayed was identified as glyphosate herbicide, manufactured by Monsanto under the brand name Roundup, although it has now been established that it is in fact Roundup SL, “considerably more toxic than Roundup Ultra” (Oldham and Massey 2002: 1–2). The health effects have been studied for some time: Aerial spraying has a significant negative effect on the lives of large numbers of people, particularly the rural poor in Colombia. These is strong evidence linking spraying with serious human health effects; large-scale destruction of food crops; and severe environmental impacts in sensitive tropical ecosystems. There is also evidence of links between fumigation and loss of agricultural resources, including fish kills, and sickness and death of livestock. Oldham and Massey, 2002, p. 2

The Indigenous Cofan people of the Putumayo province, complained to their health department of “dizziness, diarrhea, vomiting, itchy skin, red eyes and headaches” (Oldham and Massey 2002: 3), after the spraying and similar reactions were reported in Ecuador near the Colombia border, in the Sucumbio Province as well as in Mataje, Esmeraldas. In September 2001, the Ecuadorian Indians who live near the Colombian border filed a class action suit against DynCorp Corporation, the company in charge of the spraying in Colombia (Aguasanta Arias et al. v. DynCorp 2001). The physical and monetary damages were evident, as was and is, the loss of cultural integrity and identity of these peoples many of whom had to abandon their homes. Aside from the question whether this sort of globalized industrial activity can be stopped, or at least “humanized,” that is, modified to respect human rights, these events raise a number of other questions related to human collective rights. This case is presently awaiting judgment in the European Court of Justice (Westra 2010a), and it is hard to view the spraying of a product, labeled as harmful unless used according to stringent directions, as promoting the wellbeing of the local citizenry, as it was used without considerations for the consequences, and without wither the consent of the affected populations, or even consultation with them.

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DynCorp could therefore be considered at least amoral, for following orders leading to such grave consequences; however, their agreement to spray roundup special under those circumstances should make them at least complicit with those who reached the decision. The possible diminution of the drug trade elsewhere, even if proven, would not exonerate them completely from blame. In fact, future occurrences demonstrate their willingness to be hired no matter what the “job” might entail. The cia used us sub-contractors to run their extraordinary renditions program that is a program that involved kidnapping individual terrorism “suspects,” and whisking them to secret cia prisons in countries where torture was legal. As the cia does not have an air force, they used “massive government contractor DynCorp, which…just rented some private planes” (Pareene 2011). One of the “suspects,” Abu Omar, was captured in Italy and tortured in Egypt (Pareene 2011). In this case, we don’t even have as a possible position, that they were “morally neutral,” or even the possibility of a reasonable goal, such as reducing the drug trade, as in Plan Colombia. In this case, the actions of DynCorp were complicit in an activity that was both immoral and illegal as both torture and kidnapping are crimes in international law. What is left is simply the profit motive, and the Pareene article describes the multiple favorable deals involving DynCorp in hedge funds advantages and more (Pareene 2011). One wonders whether the lack of prosecution for the previous immoral and illegal attacks perpetrated by DynCorp might have allowed them to believe that they had no responsibility, aside from profit, for whatever they did “under orders,” in direct conflict with the Nuremberg principle, and well return to that topic below. We can also consider whether each time a corporate immoral/ illegal activity, or breach of human rights occurs, in the course of their so called “neutral” pursuit of profit, we are not risking an escalation of risks from such acts, after mncs like DynCorp escape exposure and punishment, once, or several times. At any rate, in the next section we should examine whether the corporation as a legal person can and should be viewed as able to will and decide, the lowest necessary requirement for individuals charged with crimes.

Corporate Responsibility and Accountability My second goal is to propose an assertive approach to interpreting Human rights responsibilities. Both domestic governments and international organizations have danced around this topic, urging voluntary  codes of conduct, rather than seeking to impose binding rules of

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law…So-called voluntary codes that ask business entities to refrain from committing or to avoid profiting from slave labor are weak concessions to the enormous economic and political power of multinational corporations. Stephens, 2002, p. 47

Political theory, moral principles, and the national legislative framework ensure that ministries and other government bodies have a duty of care, a responsibility for the citizens in the regions they govern. This, however, is not true of corporate bodies, especially the powerful multinational corporations who operate at many levels and in many countries, under diverse jurisdictions. As we noted, it is extremely difficult even to characterize their hazardous activities as crimes although, when these crimes are perpetrated, multinationals operating in various countries cannot claim state immunity, unless they are true representatives of their countries in their foreign operations (ilc Draft Articles on Jurisdictional Immunities of States as adopted at 43rd Session 1991). Many view these harmful activities as providing “countervailing benefits” (Shrader-Frechette 1991), to the impoverished populations where they operate, without considering the fact that, for the most part, the benefits accrue to the corporate shareholders and officials, the harms to the unconsenting and uninformed recipient of the harmful technologies they produce and distribute (Shrader-Frechette 1991). Moreover, if the legislative and regulatory framework of Northwest democratic countries is insufficient to provide full protection to their citizens, one can assume that in regions where much less public information, literacy, and participation prevail, it would be unrealistic to expect better, tougher protective measures to be present. The legal and moral status of the corporation should be discussed in the context of mens rea requirements for assaults convictions in corporate crimes. To sum up, briefly, corporations are indeed legal persons, and there are several theories that address the meaning of that terminology (Chick 1993; French 1994: 134–145). There are many theories formulated to address this question. For our purpose, it will be sufficient to mention three major positions: the “Fiction Theory,” the “Legal Aggregate Theory,” and the position that is taken to be most appropriate, the “Corporation’s Internal Decision Structure,” clearest approach to predicate corporate intentionality (French 1979: 102–105). The “Fiction Theory” has its roots in Roman jurisprudence, but its main flaw is that, in relying on the description of “legal fictitious persons,” it ignores the biological existence of real persons, as well as, by implication, of any others. The “Legal Aggregate Theory,” recognizes the biological reality of persons and grants priority to these

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legal subjects, while treating corporate persons as purely derivative, and identifying them only with “directors, executives and stockholders” (French 1979: 102). In so doing, however, Aggregate Theory supporters are choosing arbitrarily where to ascribe responsibility, and make it impossible to distinguish between a group (or mob) and corporate reality. A case in English law demonstrates the difficulties embedded in the first two theories. In Continental Tyre and Rubber Co., Ltd. v. Daimler Co. Ltd. (1915, KB, 893), a company whose directors and shareholders were German subjects and residents was incorporated in England and carried on its business there. The question was whether Continental Tyre should be treated as an English subject, and could bring suit in an English Court (while Britain was at war with Germany). The Court of Appeals’ majority opinion (five to one) was that, “the corporation was an entity created by statute,” hence that it was “a different person altogether from the subscribers to the memorandum, the shareholders  on the register” (French 1979: 102). Hence, the corporation’s biological composition may not be identical to its true “personhood” or its intentional structure. It is also worthy of note that not all who are subjects of rights can in fact be the administrators of rights, and infants, fetuses, animals, future generations and ecosystems are relevant examples of entities that have been declared at one time or another to have some rights, although it has never been argued that any of these could administrate their own rights (Stone 1974). If we accept a nonspecific description of a person, such as the subject of a right, we can at least make the following claims: (1) Biological existence is not always necessary to personhood; (2) The subject of a right is “the noneliminatable subject of a responsibility ascription” (French 1979: 103). Responsibility is the necessary correlative of a right. In this sense, it goes beyond simply being the one (or the corporate person) who performed an action. We must address the question of intent. For corporations and institutions, the Corporate Internal Decision Making (cid) structure is the locus of the intentionality we intend to establish. Through the cid structure corporate power is deployed, setting in motion a series of actions flowing from a central, hierarchically made decision, but involving the “acts of biological persons who…occupy various stations on the organizational chart of the corporation” (French 1979: 106). An advantage of this approach is to be able to maintain corporate responsibility while also, at the same time, retaining the ability to consider varying

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degrees of intent or of desire to bring about a certain result, the product of corporate ordered activities. French’s argument strongly supports corporate responsibility and, because of its inclusivity, could easily be extended to other institutional bodies, as long as these, too, are possessed of “internal decision making structures.” Perhaps we can argue that the cid structure approach implies intentionality as corporate activities are performed by subjects of rights in all cases where an action has been performed or omitted. But neither institutions nor corporations may be free to be the subjects of rights without accepting the corresponding full responsibility toward all other right holders, be they individual or corporate. In other words, once a corporate body has been distinguished from a mob or an aggregate, and is, in fact, defined by its Structure, then it is clear that its very nature is to be capable to intentional agency: that is the root of its “personhood.” In addition, because it is not a biological entity, it can also be argued that such persons are not capable of the emotions that characterize individual biological entities. Corporate persons then, can only intend, rationally, whatever activity they choose; such actions cannot be the result of sudden impulses or passions (provocation), fear for its own life (self-defense), or addiction (intoxication). Neither mental disorders nor automatism or any other syndrome will be possible. Hence, in a sense, by claiming to be persons, yet admitting they are not individual, biological ones, corporations may represent the clearest examples of pure purposefulness, or desire to bring about certain results, including the activities whose results are the physical elements of an actus reus. If this line of argument is accepted, the courts’ burden of proof in regard to the mental element of a corporate fault, will be substantially reduced and simplified. Once the physical elements of the fault are present, and after they can be causally connected to the corporate person, the mental states that connote its agency are limited to variants of intent, and may range from the purposeful  desire to bring about a certain result, to the certain knowledge that the result will occur, the probability or possibility (recklessness) that a result might follow. But corporations do have aims, goals, and purposes, as do institutions (and many of these are even codified in their statements of intent or codes of practice). Thus, the only conclusions one can draw is that, for the most part, and barring sabotage or people acting outside the corporate perimeter on their own, whatever corporations actually do is something they decided, planned out, and fully intended to accomplish. That guarantees the responsibility of the perpetrators. Chick argues that the United States has had a long time to define and regulate corporate rights in relation to Constitutional law

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(see Section 1). However, he adds: “it was only through the acceptance of one particular corporate personality, the ‘aggregate theory,’ that American courts even decided that corporations were entitled to claim constitutional rights” (Chick 1993: 15). But the aggregate theory is not correct, and that is why it is not generally accepted as the best way to understand corporate personality and function. The reasoning employed in order to link corporations and Constitutional protection, is that individuals, those who compose the corporation, should not lose Constitutional guarantees because they join together in a lawful association. I find this argument to be incoherent: if the lawful association is to provide the associate with a new entity, with legal personality and corresponding rights, then it is not logical to argue that the new body is nothing but an aggregate of persons, and nothing more. If the newly formed association is one, rather than as French argued, mob or a heap with no unitary defining characteristics, then there appears to be no grounds for requiring special status for it, any more than it would be to require and demand such status for any crowd. French is correct in saying that, to enjoy some rights (and legal status), something more is required than a mass of individuals. There has to be something that makes many into one, at least in one respect. He found this unifying element in the cid structure (French 1979) of the corporate/institutional body. It is not sufficient to say that each component part of the association has rights and duties, true though it is. There are simply no grounds for additional legal status and personality, unless we can identify something that serves to unify the corporation. The cid structure provides unity through purpose, and therefore provides that ground. However, the additional entity, as it acquires the right to be and to act, like single individuals, single citizens, has duties and obligations. It is possible to argue that corporate personality theories have been manipulated and are still discussed from the standpoint of political ideals (Romano 1984: 923). But what remains clear, is that in order to be one person, there must be something to permit such terminology as an undirected crowd or mob has no status as such, beyond that of the individuals that comprise it. On that basis, therefore, the cid structure theory of corporate personality can be accepted as the most accurate, and several points will follow; to sum up: (1) We cannot accept diminished responsibility of any sort for it, because as a separate unit, different from its human components, I can never claim defenses or mitigating circumstances based on human frailties and emotions; (2) Based on similar reasons, the lack of human features, we need not claim for it the status of “vulnerable accused” in courts of law, and seek for it corresponding protection;

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(3) Having been accorded independent status and rights in the law will entail corresponding duties and responsibilities: individual purposes cannot be pursued without considering the rights of others as imposing on individual freedom. So too the corporation must assume full responsibility for all their activities and their results.

Multinational Corporations: Their Nature, Their Role, and Their Victims Corporations are legal entities governments create to enhance the wellbeing of their citizens by producing certain conditions that are conductive to investing and conducting business. Governments grant certain rights (limited liability), but we have argued that these are not “natural rights” or “human rights,” but only instrumental rights, shaped to further societal goals. Stiglitz, 2008, p. 455

Others argue that the corporation should simply be viewed as an aggregate of individuals, but we found that understand to be flawed in the previous section. In contrast, Philip Blumberg does not agree that the corporation should simply be viewed as an aggregate of individuals; according to Stephens, he defines it as an organic being, with independent legal rights that go beyond both those of the shareholders and those granted by the government (Blumberg 1990: 295; Stephens 2002: 61). The argument regarding the nature of the corporation, however, cannot obscure the main issue that remains, no matter how we understand its nature, and that is the fact that the corporation has obligations toward the society that gives its rights (Dewey 1926: 655–656). It is not acceptable to expect corporations, entities who owe their “life” and the ability (and the right) to operate to society, and which relies on its laws for the support of those rights, to avoid the responsibilities that are concomitant with those rights. Those who speak against such a responsibility on the part of corporations (Friedman 1970; Safire 1996: A13), refuse to recognize the results of the ongoing empowerment of amoral entities and the increasingly severe burden borne by the victims of unrestrained and uncaring power. As well, the view that business is solely a profit-seeking activity is far less well accepted in recent literature (Orentlicher and Gelatt 1993; Cassel 1996: 1963). Most states have enacted legal regimes that support in some way the fact that corporations can sue, but they can also be sued, hence corporate bodies

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are subject to legal jurisdiction, and can be guilty of tortuous behaviour, although the presence of criminal liability for corporations is not as well accepted (Stephens 2002: 64). At any rate, mncs present problems that go beyond those posed by domestic corporate activities, as they are inextricably related to globalization. Joseph Stiglitz addresses the question of the relations between investments and other variables in developing countries: even if…investment could be shown to lead to higher growth, as measured by increased domestic product (gdp), it does not mean that societal welfare will increase, especially once resource depletion and environmental degradation are taken into account. Stiglitz, 2008, p. 455

Joseph Stiglitz outlines the main problems he views as presenting “a worse problem” than anything a domestic corporation may do. He sums these problems under six headings: (1) The huge economic power of mncs (Stiglitz 2008: 478); (2) mnc’s ability to use the power of their own government to ensure the best possible terms for their investments in foreign countries (Stiglitz 2008: 478); (3) mncs take advantage of the lack of “administrative capacities and technical expertise in developing countries” (Stiglitz 2008: 478); (4) mncs and their government take advantage “not only of asymmetries of power, but also of information” (Stiglitz 2008: 479); (5) mncs take advantage of their cross-border activities to insulate themselves from accountability (Stiglitz 2008: 480); (6) mncs act differently in foreign countries than they do in their home country (Stiglitz 2008: 480). This list includes several items that may be borderline activities poised between legality and illegality (see numbers (2), (3) and (4)). The first item is simply a statement of fact, but it underlies all the other five described “problems.” Stiglitz states that in 2006 General Motors’ annual revenues were greater than those of “148 countries” (Stiglitz 2008: 476, based on the World Bank’s World Development Indicators database for total gdp in 2006), and Wal-Mart’s revenues in 2006 were over $351 billion. Thus, all the harms that mncs may be responsible for must be viewed against the background of the immense power that such revenues generate. In fact, most of the problems Stiglitz enumerates are administrative or, if legal,

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procedural. For instance, (5) states that mncs are able to avoid prosecution because it is difficult to prosecute them beyond the jurisdiction where the harm/crime occurred, as he cites the refusal to extradite Union Carbide officials to be tried for multiple murders after the disaster in Bhopal, India. A similar administrative/procedural “problem” is the mncs’ ongoing different behavior (6), in contrast with the more circumspect behavior in their home country. For both cases, however, Stiglitz only considers the issues involved aside from their substantive aspects. For (5), the main issue was the presence of multiple murders, thus making Bhopal a crime against humanity. This sort of crime may occur when a mnc proceeds with (a) misleading representation of the true impact of their operation (not quite producing “good medicine for plants,” as claimed); (b) acquiescing to inferior technical and operational conditions at a level far below that expected in the home country, for a similarly hazardous to the public health from “cradle to grave,” that is, from manufacture, to use, to eventual disposal and to the residues left to be consumed in the food. Thus even the somewhat critical approach found in Stiglitz’s works tends to overstate the benefits provided by the mncs, while limiting the critique of the harms that result in their operations. As we will see below, his is an effort to moderate and ameliorate somewhat a system seen as basically useful and sound, although needing modifications. In the previous chapter, in contrast, we viewed the victims of mncs, but also of domestic corporations, primarily through the lens of human rights/public health breaches. Thus the question, it would seem is for the most part, should corporation X do Y, when Y is unsafe for humans as well as for other natural entities? In addition, if Y is seen to be absolutely necessary (not just useful or previously uncritically accepted), how can its manufacture, production and use be modified to ensure public health protection, rather than success based on market imperatives or preferences? And these strict questions should be asked and answers provided before manufacture/production is permitted and the appropriate licenses are issued to corporation X. As well, an impartial government body, rather than an internal assessment, should govern both permission and licensing. Only after a thorough external examination should any permit be issued, whether for domestic or international productions and distribution, although the latter can be even more hazardous than its domestic variant, given the problems rightly listed by Stiglitz. But the starting point for this approach may be found in Stiglitz’s own definition of a corporation, at the beginning of this section. The first sentence refers to the “well-being of citizens,” hence it would seem clear that “investing and conducting business” should not be conducted in

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ways that negate that well-being, and the “citizens” involved, in the case of mncs should not be restricted to those of the home country, as they are not the only stakeholders. The last sentence separates clearly corporate rights from both natural and human rights: as instrumental rights only, the common good of society should be paramount. Thus both the first and last sentences put the responsibility where it should be: on the granting authorities and organizations that are charged with authorizing these “instrumental rights,” without however excusing the corporate bodies who are, after all, as we have argued following French, entities capable of knowing and willing. If Stiglitz is correct, then any operation that is not demonstrably such that it enhances “the well-being of society” (wherever the operation occurs) ought to be eliminated from consideration. Nor is this “wellbeing” to be defined only in economic terms: Stiglitz himself addresses the issue of collateral damage as he says that “they are lucky to have jobs” (Stiglitz 2008: 480) to be a poor excuse for operating under unsafe conditions for both employees and the environment, especially in developing countries. This definition does not exclude the owners/shareholders from the stakeholder that should be considered, when the well-being of society is sought: they are, one and all, part of society. But neither this definition, nor any common sense understanding of the role and function of corporations expects owners and shareholders to be the sole beneficiaries of corporate operations at the cost of the rest of the stakeholders. Nor is profit-making an absolute right (if it is a right at all) trumping all other rights. An instrumental right, especially one that is neither “natural” nor “human,” cannot take precedence over the natural rights of human persons, rights that are explicitly entrenched in both domestic and international law regimes. And, in order to ensure that this does not occur, it is the substantive, material aspect of the operation that needs to be scrutinized and carefully weighed against the question of well-being, in all its aspects, that is, beyond the provision of jobs for a segment of a population. This scrutiny ought to occur before any corporation is allowed to operate. Too often these issues are at best only brought to light after multiple harms have occurred, and crimes are committed that are severe enough for a case to be brought to the courts. Given the immense economic power of mncs and in general of most corporations, surely their R and D departments’ wealth of information should be shared with the appropriate government body, thus preserving their privacy, but permitting an impartial body, rather than an in-house committee as it often happens, to judge of the safety of their product and its manufacture or extraction. It seems clear that, if their roles and their rights are instrumental and dependent on a further variable, the latter ought to be fully investigated first, in order

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to reach a just decision about whether the claimed instrumentality for the good is or is not present in the proposed activity. As well, an impartial body should continue to monitor their operations, as new scientific discoveries may well point to hitherto unforeseen hazards. As Grandjean and Landrigan demonstrated, today more than 200 untested chemicals continue to be produced and used, despite the fact that they contribute significantly to a plethora of diseases, from early childhood to old age (Grandjean and Landrigan 2006). As discussed in the previous chapter, given the escalating number of victims of that negligence, these are, to say the least, 200 cases of permissions that should not have been granted. In the next section we will consider the victims of those operations under the lens of grave crimes such as those proscribed by the principles of Nuremberg.

Crimes against Humanity? The Principles of Nuremberg and the Victims of Corporate Crimes Legal accountability includes a range of possible procedures and sanctions including criminal, civil and administrative. In most legal systems corporate accountability include criminal liability. Corporate criminal liability was common in continental Europe in the seventeenth and eighteenth centuries, imposed in great detail, for instance in the French Criminal code of 1670. Stephens, 2002, p. 64

The rule of law starts with the equality of all persons before: that is the starting point for most jus cogens norms codified in international law. Consider the Convention Against Racial Discrimination, the Convention Against Genocide or the Convention for the Elimination of Discrimination Against Women: all forbid treating equals unequally, and consider doing so to be a most grievous crime. The pivotal point is the concept of equality: it is not a crime, however, to treat an infant in a way that is entirely different from the ways we would treat an adult, of any racial or ethnic background. We are expected, in fact obligated, to make decisions for the good of the infant or the young child, rather than expect her to decide for herself. But this common sense position is not applied to the rights and obligations of a corporation (let alone a mnc), either of which are as different from the single human person as can be. Sometimes such differences are viewed as the basis for not viewing harmful corporate actions as criminally culpable, as those of a single

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criminal. But the conceptual difference between a corporation or mnc and the man in the street, is both obvious and important. In the previous section French argued that corporations, like individual humans, are perfectly capable of “knowing” (the conditions under which they operate and the possible consequences of those operations), and “deciding” on those activities. Hence, it is not in that regard that the vast difference between corporations and human persons are present. In contrast their abilities are quite disparate as their economic power makes any comparison between corporations and individual humans, or even several individuals united in a legal cause, hard to sustain. Perhaps the closest similarity in this comparison may be found in the sporting world, as two boxing, karate or fighting opponents cannot compete unless they are in the same class, that is, unless their size and weight are comparable. It is true that even among single individuals intellectual or economic capacities may be widely different and that does not change the fact that rich and poor are equal before the law. Nevertheless the difference, as shown above, is often too great to be ignored. Anyway, to argue that corporate legal persons may be very similar to single human persons, is a double-edged sword: the closer they are, the more similar their respective obligations must be. Under no condition could an individual argue that his making profit, or advancing his own economic position, warrants any form of exploitation, or even legitimates committing breaches of human rights, to achieve those goals. For instance, several of the conventions cited above prohibit both the acts themselves, and the complicity in the activities that will result in the prohibited result, such as genocide or torture. Another question that can be raised is whether it is the corporation or mnc that bears full responsibility, when it is normally empowered to operate by a state (or states). This question can be answered by considering the principles that followed from the cases brought to Nuremberg Tribunals. Nuremberg found that those who conspire to commit international crimes, or crimes against humanity were complicit in the commission of those crimes. A case in point is the “Zyklon B Case,” in which two German industrialists were convicted of supplying poison gas to Nazi concentration camps, based on proof that they knew the purpose for which the gas was to be used (Stephens 2002: 74). In general, international law does not require the actual commission of the crime, but the knowledge that the complicit party’s action would “assist the perpetrator in the commission of the crime” (IT-95-17/1-PT (December 10, 1998, at 249); in fact, moral support alone may have a significant legitimatizing or encouraging effect on the principals (Stephens 2002:74, nt. 164, 165). Another important instance of the role of complicity, beyond the presence of the actus

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reus itself, or even the requisite mens rea, can be found in a case of the Rwanda Tribunal: [A]n indifference to the result of the crime does not of itself negate abetting. If one man deliberately sells to another a gun to be used for murdering a third, he may be indifferent about whether the third man lives or dies and interested only in the cash profit to be made out of the sale but he can still be an aider and abettor. Prosecutor v. Ayakesu, case no. ictR-96-4-T, quoting Q.B. 11 [1959]

In fact, this sort of argument, for instance “we have nothing against those who suffer from the decision to operate in X, and racial discrimination did not factor in our decision,” or words to that effect, are common place corporate responses to the routine siting of hazardous facilities in areas inhabited by African Americans, Native communities, or other people of color (Bullard 2001: 3–28; Westra 2001: 113–140). We will return below to the issue of racist corporate practices. At this point we need to examine further the relation between equality and justice, through analogy in a field where both have been discussed exhaustively in both the legal literature and the case law.

Nuremberg and Equality: Victims of Non-Observance of Principles This, in essence, is the heart of one of Sophocles most beautiful tragedies, one in which Antigone stands for all those who break the laws of the establishment to obey more humane imperatives. Antigone is the archetype of those who, caught in the dichotomy between an order from the powers that be and respect for higher values, choose the latter, knowing full well they will be made to pay for their choice. Cassese, 2008, p. 476

The Nuremberg principles are roughly contemporaneous with the proclamation of the Charter of the International Military Tribunal: both represent the strong expression of the International community’s reaction to the horrors of the Second World War. But, in attempting to protect the most affected victims after the fact, the new legal instruments’ strong language was insufficient to protect many new victims from unexpected geopolitical and ecological developments. What forms of violence constitute war crimes? Article Six describes them:

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The following acts, or any of these, are crimes coming within jurisdiction of the Tribunal for which there shall be individual responsibility. (a) Crimes against Peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing. (b) War Crimes: namely violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in an occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity. (c) Crimes against Humanity: namely murder, extermination, enslavement, deportation, and other inhuman acts committed against any civilian population, before or during the war or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. United Nations, Charter of the International Military Tribunal [“London Agreement”], August 8, 1945

Many of the crimes described are easily translated into similar crimes of ecoviolence. Under (b) “murder” is not necessarily described as immediate, or evident at first sight. Murder is equally a crime if it is slow or delayed, as it invariably is when it is environmentally induced through cumulative small doses of chemicals or toxins. The “wanton destruction” of cities, towns or villages can also be interpreted in an environmental sense. Consider for instance, “devastation not justified by military necessity.” One could say that then ecological devastation to which we are exposed has nothing to do, for the most part, with war. Yet this is precisely why “devastation” as such (that is, as unconnected with war objectives) is termed a crime. As for point (c), the term “crimes against humanity” covers a lot of ground when it is defined (inter alia) as “other inhuman acts committed against any civilian population”; it offers even better grounds for our environmental perspective as these crimes remain such “whether or not in violation of the domestic law of the country where perpetrated.” Crimes against humanity are described as perpetrated even “before” or “during a war,” which indicates that a war need not be present at time such crimes are committed. Noteworthy is also the reference to “persecution” which will

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eventually be basic to the problems encountered by millions of refugees and asylum seekers, as we shall see in Chapter 5. Nuremberg was indeed a “turning point” (Cassese 2008: 482), and it is the first time that blind obedience to superior orders had been questioned as an ultimate principle, and found wanting. Especially, but not exclusively with reference to soldiers and armies, the maxim respondent superior shielded (albeit temporarily), the presence of “collective or system criminality.” Cassese adds: “such was their nature that it would have been impossible to punish them using the courts of the state to which the perpetrators belong” (Cassese 2008: 483). In fact that maxim and its application was quite independent of the war itself, as was Hitler’s treatment of the Jewish people; yet that maxim, Cassese notes “can create an insurmountable barrier protecting the thousands of politicians, industrialists, bureaucrats and military men” (Cassese 2008: 483). It is important to note that, while soldiers could face death for refusing to obey orders (and that is equally true today for any soldier of a democratic nation such as the us), neither “industrialists” nor “bureaucrats” would be summarily executed for not practicing whatever their corporate ceos may direct them to do. At most, they would face demotion or income reductions: neither is sufficient to explain why they would carry out orders or policies that would result in gross violations of human rights. It seems clear that if even soldiers, employed as they are by the most authoritarian organizations in the world, could not be shielded from culpability, then surely those employed by industry or corporations, cannot claim such a shield: On this point the tribunal remarked that: “the very essence of the Charter [of the tribunal] is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state.” Cassese, 2008, p. 484

If the explicit orders of a direct superior must be questioned in the light of the legality and morality of the effects of obedience, then, all the more, the implicit “orders” representing the interests of the shareholders of any corporate body, cannot be absolutely unquestionable. This rule is well expressed in Article 77 of the International Committee of the Red Cross, as it goes well beyond a soldier’s obligation: No person shall be punished for refusing to obey an order of his government or of a superior which, if carried out, would constitute a grave

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breach of the provisions of the Conventions or the present Protocol. … The fact of having acted pursuant to an order of is government or of a superior, does not absolve an accused person from penal responsibility if it be established that, in the circumstances at the time, he should have reasonably known that he was committing a grave breach of the convention or of the present Protocol and that he had the possibility of refusing to obey the order. Of course the analogy between soldiers in a war or other similar situation, and the numerous persons who are needed to further corporate practices, or carry out the activities to achieve corporate goals, but in both cases both reason and some knowledge are present, so that the obligation of those who are not soldiers appear to be much more compelling.

Victim Protection and Corporate Rights: Deterrence or Compensation? Corporations “occupy more of the legal realm” compared to natural persons, they use a greater percentage of legal services, more prestigious and expensive lawyers at lower cost, and they use those services more effectively and win more frequently as both plaintiffs and defendants when opposing individuals. Furthermore corporations more effectively mobilize to change the legal system through lobbying, other forms of political activism, repeat litigation, and through the formation of their own “public interest” advocacy firms. McClusky, 2006, p. 1454; see also Galanter, 2006, p. 1369

Given the clear criminality of many of the effects and practices of corporate activity, the next step, hard as it may be to effect in today’s climate of globalized trade, seems obvious: Reconsider the present approach to corporate power, and apply strong regimes of deterrence, rather than relying on tort law to redress the harms imposed. In the previous section of this Chapter we noted the gravity of the harms imposed to the victims of corporate projects. As well, there are clear principles and rules in law that forbid the behaviors and actions that victimize, as neither result simply in economic damages. Hence the current approach that limits corporate “punishment” to economic penalties after the fact, is—at best—clearly insufficient. It does not match the crimes committed or demonstrate the difference in kind between a corporate criminal and a human victim. We noted earlier that corporations do

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not possess “natural” rights, and that they are not equal to persons in other ways. Katie Thoennes argues that, from their initial charter giving them “grant” status, which limited corporations to a specific activity for a specific time, they extended their activities and mandate under the ultra vires doctrine (Thoennes 2005: 224; Horowitz 1992: 72–73, 77). From the time of the Santa Clara County decision, as we saw, things changed drastically: [I]n the Court’s decision in Santa Clara County, the corporation was able to appropriate many of the rights and protections originally reserved to the individual in the Bill of Rights, including freedom of speech, the right to due process of law, and the protection against the taking of property without just compensation. The First Amendment’s protections were later extended to encompass the right to political speech including the right to lobby and make political contributions. Thoennes, 2005, p. 226

Thus, unlike natural persons, who can be judged to be “good” or “bad,” it is a mistake to simply judge their actions as a normal problem, and even to seek to establish their intent and their “ill will or goodwill”: the appropriate approach is to understand their actions as “unjust public power institutionalized in law” (McClusky 2006: 1457). This is necessary because, even more than the great economic disparity between individuals and corporations, the latter’s political reach and clout cannot be compared to that of individuals: democracy is often understood as “one man one vote,” but the political power of the corporations cannot be equated to that of any citizen, no matter how able or how wealthy. Originally a corporation was viewed as a person only “as far as the corporate charter allowed the corporation to act as a natural person” (Thoennes 2005: 230). As well, may references to the word “person” in law serve to confirm that the two concepts are quite separate and that even the law of the United States does not consider the two to be identical (Thoennes 2005: 230). Thoennes cites a number of cases and the wording of several instruments in support of her argument about corporate personhood. Particularly telling is the us Court’s opinion in 1872, four years after the adoption of the Fourteenth Amendment: The Court stated that the purpose of the Amendment was “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppression of those who formerly exercised unlimited dominion over him. Thoennes, 2005, p. 231

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Thus, this was an Amendment “aimed at restraining and checking the powers of wealth and privilege, not facilitating their end” (Thoennes 2005: 231). Therefore, originally the Fourteenth Amendment of the us Constitution, had a deeply moral motive and aim, and one that appears today to be the complete opposite of the original intent. In the next chapter we will again consider who are those who are the most victimized by corporate power, and it will become evident that the poor and people of color are most affected, especially, but not exclusively, in developing countries, in direct opposition to the original aim of that Amendment. McClusky adds: Taking seriously the possibility that corporate power can be intertwined with systematic and pervasive inequalities, critical analysis expands the debate beyond a seemingly intractable dilemma about forms and formal principles…If the basic structures of law and society normally operate to subordinate many for the benefit of a few, then the formal organization of our socioeconomic system might be not only artificial…but malign. McClusky, 2006, p. 1461

Even the very quest for egalitarian policies, designed under the principle of “formal equal treatment” (McClusky 2006: 1464) may not yield fairness. It seems clear that a new critical approach is needed to review the way corporations and their rights are understood and treated in law, as the most important move towards the protection of the victims of the presently accepted legal regimes.

Victims of Corporate Power and Inequality Why do we need a rule of law? Is there more than one possible rule of law, and, if so, what difference do the choices make? There are alternative legal frameworks. Each has consequences for efficiency and distribution. The wrong kind of rule of law can help preserve and extend inequities. Stiglitz, 2012, p. 188

The most significant issue is that of inequality of effects because corporations function as profit-seeking institutions. Economic compensation is all they understand and—at best—can offer those they harm. For instance, the “polluter pays principle” may compensate victims of various harms, but the exponential growth of the power to harm of mncs demonstrates the flaws, and even the futility of those payments. If we consider the disaster at Bhopal,

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Union Carbide’s operation killed and injured thousands of local people; and “forcing corporations to compensate those injured doesn’t undo the harms” (Stiglitz 2012: 189). Corporations are not risking suffering and possible death, because despite their claims, they are not persons: they do not have biological organisms, whereas the victims of Bhopal, like those of Agent Orange in Vietnam, of Hiroshima and Nagasaki and the nuclear industry, even of Fukushima’s latest minor radiation disaster are real persons, not legal fictions; their rights, as Baxi argues, should indeed be based on their suffering, not on the possibility of economic losses, at best. It is on the strength of this basic difference that large oil corporations continue to keep precaution and maintenance to a minimum, so that from Exxon to BP and Shell, the spill that occur generate disastrous consequences in the oceans, and for all life within them. Similarly chemical industries limit their inhouse testing of the substances and products they manufacture to whatever will convince governments to approve their operations. No doubt, their research and development departments know full well what their effluents will do to those exposed, when combined with other substances that other industries in the area will produce. Still, the externalities they understand well, do not move them to reduce their effluents and lower their estimates of what might be “safe” for the natural persons who eventually will bear the consequences of their activities. A clear example is the ongoing toxic exposures in Canada, in Windsor, Ontario and Sarnia, as well as the people of the Aamjinwaang First Nation.

Victims of “Toxic Trespass” The right to health is a legal instrument—a crucial and collective tool for the health sector to provide the best care for patients and to hold national governments, and the international community to account. Lancet, 2008

Yet, despite the existence of that “Right,” at least in theory, gross attacks on the life and health of human beings persist even in modern, Western, democratic countries, and Canada is a prime example of that problem. Before proceeding with examples, it is important to note that this passage unwittingly perhaps, hides the main cause of ill health: not the lack of healthcare after one becomes ill, but the presence of toxic exposures that make one ill: these are for the most part perfectly legal and ongoing in developed countries, and even more unrestrained in developing ones, under the heading of “development.”

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Toxic Trespass was the name of a 2005 short film, the doctoral thesis in social studies of Dorothy Goldin-Rosenberg of Toronto (Scott 2008). Technically, this is not a case, as it never appeared before a court of law. The problem is the presence of numerous cases of asthma, childhood cancers, and other diseases, often present in several children in the same family. This phenomenon was noted by grassroots groups in the city of Windsor, Ontario, Canada, and a similar picture emerged from Sarnia, Ontario, in the heart of the “chemical valley” between Ontario and Detroit, Michigan, us. In Windsor, the city lies at the end of the Ambassador Bridge, which connects it with Detroit: an exponential increase in the numbers of truck traffic to and from Detroit entails an ongoing and ever-increasing exposure to all the pollutants such traffic produces. Various Windsor groups and citizens’ associations joined together to research and compare notes, involving various Toronto hospitals and health facilities in the us, and even testing children in the area for the presence of toxic substances in their blood. Some of the background of the history of carcinogenic exposures can be found in Devra Davis’s landmark work (Davis 2007). A segment of Toxic Trespass has Dr. Davis discussing the issue. A similar situation was and is present in Sarnia. In the same area, the Aamjinwaang First Nation suffers even worse attacks to their health and normal functioning, as the effluents and particulates from the operation of multiple chemical/industrial compounds operate in the area. The effects of both the high intensity traffic in Windsor, and of several industrial operations, each one of which may, most of the time, operate at the limit prescribed by law, but whose combined and cumulative effects have never been tested until Health Canada eventually did so. Health Canada finally acknowledged the direct relation between the body burden of pollutants in the area, and a number of grave issues, beyond childhood asthma and cancers. In the area inhabited by that fn, many couples had children with cognitive and other abnormalities, stillbirths and spontaneous abortions were common, and—most ominous of all—the birthrate of male children has been in steady decline, in comparison with the birth rate of females. That is the typical result of exposure to endocrine disruptors and pesticides. In November 2006, Philippe Grandjean and Philip Landrigan published their landmark research, where they listed hundreds of commonly used untested chemicals, produced by various corporations after the Second World War (Grandjean and Landrigan 2006: 36; Tamburlini 2002; Licari et al. 2005). Children are the first and most obvious “canaries in the mine,” because of their smaller size, which magnifies their exposure, and because of their

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specific biology and forms of development. But various chemical exposure have now been found to promote not only the main diseases mentioned thus far, but also both Parkinson’s and Alzheimer’s, diseases of later onset. Nor are all pesticides and other such chemicals the only culprits in diseases of later life: aluminum, a metal with which we are constantly in contact in daily life, has been found at the core of each of the plaques that indicate the increasing loss of nervous tissue (discovered in post-mortem examination), typical of the brain of those suffering from Alzheimer’s disease (McDougall 2012). No corporation can suffer from exposures of any kind. Hence corporations feel “they have the right to pollute” (Stiglitz 2012: 191), as they use their power “to control the political process” and help to implement legal regimes that favor them, as well as demanding “subsidies not to pollute…or that they have the right to impose the risk of nuclear contamination on others—and they will ask for, in effect, hidden subsidies, limitations in liability to protect themselves against being sued if their plant explodes” (Stiglitz 2012: 191). Of course neither corporate ceos nor corporate shareholders live close top any sources of pollution or toxic exposures of any kind. Neither the public interest, nor yet the interests and safety of the natural persons that direct and control the corporate activities are at stake: they are not even considered. As far as both ceos and shareholders are concerned, their chosen remoteness guarantees some level of safety. Yet, although law “claims legitimate authority” (Raz 2009: 30) as it main foundation, that laws that permit and even foster the “toxic trespass” of persons, represents a grave defect of legal systems: “In a sense it is a moral defect that the law sometimes does not enable courts to recognize the relevance of certain considerations. But, if so, it is an inevitable defect” (Raz 2009: 31). In fact the law’s “defect” arises much earlier than at the stage where the omitted “relevant considerations” appear as part of a case before the courts. Those considerations should be part of the legislated limits to corporate activities because, as noted, compensation does not restore the health of affected natural persons but, at best, assists in part to recover some of the expenses of the victims, with no guarantee they will be able to regain their health. Given this grave “defect,” it becomes even clearer why movements and associations who support protests and resistance to corporations whatever the activities of the latter, are truly supporting fairness, justice and the principles of law, including that of self-defense. The resistance to both movements and protests, although carried out by legal police forces, or even state armies on occasion, is nothing but structural violence, repression against citizens, who are already victimized in various

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ways. That legal repression masks those governments’ illegalities and exceptionalism, especially in the us, under the cloak of the protection and maintenance of law and order. In the next chapter, we will discuss the second example of this general attitude, through another form of illegality, that is, the ongoing militarism of the permanent state of war, now turned acute through the so-called “war on terror.”

Chapter 8

Victims of Legal Bombardments, Drone Attacks and Other Forms of Collateralism Introduction Not even the American public, let alone the international community, knows when the CIA has authorized the kill, the criteria for individuals who might be killed, how the CIA ensures killings are legal, and what follow-up there is when civilians are illegally killed. It follows that the international law requirements of transparency and accountability are comprehensively violated. Alston 2010

So much for international law, as Alston rightly notes. But what of the law of the country that orders and organizes these attacks? How do that activity and the aims it fosters comply with the US Constitution itself? Paul Craig Roberts calls September 30, 2011 “the day America died” (Roberts 2011) as he views the assassination of Anwar al-Awlaki and of Samir Khan (both US citizens), without the benefit of Constitutional restraint, and notwithstanding the court challenge of the American Civil Liberties Union. Both did not believe that a US President should have the power to assassinate US citizens, that is, that the US Executive should be a power beyond the judiciary (Roberts 2011). The US Constitution affirms that “no person shall be deprived of life without due process of law,” or that a person like Bradley Manning, for instance, should not be held for a year “mainly in solitary confinement under abusive conditions, without any charges being presented against him” (Roberts 2011). Attorney Glenn Greenwald and Jonathan Turley point out that Awlaki’s assassination terminated the Constitution’s restraint on the power of government. Now the US Government not only can seize a US citizen and confine him in prison for the rest of his life without even presenting evidence and obtaining a conviction, but also can have him shot down in the street or blown up by a drone. Roberts 2011

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It seems as though the so-called “war on terror” proceeds by leaps and bounds, reaching always new “heights” of human rights violations and illegality (Westra 2012a). Hence this chapter will focus on the victims of various aspects of that phenomenon, that is, the “war on terror,” as well as on the persistence of other illegal war acts, proscribed at various times in international law, including those that are taken for granted in modern day war, such as regular bombardments. As we shall see below, prohibitions regarding bombardments abound in international law, and their history dates from the turn of the twentieth century, hence they even predate the development of indiscriminate, highly powerful new weapons. Of course the latter, culminating with the more recent nuclear armaments, further complicates the situation, as neither their power, nor the transgenerational effects could have been anticipated when legal instruments regarding jus in bello were designed. The first rules of war date from antiquity, and they include the basic components of a just war: (1) the motivation for the war and the procedures followed to initiate it (jus ad bellum); and (2) the means and conduct permissible within the war itself (jus in bello). Both current drone attacks and regular bombardments run afoul of such rules but they do so for opposing reasons. Drone attacks happen away from the location of ongoing battles, and they target persons who are not immediately threatening (Nagel 1974) in fact, who are not even combatants, at the time of their assassination. In contrast, bombardments deliberately target civilians and other collateral locations of attacks, for the purpose of demoralizing the enemy and discouraged further resistance, despite regulatory regimes to the contrary. Both activities conflict with the basic rules of a just war, although they do so in different manners. Even more problematic is today’s jus ad bellum aspect: much of the violence that takes place in the world today is the result of an improperly defined “war,” so that even the only possible justification for violence, that is, the presence of a just war, is missing. Aside from whether the war may be viewed as just, for instance, the ongoing “war on terror” is not a war, and cannot be so defined (Cassese 2005). Absent event hat weak link to legitimacy, the status of the various types of violence we have briefly outlined, bears no resemblance to legal international activity. In the next sections of this chapter, we will examine separately each problem mentioned in this introductory section. The discussion will demonstrate why most of those who suffer those attacks are victims of illegal activities, masquerading as legitimate conflicts.

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International Law Eliminated and Betrayed: The Case of Bombardments as Unlawful Means of Combat Many of the provisions of The Hague Conventions regarding unlawful means of combat (such as those referring to poisoned arrows and the poisoning of wells) were antiquarian. Others had been observed only partially during the First World War and almost completely disregarded during the Second World War. If the first badly bombed cities—Warsaw, Rotterdam, Belgrade, and London—suffered at the hands of Germans and not the Allies, nonetheless the ruins of German and Japanese cities and factories have become a recognized part of modern warfare as carried out by all nations. Taylor 1949: 65

Two international conferences took place in the Hague in 1899 and in 1907, but the first airplane did not fly until 1903 (Scovazzi 2011a). The “Martens Clause,” that is, the clause inserted in the Preamble of the 1899 Convention on Peace by Russian legal scholar Fiodor Fiodorovich Martens, is fundamental to the rules of war on the ground, and it appears in the Hague Convention of 1907: Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of public conscience. Laws and Customs of War on Land (Hague IV), October 18, 1907, into force January 26, 1910

Even a cursory overview of the latest events clearly demonstrates that principles derived from the “laws of humanity” and other customs of “civilized peoples” are hard to find in today’s multiple anomalous conflicts. Air warfare itself has demonstrated an “exponential growth” (Roscini 2005: 411), in recent times, with a variety of bombs and weapons, most of which have been considered illegal since the 1907 Hague IV Convention. Therefore, the issues that are problematic in regard to aerial bombardments include both the quality of the weapons (bombs) used, and the question of the immunity of non-combatants.

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Non-combatant Immunity and the Victims of Collateralism Notwithstanding the contrary practice during the Second World War, the customary status of the principle of distinction is nowadays well established, and air bombardments are no exception to it. No State has denied its binding character and it has been incorporated in virtually all military manuals and pamphlets. Roscini 2005: 413

It may be hard to believe that the “first reference to the principle of distinction with specific regard to air warfare is to be found in…the above mentioned 1923 Hague Rules” (Roscini 2005: 412), and that all countries in the world, including the UK and the us prescribe according to that principle in their army manuals (Fleck 1999; Greenwood 1991: 108). Thus, not only are civilians and other nonmilitary targets illegal, no matter the strategic value of their destruction, but also what follows is that indiscriminate attacks, including aerial bombardments are a fortiori forbidden by international law (UN General Assembly 2444, December 19, 1969, recognizing the principle of civilian immunity and the obligation to distinguish the latter form combatants). In fact, despite the presence of such codified rules and regulations in instruments that merit to be treated as jus cogens, the current forms of bombardment were not curtailed and the International Court of Justice added its decisions of May 10, 1930 (Kiriadolou v. Germany) stating that the bombardment of Bucharest in 1916 was illegal, because “The distinction between bombardment for occupation and bombardment for destruction has no juridical basis and cannot absolve air forces form the duty to give preliminary notification” (Scovazzi 2011a: 14). Nor has the need for distinctions been superseded by new directives, on the contrary, in two us examples, both Colin Powell (during the 1991 Gulf War), and Jamie Shea, in the later (2000) briefing regarding NATO to Amnesty International, confirmed that “the provisions of Protocol 1 (and the principle of distinction) had been applied.” In addition, it was added that “customary law requires that combatants shall at all times direct their operations only against military objectives” (Roscini 2005: 411). The principle of distinction is thus firmly entrenched in international law, and the 1996 Advisory Opinion on “the legality of the threat and use of nuclear weapons” confirm that the requirement to distinguish between civilians and combatants is a basic principle of humanitarian law and that it is binding on all states because of its jus cogens character (ICJ Reports 1996, para. 78; Roscini 2005: 415). As well, the Kupreskic judgment of the ICTY (para. 521) also

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confirms that “it is now a universally recognized principle…that deliberate attacks on civilians or civilian objects are absolutely prohibited by international humanitarian law.” In contrast, us practices place the protection of its own forces in combat over the safety of enemy civilians, so that its own conduct of war could be seen as worthy of approval at home, in direct conflict with international law instruments and directives, and those of its own manuals of war. The position of Europeans is far more consonant with the law: according to the 1996 British defense doctrine, “there may be occasions when a commander will have to accept a higher level of risk to his own forces in order to avoid or reduce collateral damage to the enemy’s civil population” (Roscini 2005: 416; see also Rogers 2000: 178). According to NATO sources, the presence of civilian vehicles mixed with an army vehicle convoy, was sufficient to force the suspension of a planned attack directed to the army convoy (Roscini 2005: 416). Instead, us practice in Afghanistan was to hit numerous civilian targets in villages, family reunion in various areas, all because of “intelligence” purporting that Taliban leaders might have been present. Needless to say, such intelligence was most often unconfirmed and the declarations of the Pentagon could not be justified. Neither sympathizers, nor other possible “friends” of the enemy, are automatically to be classed as “combatants”: “The immunity from attacks ends only if and for such a time as the civilians take a direct part in hostilities” (Article 51(3) of Additional Protocol 1; Roscini 2005: 418). Media outlets could become targets if they are used to encourage fighting or resistance on the part of the enemy. The case becomes much hazier when we consider “economic targets.” These were regularly targeted during the Second World War, and they are clearly not mentioned in Protocol 1, whereas the Commentary of the International Committee of the Red Cross (ICRC) in 1956 states that “only industries of fundamental importance for the conduct of the war” could be considered military targets (Roscini 2005: 426). The founder of the British military air force, General Hugh Trenchard (1873–1956), was not worried about the accuracy of the bombing targets: “I do not think you need to be anxious about our degree of accuracy when bombing stations in the middle of town. The accuracy is not great at present, and the pilots drop their eggs into the middle of towns generally” (Boyle 1962: 312). Not only did Trenchard support indiscriminate bombing, but he did not appear to expect to distinguish between military and non-military facilities as objects of attacks: “Every kind of war material produced by the enemy, ‘from battleships to boots’, would be fair game for the bomber” (Boyle 1962: 517). This cavalier attitude is in direct contrast with the directives of the air force ministry, intended to govern both naval and aerial bombardments. That document (22 August 1939) stated:

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action against objectives will be subject to the following general principles: (a) The international bombardment of civil populations is illegal; (b) It must be possible to distinguish and identify the objective in question; (c) Bombardments must be carried out in such a way that there is a reasonable expectation that damage will be confined to the objective and that civilian neighbourhoods are not bombarded through negligence. Overy 1997: 31; see also Scovazzi 2011a: 32

Yet, in most cases, these directives were ignored, like the pronouncements from the Hague convention and—in general—other international legal instruments. After the Second World War, the dangerousness and the indiscriminate conduct of bombardments increased exponentially, as the concern for civilians and other collateral damage became almost non-existent. Even worse, the proliferation of damaging weapons increased as well, culminating with the atomic bomb, which concluded the Second World War.

Victims of Illegal Weapons, Indiscriminate Means of War, and Environmental Hazards States must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives. Respect for the environment is one of the elements that go to assessing whether an action is in conformity with the principles of necessity and proportionality. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports (1996), para. 30

This paragraph remains ambiguous as neither “legitimate military objective” nor “necessity” (presumably military), nor “proportionality,” are defined. As well, the oft-used expression “military advantage” may hide a number of illegitimate aims. A more recent difficulty is added by the goal of recent conflicts, beyond the usual “defeat of the enemy,” that is, the present so-called “humanitarian interventions” or “peace-keeping operations” (Hoffman 2000: 195). We will discuss more fully the whole concept of R2P in the concluding chapter of this work, but the rules of engagement ought to be different in those cases, as collateral damage should not be tolerated when the very essence of

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the operation is to support humanitarian law and defend human rights (Roscini 2005: 436): Humanitarian interventions, peace-enforcement operations and “wars on terrorism” are armed conflicts, notwithstanding their limited goals. It is true that, as acknowledged by the ICTY Final Report “[t]he precise linkage between jus ad bellum and jus in bello is not completely resolved.” Roscini 2005: 437; ICTY Final Report, para. 32

At any rate, recently environmental considerations are acquiring relevance in both target selection and the use of permissible weapons. For the latter, the US use of Agent Orange in the Vietnam War clearly showed the undeniable interface between environmental damage and damage to all life and health, the effects of which may be transgenerational and continuing today. NATO’s attacks on Kosovo, including direct harm to numerous protected areas and national parks (Roscini 2005: 437). The NATO forces targeted the “Pacevo fertilizer, oil refinery and petrochemical complex” and resulted in large quantities of toxic materials reaching the Danube River, affecting “food crops and fish stock” (Roscini 2005: 438). The Vietnam Agent Orange effects resulted in the addition of two articles to Protocol 1: Article 25(3), stating that “It is prohibited to employ methods or means of warfare which are intended or may be expected, to cause widespread, long-term and severe damage to the natural environment”; and Article 55(1), which states, “Care shall be taken in warfare to protect the natural environment against widespread, long-term and sever damage. This protection includes a prohibition of the use of methods of warfare which are intended to may be expected to cause such damage to the natural environment and thereby prejudice the health or survival of the population” (Roscini 2005: 438–439). In contrast, the US objected to the “customary status” of those two articles as too broad and ambiguous, whereas only environmental destruction “not necessitated by military necessity and carried out wantonly” is prohibited (Roscini 2005: 440). It is worthy of note that, while there are a few instruments such as the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Con­ ventional Weapons which may be deemed to be excessively injurious or to have Indiscriminate Effects, or the 1976 Convention on the Prohibition of Military or Any Hostile Use of Environmental Modification Techniques (En-Mod Convention), or even the 1998 ICC Statute, Article 8(2) (b) (iv), which require “widespread, long-lasting or severe effects,” it does not seem that there exists a mechanism to intervene to prevent this kind of human rights abuse. The 1980

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Convention additionally forbids incendiary weapons, but so-called “depleted uranium munitions” are not necessarily forbidden, despite the terrible transgenerational damage to human life and health they produce (Westra 2012a). The main conclusion that can—once again—be drawn from this brief examination of current and traditional means of warfare, is that despite the presence of valid instruments attempting to curtail the indiscriminate carnage and destruction of our habitat that accompanies the practices of war, the victims are not counted or protected, no redress is available for families, and, most of all, no effort is made to eliminate “normal” practices that produce gross human rights violations. Rather, Western governments appear to strive through their legal departments to find ways of justifying furthering their interests, at whatever cost of life and suffering. In the next section we will return to a very recent US practice: that of drone assassinations.

Victims of Drone Attacks While the USA has not been particularly forthcoming with its legal justification for the use of air force against leading al-Qaeda members, the longstanding position of the executive branch has been to justify such force alternatively under national self-defence or as a legitimate method of warfare. Ramsden 2011: 388

This, like other legal discussions of drone attacks, shows clearly the bias upon which most such defenses are based: as noted earlier, the claim is that this is a legitimate means of warfare, is doubtful at best. Further, the appeal to self-defense is even weaker: Harold Koh advances such a claim in his address to the American Society of International Law (March 25, 2010), as he states—inter alia—that the US “is in an armed conflict with al-Qaeda” and that it “may use force consistent with its inherent right to self-defense under international law.” Both these claims are based on a further unspoken claim, that is, that “they continue to attack us” (Koh 2011). None of these justificatory efforts appear to be solid. The US cannot assert that it is participating in an armed conflict with al-Qaeda that is “unlimited in time and space,” as we saw painstaking efforts of legal instrument dating from the early 1900s to prescribe ways of circumventing the very possibility of civilian causalities (Ramsden 2011: 389). In fact, the further problem lies in the fact that the claimed “war on terror” is a misnomer: is not a war, let alone an international war. The text from Prosecutor v. Tadic (1995: para. 70) states that:

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(i) There must exist an organized armed group and (ii) the conflict must be of a certain duration and intensity; it must go beyond the level of intensity of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and others of a similar nature. Ramsden 2011: 390

This “list” of what may and may not constitute a war situation is entrenched in the Rome Statute of the International Criminal Court (ratified by 110 States at this time, but not accepted by the US). Hence the Supreme Court (US) declared in Hamdan v. Rumsfeld (548 US 557, 628–631) that the US was engaged in a noninternational armed conflict (NIAC) with al-Qaeda (Ramsden 2011: 390). Of course neither in EU countries nor in other parts of the world are such views deemed to be acceptable. Antonio Cassese argues that the whole concept of a “war on terror” is mistaken, and that therefore it cannot provide the basis sought to legitimize any of the acts conducted in the name of such a “war” (Cassese 2005). In contrast, it might be claimed that some specific aspects of a conflict with al-Qaeda supporters and operatives might take place either in Afghanistan or Pakistan, provided the territorial state itself invites the US to participate in such specific operations. But al-Awlaki was killed in Yemen thus excluding even this possible—though far-fetched justification for his assassination. Yet even Pakistan is not simply the site of a battleground between the US and alQaeda activists. At one time, the US treated the Taliban regime in Afghanistan with tolerance, but after 9/11 and the “war on terror,” the “averred heroic freedom-fighting Mujahedeen, credited for defeating the Soviet Union and triggering its disintegration, became formally re-classified by the United States and many Western nations as an integral component of the global terrorist network and the new enemy of the twenty-first century” (Shah 2010: 80). Now, the US claims that many radicals are now in Pakistan, which viewed as a harbor for many willing to fight the Western forces in Afghanistan. The US position is both one of claiming Pakistan as an ally, but also to disregard and violate the territorial sovereignty of that country, when that appears to be required for its goals. In fact, the US attacks on Pakistan, are consistent with its past policy and practice of routinely disregarding norms of international law, including disrespecting the sovereignty of relatively weak nations, when in pursuit of its varied, vague and hegemonic objectives (Murphy 2004). The relation between the US and Pakistan is problematic because of the unavoidable imbalance of power between the two states. The US status as a Great Power leads it to believe it is not constrained by international law, while still mandating that observance on the part of others. Shah says, “The United

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States, however, mandates that other nations be bound by the same norms of international law it routinely violates” (Shah 2010: 83; Murphy 2004: 3–7). Thus the US drone attacks on Pakistan demonstrate both its disregard for international law, but also its lack of respect for the territorial sovereignty of a weaker state (Shah 2010: 84). The UN Charter, the ultimate source of global constitutionalism, has not been changed or expanded in any way to include a clear condemnation of several of the categories advocated by the US as justifying its “war on terror,” especially the expansion of the right to self-defense under Article 51. Thus the deployment of drones is clearly illegal, and it has been “officially condemned as a ‘violation of the sovereignty of Pakistan’ and of that nation’s territorial integrity” (Shah 2010: 114; Simpson 2008). The US remains clearly unrepentant about these open violations of international law. The New York Times (Asia Pacific) reports the arrival of a powerful American delegation in Islamabad, Pakistan, designed to insist that the country must “make a definite choice between fighting terrorists or supporting them,” and threatening that making the “wrong choice” would cost dearly to Pakistan. The article remarks that following the threats of retaliation, “Some Pakistani military officers appeared to have given up on having anything but the most limited relationship with the United States, and were resigned to deep cuts in America aid” (Myers 2011). As well, the use of Reaper drones for various purposes related to counterterrorism missions, is now securely operating from a base in southern Ethiopia. At this time, the Reapers are said to be unarmed and “used only for surveillance and collecting intelligence,” but future lethal strikes are not excluded (Whitlock 2011). The purported target is al Shaba, an Islamist group with ties to al-Qaeda. But he arguments suggested above, that is, the denial of the very possibility of a US “War” unlimited in time and space, stand, whether the illegal intrusions take place in Pakistan, Yemen or Ethiopia, as none of these countries are at war with the US. But drones and their ultimate goals are not a “stand alone” phenomenon: they are part and parcel of the “War on terror,” originating as a newly energized phenomenon after the 9/11 incident. It might be best to return to that starting point, in order to place drone activity in context.

The “War on Terror” and Its Victims First, the United States has addressed an expansive view of its rights under jus ad bellum, while insisting on a very narrow view of its obligations­

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under jus in bello. Second, and more significant, global elites have shown support for, or at least reluctance to challenge the former but rejected in key senses the US view on the latter. Ratner 2002: 913

Ratner’s insightful “comment” puts the finger precisely on the main source of structural violence, the “systemic violence that is inherent in the social conditions of global capitalism” (Žižek 2008: 14). That is the fundamental objective violence that is hidden as we focus our horror and our energies instead on the subjective violence described in the previous two sections, and coming to new heights in the lawlessness of the “war on terror.” Ratner remarks, regarding jus ad bellum, that indeed the claims and actions of the Bush administration have been tolerated rather than sanctioned by the international “enemy” to Afghanistan instead or in addition to it. In 2001, the International Law Commission declared its view of what constituted, according to state practice, the law at the time, regarding the “responsibility of States for internationally wrongful acts of 2001.” A state is responsible: if the person or group of persons [committing the act(s)] is in fact acting on the instructions of, or under the directions or control of, that State in carrying out the conduct…if the person or group of persons is in fact exercising elements of the governmental authority in the absence or default of the official authorities…[and] if and to the extent that the State acknowledges and adopts the conduct as its own. Draft Articles on Responsibility of States for Internationally Wrongful Acts; Ratner 2002: 908

The US theory of “guilt” based on “harboring” is therefore not supported in the international law at the time, and it also cannot be found in the documents of the ICJ or the ICTY. At most, complicity might be found, but not “direct responsibility” (Ratner 2002: 908). Although a far more direct link exists between corporate legal persons and states, as the former cannot operate at all without the explicit permission of the latter, that claimed “complicity” is not now and never has been applied to that relation—to my knowledge (Ratner 2001: 443–546, 501–502; see also discussion of corporate responsibility in the previous chapter and in the work of Peter French, and his ascription of the CID structure to legal persons). At any rate, Ratner views the lack of strong disapproval of the US approach to jus ad bellum as dictated primarily by the desire not to antagonize the US, or suffer the consequences of its anger, although some used more guarded terms

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than direct approval, such as the Organization of American States (OAS). It viewed those “responsible for aiding, supporting or harboring the perpetrators…of [the September 11 attacks]…as equally complicit in these acts” (Strengthening Hemispheric Cooperation to Prevent, Combat and Eliminate Terrorism, Preamble and para. 3, OAS Res. RC.23/Res.1/01, September 21, 2001). Clearly, the use of the category of “complicity” stops short of claiming full responsibility for those involved. In contrast, academic student groups and journalists, protested openly US actions (Ratner 2002: 909). The silence, or the tacit permission of both states and organizations points to the all-pervasive complicity of those countries in the worldwide structural violence that underlies the absence of strongly worded condemnation of a travesty of a “just war” procedures that have developed since that time. The same structural violence is foundational to globalization and to the form of world governance largely controlled by an imperial power, and organized around purely economic goals. Thus, whether it is the general conviction that the reach of the US is too wide and too strong to attempt resistance, or whether a weaker nations cannot risk being viewed itself as an “enemy,” in the stark “we/them,” “black/white” dichotomy clearly expressed by the Bush administration after 9/11, it would be misleading to view the muted responses or the outright silence of the many states as approval, or at least as acceptance. The situation is quite different, however, when jus in bello, or the conduct of the US and its allies within the war itself is under consideration.

Victims of the Conduct of War The Key US challenge regarding jus in bello relates to the norms regarding the protection of civilians, but to those of the treatment of prisoners of war. Ratner 2002: 911

Ratner wrote in 2002, long before the illegal bombardments and drone attacks of the “war on terror,” but in 2011, we need to add those and many other illegalities to the ones he discussed in detail. The main problems at issue in the time after 9/11 with which Ratner’s research deals is the question of who is or is not a prisoner of war: In general the Third Geneva Convention provides that “[m]embers of the armed forces of a Party to the conflict, as well as members of militias

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or volunteer corps forming part of such armed forces,” are prisoners of war. Ratner 2002: 911

In contrast, the US has been arguing that not only al-Qaeda member but also armed Taliban, who were certainly part of the regular Afghani armed forces, did not qualify as prisoners of war when captured. In addition, the US has not even attempted to convene a competent tribunal to research and decide on the issue of who is or is not a prisoner of war (POW). This lack of legal concern for correctness renders much of US activity related to counter-terrorism unsound and probably illegal on a number of grounds, first among them the inability of separating combatants from civilians, according to their own insistence that neither Taliban nor-al-Qaeda members are regular “combatants” (Aldrich 2002: 891). The US position was not shared even by its closest allies and in January 2002, the Parliamentary Assembly of the Council of Europe passed a resolution urging members: not to extradite persons who risk being subjected to ill-treatment in violation of Article 3 of the European Convention on Human Rights [which prohibits torture and other inhuman or degrading treatment of punishment] or being subjected to a trial which does not respect the fundamental principles of a fair trial, or, in a period of conflict, to standards which fall below those enshrined in the Geneva Convention. Combating Terrorism and Respect for Human Rights, Eur. Parl. Ass. Res. 1271, January 24, 2002, para. 8

The UN Charter and the Geneva Convention are not instruments open to free decisions on the part of states, on whether to choose or not to respect them: they are not “soft law.” On the contrary, they embody jus cogens norms (Barcelona Traction, Light and Power Co., Ltd. (Belgium v. Spain), Second Phase, 1970 ICJ Rep. 4, 32 [February 5]; ILC Draft Articles on Responsibility of States, Art. 50 (1)(a); Report of the Secretary general Pursuant to Paragraph 2 of the Security Council Resolution 808 [1993], UN Doc. S/25704, at 9 [1993]). However, even these concerns are prior to the ongoing use of “extraordinary renditions,” with the complicity of several European states; the gross human rights violations emerging from these and other aspects of state terrorism, represent crimes. The next Section will discuss the concept of terrorism itself and the measures undertaken by the US in response, before returning to the other violations of jus in bello that developed and grew almost exponentially in recent years.

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State Terrorism and Its Victims In my opinion, it may be safely contended that…at least transnational, state-sponsored or state-condoned terrorism amounts to an international crime, and is already contemplated and prohibited by international customary law as a distinct category of such crimes. Cassese 2001: 993

In this paragraph Antonio Cassese outlines a very important topic although, as we shall see, terrorism as such is not defined in law, state terrorism can already  be defined as a crime against humanity. In some sense, Steven Ratner agrees with Cassese, but he says that, “Actions by States against civilians could be a war crime or a crime against humanity, but [they are] not terrorism,” as he cites the High Level Panel Report of the UN (Ratner et al. 2009: 134; most of the actions that Cassese, and this work will define as “state terrorism,” are referred to as “atrocities” in Ratner’s work, see discussion on his page 14). Guided by Cassese our analysis must work “backwards,” in some sense, that is, not from the concept of terrorism as such, to the same concept when applied to the actions of a state, but from the latter to the former instead. However, this move is only required when we consider terrorism in the legal sense, so that perhaps a brief overview of its history as a legal term should be in order, before we turn to a consideration of the meaning of terrorism in general, and to the links it has, I argue, with the neoliberal agenda of “development and expansion.”

Aggression and Terrorism in International Law from 1972 to 2005: Working on an Impossible Definition Since a comprehensive convention with a legal definition of terrorism would have limited the discretion of the United States to determine the international public enemy on a case-by-case basis, the United States has been acting according to an old motto coined by a Roman lawyer, “omnis definitio in jure periculosa.” Friedrichs 2006: 69–91

Elsewhere I have pointed to the social/economic immoralities and illegalities supported by the political power structures that are part of the global governance affecting the UN (Westra 2011a). For now, we should also examine whether the same power structures tend to support, or at least condone,

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unspeakable crimes against humanity, committed against the most vulnerable of humankind. The same dominant political structures affect not only the increasing presence of terrorism, but also the very absence of a legal definition of that phenomenon, in the stance parallel to the one which is part of the neoliberal economic agenda, regarding the ambiguity of “development.” Essentially, when a certain coalition, led by the “hegemon” controls for decades the efforts of most countries to reach a definition of what constitutes illegal violence, just as it effectively controls globalized trade and economics, then the time has come to find ways to check a power that exceeds, increasingly the bounds of legality. In order to better understand what has led to the present international impasse regarding a definition, we should review briefly the history of the international efforts to reach a definition, and the various players who participated. For more than thirty years States have debated in the UN the question of punishing terrorism. However, they have been unable to agree upon a definition of this crime. Third World countries staunchly clung to their view that the notion could not cover acts of violence perpetrated by socalled freedom-fighters, that is individuals and groups struggling for the realization of self-determination. Cassese 2008: 449

According to Article 44.3 of the First Additional Protocol (UNGA, Res. 49/60, adopted 9 December 1994), some persons could be considered “freedom fighters,” although they had no uniforms or openly carried arms, so that they would have prisoner of war status if captured. The annexed Declaration (para. 3) contains the following provision as a definition of terrorism: Criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them. The UN has been attempting to grapple with the question of terrorism since 1972 (Friedrichs 2006: 71; Peterson 2004: 173). After the 1972 attacks on the Olympic Village in Munich, terrorism was placed on the agenda of the General Assembly, while the US submitted a “Draft Convention for the Prevention and Punishment of Certain acts of International Terrorism” (UN Doc. A/C.6/L.850

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[September 25, 1972]). The US draft was limited to “certain acts of terrorism” without attempting a thorough definition. The main problem was that many Arab and African States wanted (1) an in-depth discussion of “the root causes of terrorism”; (2) a differentiation between terrorists and freedom fighters; and (3) the inclusion of state terrorism as “the most harmful and deadly form of terrorism” (Friedrichs 2006: 72–73; Report of the Ad Hoc committee, UN Doc. A/9028 (1973), annex 7). The “non-Aligned Group” was adamant on the inclusion of state terrorism under the mandate of the Ad Hoc Committee: acts of violence by colonial, racist, and alien regimes, they maintained, constituted the cruelest and most pernicious form of international terrorism and therefore had to be given the highest priority during the deliberations. Friedrichs 2006: 74; Report of the Ad Hoc Committee, UN Doc. A/32/37 [April 28, 1977]

At any rate, as no consensus was forthcoming, only conventions against specific acts were enacted and no further effort emerged towards a definition of terrorism in general. In 1999 the United Nations adopted a “convention on the financing of terrorism” (Friedrichs 2006: 74), and after 2000, further discussions took place on the basis of another draft submitted by India (Friedrichs 2006; UN Doc. A/C.6/55/I [August 28, 2000] raised Draft Convention; see also UN Doc. A/C.6/51/6 [November 11, 1996], original version). A tentative definition was also proposed in 2005: According to this definition serious offences persons or heavy damage to private or public property qualify as offences within the meaning of the Convention “where the purpose of the conduct, by its nature or contact, is to intimidate a population, or to compel a government or an international organization to do or abstain from doing any act.”

Friedrichs 2006; UN Doc. A/59/894 (August 12, 2005); letter containing Comprehensive Convention on International Terrorism

The main problems, however, remained unsolved; for instance, according to the Organization of the Islamic Conference (OIC), the questions of groups’ struggle against “foreign occupation, aggression, colonialism and hegemony” aimed at achieving their own self-determination; as well as the problem of state terrorism (with special consideration of the situation in Palestine) had not been resolved (Friedrichs 2006; UN Doc. A/C.6/55/L.2 (October 19, 2000) and UN Doc. A/57/730-5/2003/178 (February 13, 2003), the former proposed by

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Malaysia, the latter by Syria). Thus until 2006, the aim of reconciling the parties to achieve a comprehensive, binding definition has failed; both the history of the issue and the stumbling blocks that effectively ensured that no agreement could be reached, reproduce the similar, politically motivated perversions of important human rights issues. Like trade and “development” related issues, the UN was unable to resolve the situation on the side of principles, morality, or even the binding legality of its own mandates, against the effects of Western political power.

One Source: Two Major Global Phenomena Therefore states should begin to move towards a comprehensive environmental legal dispensation that recognizes the unity of the planet as a single fragile ecosystem. That dispensation should revolve around the creation of the crime of geocide literally a killing of the earth, the environmental counterpart of genocide, and its entrenchment as an international legal crime. Berat 1994: 327

Climate change and terrorism are acknowledged by most to be the two major threats facing humanity at this time. Both are present globally, both are diffuse and largely undefined. As well, although “everyone” knows what they are and, in fact, terrorism is involved and cited more often than the global threat of climate change their common source is not named either in legal or other academic discourse, to my knowledge. A question arises: is the coupling of these two scourges too facile and superficial? In order to answer this question I propose extending our consideration beyond the material and obvious results of the two phenomena, to the other aspects of causality that characterize them, such as their shared “formal” and “final” causality as proposed by Aristotle, and recently defended by Alexander Wendt (Wendt 2003: 491–542). The two join in their results: their “victims,” or those who are suffering to worst effects of each, are the most vulnerable, the poor and the inhabitants of so-called “developing” countries. More importantly, however, they converge in their point of origin. Climate change is the final result of one of the major aspects of overconsumption, the overuse of energy. Many scholars from various disciplines have documented and described the overuse of energy required by neoliberal globalization and development agenda (Brennan and Lo 2010: 429–444; Mattei and Nader 2008: 35–63; Westra, R. 2010b: 15–37; Rees and Wackernagel 1996; Rees and Westra 2003: 99–124).

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Richard Westra points out the interface between overconsumption and the pursuit of “growth” in the North, and its effects on the South: specializing in raw material production became a road to serfdom for the third world rather than one of shared benefits of industrial progress. It led to an international economic structure of wealthy “Center” economies exporting industrial goods, the price of which tend to rise, and impoverished “peripheral” economies of the third world exporting raw materials and foodstuffs, subject to falling prices, and to a process of “unequal exchange” with the center. Westra, R. 2010b: 19

This inequality, with the concomitant victimization of the third world’s impoverished people is clearly supported by the overconsumption of the citizens of the North. But in order to support the neoliberal agenda of “development” and Northwest preferences through overconsumption, energy is required at every step. Thus, once the full, harmful effects of our ecological footprint are well understood, and the underlying causality of the conditions that generate climate change are laid bare, it is clear where one can find the origin of the conditions leading to climate change, and the impetus for the confirmation of the status quo, as one after another of the COPs following upon the Kyoto Protocol continue to fail to meet the expectations of those seeking justice and security (Brown 2002; Brown et al. 2006). The question, however, remains: what is the connection between energy consumption, CO2 and Methane, and terrorism? The connection is, as stated, based on the Neoliberal agenda of globalization. As the paragraph cited at the opening of this section states destroying the earth and its systems ought to be considered a crime, and I have argued in a similar vein in my work on ecoviolence (Westra 2004). Destroying the earth’s natural systems also contributes significantly to the direct harms inflicted on human beings, particularly to Indigenous and other land-based communities in various countries in the global south. Ken Saro-Wiwa, the well-known eco-martyr from Nigeria, referred to “omnicide” to describe the effects to Royal Dutch Shell practices in Ogoniland (Westra 2007: appendix 1). I have worked extensively on environmental justice from various standpoints, and considered various related issues (Westra 2006, 2009), and I will not return to those arguments at this time. In contrast, before attending to the link and the moving impetus behind climate change and terrorism, we should stop to consider terrorism as such in its logical and moral implications, beyond its legal status.

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The Issues: Terrorism and Collective Human Rights People who have been dispossessed, degraded, humiliated, but whose spirit has not been broken, understandably want to proclaim their grievances, whether or not they expect their proclamation to advance their cause. Baier 1988

Even in this early paper, long before terrorism became an important and debated legal issue, philosophers were debating the important topic of violence as a political tool. Paul Gilbert, for instance, was clear on the position that “terrorism can be neither murder, which is purely private and has no political significance, nor war, which is entirely public and overt, but which the terrorist’s party would be incapable of winning” (Gilbert 1994). However, what we need to achieve in order to reduce or even eliminate terrorism, is a comprehensive understanding of the phenomenon, beyond a purely philosophical analysis of its nature. Perhaps the best starting point is precisely an understanding of the “hegemon’s” objections: the US and the UK with them (but not Germany, or France, for instance), do not want a precise definition, as they prefer to retain their “right” to call “terrorists” those they perceive as enemies, and clear of that taint those they consider friends or allies. At any rate, the nations that prefer not to define terrorism also emphasize that terrorists attack those who should not be attacked (Gilbert 1994), or the “innocents,” that is civilians. Hence we can start by raising the first question in regard to terrorism: are all civilians morally blameless (that is, “innocents” in this sense)? Without going as far as Osama bin Laden, who claimed that full complicity with the imperialistic, racist practices supported by the US government, rendered the “civilians” killed in the 9/11 attacks “non-innocents” because of their votes in support of their own government,1 we must consider this question seriously today. 1 Osama bin Laden, “Letter to America,” 24 November 2002: “You may…dispute that [the various accusations and grievances just stated do] not justify aggression against civilians for crimes they did not commit and offenses in which they did not partake: This argument contradicts your continuous repetition that America is the land of freedom…Therefore, the American people are the ones who choose their government by way of their own free will; a choice which stems from their agreement to its policies. Thus the American people have chosen, consented to, and affirmed their support for the Israeli oppression of the Palestinians, the occupation and usurpation of their land, and its continuous killing, torture, punishment and expulsion of Palestinians. The American people have the ability and the choice to refuse the policies of the Government and even to change it if they want. The American people are

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For instance, some argue that not all civilians are blameless, given certain specific circumstances. In fact, perhaps “the citizens of a state with universal conscription,” such as Israeli settlers, “are thus active participants in the theft of the Palestinian lands…not just conscious and willing participants but enthusiastic and indeed fanatical instigators and perpetrators of the strategy by which the theft is being accomplished” (McMahan 2009: 223). These “civilians” appear to be complicit in the “international crime of aggression, a crime that, when committed by soldiers, justifies defensive war” (McMahan 2009). We can thus conclude with McMahan, that “civilian immunity is contingent, rather than absolute” (McMahan 2009: 231). Further, there is a question of self-defense, a topic I considered myself some years ago regarding terrorism. It is acceptable and legal to defend our own life and physical integrity, as well as our dignity as human beings, or the life and dignity of near family members (Westra 1989: 46–58, esp. 49–51). Essentially, there are other values beyond the immediate defense of our own physical integrity, such as (a) the immediate prevention of injury to others; (b) “longrange or indirect defense of self or others”; (c) securing the necessary conditions of minimally acceptable life, when no other possibility to achieve this goal is available (Westra 1989: 51). Possibly, some limited form of violence might also be acceptable the common good of humanity is at stake (Westra 2004). A somewhat “Kantian” defense of terrorism as “self-defense 1,” that is, as a form of defense of one’s personal integrity (autonomy/dignity), and that of our family and community, might represent an acceptable extension of the traditional concept of self-defense. In fact, this might be one which, from the logical as well as the moral point of view, is far more defensible than pre-emptive strikes against the possibility of future violent attacks. This point brings us back to the question of “freedom fighters,” which is surely one more issue that requires a thorough discussion of the motivations of the so-called terrorists (Friedrichs 2006: 71–72). The “US and Western Countries” the ones who pay the taxes which fund the planes that bomb us in Afghanistan, the tanks that strike and destroy our homes in Palestine, the armies which occupy our lands in the Arabian Gulf, and the fleets which ensure the blockade of Iraq. These tax dollars are given to Israel for it to continue to attack us and penetrate our lands. So the American people are the ones who fund the attacks against us, and they are the ones who oversee the expenditure of these monies in the way they wish, through their elected candidates. Also the American army is part of the American people…The American people are the ones who employ both their men and women in American forces which attack us. This is why the American people cannot be innocent of all the crimes committed by the Americans and Jews against us.” (Full text at www.guardian.co.uk/world/2002/nov/24/theobserver).

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opposed the quest for the (possibly) “legitimate reasons behind the grievances raised by international terrorists,” stating that they did not “wait for the underlying causes of crime to be identified before enacting penal laws against criminals” (Friedrichs 2006: 73; UN Doc. A/9028 (1973): Report of the Ad Hoc Committee, annex 7b; UN Doc. A/C.6/SR.1355–1374 (November 1972) verbatim records of the Sixth Committee). But, as noted above, terrorist are not criminals, although that designation is often used by governments who do not abide by the legal regimes that prescribe the treatment of criminals (e.g. immediate access to legal advice and to their country representatives if they are foreign nationals; reasonably speedy trials, humane treatment in jails, and the like). Nor do the same governments treat them as combatants in armed conflict, with all the rights pertaining to that designation. Hence it becomes even more imperative to define the acts that are or are not terrorism; and this requires a full understanding of the motives, the root causes that propel even young, educated people of either gender, to commit suicide as part of their acts of terrorism, for their deeply held beliefs, and to bring the world’s attention to the gross human rights violations their groups and communities are suffering. Their position is akin to the one of the whistleblower, in some sense, that is, as a person pursuing activities harmful to oneself but especially damaging to the guilty part, industry or corporation for the most part, without—howeverengaging in violent attacks. The whistleblower engages in a form of selfdefense, that is, she is calling attention to the breaches of human rights that follow upon certain corporate practices. She harms her own position by so doing, but the final goal is the defense of affected stakeholders and, in the case of grave environmental cases, perhaps the defense of humanity itself. As well, the whistleblower acts from a justifiable desire to see universalizable principles upheld, and to continue to live in a way which is consonant with her personal integrity, and which permits the exercise of her autonomy. Of course, for the most part, the whistleblower only uses her knowledge to stop certain practices, and perhaps to harm the financial outlook of the targeted enterprise at most. Instead, the terrorist does much more to bring the world’s attention to the grave conditions her group or community have to bear. Her acts, even her suicide, bring home once again the powerlessness of individuals  and minority groups even in so-called democratic and just societies, or in a  world where principles have apparently been replaced by political expediency. Given this attempt to place an understanding of terrorism in a somewhat Kantian context, it is important to recall that Kant forbids suicide generally,

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and offers the single example of a morally correct one, in that of Seneca, dying to defend freedom and autonomy, in the hope that his death may encourage others to overcome oppression (Westra 1989: 56). Of course Kant addresses here self-violence, not violence directed at others, even to achieve laudable aims, as in the example he adduces. In conclusion, all three main “issues” we have discussed, start with the sincere and respectful attempt to understand the causes and reasons that may be the basic causes of terrorism. If such a course of action were to be pursued, the result may well go far beyond the understanding of terrorism we are advocating. In fact, respectful dialogue, and the return to the strict limits of international law, might mean the mitigation or even the cessation of the conditions which lead to the violent protests we are considering. After all, freedom fighters should be supported and protected, as they are attempting to actualize the UN mandate to eliminate colonialism and racial discrimination, and to defend the self-government of peoples (McMahan 2009: 26).

More Victims of State Terrorism and Counter-terrorism Measures Duties of States Regarding Terrorism Acts and Human Rights… 6. 7.

All terrorist acts result in violations of rights whether committed by States themselves or sub-state actors. All States have a duty to promote and carry out national and international policies and practices to eliminate the causes of terrorism and to prevent the occurrence of terrorist acts. Parker 2008

Karen Parker reports on the “Draft Principles” as well as providing comments, but she acknowledges that the Special Rapporteur did not address—for instance—“the root causes of terrorism,” as these were issues of great complexity, which needed to “draw on a number of disciplines other than law to be useful” (Parker 2008: 235). It is my belief that these root causes or, in Aristotelian terms, the “formal” and “final” causes (Wendt 2003: 491–542) of terrorism are the basis of any and fruitful discussion of terrorism. Unless one analyses and researches the reasons why such acts are undertaken, one cannot hope to understand the phenomenon of terrorism, hence to be able to seek informed and effective solutions for its elimination. Essentially and for the most part, all present efforts to curb terrorism, focus on the “symptoms” of the disease, rather than the disease itself. As it were, if a

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doctor attempted to prescribe a “cure” for a fever, without any attempt to discover the underlying conditions that were causing the fever, one would judge her to be an incompetent. But it is a fact that even the possibility of a causal research into the reason for terrorism and its origins, is totally neglected, while spurious, facile answers are provided instead, especially by the states that most keen to persecute terrorists today, such as the US or Israel. The closest the “Draft Principles” came to an understanding of the possible reasons for terrorism, may be found in the section on “Counter-Terrorism Measures and the Definition of Terrorism” at no. 11: (b) States shall not use either the issue of terrorism or the existence of a terrorist act in the conduct of an armed conflict as an excuse to deny the right of self-determination of a people or to avoid the application of humanitarian law in situations of civil wars, wars of national liberation or international armed conflicts. Parker 2008: 238

Paul Gilbert had already pinpointed in 1994 some of the salient features of terrorism (Gilbert 1994), that is, that it is neither simply “crime,” nor war. Crime is normally hidden by the perpetrators, who make every effort not to divulge their role and motivation. War, in contrast, if it is legally waged, is declared, openly pursued and subject to strict humanitarian guidelines, before it is declared (jus ad bellum), and while it is fought (jus in bello), and we will return to the difference between war and terrorism below (Westra 2004: ch. 2). As Ratner justly saw some time ago, it is the conduct of the US and some allies in counter-terrorism practices, that represents the most unacceptable aspect of the country’s reaction to 9/11which, at least at the start, attempted to deal with the hat attack within the bounds of legality. These bounds were undeniably stretched, maybe even further than they should have been, but later, several other peremptory norms were ignored, illegally re-shaped, or simply denied. These further attacks on human rights emerged primarily within four areas of concern: (1) the ongoing detention of prisoners prior to and in advance of a trial; (2) the legal language describing torture; (3) the kidnapping of “persons of interest” from various countries for the purpose of conveying them to undisclosed locations where interrogations under torture are normally practiced (extraordinary renditions); (4) the suspension of most civil liberties to US and other Western citizens as their personal information is accessed and used, on the basis of undisclosed “intelligence.”

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The issue of the US understanding of what constitutes legal detention, and of the appropriate treatment of prisoners, was the first problem to emerge after 9/11 and Ratner addressed that form of illegality in his 2002 article. The second and third areas of concern will be the topic of the next two Sections.

George W. Bush “Indictment for Torture” Empires communicate in two languages. One language is expressed in imperatives. It is the language of command and force. This militarized language disdains human life and celebrates hypermasculinity. It demands. It makes no attempt to justify the flagrant theft of natural resources and wealth or the use of indiscriminate violence. Hedges 2011

We have connected state terrorism and the plunder of natural resources, because for environmental rights, there is at least no effort to demonize the victims, as in the case of today’s “terrorists,” or, in earlier days, “socialists” and “communists.” Torture, renditions, disappearances, are described as part of a fight against “the enemy,” but the ongoing theft of resources coupled with the disregard of the desire of many not to be forced to tolerate industrial “development,” cannot be described as the response to “enemies,” let alone as part of a “war on terror.” Hence it is helpful to view together the various failures of human rights instruments to extend protection to the human collectivity, even as we focus on a particular brutal aspect of imperialistic practice; the use of torture. Hence this unusual “Indictment” supports my point: only jus cogens norms, giving rise to erga omnes obligation may, if a state is willing, bring to justice these grave violations of human rights. It is encouraging, as a start, to note that George W. Bush is about to join Henry Kissinger and Benjamin Netanyahu (and possibly Pinochet), that is, the category of heads of state and other VIPs, who can no longer travel to Europe with impunity. National Lawyers Guild International Committee: According to international law experts in New York based Center for Constitutional Rights (CCR) and the Berlin based European Center for Constitutional and Human Rights (ECCHR), former presidents do not enjoy special immunity under the Convention Against Torture (CAT). Over 60 international human rights groups signed on to the letter of Denunciation. Center for constitutional rights 2013

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It is significant that George W. Bush (President of the US from January 20, 2001 to January 20, 2009), took an oath “to preserve, protect and defend” the Constitution of the United States (Center for Constitutional Rights 2013). This human rights document starts with an “Overview of Detention Policies and Torture Programs,” starting with the Directive (memorandum of notification) issued by Bush on 17 September 2001, in which he authorizes the cia “to capture suspected terrorists and members of al-Qaeda, and to create detention facilities outside the United States where suspects can be held and interrogated.”2 Swiss Senator Dick Marty’s 2007 Report to the Council of Europe states that Bush “had been personally involved in the conception and discussion of this new strategy,” which entailed the creation of “paramilitary teams to hunt, capture, detain, or kill designated terrorists anywhere in the world” (Marty 2007; see also May 2007). Another important step was taken on November 13, 2001, as Bush authorized that military commissions would try detainees, so that they would not be subject to “principles of law and rules of evidence,” as it would be the case were they to be tried in regular US courts. The deliberate setting aside of democratic legal procedures was intended to be used for “a broad category of persons believed to be, or have been linked to acts of international terrorism,” and the latter is understood as anything (including “preparatory acts”) that might cause “adverse effects” not only to US citizens or to the US as a whole, but also to “its policies.” Thus, once again, it is not only direct injury that is at stake but, like in the case of “counter-insurgency,” any attack on the ideology and status quo of the US is equally beyond discussion (Westra 2012a). The next important step was Bush’s decision that the “third Geneva Convention did not apply to the conflict with al-Qaeda or the Taliban, hence they would not receive the protection afforded to prisoners of war” (Yoo and Delahunty 2002). At this point, we can easily respond to Chief White House Counsel, Alberto Gonzales, whose “Memo to Bush” of January 25, 2002, asserts that the “new paradigm” of the “war on terror” renders obsolete that Geneva Conventions’ limitations on “questioning enemy prisoners” (Center for Constitutional Rights 2013). But even the briefest review of the material regarding the support of terrorism in Central and South Americ (Gareau 2004) demonstrates that, rather than a “new paradigm,” what we encounter here is simply more of the same: more blatant, more openly practiced, but based on the same total disregard of 2 “The directive has yet to be publically released”; see www.npr.org/templates/story .php?storyId=103376537.

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human rights, and of the “principles of international law” that Nixon and other practiced and supported. “Counter-terrorism” instead of “counter-insurgency,” and the 3000 deaths of 9/11 to support Bush’s claim that the defense of US interests demands nothing less than the total regression to a situation where power and violence dictate the only “language” that is appropriate to “others,” who might be contrary to our present ideology, whether or not they are involved in subversive Colin Powell’s advice to reverse his determination of January 18 regarding the Geneva Convention and their applicability. Indeed, Bush issued a memo on February 7, 2002, which called for detainees “to be treated humanely and to the extent appropriate and consistent with military necessity” (Bush 2002). According to the Red Cross, the cia program included: transfers of detainees to multiple locations, maintenance of detainees in continuous solitary confinement and incommunicado detention… [including] the infliction of further ill-treatment through the use of various methods either individually or in combination, in addition to the deprivation of other basic material requirements. ICRC Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody, 2007

The ICRC Detainees cia Report indicated that the whole program “was clearly designed to undermine human dignity and to create a sense of futility by inducing in many cases, severe physical and mental pain and suffering, with the aim of obtaining compliance and extracting information, resulting in exhaustion, depersonalization and dehumanization” (ICRC Report at 7–9), with details of detainees’ torture including waterboarding, prolonged stress positions, beatings, confinement in a box, prolonged nudity, sleep deprivation, exposure to cold temperature, and prolonged shackling. Some of these “enhanced interrogation techniques” were videotaped, especially those showing the interrogation of Abu Zubaydah, whose torture included waterboarding “for 83 times”: these tapes were destroyed by the cia, with impunity. The ill treatment and torture imposed on these detainees “constituted cruel, inhuman and degrading treatment” (Center for Constitutional Rights 2013). As well, the same array of “enhanced interrogation techniques” were used on Khalid Sheikh Mohammed, including the “deprivation of sleep for 180 hours,” and “threats to kill his children” (Center for Constitutional Rights 2013). Through the whole period, Bush continues to assert his right to place those in cia detention “in secure sites beyond the reach of the law” (Center

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for Constitutional Rights 2013). The Parliamentary Assembly of the Council of Europe published a Report on the “transfers” and confirmed torture in locations in Poland and Romania (Center for Constitutional Rights 2013). In March 2008, Bush vetoed legislation that would have banned the cia from using “enhanced interrogation techniques” (Eggen 2003). Another detainee, Mohammed al Qahtain, was subjected to the “First Special Interrogation Plan”: [The] plan, which began on November 23, 2002 and ended 16 January 2003 included 48 days of severe sleep deprivation and 20 hours interrogation, forced nudity, sexual humiliation or religious humiliation, dehumanizing treatment, the use of physical force against him, prolonged stress positions, prolonged sensory overstimulation, and threats with military dogs. Center for constitutional rights 2013

Without continuing to list the horrific examples disclosed by the ICRC and by various other reports complied by human rights groups, and groups representing judges and lawyers, all concluded that what was and is involved are acts of torture under international law, as well as enforced disappearances, deliberately practiced at the behest of the US government under George Bush, for the purpose of extracting information (Center for Constitutional Rights 2013). The Indictment concludes with several examples taken from relevant case law, and we will return to those cases in the next chapter. In January 2012, The Miami Herald reported that Spain was “proceeding with Bush torture case” by attempting to tie Bush to specific torture acts and that Dick Cheney, Donald Rumsfeld and two former Guantanamo commanders (Rosenberg 2012). At this time, it is important to note that state terrorism was used, under the guise of “self-defense,” a vague determination, in a self-styled “war on terror” that could not, in any case, justify any of the acts described and promoted in clear violation of human rights and international law regimes.

Khalid El-Masri and the Case of Extraordinary Renditions [T]he right to truth about gross human rights violations and serious violations of human rights law is an inalienable and autonomous right, linked to the duty and obligation of the State to protect and guarantee human rights, to conduct effective investigations and to guarantee effective remedy and reparation. This right is closely linked with other

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rights and has both an individual and social dimension and should be considered as a non-derogable right and not to be subject to limitations.

OHCHR Report, Study on the Right to Truth, doc .E/CN.4/2006/91, August 2, 2006

The approach proposed, relying as it does on individual rights alone, was bound to be viewed as suspect, given the way the concept of collective rights has been used recently to deny not only the civil and political rights of individuals, but even their right to life. Of course all domestic legal systems include the protection of State secrets but, most of all, they include the invocation to “collective interests,” such as national security and the public order (Scovazzi 2009). The UN Commission for Human Rights (CCPR Final Observations on the United States of America (2006), doc. CCPR/C/USA/CO/3/Rev.1, December 18, 2006, 16) expressed its concern because the United States invoked the “State secrets” principle to forbid access to information regarding a case about torture, or cruel, inhumane and degrading treatment, contrary to article 7 of the ICCPR: The Committee is moreover concerned by numerous well-publicized and documented allegations that persons sent to third world countries in this way were indeed detained and interrogated while receiving treatment grossly violating the prohibition contained in Article 7, allegations that the State party did not contest. Its concern is deepened by the so far successful invocation of state Secrecy in cases where the victims of these practices have sought a remedy before the state party’s courts. A case in point is that of Khalid El-Masri (a German citizen), who became involved in the web of “extraordinary renditions,” a clear example of the extreme injustice that may follow the invocation of State secrecy (Scovazzi 2009: 893–896).3 The States involved “managed to combine torture, forced disappearances, denial of justice and other violations” in their treatment of El-Masri (Scovazzi 2009: 294). The whole sequence was based on the assumption that even if it is forbidden to inflict torture within the territory of one State, it is allowable to do so if the foreigner was so treated in another country. This would permit the first State to eventually make use of the information/confessions thus obtained (Scovazzi 2009: 294). All States involved in this “torture circuit,” that is, the 3 This discussion is based on the report of the case of Prof. Scovazzi and direct quotes are translated from the Italian language by the author.

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state who captures but also the State that permits its territory or its airplanes to be so used, as well as the state that received and tortures the man (Marty 2007). This program had been set up after September 11, 2001 (“GST program”) by the cia, and it was an example of the greatly enhanced powers of the cia form that time on. El-Masri was captured in Macedonia on December 31, 2003, from where he disappeared, was transported to Afghanistan by agents of the US. There he was tortured and kept prisoner until May 28, 2004, without access to a lawyer, an official of his country, or family members. He was then taken to Albania, then to Germany where he was freed (Scovazzi 2009: 894–895). Nor was his “testimony” important for any country’s security; his story was described as follows by the European Rapporteur: The story of El-Masri is the dramatic story of a person who is evidently innocent—or at least against whom not the slightest accusation could ever be made—who has been through ha real nightmare in the CIA’s ‘spider web’, merely because a supposed friendship with a person suspect at some point in time to maintain contact with terrorist groups. El-Masri is still waiting for the truth to be established, and for an excuse. His application to a court in the United States has been rejected, at least in the first instance; not because it seemed unfounded, but because the government brought to bear so-called “national security” and “state secrecy” interests. This speaks for itself. CoE-PA, 2006, 132

Both “national security” and “state secrecy” are intended to convey collective rights of such grave import that, apparently, all individual human rights established in law, as—for instance the Convention Against Torture forbids any derogation from its mandates for any reason, as does Article 4 of the ICCPR and the American Convention on Human Rights (1969, OAS Treaty Ser./No. 36; 1144 UNTS 123), and the two last documents include the right to life, the right to humane treatment and other related rights; particularly relevant in the latter, is the right to “judicial guarantees essential for the protection of moral rights” (Art. 27). The problem that arises from the perspective of the argument proposed in these pages is a grave one: if collective rights, as advanced by States who are, after all, the main subjects of international law, as well as the main ostensible “bastion” of human rights protection, use the concept in contrast with individual human rights and in conflict with any notion of Human dignity, how can this interpretation of the concept be avoided?

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The Background of “Extraordinary Renditions” and Some International Implications of the “CIA’s Long-Term Detainees” When territories wanted for violations of US law are at large overseas, their return for persecution shall be a matter of the highest priority…If we do not receive adequate cooperation from a state that harbors a terrorist whose extradition we are seeking, we shall, take appropriate measures to induce cooperation. Return of suspects by force may be effected without the cooperation of the host government. president bill clinton, Presidential Decision Directive 39; Winkler 2008: 33 39

Then President Clinton, however, spoke of “suspects,” the usual term employed to describe persons against whom there is evidence of criminal activity, but also persons who have not been formally charged and convicted after a trial: a category quite distinct from those with vague, unproven connections to planning terrorist activities. The Presidential Decision Directive 39 (PDD39), was originally intended for the FBI, an agency that would not have had the capacity to deal successfully with “local intelligence agencies,” whose cooperation would have depended on the relevant treaties regarding extradition (Winkler 2008: 40). When the cia took over this mandate, its actions were governed entirely by “immediate political convenience” (Winkler 2008: 40), in order to achieve “prevention,” but eschewing both the collaborative aspects of PDD 39 with their foreign counterparts, and the related instruments of international law, many of which had been ratified by the US (Winkler 2008: 41). Hence renditions remain outside the ambit of legal procedures both those based on international law, and on domestic criminal process (Winkler 2008: 42). In 2001, Condoleezza Rice spoke of the need for “adaptation” to the ongoing terrorist threats and added that “Renditions save lives”(Rice 2005), a clear appeal to “collective” rights of US citizens to protection, and their government’s responsibility in that regard. This further extension of the US’s earlier Directive, was based on another “classified directive signed by President George W. Bush on Sept 17, 2001” (Waterman 2005). This “Memorandum of Notification” “allows the cia to render terrorists without governmental approval and establishes measures restraining individual freedoms, without due process of law (i.e., a formal indictment)” (Waterman 2005). Thus the Extraordinary Rendition Program (ERP) allows, and in fact encourages, illegal and often violent seizure, right at the start; then, knowingly, ensures the transfer of these individuals to countries where torture is practiced and legal; finally the “results” of interrogations and torture are returned to the cia,

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as the “product” of this circuit. Winkler outlines three problems with this sequence. First, the possible application of the male captus bene detentus rule (that is, the rule that states that an inappropriate capture of a suspect still allows for a legitimate trial to follow in the court), is unclear, and some courts have rejected it outright. Second, the male captus rule applies to criminal trials, not to the interrogation of a possible suspect. Third, forced abduction is definitely illegal, especially when a country’s intelligences services are not competent to allow such a disregard of their country’s sovereignty (Winkler 2008: 46–47). In addition, even the dubious aspects of the legality of the capture of suspects are a minor concern given the “very absolute ban” of torture in law: “Torture is unquestionably illegal under international law. Indeed, its prohibition is provided by a norm of jus cogens, making it non-derogable and unjustifiable under all circumstances” (Winkler 2008: 48; Prosecutor v. Furunddzjia, case no. IT-95-17/1, 38 ILM 349 (1999); De Wet 2004). The previous section discussed the El-Masri case, but that is only one (and not the worst such case) of renditions. Abu Omar was abducted from Italy in 2003 to end up being brutally tortured by Egyptians: he suffered electric shocks to his genitals and excruciatingly loud music (Winkler 2008: 340), ending both incontinent and partially deaf; other such cases include Jamil Qasim Saeed Mohammed, a Yemeni citizen abducted in 2001; Mahdouh Habib, take from Pakistan to Egypt as well, and the list could include many more such cases (Winkler 2008: 35; Grey 2005).

The Canadian Position: Maher Arar and State Interests On September 26, US authorities arrested Maher Arar on a routine stopover in New York while he was waiting for a connecting flight home to Canada. Arar was born in Syria, but he lived in Canada for more than twenty years and was a Canadian citizen. Silva 2009: 336

Arar was detained because he had listed Abdullah Almaki, another Canadian citizens suspected of terrorist activities, as an emergency contact on a rental application. He was denied legal advice and a telephone call. After the Canadian counsel assured him he would be returned to Canada, he agreed to that and signed a document to that effect. Despite that assurance, Arar was rendered to Jordan instead: he was beaten and interrogated there, before being sent to Syria and eventually to Afghanistan. At that point, he “confessed

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to having links to terrorism” in the hope of avoiding further torture (Silva 2009: 337). In 2003, Arar was released to the Canadian Embassy, and at that time he had not been charged with any crime, either in the US or in Canada. Canada’s government “established a Commission of Inquiry to investigate and report on the actions of Canadian officials in relation to Maher Arar,” in February 2008 (Silva 2009: 338). The work of that Commission suggested that those who had provided the information on Arar to their US counterparts had been “willfully blind” to what would follow and correspondingly equally linked to Canadian obligation under the convention Against Torture (Silva 2009: 339, citing Pither 2008: 394). Arar brought action against the US under the Torture Victims Protection Act (1991, ratified in 1992) (Arar v. Ashcroft 2006; Sage 2006: 121), but the case was quickly dismissed because of “national security” consideration. This is the main point at issue: if and when universally agreed upon human rights (in our sense of rights of the collectivity of humankind) are set aside and viewed as secondary because of considerations related to “collective” national interests, the “national interests” thus given as primary are those of a specific “community” instead (UN Human Rights Council, Report of Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, Mission to the United States of America, 36–38, UN Doc. A/HRC/6/17/add.3 [November 22, 2007]). National security is indeed a right of citizens, but the universal rights that are contravened through the practice of extraordinary renditions, that is renditions to torture, rather than to justice, as originally intended by the President Clinton, is not acceptable either in law or morality. The difficult problem of the reach of “national security” will be discussed in the final section of this chapter.

Concluding Thoughts on “Abandoning the Victim” All that is necessary for the triumph of evil is that good men do nothing. Edmund burke, 1727–1797

As we read about torture reports, or the logistics of extraordinary renditions, a nagging question persists: of course we understand the motivation and the goals of those who order such things, but what about those who execute those commands? Do they simply believe that a job, even a government job, absolves them from a duty to act within their conscience? Or perhaps do they share those goals, hence that motivation, and simply see the horrors they help to

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perpetrate as “right”? Psychologists and social workers and scientist may ponder and research those issues, which have simple answers on the side of the law: “superior orders,” after numbers, do not excuse the perpetration of crimes, or even the complicity in such crimes. In addition, the reworking, stretching and essentially changing the words and meaning of major international law instruments (even when that work is the result of superior orders originating—say—from the US administration and its President), do not change either the meaning or the peremptory status of the Convention Against Torture or that against genocide, which remain binding on all nations because of their erga omnes character. While those instruments remain binding in their original meaning and wording, reflecting the intention of their drafters, unless the ratifying countries would convene to draft a new instrument under the auspices of the UN, there is at least one category of “perpetrators” which needs not appeals to the Nuremberg principles or the original meaning of specific jus cogens norms: that of doctors and medical personnel. Their own oath, “do no harm,” cannot be understood as “do no harm, unless a political power orders you to do otherwise,” and this clear difference between doctors and other soldiers or dependents was recognized even in the case of Nazi doctors, who at least could attempt to excuse themselves by appealing to the “advancement of science” (although that appeal was not successful): “do no harm” is one of the principles of biomedical ethics, one of the four principles that are understood to direct medical practice: “respect for autonomy, non-malfeasance, beneficence, and justice” (Beauchamp and Childress 2008). All torture takes place either in the presence of doctors, or with the active help of medical personnel, who are capable to determine when even the extreme “limits” of pain (without damage to major organs) might be transgressed. Doctors and nurses are also needed to help the tortured individuals to “recover,” at least to the point when they might be tortured again. In fact, not only do doctors and nurses often not report the illegal harms they witness, but in many cases, they also actively work to prevent such information from reaching the public, as shown by the recent report of the group of doctors from Israel, Doctoring the Evidence, Abandoning the Victim: Meissa Irshaid, an attorney working for the Public Committee Against Torture in Israel, was arrested while accompanying protestors prior to the publication of the report. Before her arrest, a police officer slapped her forcefully across the face. Later she was exposed to humiliation and curses from the police officers. In pain, Meissa asked to see a doctor who

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might examine the injury to her face. Two policemen escorted her to Ziv Hospital in Zefat, where she was examined while handcuffed. She began to tell one of the doctors who examined her that her injury was the result of police violence at a demonstration. Except that at this point the doctor cut her off: “That does not interest me.” The nurse who examined her, for his part, said: “If you don’t like it here, leave this land and go somewhere else.” Public committee against torture in israel 2011: 4

Ill treatment is not torture, but the report itself documents the multiple roles of medical personnel in regard to detainees, those serving an actual sentence, and other persons in the hand of the Israel Prison Service (ISA), and others in similar positions in South Africa, and in the prisons under the control of the United States. The report starts by stating that—as previously noted—the prohibition against torture is absolute and it represents a jus cogens norm as well as the expression of customary law. The State of Israel has ratified the Convention on December 12, 1984, and the Israel Penal Code contains “an explicit prohibition against public officials using force or threatening interrogees” (Public Committee Against Torture in Israel 2011: 10). Yet a clear conflict arises between the law of the land and the political efforts to ignore its mandates and protect instead those who commit those breaches of basic human rights. The Israel High Court of Justice rendered the prohibition of torture explicit, on September 6, 1999: A reasonable investigation is one free of torture, free of cruel or inhuman treatment towards the interrogee, and free of any degrading treatment. There is a prohibition on the use of “brutal or inhuman means” in the course of an investigation…Human dignity includes also the dignity of the suspect subjected to interrogation…This conclusion s in accord with international treaties—to which Israel is a party—which prohibits the use of torture, of “cruel, inhuman treatment” and of “degrading treatment.” These prohibitions are “absolute.” There are no “exceptions” to them and there is no room for balancing. HCJ 5100/94 Public Committee Against Torture in Israel v. Government of Israel Piskei Din 43(4) 817, para. 23 of President Barak’s ruling

In contrast, however, the attorney general was authorized “to set guidelines” in case interrogators did not abide by the rules, using the “necessity defense,” which was permitted, ostensibly, “to save human life” (Public Committee  Against Torture in Israel 2011: 11). Thus, despite the strongly worded condemnation of

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the High court of Justice, torture continues, and those who practice it are protected by the state itself. Their protection takes various forms, from the classified names of ISA personnel, who cannot be readily identified; to the watering down of the interrogation logs, which say very little about what transpires during interrogations. Finally: the 2002 Israel Security Agency Law firmly anchored these networks of protection. The law ensures that a ISAL employee “shall not bear criminal or civil responsibility for any act or omission performed in good faith and reasonably by him within the scope and in performance of his function.” Public committee against torture in israel 2011: 13; see also article 18 of General Security Service Law 5762-2002

The silence of doctors and other medical personnel at interrogations and various forms of torture, ensures a form of “authorization” for the proceedings, as does the lack of paperwork and proper records, documenting the extent and the source of prisoners’ injuries. In theory, the Israel Medical Association (IMA) states that a doctors “must neither grant medical permission for the carrying out of torture nor provide professional knowledge, instruments or medications for the purpose of torture or interrogation” (Public Committee Against Torture in Israel 2011: 190). But the IMA ethical code includes several clauses that manifest the ongoing conflict between morality and the law on one side, and political expediency on the other, as they speak of “respecting the good of society,” in the case the patient might cause society harm; or of cooperating with the security authorities “in harming the rights of the patient only in cases wherein there is a reasonable certainty that if it does not do so, the patient in question will cause society harm” (Public Committee Against Torture in Israel 2011: 20).

“Abandoned” Victims in Other Countries In April 2004 photographs from Abu Ghraib Prison in Iraq depicting detainees who had undergone torture at the hands of American and British soldiers circulated the world’s media. Subsequently released information began to expose the layers of impunity which protected their tormenters: the silence of those commanders who learned of these acts which served as permission for their persistence; administration guidelines ordering the expansion of permitted interrogation methods;

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and pressure by American society to bring those who had harmed American soldiers to justice. These circles of impunity include doctors who treated the tortured detainees. Public committee against torture in israel 2011: 48

Beyond Abu Ghraib, at Guantanamo Bay, much the same situation still exists today: medical doctors and others were employed by the Department of defense, and they helped to develop the methods of interrogation that were used. Later, the same doctors did not bring to the attention of authorities or the public, the evidence of torture and mistreatment meted out to those detainees: The medical files clearly show that whoever approved torture, did so having been assured of cooperation on the part of medical personnel, both in the planning of methods, and in the turning of a blind eye to their implementation, and to the marks of resulting injuries. Public committee against torture in israel 2011: 48

These facts are pretty much common knowledge today, but the earlier torture cases in the apartheid State of South Africa, are less vivid in the public mind today Dr. Wendy Orr appealed to the South African Supreme Court in 1985, as she demanded the elimination of police methods of torture against detainees in her country (Public Committee Against Torture in Israel 2011: 49). Her experience with hundreds of detainees and the results of their torture and maltreatment was instrumental in giving her the opportunity to be the whistle blower that forced the South African Government to halt its discriminating practices. In 1966 Dr. Orr was appointed by Nelson Mandela to the Truth and reconciliation Commission. Her story is a shining example of the importance of speaking out against such injustice. Examples of doctors complicity in torture also abound in South America, in Argentina, Chile, and Uruguay, and they have been operating to help legitimize the practices originally taught in specialized US schools, as instructions in “counter-insurgence” (Westra 2012a). At any rate, whatever the country deliberately hiding the evidence, the doctors participating in any way, or are complicit in the practices of torture in any state, are doubly guilty. Not only do their actions and the inactions grossly contradict their own basic principles, sworn oath, and the essence of their profession, but above all, they contradict their commitment to the good of the patient above all. In addition, the doctor’s duty to report “is magnified when it comes to prisoners” (Public Committee Against Torture in Israel 2011: 33), as the latter are

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“helpless,” as they cannot complain about what happens to them to any authority. As well, the prisoners should never be returned (after treatment, or a hospital stay) to a jailer, interrogator or—in general to a prison system where their human rights are clearly ignored. The doctors’ silence can only be understood as a form of consent, as even the most limited and incomplete reports document the presence of doctors, as witnesses to the torture. The victims of these terrible crimes are truly “abandoned” by all, not only by their country, the country of their neighbors, and the international community, all of whom are under a clear obligation to respect their basic human rights. It is totally reprehensible that even the professionals who have the sworn duty to defend and protect their human rights betray that trust instead.

Chapter 9

Responsibility to Protect or Obligation to Prevent Whose Responsibility?

Introduction The Santa Clara County decision led to the development of a monster. Corporations have no conscience and feel no pain. They possess superhuman strengths and abilities, allowing them to remain in existence indefinitely, continually growing and exponentially increasing the power and wealth they possess. Like Doctor Frankenstein, the Court and Government are now controlled by the creation which they breathed life into a century ago. Thoennes 2005: 204–205

The time has now come raise an important question basic to our understanding of protest movements. Is there a “case” for collective obligations? It seems that every issue we considered involves large numbers of human beings harmed or exposed to grave risks of harm, including physical attacks individually, but most often to collective harms involving whole communities or even regions, such as the Arctic. The common thread uniting all these harms is that those who benefit from the hazardous activities are legal persons and the natural persons who direct them and decide on the activities to be pursued. Both legal persons and their activities are sanctioned and supported by political alliances and the governments of those nations, whose aim is to expand their power and their sphere of control. Here we encounter the first aspect of the Frankenstein “monster” that is totally unlike the monster of old: that fictional creation was not part of a deliberate political plan, supported by the local bureaucracies and intended to increase the power and control exercised by the government of Britain. Yet today’s counterparts, our “monsters,” are allies and co-conspirators of the countries who want to expand their controlling powers and their economic capacities by various means other than the outright colonization of other countries. These “monsters” have global reach and global power; thus it would seem that any form of legislative restraint that might embody the “collective duty” we all have to protect and respect the rights of all humanity, ought to be international rather than domestic.

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Yet, it must be acknowledged, those instruments, international covenants, declarations and resolutions, do exist and—if not explicit—they are at least such that they could fit a regime of control and restraints, as was noted in each chapter’s discussion of the issues. What does not exist, however, is the political will to eliminate the inappropriate power granted to certain nations and geographical configurations. No UN resolution can withstand the veto of the United States, when a specific form of victimization represents a clear indictment of their own illegal practices or of those of their friends and allies. The UN Declaration of Human Rights (1948) starts with the words “we, the people…” and it should express the will and the rights of all peoples, not only the rights of the people whose defense pleases the hegemonic power and advances its interest. Thus, once again, the most difficult question arises: how can the collectivity express its wishes, let alone discharge its obligations to the victims of so many and varied legal activities? If, as Philippe Sands argues, we live in a “lawless world” (Sands 2006), and if “plunder” (Mattei and Nader 2008) is the main characteristic of globalization, how can even the citizens of so-called democratic countries and of an effectively unresponsive union of nations succeed to impose the controls (on legal persons) they desperately need in order to survive? Before attempting an answer to that question, we’ll attempt to isolate the instruments that might be used to that effect, despite their present weaknesses and failures, after a brief review of the argument of the previous chapters.

The Argument of the Previous Chapters: Victims in a Lawless World

Chapter 6 set out the boundaries of the second part of the second part of this work: the victims to be discussed are not the victims of intimate or sexual violence, or of any other form of violence that is already codified as illegal. The greatest contrast between legally defined victims of crimes and those described in this chapter is the question of both their numbers and of the current attitudes towards them: almost everyone in the world is now suffering or is at the risk of suffering from various forms of environmental harms primarily, but not exclusively from the consequences of climate change. As well, there are multiple hazards as we become, increasingly, a chemical society, and the chemical substances and products we consider indispensable are not checked for safety by an independent source, and the effects of multiple exposures, are not even part of the required tests. I have termed the results of these “regulator” breaches “ecocrimes” (Westra 2004), and I have argued

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that, in contrast, much less damaging gender-related crimes are treated much more seriously, and viewed through the lens of criminal law, not torts and regulatory breaches, as these harms are. Chapter 7 traces the causes of much of the victimization we uncover to one of its clearest origins: the transformation of chartered corporations created for a specific purpose by a state, and only “living” until the purpose commissioned by the state of origin had been completed, into a perennial, powerful and sinister force in society (Thoennes 2005: 210 ff.). The “original sin,” I argue, was the decision to grant personhood to all corporation in the Santa Clara County decision (1886), followed by granting legal persons a series of additional rights under the Fourteenth Amendment of the US Constitution such as the prohibition of depriving corporations of income without due process of law; later, the Fifth Amendment was deemed to protect corporations against double jeopardy (Penn Coal v. Mahon, 260 US 393 [1922]); in 1978, they were allowed freedom of speech and the right to make political contributions (First National Bank of Boston v. Bellotti, 435 US 765 [1978]), followed by the right to commercial speech (International Dairy Food Association v. Amestoy, 92 F. 3rd, 67 [2nd Cir. 1996]; Thoennes 2005: 211–212). This series of decisions intended to render legal persons increasingly as protected as natural persons, thus increasing exponentially their original power, was the main cause of victimization. Without a conscience and without morality or the public good as foundational to their planning and decision-making, the continuing increases in power, coupled with their unending life, allowed the accumulation of riches, and resulted in the multiple harms to natural persons, who fall victim to their activities. Chapter 8 returns to the activities of States, both as separate legal entities, and as accomplices of corporate bodies. Beyond financial capacities, states also control the use of force, and are able to wage war and to initiate and support conflicts of all kinds. States’ governments do, however, have as a primary goal, the protection of their citizens, the constituents who presumably voted them into power. Often though, the pursuit of the states’ own interests, including enlarging their sphere of influence, emerges as the principal goal of states beyond the protection and defense of their citizens. Many states now do not even obey the laws they have accepted or promulgated: in these cases the rules of war are perverted, or simply ignored, as states pursue their goals ignoring all principles of justice, natural law, and morality. Their victims include all the victims of the so-called “war on terror,” of drone attacks, and illegal imprisonments and torture. A seldom noted aspect of this corporate/state interaction is the presence of overt or hidden racism that is present in each and every instance of corporate planning and development. Discrimination and racism are forbidden by

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­ on-derogable norms of international law and domestic constitutions, yet n most often legal persons successfully by-pass such prohibitions by claiming to ­simply follow economic imperatives in their choices (Bullard 2001). At this point we have shown the impact of state-sanctioned and or permitted activities perpetrated by legal persons, which include attacks on life, health, resources, cultural and religious rights, and the rights of equality and respect for human dignity. In the next section we will discuss what legal instruments, if any might be used to counter these attacks, and whether there are any other forms of counter-attack that global society might attempt in its own defense.

Legal Redress for Victims? The impetuous development and propagation in the international community of human rights doctrines…has brought about significant changes in international law, notably in the approach to problems besetting the world community. Thus [a] State-sovereignty-oriented has been gradually supplanted by a human-being-oriented approach. Gradually the maxim of Roman law hominum causa omne jus costitutum est (all law is created for the benefit of human beings) has gained a firm foothold in the international community as well. Tadic Decision on Interlocutor Appeal, ICTY at 97; cassese 2005: 404

Antonio Cassese simply asserts, with the support of recent jurisprudence, that the international community is governed by “the new law,” increasingly favorable to human individuals, especially in conflict situations. And to some extent, he is correct. The “new law” opens the door to the rights of natural persons in humanitarian law, this led also to the legalization of several new categories of combatants, allowing “partisans” and those fighting in wars of national liberation to be considered combatants. In contrast, to restrict legally recognized combatants to regular armies, was in the interest of Great Powers, but, at least on paper, that stance on some issues was relaxed; but the much-touted category of “unlawful combatants” (viewed as “unprivileged” regarding the rights of prisoners of war) is now considered flawed, as it is still contrary to international humanitarian law (Cassese 2005: 404–405). At any rate the “new law” has not helped victims beyond those of war time, and even there, as noted throughout, it is not fully observed. In domestic law, at least in the ambit of sexual crimes, criminal law proposes several stringent approaches to what constitutes an illegal act. However, turning to criminal law,

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even in order to benefit from the clear analogy to other victims of harm in that area, is a double edged sword. On one hand, gender law is far more inclusive and sensitive to the effects of the act, even beyond the intent of the perpetrator. On the other, rather than the “balance of probabilities” required by tort law and regulatory offences, criminal law requires that the perpetrator be found guilty “beyond a reasonable doubt,” a much harder standard of proof to be met in the courts. But perhaps the advantage of proposing an analogy to gender-related crimes, may be the hope to include the victims of attacks committed by legal person to be considered from the start, that is, to be considered such in the legislation, rather than waiting for the possible cases to be tried, in order to grant them justice. The wider reach of sexual crimes, beyond the actual physical harm in rapes and assaults, all the way to sexual harassment, lends hope to a possible parallel reforming of the law to admit a wider range of corporate harms. For instance, in the case of the tobacco industry, their right to “commercial speech” has been curtailed, as those legal persons are now forced to display the effects of the harms they foster, right on the package of their product. It would be highly desirable if the World Health Organization were to help produce a parallel convention regarding harmful chemicals, with similar provisions and effects. Canadian criminal law has adopted some of the language of conspiracy and it even condemns specific institutional attitudes regarding corporate activities, but so far, that particular section of the criminal code has never been used in a judgment. Yet the Nuremberg principles remain decisive and uncontested, so that a re-examination of the intent, beyond the letter of the law, might offer some hope for the mitigation of the activities that result in victimization. Glenn Greenwald asks: “who are the victims of civil liberties, assaults and endless war?” (Greenwald 2012b). Greenwald describes the current situation as governed by “Policies aimed at marginalized, easily demonizable minorities…Who are much easier to shield from political challenge” (Greenwald 2012b). He cites the Washington Post of January 15, 2012, where law professor Jonathan Turley lists “ten powers” that represent “ongoing assaults on core civil liberties” and, after 9/11 have been adopted by the Bush and Obama administrations. They are: Assassination of US citizens; indefinite detention; arbitrary justice; warrantless searches; secret evidence; war crimes; secret court; immunity from judicial review; continual monitoring of citizens; and extraordinary renditions. Greenwald 2012b

These, the author argues, are the “hallmark of tyranny” and they put seriously into question American democracy. This list straddles the topic of the previous

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chapter, and that of the present chapter as it describes grave breaches of humanitarian law, but also serious civil rights violations, and it focused on racial and ethnic minorities’ harms, especially Muslims’. By the same token, another law professor terms the murder of Iranian scientists, “acts of terrorism” (Greenwald 2012b). Thus the respect for other races, religions and ethnicities, is lost, but could be re-instated and enforced. In fact all of the presently unenforced and unused conventions and laws could be revived. If the results of ongoing activities, that is legal harms were to be halted. But it is hard to be encouraged by present results, which tend to move in the opposite directions, that is, to more lawlessness. In the next sections, we will consider instead a legal regime that might be useful, that is the responsibility to protect.

Responsibility to Protect for Collective Obligations At the 2005 World Summit, the United Nations General Assembly unambiguously recognized a collective international responsibility to protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity, each state has the responsibility to protect their populations form these four egregious crimes and the international community, through the United Nations, also, has the responsibility to protect the same populations. Barbour and gorlick 2008: 1

The raison d’être of responsibility to protect (R2P) and its program of action appears ideally suited to fulfill the obligations that the “case” built over these chapters has proposed. R2P is based on the commitment to human rights and on the belief that States still have serious responsibilities in that regard, despite the difficulties added by the presence of international trade organizations and geopolitical alliances. Even more significant, R2P recognizes our common ­obligation to humanity to step in and act when a state does not meet that obligation. The main focus of R2P is clearly on conflict situations, but some of the aspects of its mandate include protection against the crime of ethnic cleansing, and in general, crimes against humanity, both of which can be perpetrated in peacetime by states, and with the collaboration of corporate actors. A case in point may be that of Presbyterian Church of Sudan, Rev. John Gaduel and others v. Talisman Energy Inc. (244 F. Supp. 2d 289 [SDNY 2003]), where the government of Sudan at the time actively cooperated with Talisman to advance

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their joint goals: the ethnic cleansing of the area around the location of the proposed oil extraction operation Talisman had planned. In exchange for the armed forces’ help, Talisman undertook to build roads to the area, a place to land airplanes, and to help the government to help move the Indigenous (Nuer) peoples as well as the Christians from the area, so that the Islamist government of the North could achieve their goal to impose Sharia law in the South of the country. That is why the broadened understanding of R2P proposed by Barbour and Gorlick reaches well beyond the expected military interventions: There may be no easier way for the international community to meet its responsibility to protect than by providing asylum and other international protection on adequate terms. Barbour and gorlick 2008: 1

Thus the authors propose providing help “through a broad spectrum of preventive, responsive and rehabilitative measures that have yet to be identified” (Barbour and Gorlick 2008: 3), citing a report by the International Commission on Intervention and State Sovereignty (ICISS 2001). The main thrust of ICISS is the protection of potential victims, thus, despite its possible characterization as nothing but a vehicle for military intervention, R2P represents the best legal candidate for an instrument to redress victimization. Its aims bear the hallmark of “new law” as they give primacy to the human individual, and they recognize the limits of state sovereignty and their exercise of “legitimate power”: It has taken the world an insanely long time centuries in fact, to come to terms with the idea that state sovereignty is not a license to kill—that there is something fundamentally and intolerably wrong about states murdering or forcibly displacing large numbers of their own citizens, or standing by when others do so. Evans 2007, cited by Barbour and gorlick 2008: 5

The whole ICISS document’s original concept, in fact, proposes shifting the emphasis form States to victim protection. After the emergence of that document in 2001, in 2004 the High Level Panel on Threats, Challenges and Change prepared a report titled A More Secure World: Our Shared Responsibilities (delivered to the General Assembly, UN Doc. A/59/565, December 2, 2004). It is worth noting that, regarding the crimes listed as the primary responsibility to states, their prevention is included among those responsibilities, and that

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“appropriate diplomatic, humanitarian and other peaceful means” are names as ways of discharging that responsibility (Barbour and Gorlick 2008: 540).

Sovereignty as Responsibility? 2.14 The Charter of the UN is itself an example of an international obligation voluntarily accepted by member states…On the other hand, the state itself, in signing the charter, accepts the responsibilities of membership flowing from the signature. There is no transfer or dilution of state sovereignty. But there is a necessary re-characterization involved: from sovereignty as control to sovereignty as responsibility in both internal functions and external duties. ICISS 2001: 13

This passage indicates the dilemma faced by the United Nations because of the  two senses of sovereignty, as well as the same dichotomy present in its mandate. Sovereignty refers to the “territorial integrity, political independence” and the national status of member states in the interest of the maintenance “of peace and security” (ICISS 2001: 13). At the same time, the UN, with its increasing number of instruments addressing human rights concerns, also has “the compelling mission to promote the interests and welfare of peoples within those states (“We the peoples of the United Nations”)” (ICISS 2001: 13). Thus the clear responsibility of the United Nations to the protection of individuals and peoples cannot only be filtered indirectly through states, but must also be seen as a direct responsibility to humankind itself. Similarly, the direct reference to peoples’ “welfare” cannot simply be the limited protection in times of outright conflicts, as “welfare” is a complex concept which includes physical protection in all its aspects. The ICISS document acknowledges this complexity as it discusses the “threefold significance” of sovereignty as responsibility: 2.15…First, it implies that the state authorities are responsible for the functions of protecting the safety and lives of citizens and promotion of their welfare. Secondly, it suggests that the national political authorities are responsible to the citizens internally and to the international community through the UN. And thirdly, it means that he agents of state are responsible for their actions; that is to say, they are accountable for their acts of commission and omission. ICISS 2001: 13

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At this time, as our focus is structural violence, it is the first implication that is most relevant: the protection of the “safety and lives” of citizens, which, we note, is not further specified by the addition of, say, “in times of war or other conflict.” Hence, it would seem reasonable that, even as from any explicit recognition of the sort of threats to “life” and “safety” that are meant, such possibilities as extreme weather events or exposures related to the wide reach of globalized industrial activities could be included: 2.19 Just as the substance of human rights law is coming increasingly closer to realizing the notion of universal justice—justice without borders—so too is the process. ICISS 2001: 14

The rest of the language of the section on human rights, with its emphasis on special international tribunals, seems to focus once in on conflict situations, although the sections on “human security” acknowledges the broadened scope of the notion: 2.21….Human security means the security of people—their physical security, their economic and social wellbeing, respect for their dignity and worth as human beings and the protection of their human rights and fundamental freedoms… 2.22…the security of people through human development with access to food and employment, and the environmental security. ICISS 2001: 15

As well, Section 2.23 of the same document refers to “security” as understood in the sense of security in conflict situations as “narrow” and such that it “eaves out the most elementary and legitimate concerns of ordinary people.” In addition, the traditional sense of the concept inspires states to direct “enormous amounts of national wealth and human resources into armaments and armed forces while countries fail to protect their citizens from chronic insecurities, hunger, disease, inadequate shelter, crime, unemployment, social conflict and environmental hazard” (ICISS 2001: 15). Thus, the responsibility to protect emerges from its founding document as a notion both flexible and progressive, such that it might be used to fill the critical gap existing between legal instruments and the grave situations confronting the legal community. Not yet a “new principle of customary international law,” it could be viewed as an “emerging guiding principle,” perhaps in the same way as the precautionary principle eventually found its way into acceptance into the regimes of international law.

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We note the difficulties present in acknowledging harmful effects of any substance/environmental exposure to public health in Chapter 2. But the whole language of ICISS and its intent may well be used in defense of basic, non-derogable human rights.

Responsibility to Protect: Downward Spiral or Best Hope for Victims? The United States and United Kingdom eventually justified the war in Iraq as a “Humanitarian undertaking.” Finding no evidence of weapons of mass destruction (WMDs) or links to al-Qaeda, their rationale morphed to humanitarianism and overthrowing a brutal regime, with London in particular, invoking “the responsibility to protect” Iraqi populations form Saddam Hussein’s tyranny. Badescu and weiss 2010: 354

Although we have treated R2P as the best hope to redress victimization among existing international instruments, we cannot ignore the immense potential for harm from a new and developing concept. Its openness and lack of precision represents, at the same time, potential for misuse serving the very same hegemonic interests that have fostered the victimization we have described. In the sixty-plus years since the 1948 Declaration of Human Rights many new and complementary instruments have been introduced, which in principle, should be useful for our purpose.1 But R2P recognizes positive obligation inherent in the concept of sovereignty coupled with corresponding obligations for the international community. By the same token, the instrument could and did result in abuses, and it is not the only UN sanctioned organization to follow that path. 1 For example: The International Covenant on Civil and Political Rights; The International Covenant on Economic, Social and Cultural Rights; The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; The Convention Relating to the Status of Refugees; The International Convention on the Elimination of All Forms of Racial Discrimination; The Convention on the Elimination of All Forms of Discrimination Against Women; The Convention on the Rights of the Child; The Statute of the International Criminal Tribunal for the Former Yugoslavia; The Rome Statute of the International Criminal Court; The Convention for the Protection of Human Rights and Fundamental Freedoms; The African Commission on Human and Peoples’ Rights; Inter-American Commission on Human Rights; Inter-American Court of Human Rights.

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It is enough to consider the Security Council Resolutions, and the difference between their effect in cases considered to be in the interest of the US, and, in contrast, those that are not. Anything that the UN has declared and written indicting Israel’s war crimes, crimes against humanity and the like, over the years, starting with the ongoing colonization of Palestine and the construction of the wall has not triggered any action against that country, not even possible sanctions (Westra 2012a). That lack of results or follow-up may be compared with the quick action authorizing R2P for the intervention in Libya, instead one of the countries of the so-called Arab Spring, but one which, unlike Palestine, is an oil producer (Westra 2012a). Thus some view R2P as nothing but a system of whitewashing the West’s imperial projects, intended to misdirect civil society while, at the same time, continuing the unfair and unbalanced political systems that originate much of the victimization we have outlined in these pages. In contrast, others see its potential for novel solutions and approaches, ­particularly because this “umbrella concept” includes, as noted, prevention, response and rehabilitation, unlike any other existing instrument (Barbour and Gorlick 2008). From the point of view of health and environmental exposures, the most important category is that of prevention, because most of the victims of those harms cannot recover once they have been exposed or suffer an assault. A particularly sad example is the fact that pre-birth exposures to certain chemicals result in a lesser brain capacity for the newborn than she might have had without that exposure. That effect cannot be reversed in later years (Grandjean and Landrigan 2006). Another example, involving refugees, can be seen in the case of Bancoult v. McNamara, which I mentioned in Chapter 4: The plaintiffs in this case are persons indigenous to Chagos their survivors or direct descendants…they bring this action against the United States and various current and former officials of State and the department of Defence (“the individual defendants”), for forced relocation, torture, racial discrimination, cruel, inhuman and degrading treatment, genocide, intentional infliction of emotional distress, negligence and trespass. As noted earlier, in the late 1960s and early 1970s, the whole Chagos population was moved to Mauritius and Seychelles, to allow a US military facility to settle in their space. The original inhabitants were not allowed to return (Grandjean and Landrigan 2006: 22), and were offered no compensation to help ease their transition into a new environment and the loss of their homes.

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Those who had not left had to suffer from being forced on “overcrowded ships for Peros Banhos and Salonen, from whence they eventually were taken to Mauritius and Seychelles” (Grandjean and Landrigan 2006: 22–23). The US Congress went ahead with the construction of a military basis on Diego Garcia island, despite hearings where multiple human rights violations were detailed, from the lack of relocation assistance, to harsh removal conditions that cause injuries to the survivors, including miscarriages, and eventual living conditions that include still poverty, unemployment and other deprivations (Grandjean and Landrigan 2006: 33). Before the judgment proper could be decided, the “individual defendants” all claimed that they had been obeying superior order, based on “the statutory immunity granted to the Federal Officers under the Federal Employee liability Reform and Tort Compensation Act” (Federal Employees Liability Reform and Tort Compensation Act of 1988: 2671–2680). Peter Sand terms the case an example of a “legal black hole” (Sand 2009b: 113–137) despite the subsequent “victory” of the Chagossians in London: On 3 November 2000, the Divisional Court (Laws LJ and Gibbs, J) gave judgment in favour of Mr. Bancoult. They decided that a power to legislate for the peace, order and good government of the territory, did not include a power to expel all the inhabitants.

R. (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs [2007] QB 1067

Yet even this belated success could do little to remedy the pain, humiliation and deprivation suffered by the Chagossians, and the loss of their land and way of life. “Compensation,” in this case like in that of diminished brain function, even if available, would be a partial and incomplete redress for the victims. In 2007 Ban Ki-moon appointed Francis Deng (Sudan) as a “new Special Advisor on the Responsibility to Protect” (Barbour and Gorlick 2008: 19). Together with other individuals and agencies, he was charged with developing “a repertoire of measures” (Barbour and Gorlick 2008: 19) to help fulfill the mandate of R2P, emphasizing the collective responsibility the concept demands. Yet Ban Ki-moon himself explicitly limited the potential reach of R2P: Its scope is narrow, focused solely on the crimes and violations agreed by  the world leaders in 2005. Extending the principles to cover other calamities, such as HIV/AIDS, climate change or response to natural disasters, would undermine the 2005 consensus and stretch the concept beyond recognition or operational utility. Ban ki-moon 2008

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This assessment of the document’s potential is not favorable to the interpretation proposed here, but the primary responsibility to prevent, should entail that States should have the responsibility “to protect their own citizens from  avoidable catastrophes” (ICISS 2001: viii). The ample scientific evidence  regarding the results of chemical exposures, as well as the obvious effects of depriving communities of their own resources, as well as the clear knowledge now existing on the causes of climate change and the role of energy corporations in that regard, ought to make many of the catastrophic circumstance described in the previous chapter clear enough to demand avoidance of whatever causes or will cause those effects. In that case, the victimization that follows ought to place those causes within the reach of R2P measures. Sovereignty must be conceptualized as “responsibility” (Deng and Cohen 1998: 275–280), especially in the cases of asylum seekers, refugees and internationally displaced persons. International human rights law should apply to all who “lack food, shelter, and physical and legal security” (Weiss 2007: 89), and the circumstances and activities that produce those conditions are not hard to predict and anticipate. A clear example of the ambiguity of the R2P initiative, lies in the escalating conflicting Syria, in early 2012, between US-backed Syrian “rebels” forces the regime of President Bashar al-Assad (Lantier 2012). One would need an in depth analysis of the political background of Middle East states, from an expert in Middle East politics and history, to attempt anything but a superficial opinion on the situation. Yet, some familiarity with the recent use and abuse of R2P in other similar situations, and its selective application depending on the specific target for intervention, renders the Counter Currents discussion of the situation highly credible. Lantier remarks: Clinton’s pose of outrage is a contemptible ploy. Its aim is to seize upon reports of fighting between the army and “rebel” forces to justify what would be an even bloodier, US-led intervention in Syria along the lines of last year’s NATO war in Libya.…It is possible to advocate such a policy only by engaging in the most shameless lying. On the one hand, US officials claim to be considering only “humanitarian” assistance for the Syrian people, while on the other they fan the flames of war—militarily backing a right-wing, Islamist-led insurgency. Their goal is the colonial re-subjugation of Syria, either by direct military conquest or by fomenting a palace coup by members of the regime who fear the loss of Russian and Chinese support. Lantier 2012

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In conclusion, R2P offers hope of redress for victims. But its very lack of precision and clarity may also be counterproductive, in the ongoing world political situation. Like many other UN initiatives for good, its potential cannot be fulfilled without first ensuring a level playing field (Westra 2011a). That is, as long as both the interpretation of its possible range of meanings and its implementation depend on the good will of the US, the full potential of R2P will not be actualized.

The “Crime of Silence” and the Activities of the Russell Tribunal on Palestine “May this Tribunal prevent the crime of silence” declared Lord Bertrand Russell to define the spirit and objective of the International War Crimes Tribunal constituted in 1966 to investigate crimes committed in Vietnam and judge them according to international law. RTop 2013

The Russell Tribunal on Palestine (RToP) can be considered the legal counterpart of the Occupy and other social movements: unfortunately it has no legal status, but its mandate is to uphold and proclaim law and principles: it is a “tribunal of conscience…faced with injustices and violation of international law that are dealt with by international jurisdictions, or that are recognized but continue with complete impunity due to a lack of political will of the international community” (RToP 2013). Like the people who comprise the social movements discussed in Part I, the Russell Tribunal has no formal authority, but its real authority derives from its recognition of the principles of international law, and the acknowledgement of the ongoing grave violations of that law. Unlike the SC and NATO, the controlling forces of the R2P, this tribunal stands up for the rule of law, as we will briefly sum up its activities regarding Israel’s occupation of Palestine to demonstrate their position. In 2010, the second international session of the RToP (London, November 20–22) started its work with a jury intended to examine the following cases: • C  orporations providing tangible services and infrastructure that support illegal Israeli settlements and the occupation of Palestinian territory in the West Bank, Gaza and East Jerusalem. • Foreign banks and other financial institutions providing financial services to illegal settlements and Israeli banks etc. trading abroad who provide financial services to illegal settlements.

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• F oreign companies that manufacture products inside the settlements and industrial zones in the West Bank and Israeli companies that export agricultural and other products from the settlements and industrial zones in the West Bank, • Foreign companies involved in the export of arms and the infrastructure of war, occupation, colonisation and repression in the Occupied Palestinian Territories and Israeli companies that export arms and repressive hardware/knowledge abroad. RToP 2010

The Tribunal established the responsibility of corporations under international law, and those obligations were contrasted with the real activities of MNCs instead. The counterpart of this examination, is the Divestment Movement, which urges all those who either hold stocks in any of the complicit corporations to divest, or to ask their own banks or pensions to do so. The third session of the RToP met in Cape Town (SA) November 5–7, 2011: The questions submitted to the RToP by the International Organising Committee at the Cape Town session is whether Israel’s policy and certain practices affecting the Palestinian population residing in Israeli territory and in the Palestinian territories occupied by Israel: 1. amount to a breach of international legal prohibition of apartheid? 2. constitute persecution as a crime against humanity? RToP 2011

Unlike the international instruments defining the responsibility of the corporation, which are primarily exhortative and voluntary, the obligations of states are defined by international legal treated, and, in addition, by jus cogens norms leading to erga omnes obligations such as the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD, 1965), Article 3 states: State Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction. In 1973 the Apartheid Convention was adopted, following an earlier UN General Assembly Resolution, declaring apartheid a crime against humanity; Israel voted with the majority in favor of that resolution. Apartheid has been defined as follows:

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5.3 Apartheid is the Afrikaans word for ‘separateness’ or ‘separate development’ that was used to designate the official state policy of racial discrimination implemented in South Africa between 1948 and 1994. Indeed, ‘apartheid’ came to be prohibited by international law because of the experience of apartheid in southern Africa, which had its own unique attributes. However, the legal definition of apartheid applies to any situation anywhere in the world where the following three core elements exist: (i) that two distinct racial groups can be identified; (ii) that ‘inhuman acts’ are committed against the subordinate group; and (iii) that such acts are committed systematically in the context of an institutionalised regime of domination by one group over the other. RToP 2011

In addition, Article 2 of the Apartheid Convention issued the following definition: inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial groups persons, systemically oppressing them. RToP 2011

A similar definition can also be found in Article 7(2) (j) of the Rome Statute, but both Israel and the US are not signatories. In contrast ICERD details a non-derogable state obligation. Even a cursory review of the reality of Israel’s treatment of the Palestinians confirms that their practices and policies can and must be defined as “a systematic and institutionalized regime of racial domination” (RToP 2011). Hence these practices and policies demonstrate clearly the presence of a form of structural violence that is strongly proscribed in international law, including the legal instruments that Israel has ratified, although the erga omnes status of that proscription makes their ratification unnecessary to ensure the binding character of the laws at issue. Another illegal aspect of the treatment of Palestinians falls under the heading of “Persecution,” according to the ILC Draft Code of Crimes against Peace and Security of Mankind (Article 18c). The constitutive elements of persecution include: • a material element (actus reus): a violation of fundamental rights and freedoms connected to one of the crimes provided for in Art. 7(1) of the ICC Statute; the material element is not limited to violence directed against the victim’s body, it also includes damage to property;

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• a general mental element (mens rea or dolus generalis): the perpetrator has intent to engage in a conduct which is in connection with a violation of fundamental rights and freedoms; • a specific mental element (dolus specialis): the conduct is directed against a group on political, racial, national, ethnic, cultural, religious or gender grounds; • a contextual element: the conduct is committed as part of a widespread or systematic attack directed against a civilian population; the word “attack” is not limited to a classic military action committed in the context of an armed conflict; it also includes multiple violations of human rights directed against a civilian population. RToP 2011

As well, it includes clearly the “Siege of the Gaza Strip and Operation Cast Lead” (December 2008 to January 2009). The fourth session of the Tribunal took place in New York (October 6–7, 2012), and it …focused on the responsibility of the United States of America (US) and the United Nations (UN) regarding the Israeli breaches of international law toward Palestine and Palestinians. There is now a situation in which Israel has achieved a status of immunity and impunity, facilitated by the US, despite its complete disregard for the norms and standards of international law. RToP 2012

It is undeniable that Israel could not survive with its regime’s extreme exceptionalism, completely isolated from the international community, without the blind support of the US. Starting with the UN’s “Advisory Opinion on the Illegal Consequences of the Construction of a Wall in the Occupied Palestinian Territory” (CJ Decisions on the Wall), the following are some of the violations of international law: • V  iolation of the right of the Palestinian people to self-determination as codified in Res. 1514 (XV) and 2625 (XXV), and recognized by the ICJ in its decision on the Wall; • Violation of customary law, human rights norms (A/RES/194/III, § 11 and customary IHL as codified by the ICRC in 2005, Rule 132, International Covenant on Civil and Political Rights Art. 12(2)) by prohibiting the return of Palestinian refugees to their homes;

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• V  iolation of the Security Council (UNSC) Resolutions requiring Israel to withdraw from the Occupied Territory (87 resolutions to this day) and the UN Charter which obliges the Member States to “carry out the decisions of the Security Council” (Art. 25). • Violation of “[…] the principle of the inadmissibility of the acquisition of territory by war” (UNSC Res. 242), as well as the Security Council Resolutions condemning the annexation of Jerusalem. The Tribunal notes that the Occupied Palestinian Territory refers to the West Bank, including East Jerusalem, as well as the Gaza Strip since Israel’s 2005 withdrawal did not end the occupation of the 360 squaremile territory. This appears from the fact that Israel still maintains effective control, per Article 42 of the Hague Regulation, of all air and maritime spaces of the Gaza Strip, as well as control along the land border and inside the Gaza Strip, a 300 m wide buffer zone (600 and 1500 m wide in some places) which is a no-go zone depriving Gaza of 35 % of its cultivable areas; • Violation of the Palestinian people’s right to their natural resources and wealth through the Israeli use of Palestinian agricultural land, the exploitation of Palestinian water reserves and preventing Palestinian access to more than 10% of their safe drinking water reserves (A/RES/64/292); • Violation of international humanitarian law prohibiting. RToP 2012

In addition, “the establishment of Israel’s settlements (4th Geneva Convention (GC), Art. 49 and 147), the expulsion of Palestinians from their territory,” and  “the collective punishment of the Palestinian population of Gaza, where the World Health Organization reports that life will not be sustainable by the year 2020 (Art. 33 GC),” are only part of the countless illegalities practiced by Israel, but only possible with the full support and of the US which, therefore, according to the Nuremberg principles, is complicit in their crimes. Their complicity includes economic aid, diplomatic support, and military aid; Israel receives 60% of the US Foreign Military Financing (RToP 2012). The Russell Tribunal noted clearly that not only the US had and still has the obligation to remedy (rather than support) all the ongoing breaches of international law, but the UN’s responsibility is equally as grave. The UN Charter states that the UN’s purpose is “to maintain peace and security,” “respect for the principle of equal rights and self-determination of peoples,” and “to promote… respect for human rights…for all” (Art. 1; RToP 2012).

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The ICJ’s Advisory Opinion on the Wall underlines many of the failures of the UN to stand firm on the grave “violations of international law (including war crimes, the crime of Apartheid, genocide),” thus the UN itself violates its own basic principles and international law, hence, Until the United Nations and its Member States move seriously to implement their obligations, it will be left to human rights and other organizations of global civil society to hold Israel so accountable. (RToP 2012; emphasis added) The Russell Tribunal proposes several steps to move forward in this unacceptable situation. They include UN reforms (Westra 2011a), a topic which is not appropriate for the present work. In contrast the role of “organizations of global civil society” upon whom is vested the responsibility to fight to correct the status quo, is precisely the conclusion of this volume.

The Responsibility of Global Civil Society Article 1. Everyone has the right, individually and in association with others to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels. Declaration on the Right and responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, adopted by the General Assembly, Resolution 53/144 of December 9, 1998.

The first part of this work showed (1) the motivations of global, transnational citizens for replacing their unquestioning patriotism, and commitment to their own country of origin, with the allegiance to other causes and issues, present in a number of global movements and organizations; and (2) the fact that these social movements not only responded to the deep need of disenchanted citizens, attempting to find once again principles and values worthy of their commitment, but also, by representing the only possible source of such principles both legal and moral, those who participate actively in these ­movements represent, for the most part, the law against the repressive forces of the state. As most Western “democracies,” starting with the US and its satellites, have abandoned the principles upon which they originally stood, in favor of policies

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based on exceptionalism and on the interests of corporate individuals and associations, global social movements and organizations now represent the final bastion in defense of the law. Hence, those who protest, even forcefully, against the status quo, should not encounter repression on the part of “legal” forces, as they do at present. We argued, global citizens have a right to demonstrate and protest first, on democratic grounds, as the countries that house most of the protests still continue to view themselves as democracies, at least formally, if not in practice. Second, because of those “democracies” attack both their own citizens and others globally, through their practices and policies, inflicting both physical harms and the deprivation of civil and political rights, hence global citizens appear to also have the right to self-defense, singly and collectively. This second aspect of the situation facing transnational citizens, was emphasized in the second part of this work. First we sketched a definition of victims of structural violence, then we offered two examples of the major aspects of that violence: corporate control and militarism, both based on US exceptionalism. Those who are under attack, the victims of violence, have the right to defend themselves, a basic principle of both law and morality, and this right becomes even stronger as they the victims of powers that are totally beyond their control, and who simply proceed without restraint to seek their own interests, with total immunity. We now need to add a further point: citizens, in order to be worthy of that name, since antiquity (especially since Aristotle), not only have the right to be heard and to work for the interests of their fellow citizens and their polity, but they also share an obligation to do so (Westra 2010b: 8–25). Hence, although states have abandoned their legal and moral obligations, transnational global citizens must take on that burden in their place. The problems they face are multiple, and the gravest difficulties are (a) the criminalization of dissent, and (b) the exceptionalism and immunity applied to the worst offenders, which includes both corporations and rogue states, such as Israel, as discussed in the previous section. The victimization on a grand scale we have discussed should be susceptible to legal redress. Many international legal instruments which would be appropriate to correct a global problem of this magnitude, are not specific enough, or have been written long before the harms described came to be fully understood by science, or are simply ignored by states powerful enough not to fear  retribution, or their very meaning is denied and ignored by the same Great Powers. R2P, in contrast, appears to be novel enough, yet still such that it could be considered a serious hope for the future, as it could prescribe both defensive

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and protective actions. This very limited conclusion seems to define the best possible avenues available for protection that is intended to be “top down,” representing the best available command and control option on which victims might be able to count. Of course neoliberalism is not the only geopolitical approach to world governance today. Socialist beliefs are also widespread and welcome in many parts of the world, if not openly accepted (as they are not in the US). An in-depth analysis of political theory is beyond the scope of this work. But normative principles like justice, equity, equality of all persons based on individual human dignity appear to be the common basis and language accepted by most political theories today. It is remarkable that even such irreconcilable positions as socialism and neoliberalism may share some common philosophical and theoretical goals (Smith 2007: 25–42). What is even more remarkable is Tony Smith’s analysis of “new growth theory” as instrumental to the achievement of those goals: global capitalism provides access to material preconditions for human flourishing and autonomy, only when a fairly extensive institutional background is in place. In specific governments throughout the globe need to institute effective technology policies. Smith 2007: 28

He adds that “state spending must shift from unproductive military expenditures to educational and health programmes,” as he also acknowledges that “domestic policies…may not be sufficient” (Smith 2007: 28). What becomes evident, is that he simply does not recognize that: • A  ny form of “growth” that is not intellectual or moral is obsolete, given the present situation and the already extreme Western ecological footprint and the dire environmental conditions that preclude any material-based growth. • Changes in present government, including research and development investments and directions, appear highly unlikely. • Even the drastic changes proposed away from military spending are far from achievable. All these changes depend on radical changes in the present entrenched forms of governance, so that only a major upheaval might help. How such changes might be brought to pass is not discussed in Smith’s article, any more than his proposed goal, that corporations should operate at “the

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scientific-technological frontier,” in order to help them to “employ the domestic work force” (Smith 2007: 28). The very project of increased employment, even under better conditions relies on an unsustainable material base, rather than on service or other nonresource intensive work. Thus, unfortunately, even the enterprise of “new growth” proposed by a socialist theorist, is mired in many of the same difficulties that we have described as arising from the neoliberal project instead. Governments are uninterested in either the theory or the practice of human rights, because the corporate base they depend upon is not. Neither governments (for the most part, with some notable north European exceptions) nor corporations have any understanding of the severity of the ecological situation today, and of the unmovable limits it imposes on any form of government that, like most, is not prepared to acknowledge and accept those limits, and is willing to prepare for drastic change to work within them. Either approach to governance is part of an enterprise that, despite the lip-service it pays to justice and respect for human dignity is and remains the source of the victimization we have described in these chapters. Thus, whatever our preferred political stance, given the paucity of available options today, the question remains: how can we hope to fulfill our collective obligations and find ways to redress the ills so many are suffering, when no existing or anticipated form of governance is prepared to respond to the present injustice. The fact that a situation such as the present widespread and tolerated illegality exists is sufficient to point to the grave difficulties that will, even at best, attend upon the actualization of such hopes. Individual rights are on everyone’s minds, but the corresponding obligations appear hard to actualize, while even in the countries that were considered the cradle of democracy, some are now speaking of democracy’s demise: democracy itself then has become the victim of the same powerful interests that affect other human victims. To repeat, the main question appears to be: what can we do on our own, if anything, when all our safety nets have been stripped away?

The “Criminalization of Dissent” By framing the issue of injustice in a new way with the slogan “99%” the movement had tapped into a wide and deep alienation and anger over the inequalities, injustice and corruption of the current economic and political system. Collins 2011

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Since peaceful legal avenues are blocked, the only way forward that seems to emerge is to rebel and protest, as dissent is the right of citizens in democratic countries in fact peaceful dissent is one of the duties of citizenship (D’Arcus 2004: 355–370). For instance dissent was basic to the evolution of African American rights in the US starting with peaceful and not so peaceful dissent in the 1960s. The transformation of civil societies in Eastern Europe, in the postcommunist era was foundational and an expression of “socialist legality” (Priban 2005: 556). Recently, starting with the events of the Arab Spring in 2012 and its terrible though inspiring examples of self-immolation, protests based on forceful resistance, captured the attention first of the media, then of the world itself. Beyond Arab countries and their brave revolts against exploitive tyrants, many other European countries also had to face forceful and loud resistance from the aforementioned indignados of Spain, the indignati of Italy, and many others in Greece, England, and beyond. In all those countries united in protests intended to demonstrate that injustice and inequality would no longer be accepted in silence and simply tolerated. In all cases it was economic and corporate power that was (and is) the main target of anger. Yet neither the oppressed people of the Arab Spring, nor the various versions of the indignati of Europe, represented fully original movements. In some sense the Lords of Davos already knew those forceful protests and that anger well. From Seattle to Quebec, from Geneva to Toronto, and in many other places, G8 and G20 meetings have been provoking anger and resistance for years. In all those cases, economic and corporate power, as well as their relation to governance, were the source of an anger so profound that, increasingly, riot squads and endless police and army forces were needed to control it. Perhaps there is a global commonality that unites all these disparate movements, with their different ethnicities, situations, religious beliefs and geographical locations: it is the focus of the anger of each of these protests. It is the injustice of unequal treatment, poor living conditions, unquestioned economic power, with no redress for the oppressed, those without work, even without hope: the victims. These protesters appear to discharge their collective obligations, at least to yell loud and clear to pinpoint the cause of all the harms they have suffered. Even if they demonstrate for themselves and for their families, perhaps for the communities, still, because the sources of the problem are so intimately connected, in the final analysis they are fighting for the collective.

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Perhaps not all of us can be in the “trenches” and the tents, or stand in front of the police brutality facing every form of resistance, from Egypt to New York. But even those who are not strong enough, free enough, or young enough to meet their obligation in that way, the obligation to state clearly our dissent remains. Acquiescence and silence have been viewed as culpable by such disparate thinkers as Thomas Aquinas, Martin Luther King Jr., and Thomas Jefferson. Dissent itself has become even more difficult today, than it was when those thinkers declared it to represent our common duty as we attempt to achieve justice. It is important to note that government measures limiting organized dissent have become increasingly common in our society since the terrorist attacks of 2001. These assaults upon and criminalization of dissent— from the surveillance of activist to the federalization of local law enforcement, to the labeling of activists as “terrorists”—dismantle piece by piece a core right considered essential to meaningful democracy. Ratner and kunstler 2001: 2

So explains the well-supported recent work of Michael Ratner and Margaret Ratner Kunstler. It seems ridiculous to claim that today’s dissent and civil disobedience are becoming increasingly harder to sustain than they were in older times, before human rights and democracy gained sway in the world. It is no coincidence that the most terrifying aspects of the repression of dissent occur in North America, principally in the United States (or in countries subject to its influence) although Canada, under its unresponsive conservative government is attempting to follow in the steps of its powerful “partner.” The US Constitution guarantees the right to dissent, through free speech, also the right to lobby government officials “for the redress of grievances” (Ratner and Kunstler 2001: 4). But, after 9/11, the success of civil disobedience in the south of the 1960s and 1970s has been forgotten, and the US has enacted “special laws that treat acts of civil disobedience as terrorism, and single out environmentalists for especially harsh sentences” (Ratner and Kunstler 2001: 5). In contrast, there have been a number of laws enacted to attack dissent in all its forms, in order to protect government and corporate interests, that appear to be totally intertwined (Ratner and Kunstler 2001: 5). Some of the strongest acts intent upon dismantling what is left of the US democracy, such as the Antiterrorism and Effective Death Penalty Act of 1966, the USA Patriot Act of 2001, and the Animal Enterprise Terrorism Act of 2006 (Ratner and Kunstler 2001: 8–9), are far from addressing acts of terrorism. The last Act is a particularly inappropriate as a characterization of distributing pamphlets,

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speaking and other activities that are intended to disrupt “the business companies that exploit animals.” Increasingly, the new FBI guidelines allow spying and surveillance, thus establishing branches of a “political police” (Ratner and Kunstler 2001: 16). Hence the basis for the dissent of Occupy movements is clearly justified: corporate and government interests are protected as one, and such benign groups as peaceful environmental resistance associations or societies for the protection of animals, for instance PETA, are simply treated as “terrorism.” Examples of various means, both brutal and subtle, to discourage dissent are increasing everywhere; but nowhere are they as blatant and numerous as those occurring in North America, and fostered and originating by the Zionist state of Israel. In direct contrast with the binding Geneva Conventions (1948), “almost half-a-million Jewish Israelis, with Israeli Government support  have moved into settlements it has constructed in the Occupied Palestinian Territories (OPT), and formally annexed occupied territory in East Jerusalem, a move not recognized by any other government in the world” (Peebles 2012). When we consider that Israeli’s former foreign minister, Tzipi Livni, declared, “I’m a lawyer and I’m against the law, international law in particular” (Peebles 2012), while the US continues to support Israel and its polices with “at least $8.2 million per day in military aid alone” (Peebles 2012), we see that any law-abiding person would want to speak out openly against such abuses. In contrast, in February 2011, “the USA vetoed a proposed United Nations Security Council Resolution calling upon Israel to end illegal policies that promote settlements in the occupied West Bank, including East Jerusalem,” but no action ensued on the part of the international community for the protection of the victims. Against this background of Mafia-like protectionism, in flagrant disregard of the law, we can now turn to the more subtle practices used to curb dissent among those who are not obliged to follow the mandates of the US government, and who are (or should be) protected by “academic freedom.” The Zionist lobby tries to control and censor the debate on the issue of Palestine, especially in North America. One example of this is given by Phan Nguyen, describing a “manual” by “the David Project” that explains in detail how to use the “anti-Semitism charge” as a weapon to attack college professors, and how to “co-opt” minority students (Nguyen 2012).2

2 The author has had an unpleasant encounter on this topic with another series in the same press that has published two of my books, Brill, of Leiden, The Netherlands, a surprising

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Both in Canada and in the US, we are becoming familiar with cases of professors chastised or even dismissed for attempting to speak their mind and emphasize the truth of the situation between Israel and Palestine, or for well-known academics being denied the opportunity to speak on those issues; in some cases they have even been denied visas to enter Canada or the US. There are issues on which no one is allowed to dissent. In addition, it is almost impossible to speak with our actions to assist the victims of Israel’s illegal acts and war of occupation, as both Turkish and Canadian flotillas bearing humanitarian help have been attacked by Israel or otherwise sabotaged as they have not been permitted to bring aid, thus to complete their mission. Neither free speech nor other ways of standing up for victims is easy, as it is very hard to express our dissent with the ongoing policies and the “explanations” provided by the US propaganda. Dissent and non-compliance are becoming harder and harder to achieve and sustain, as democracy is dismantled, piece by piece. Nevertheless this work has proposed the main reasons why dissent is necessary, as some of the most egregious legal breaches of human rights were discussed as examples of lawlessness. Not only is the victimization we have described legal and widespread, but it is becoming almost too hard for many of us to meet our obligation to protest that illegality and that victimization. Even speaking clearly about many of these issues is considered to be a form of terrorism, at least in the US and, increasingly, in Canada. Yet, speaking out against it, that is, forceful and outspoken dissent, is the one obligation we cannot shirk, if we are not to remain complicit with those who victimize others. The repression and criminalization of dissent in the US are well known, and the role of the “War on terror” as justification, is equally acknowledged (Chapter 7, this volume; Westra 2012a). In Canada, there are ongoing disturbing signs that the Conservative government now in power is prepared to follow the US: “The Canadian International Development Agency failed to renew development contracts for ngos who disagreed with particular policies” (Nigam 2013). As well, Canada is developing a “counter-terrorism strategy”: event in that very open-minded country. The editor of a series on human rights sent me the contract for a book on ecological refugees in April, but in August informed me that it would be best if I removed the 8 pages I had on Palestinian refugees…if I wanted to publish with them. After attempting to reason with them, and asking for a second reviewer, to no avail, I eventually withdrew the manuscript, which was finally published by Earthscan, London, UK with additional material on Palestine, in 2009.

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In “Building Resilience Against Terrorism,” under the main heading “The Terrorist Threat,” the strategy document lists environmentalism and anticapitalism as examples of “domestic issue based extremism.” Nigam 2013

Canada’s economic interests (e.g. economic growth) “are the same as national interests” and “those who speak against corporate interests, particularly in relation to the extractive industries” are thus considered to speak against national interests, and several members bill attempting to enforce limits to mining corporations failed in Parliament. Those bills tried to protect Indigenous rights to life, health and their traditional lifestyles, against the corporate pollution of lands and waters. Canadian mining companies are creating grave hardships for Indigenous peoples in Canada, for their First Nations, but also in Latin America. In contrast to the North American criminalization of dissent, in 2008, the European Union established guidelines “for the protection of human rights defenders, calling upon its missions to be active in monitoring reporting and assessing situations, as well as supporting and protecting human rights defenders” (Nigam 2013). This initiative complemented the UN’s creation of a Special Rapporteur “on the situation of human right defenders,” whose “Commentary” came out in 2011 (Nigam 2013). It is sad to note that little progress (if any) has been made in practice in North America to halt the ongoing problems faced by citizens intent upon carrying out their obligation to protect and dissent. Our civic responsibility and obligation has not become any easier in recent years. On the contrary, the repression and loss of civil rights has become increasingly stronger. Some measure of success in criminalizing corporate behavior and militarism is beginning to surface from European and international law, and we will review some of these results in the concluding thoughts that follow.

CHAPTER 10

Current Changes and Concluding Thoughts

Current Changes: Positive and Negative The war against terrorism therefore structures the two exercises of imperial power: hegemony and domination. It is the context for the new agreements in judicial and police cooperation between the United States and the European Union. These agreements allow the American executive power to force other states to recognize the, powers of exception that it arrogates to itself. Paye 2007: 197

Are there any developing signs that might indicate a possible return to legality on the part of the present institutions, especially in North America? Have any of the movements and protests transformed, or at least improved forms of the ongoing structural illegalities and violence? The answer appears to be both equivocal. On one side, it is becoming increasingly clear that CIA drones freely kill civilians under pretext of the “war on terror”: Military bases, universities and companies involved in Barack Obama’s drones programme are to be targeted in a month-long series of protests by activists keen to build on the renewed public focus on the president’s controversial policy. Harris 2013

In Pakistan, one of the nations most hit by drone strikes, “366 strikes have killed up to 3581 people, with 884 being innocent civilians” (Harris 2013). This is one of the recent efforts to stop the unchecked proliferation of drone strikes. In fact, a recent legal challenge attempts to restore legality to a program that appears to be nothing more than a series of racially motivated random attacks: The ACLU and the Center for Constitutional Rights this morning filed a lawsuit in federal court against several Obama officials, including Defense Secretary Leon Panetta and CIA Director David Petraeus. The suit is brought on behalf of the survivors of three American citizens killed in Yemen by the US government, killed specifically by the CIA and the

© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004273832_012

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Pentagon’s Joint Special Operations Command, with no due process and far from any battlefield: Anwar Awlaki and Samir Khan (killed together in a drone strike), and Awlaki’s teenaged son Abdulrahman (killed two weeks later). Greenwald 2012c

At least two considerations are worth noting here. First, no one claims that there was a war against Yemen. Second, judgments by the executive branch do not represent “due process”: the secrecy in which the “kill list” has been and is currently developed, indicates no transparency or any checks on a novel presidential power. It is instructive to note that the planned 2013 protests will acknowledge the close ties between business and US government, as they will take place at the White House, at the Hancock Air National Guard Base, but also where corporations that build drones are based. In response to protests, several US states (including Florida and Virginia) and cities are deciding to discontinue the use of drones, while leaders of the “faith-based community” urged US Senate to reject John Brennan’s nomination, while the National Black Church Initiative (NBCI), a coalition of 34,000 people, spoke out against Obama’s policy. Finally, the Senate Judiciary Committee has charged the Constitutional subcommittee “to hold a hearing on April 16 on the constitutional and statutory authority for targeted killings, the scope of the battlefield and who could be targeted as a combatant” (Benjamin and Mir 2013). It is too soon to tell whether the situation will change, but at least there is some substantive movement towards a legal and democratic critique of drone attacks. As a comparative attack on religious groups that is non-military, the criminalization of free speech is rampant, both in the US and in Canada. An even more worrying aspect of the prevailing racism is the ongoing FBI tactic of taking a criminally convicted Muslim, then instead of sentencing him, paying him to infiltrate a mosque, find some young and impressionable man there, in order to get him to say and/or do things that may be interpreted in a way that will get him condemned as a “terrorist”: The DOJ takes those inflammatory political statements and combines them with evidence of commitment to Islam to depict the target as a dangerous jihadist. They use the same small set of government­ loyal “terrorism expert,” who earn an ample living testifying for the government and telling juries that unremarkable indicia of Islam are “typical of terrorists.” Greenwald 2013: 3

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The results of these sting operations are extremely predictable after 9/11: Federal prosecutors use this combination to convince a jury of Americans—inculcated with more than a decade of intense Islamophobic propaganda to convict the defendants under “material support of terrorism” statutes, even though they have harmed nobody and have taken no real steps toward doing so. Greenwald 2013: 3

The eventual result of such nefarious plots became obvious in the case of Hamid Hayat, who on the evidence provided by an FBI-paid informant, Nassem Kahn, attended a “terrorist training camp” in Pakistan, which apparently ensured that an agricultural worker from Lodi, California, returned to the US “with a Jihadi heart” and a “jihadi mind” (Greenwald 2013: 4). The 9th Circuit Court of Appeals “affirmed the 2005 material support conviction of Hayat, despite the dissenting opinion of a Japanese American Judge, A. Wallace Tashima (former US Second World War internment camp resident), who was well aware of the “danger of preventive security measures founded on group-based judgments” (Greenwald 2013: 5). Judge Tashima wrote: The case is a stark demonstration of the unsettling and untoward consequences of the government’s use of anticipatory prosecution as a weapon in the “war on terrorism.” Greenwald 2013: 5

The verdict against Hayat of 24 years in federal prison was a gross miscarriage of justice, an abusive prosecution, illegal on several grounds. Thus racism, unjustified aggression, illegal prosecution, are all still rampant in the US, over a decade after 9/11. In contrast, in Geneva, on March 22, 2013, the US was charged with War Crimes: A new report from the United Nations accuses past and current US officials of withholding details regarding which specific individuals were responsible for the nation’s policy of enhanced interrogation, known throughout the rest of the world as torture. While the illegal acts were approved at the highest level of the US government, the UN insists those responsible still must be tried for war crimes, and, if convicted, imprisoned. Whiteout press 2013

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In 2005 the UN Commission on Human Rights passed Resolution 2005/80; the UN appointed Martin Scheinin (Finland), and now Ben Emerson (UK) is charged with investigating the US backed “war on terror,” from several aspects of that enterprise, and their mandate included the following: To gather, request, receive and exchange information and communications from and with all relevant sources including governments, the individuals concerned and their families, representatives and organizations, including through country visits, with the consent of the state concerned, on alleged violations of human rights and fundamental freedoms while countering terrorism. Greenwald 2013: 3

After 8 years of onerous investigations, Emerson found a situation based on self-approved legal immunity among US and UK national leaders. He explained their policies as follows: “A policy of de facto immunity for public officials who engaged in acts of torture, rendition, and secret detention, and thanks superiors and political masters who authorize these acts” (Greenwald 2013: 3). The UN Lead Investigator’s findings were confirmed by “marches and protests across the globe” with mounting calls for accountability (Greenwald 2013: 4). If the UN is now serious about bringing these criminals to justice, there will be ample evidence for a number of European countries that have been involved. In fact in December 2012, a landmark European Court of Human Rights decision was not reported in the North American media. That decision stated that German citizen Khalid El-Masri was tortured after being wrongly detained. The torture perpetrated by CIA agents included “sodomising, shackling and beating him, as Macedonian state police looked on” (Norton-Taylor 2012). The prosecution in this case was only possible because an Italian magistrate, Armando Spataro, decided to pursue the case, despite the opposition of Italian officials, especially Silvio Berlusconi, who attempted to stop his investigation in all possible ways: he called Spataro a “militant” (meaning a communist), ensured that all his communications were monitored, and even “had the Italian intelligence service place him under observation” (Greenwald 2013: 5). Yet Spataro “presented [the Minister of Justice] Castelli with requests for the provisional arrest in contemplation of extradition, for 22 Americans involved in the alleged renditions of Egyptian Imam Abu Omar from Milan” (Greenwald 2013: 5). Berlusconi continued to insist that the courts would not look with favor upon such a case, but “Italian courts exercised great independence and courage in applying the law to both American and Italian kidnappers without

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regard to their power or position” (Greenwald 2013: 6). This is a particularly important sentence, especially when viewed in contrast with the US Federal judiciary who, obedient to the US government regarding the victims of the war on terror, refused to acknowledge that “the victims were treated savagely and were guilty of nothing.” In contrast, in this case, the highest Italian court “upheld the convictions of the 23 CIA agents” and, in addition, pronounced a “10-year sentence for Italy’s ex intelligence chief” (Greenwald 2013: 6). Hence this work of an Italian magistrate and consequent sentence can be counted as a belated positive move in defense of the victims of US globalized exceptionalism, because Italy ultimately followed the rule of law. Finally, returning to the victims of corporate activities that are separate from militarism, on March 28, 2013, US President Barack Obama signed a bill into law that was written in part by the very billion-dollar corporation that will benefit directly from the legislation (RTUSA 2013): “Under the Monsanto Protection Act, health concerns that arise in the immediate future involving the planting of GMO crops won’t be able to be headed by a judge” (Greenwald 2013: 6). Over 250,000 people petitioned the president to veto the “biotech rider” tacked on to spending bill HR933, but the bill is now law, despite the fact that Republican Senator Roy Blunt (Missouri) “worked with Monsanto to craft the language of the bill,” as he received over $64,250 from Monsanto between 2008 and 2012 (Greenwald 2013: 3): With the president’s signature agriculture giants that deal with genetically modified organisms (GMOs) and genetically engineered(GE) seeds, are given the go-ahead to continue to plant and sell man-made crops, even as questions remain largely unanswered about the health risk these types of products pose to the consumers. Greenwald 2013: 2

Hence not only present victims of industrial harms are neither protected nor compensated, but even in the future, then industrial giants are now conjoined with the exceptionalism of the us administration, and so avoid accountability, monitoring and any possible prosecution. For Monsanto, the situation was drastically different in Europe where the Appeals Court of Lyon, condemned a Monsanto executive to jail in the summer of 2012, because of the harm caused by Monsanto’s pesticides to Paul Francois, a French farmer (Westra 2013a: ch. 4). Thus the European rule of law and human rights protection appeared to distance itself, eventually—from both corporate lobbying at least in that case, and from the US imperialistic pressures, at least in France and Italy, although the UK, for instance, appears less resistant to US power, and other satellite

Current Changes And Concluding Thoughts

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countries, that depend in some way on US aid. These dependent countries were part of the “war on terror” with its victimization practices, for both renditions and ultimately for torture.

Concluding Thoughts

This volume was written in an effort to clarify the legitimacy of protest and resistance movements in North America and elsewhere. As well, without entering into the details of the focus of each movement of resistance, the general situation that fosters and encourages these movements was characterized as one of institutional victimization, based on the twin forces of structural violence on the part of governments, especially in North America, and the latter’s disregard for the rule of law because of their extreme exceptionalism. These conditions produce unacceptable results, as citizens are effectively deprived of civil and political rights, although the formal semblance of their continuation still remains (e.g. periodic elections); and the deprivation of legal protection from various corporate attacks on the public health of the collectivity and their habitat, based on corporate immunity. Whatever specifics move a social movement to resist and to attack the status quo, the general motivations are interconnected, and they can be simply described as the desire for the return (1) to the rule of law, and (2) to the nonsectarian moral values that tend to unite most transnational citizens. These two characteristics may be found in such disparate movements as Occupy and Greenpeace, for instance. As well as sharing a basic motivation, these and most other protest/resistance movements also share the difficulties faced by their members—that is, the obstacles placed in the way of their carrying out their obligation to protest, thus to avoid the silence that would render them complicit with their victimizers. No doubt, those who resist the illegal butchering of whales on the high seas have a different immediate goal than those who occupy Wall Street. But both share a commonality of purpose and understanding, based on (1) and (2) above, in various ways, and both share the victimization they face from the violent responses meted out by police and armies, as well as the possible loss of civil liberties that their efforts meet from the “authorities.” Their multiple pleas for the restoration of the authority of law goes unheard, as the efforts to silence them multiply. Still, the rights of the members of the human collectivity to protest represent also a non-derogable obligation to persist.

Appendix I Cases

Acorn v. City of Tulsa, Okl., 835F. 2d 735, 742 (10th Cir. 1987). Aguasanta Arias et al. v. DynCorp 2001. Arar v. Ashcroft, 414F. Supp. 2d 250 (EDNY 2006). Arar v. Ashcroft, No.04-C-249-DGT=VVP(EDNY 2006) Baker v. Carr, 369 US 186, 217 2d.663, 82S. Ct. 691 (1962). Bancoult v. McNamara, 217 FRD 280, 2003 US Dist. LEXIS 17102 (DDC, 2003, no. 2). Barcelona Traction, Light and Power Co., Ltd. (Belg. v. Spain), Second Phase, 1970 ICJ Rep. 4, 32 (February 5). Brown v. Board or Education of Topeka, 347 US, 483 (1954). California v. Central Pacific Railroad Company, Supreme Court of the United States 118 US 394; 6S. Ct. 1132; 30 Led. 118 May 10, 1886, Decided. Connecticut et al. v. American Electric et al., 582F. 3rd 309 (2nd Cir. 2009). Delgamuukw v. British Columbia (1998) 1 CNLR 14, December 11, 1997. Fadeyva v. Russia (2005) ECHR 55723/00 for some related cases. First Nat’l Bank of Boston v. Bellotti, 435 US 765 (1978). Gitlow v. New York, 268 US 652 (1925) 7. Guerin v. Canada (1984) 2 SCR 335. Guerra v. Italy (1998) ECHR 14987/89. Hamden v. Rumsfeld, 548 US 557, 628–631. Herndon v. Georgia, 295 US 441 (1935) (No. 665). Int’l Dairy Food Ass’n v. Amestoy, 92F. 3rd, 67 (2nd Cir. 1996). Kiriadolou v. Germany. Le Louis, 2 Dobson Rep. 238. Lopez-Ostra v. Spain (1994) ECHR 16798/90. Metropolitan Council Inc. v. Safir, 99F. Supp. 2d 438 (SDNY 2000). Occupy Columbia v. Nikki Haley, Governor of South Carolina, No. 3: 11-CV-03253, 2011 WL 631858 (D.S.C. December 16, 2011). Occupy Fort Myers v. City of Fort Myers, No.2: 11-cv-00608, 2011 WEL 5554034, at *5 (M.D. Fla. November 15, 2011). Occupy Minneapolis v. County of Hennepin, No. 11–3412, 2011 WL 5878359 (D. Minn. November 23, 2011). Penn Coal v. Mahon, 260 US 393 (1922). Plessy v. Ferguson, 163 US 537 (1896). Presbyterian Church of Sudan, Rev. John Gaduel and others v. Talisman Energy Inc. 244F. Supp.2d 289 (SDNY 2003).

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Appendix I

Prosecutor v. Ayakesu, Case No. ICTR-96-4-T (Int’l Crim. Trib for Rwanda, Trial Chamber I, September 2, 1998, www.ictr.org/ENGLISH/cases/Ayakesu/judgment/aka001. htm). Prosecutor v. Dusko Tadic (Jurisdiction) 1995. Prosecutor v. Furunddzjia Case No. IT-95-17/1, 38 ILM 349 (1999). Prosecutor v. Tadic (Jurisdiction) IT-94-I-T (October 2, 1995), para. 70. Public Committee Against Torture in Israel v. Government of Israel, Piskei Din 43(4) 817, HCJ 5100/94. R. (Bancoult) v. Secretary of State for foreign and Commonwealth Affairs (2007) QB1067 (Bancoult). R. v. Creighton (1992) 3 SCR 3. R. v. DeSousa (1997) 2 SCR 944. R. v. Emans (2000), 35C.R. (5th)386, Ont. CA. R. v. Gladstone, 137 DLR 4th 648, 9 WWR1 1996. R. v. Goodin (1994) 2 SCR 484. R. v. Mayuran, 2012, s.c.c.3I. R. v. Pamajewon, 138 DLR 4th 204. R. v. Pappajohn, (1980) 2 SCR 120. R. v. Sparrow (1990) 1 SCR 1075. R. v. Vanderpeet, 137 DLR 4th 289, 9 WWR1 (Can. 1996). Santa Clara County v. Southern Pacific Railroad Company. Spence v. Washington, 418 US 405 (1974). Students Against Apartheid Coalition v. O’Neil, 660F. Supp. 333, 337 (WD Va. 1987). United States v. Gilbert, 920F. 2d 878 (1st Cir. 1991). United States v. Abney, 534F. 2d 984, 985 (DC Cir. 1976). University of Utah Students Against Apartheid v. Peterson, 649F. Supp. 1200, 1202 (D. Utah 1986). Vanderpeet, 137 DLR 4th 289.

Appendix II Documents

Advisory Opinion (WHO) 1996, I.C.J. Rep.66. African Commission on Human and Peoples’ Rights, Constitutive Act of the African Union, July 11, 2002, OAU doc. CAB/LEG/23.15, www.achpr.org/english/_info/ constitutive_en.html. American Convention on Human Rights (1969) OAS Treaty Ser./No. 36; 1144 UNTS 123. Charter of the International Military Tribunal—Annex to the Agreement for the pros­ ecution and punishment of the major war criminals of the European Axis (“London Agreement”), United Nations, August 8, 1945, available at http://www.refworld.org/ docid/3ae6b39614.html. Combating Terrorism and Respect for Human Rights, Eur. Parl. Ass. Res. 1271, January 24, 2002. Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Pun­ ishment, December 10, 1984, 1465 UNT.S. 113 (entered into force June 26, 1987), art. 4(1). Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, November 4, 1950, TS71 (1953). Convention on the Elimination of All Forms of Discrimination Against Women (December 18, 1979, UN doc. A/34/46, 1249 UNTS 13). Convention on the Prevention and Punishment of the Crime of Genocide, December 9, 1948, 102 Stat. 3045, 78 UNTS 277. Convention on the Rights of the Child, November 20, 1939, UN doc. A/44/49, 1577 UNTS 3. Convention Relating to the Status of Refugees, July 28, 1951, 189 UNTS 150. Declaration of the Rights of Indigenous Peoples, Article 7, www.un.org/esa/socdev/ unpfii/en/drip.html. Declaration on Principles of International Law Concerning Cooperation among States in accordance with the Charter of the United Nations, Annex to GA Res. 2625, UN GAOR, 25th Sess., Supp. No. 28, at 121, UN Doc. A/8028 (1970) reprinted in 9 ILM 1292 (1970). Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, adopted by the General Assembly, Resolution 53/144 of December 9, 1998. Draft Articles on Jurisdictional Immunities of States as adopted at 43rd Session, 1991, and recommended to UN General Assembly, Article 10, 30 It. Lg. Mt. 1554 (1991). Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Worth of its Fifty-Third Session, UN GAOR, 56th Sess. Supp. No. 10 at 43, 337, arts. 8–9, 11, UN Doc. A/56/10 (2001).

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Appendix II

Economic and Social Council Resolution 1503 (XLVIII), 18 UN ESCOR, 48th Sess., Supp. No 1A, at 8, UN Doc. E/4838/Add.1 (1970). Federal Employees Liability Reform and Tort compensation Act of 1988, Fub. L. No. 100–694, 102 Stat. 4563 (1988) (codified at 28 USC. 2671–80). ICRC Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody, report to John Rizzo, Acting General Counsel, CIA, February 14, 2007, WAS 07/76, http://assets.nybooks.com/media/doc/2010/04/22/icrc-report.pdf. Inter-American Commission on Human Rights, Charter of the Organization of American States, April 30, 1948, 119 UNTS 3, available at www.oas.org/juridico/english/charter. html#ch15. Inter-American Court of Human Rights, October 1979, OAS res. 448 (LX-0/79), www .oas.org/xxxiiga/english/docs_en/cortedh_statute_files/basic17.htm. International Convention on the Elimination of All Forms of Racial Discrimi­nation, Adopted and opened for signature and ratification by General Assembly resolution 2106 (XX) of 21 December 1965, entry into force 4 January 1969, in accordance with Article 19, www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx. International Covenant on Civil and Political Rights (ICCPR), December 16, 1966, UN doc. A/6316, 1966, 999 UNTS 171. International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted by General Assembly resolution 2200 (XXI) of 16 December 1966. Laws and Customs of War on Land (Hague IV); October 18, 1907; into force January 26, 1910. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, July 8, 1996, ICJ 226, 541. Optional Protocol to the International Covenant on Civil and Political Rights, UN GAOR, 31st Sess., No. 16, at 59, UN Doc. A/6313, 1976. Report by Dick Marty, Europe Council at http://www.assembly.coe.int/Documents/ WorkingDocs/2006/edoc10957.pdf, para. 132. Report of the High Level Panel on Threats, Challenges and Change, “A More Secure World: Our Shared Responsibility,” delivered to the General Assembly, UN Doc. A/59/565, December 2, 2004. Report of the Secretary General Pursuant to Paragraph 2 of the Security Council Resolution 808 (1993), UN Doc. S/25704, at 9 (1993). Rome Statute of the International Criminal Court, Doc. A/CONF.183/9 of July 17, 1998, corrected by process-verbaux November 10, 1998, July 12, 1999, November 30, 1999, May 8, 2000, January 17, 2001 and January 16, 2002, entered into force July 1, 2002, www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome _statute_english.pdf. Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY), http:// www.icty.org/sid/135.

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Strengthening Hemispheric Cooperation to Prevent, Combat and Eliminate Terrorism, OAS Res. RC.23/Res.1/01, September 21, 2001. Terrorist Surveillance Act of 2006, March 16 (legislative day, March 15), 2006, www.fas .org/irp/congress/2006_cr/s2455.html. UN Human Rights Council, “Report of Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism,” Mission to the United States of America, 36–38, UN Doc. A/HRC/6/17/ add. 3, November 22, 2007.

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Index Aamjinwaang people  166, 167 Abbacha, Sani  96 Abney, Stacy  34–5 Aboriginal rights  86–9 Abu Ghraib Prison  26, 204–5 accountability  17–18, 41, 47, 121, 149–54, 158, 170, 214, 225, 237, 238 acta (American Council of Trustees and Alumni)  30 actus reus  152, 159–60, 222 aerial bombardment  171, 172, 173, 174–5 Afghanistan  54, 174, 178, 180, 182, 198, 200 African Charter on Human and Peoples’ Rights  139 Agamben, Giorgio  31, 109 Agent Orange  166, 176 aggregate theory  150–1, 153, 154 Aguasanta Arias et al v. DynCorp (2001)  148 aid  50, 179, 239 al-Awlaki, Anwar  170, 178 al-Qaeda  46, 177, 182 see also war on terror Alston, Philip  170 Alzheimer’s disease  168 American Civil Liberties Union  170 American Convention on Human Rights  138–9 Amnesty International  25, 54, 80, 173 Anaya, James  114 Angola  17 animal activism  62, 230–1 Anonymous  32 apartheid  1, 205 in Israel-Palestine conflict  221–2, 225 in us  17, 61–2, 63, 68 Aquinas, Thomas  42, 43, 58, 66, 124, 230 Arab Spring (2011)  14, 27, 217, 229 Archibugi, Daniele  74–5 Aristotle  70, 71, 72, 73, 101, 186, 191, 226 arms, right to bear  65 Ashcroft, John  119 Assange, Julian  26 association, freedom of  16–17, 43 asylum/asylum seekers  162, 213, 219

authority  7–28, 85 basis of  8–12 and citizenship/collective human rights  24–8 and civil disobedience/conscientious objection  12–18 and corporate power  25 global see United Nations (un) jus cogens and  10 lawlessness of see lawlessness legal positivism and  9–10 legitimacy and  8–9, 31 liberal/illiberal states and  7–8, 31 and rule of law  21–4 and self-determination/legal protests  18–20 shrinking  22, 24–5 as sovereignty see sovereignty trust in  46–7 Avaaz  98–100 Badescu, Christina  216 Baier, Annette  188 Ban Ki-moon  218 Bancoult v. Robert McNamara (2003)  94–5, 217 banks  44, 48, 220, 221 Barash, David  66 Barbour, Brian  212, 213, 214, 218 Barker, Ernest  43–4, 71 basf  97, 98 basic rights  136–40, 137, 144 Bassiouni, Cherif  16–17, 140 Baxi, Upendra  133, 136, 166 Bay, Christian  93 bds (boycott, divestment, sanctions)  99 Berat, Lynn  186 Berlusconi, Silvio  237–8 Bernstein, Richard  146 Bhopal disaster (1984)  156, 165–6 Bin Laden, Osama  117, 188 biological integrity  36, 89, 116, 128 Birnie, Patricia  60 Blank, Yishai  36, 37 Blumberg, Philip  154

264 Boggs, Carl  70, 73–4, 77, 79, 80, 117 Bollier, David  40 Borrows, John  86, 87–8 Bosnia  23, 110 Bosniak, Linda  70, 100 Boutros-Ghali, Boutros  82, 109–10 Boyle, Alan  60, 112 Boyle, Francis A.  67 Brazil  17, 39 Brennan, Teresa  68–70 Bretton Woods institutions  50 Britain (uk)  11, 21, 30, 151, 174, 229 criminalization of protest in  31–2 Prevention of Terrorism Act (1974)  15 and us  95, 97, 216, 238–9 Brown v. Board of Education of Topeka (1954)  68 Brownlie, Ian  83–4 Burke, Edmund  202 Bush administration  47, 48, 108, 109, 180, 181, 211 see also war on terror Bush doctrine  3 Bush, George W.   118, 199 indictment of  193–6 business as usual  41, 146 California (us)  59, 97–8 Camus, Albert  93 Canada  11, 211, 230, 232 First Nation people in  3, 80–1, 86–92, 166, 167, 233 protest by  3, 81, 90–2, 120 and Israel-Palestine conflict  99–100, 232 self-defense in  122 toxic exposures in  166–9 and war on terror  200–1 cancer  116, 142, 167 capitalism  22, 143, 180 Cassese, Antonio  125, 160, 162, 178, 183, 184, 210 Castellino, Joshua  19 cat (Convention Against Torture)  193, 198, 201, 202 Chagos Archipelago  94–5, 97, 217–18 Charter of the International Military Tribunal  160–3 Chavez, Hugo  117

Index chemical industry/hazards  3, 114, 128, 135, 136, 139, 143, 167–8, 208, 211, 216 and birth defects  138, 167, 217 Cheney, Dick  196 Chick, Timothy  152–3 Child, Convention on the Rights of the  129, 138 children  48–9, 77, 128, 135, 141, 158, 167–8 China  21, 219 cia  149, 170, 194, 195, 234–5, 237–8 torture practiced by  195, 196, 199–200 cid (Corporate Internal Decision Making) structure  150, 151–2, 153–4, 180 citizen’s rights  7, 31 citizenship  24–8, 100–2 Aristotelian  70, 71, 101, 226 and community  70–3, 101 and corporate power  26–7, 37, 55, 77, 101 and natural persons’ rights  37 and neoliberalism  25 postnational  102 three spheres of  37–8 transnational/global see transnational/ global citizenship and war on terror  31 civil disobedience (cd)  2, 7, 8, 126–7, 230 against environmental harms  92–4 and conscientious objection  12–18, 27 and non-violence  64–7, 92 civil liberties  8, 192, 211–12 Civil and Political Rights, International Covenant on (iccpr)  135–6, 138, 198 civil resistance (cr)  67–70 civil rights  38, 61, 73, 120, 128, 226, 233 civil rights movement  2, 29, 33, 44, 61–4, 229 influence on social movements of  63–4 law and  62–3 non-violence of  64, 65 civil society  121, 217 global  25, 109, 118–19, 225–8 climate change  25, 73, 112, 118, 135, 137, 208 denial  3 and right to public health  59 and terrorism  187–8 Clinton, Bill  119, 199, 219

Index Coca-Cola  77 Cole, David  116 collateral damage  30, 157, 171, 175–6 collateralism  142, 173–5 collective rights/collectivities  25, 45, 113–15 see also human/global collectivity Collins, Sheila  228 colonialism  23 and crimes of government  17 and plunder  50, 51 and self-determination  18, 19, 185, 191 Columbia  146–7, 148, 149 common good  71, 85, 157, 189 common heritage of mankind (ch) principle  58–60 common law  58–9 commons  60, 111–17 and collective  111–15 and enclosure movements  111 and human rights  111–12 and multitude  115–17 the poor and  115–16 communism  33, 61, 68 communitarianism  79–80 community  70–3, 113 freedom of  16–17, 43 rights of  114 Community for Creative Non-Violence v. Watt  34 compensation  165–6 complicity  13, 159–60, 180–1, 188–9 Connecticut et al. v. American Electric et al. (2009)  59 conscience  42, 64, 65, 66, 79–80 conscientious objection  2, 7 and civil disobedience  12–18, 27 consumerism  81, 187 Continental Tyre and Rubber Co., Ltd. v. Daimler Co. Ltd. (1915)  151 Convention on Prohibitions or Restrictions on the Use of Conventional Weapons (1980)  176–7 Convention on the Rights of Child  129, 138 corporate responsibility/ accountability  149–54 cid structure of  150, 151–2, 153–4, 180 fiction theory of  150

265 legal aggregate theory of  150–1, 153, 154 corporations and citizenship  26–7, 38, 79 criminality of  21, 25, 73, 96–7, 101, 108, 149 borderline  155 difficulty in prosecuting  156, 163–4 immunity of  74 culpability of  21–2, 158–9, 162 and deregulation  45 economic power of  1, 155–6, 157, 207 Environmental Protection Agency (epa) and  59 governance of  156–8 growth/enrichment of  73, 75 and human rights  21–2, 38–9, 146, 228 Internal Decision Making structure see cid structure and international law  233 as legal persons  3, 21, 36, 38, 61, 113–14, 145, 158–9, 164, 180, 209–10 liability of  154–5 and media  11–12 morality and  146, 148, 149, 207 and new growth theory  227–8 in political sphere  21–2, 27, 74, 164, 209, 227–8, 238 as private governments  75–8 protest against  8 racist practices of  160–3, 165, 209–10, 212–13 responsibilities of  154, 158, 221 “rights” of  26–7, 113–14, 154, 157–8, 164, 209 shareholders of  121, 157, 162, 168 and structural violence  3 and taxes  68 telecom  48 victims of  163–9, 209–10 inequality and  165–6 toxic trespass and  166–9 Corten, Oliver  123 cosmopolitan democracy  74–5 counter-insurgency  194, 195, 205 counter-terrorism  15, 182, 191–2, 195, 232 Cover, Robert  34 crime  14, 16–18

266 crime (cont.) against humanity  73, 108, 143, 156, 161, 183, 184, 212, 221 gender  3, 129, 134, 144, 208–9, 211 of government  17 and international law  17–18 political, terrorism as  16–17 war see under war criminal law  19, 67, 127, 142, 143, 209, 210–11 crop spraying  146–7, 148 culpability  14, 21–2, 158–9, 162, 230 and self-defense  121–4 cultural diversity  54 cultural integrity  87, 147, 148 cultural rights  39, 57–8 cultural violence  140, 144 Davos (Switzerland)  52, 8185 Dayton Accord (1995)  23 De Sousa Santos, Bonaventura  53, 54, 55 Delbrück, Jost  104–5 Delgamuukw v. British Columbia (1998)  89 democracy  1, 33, 52, 71, 94, 129, 226 corporations and  11, 73 and interests of politicians  2 cosmopolitan  74–5 decline in  2–3, 54–5, 79 and internet  26 right to  51 democratic legitimacy  25, 30 demonstration, right to  2 deregulation  37, 45 developing countries  3, 120, 140, 143, 155, 157, 165, 183, 187 development  49–50, 94, 96, 112, 146, 147, 148, 166, 184, 187, 193 right to  113 sustainable  49–50, 101 Diego Garcia  95 disability benefits  34–5 disease  37, 115–16, 128, 137, 142, 158, 167, 168 dissent see protest Divestment Movement  221 Doctors Without Borders  54 Douzinas, Costas  68 Dow  79, 97, 98

Index drone attacks  170, 171, 177–9, 209, 234–5 Dupont  97, 98 DynCorp  148, 149 Earth First!  94 ecocide/geocide  141, 186 ecological integrity  89, 128, 141 ecological worldview  69 economic growth  1, 73, 155, 183, 233 ecoviolence/ecocrime  93, 135, 136, 137, 139–40, 141, 143, 208–9 as crime against humanity  161 Ecuador  146–7, 148 edps (environmentally displaced persons)  112 education  48–9, 58 efa (ecological footprint analysis)  69 Egypt  149, 200 El-Masri, Khalid  196–7, 237 elections  11, 71, 79, 101 elites, government  71–2, 74 endocrine disruptors  138, 167 environment, right to  113 environmental hazards  12, 25, 37, 54, 60, 68, 72, 74, 80, 96–7, 118, 190 and economic growth  227 and protest  92–4, 230 victims of  135 war and  175–7, 186 see also climate change; ecoviolence/ ecocrime Environmental Rights Action  96–7 environmentally displaced persons (edps)  112 equality  68, 71, 88, 145, 158, 160, 165, 210 formal/substantive  63 equity see fairness/equity erga omnes obligations  85, 123–4, 193, 202, 222 Erickson, Bruce  91 Ethiopia  179 ethnic cleansing  212, 213 ethnic/cultural/religious groups  18 Europe  1, 30, 32, 75 Europe, Council of  182, 194, 196 European Charter of Rights and Freedoms  135 European Convention on Human Rights  182

Index European Convention for the Protection of Human Rights and Fundamental Freedoms  138 European Court of Human Rights  123, 135, 237 European Court of Justice  148 European Union (eu)  11, 86, 178, 233, 234 dual citizenship in  102 transnational governance of  71 ex aequo et bono  9, 10 exceptionalism  16, 31, 107–10, 118, 119–20, 125, 129, 223, 226, 234, 239 expressive conduct  40–2 extraordinary rendition  21–2, 149, 182, 194, 195–201, 211, 239 background of  199–200 Canada and  200–1 Khalid El-Masri case  196–8, 237 Fadeyva v. Russia (2005)  114 fairness/equity  2, 12, 32, 48, 88, 145, 168, 227 Falk, Richard  23, 51, 79, 80, 81, 85, 86 famine  3, 111 FBI  199, 231, 235, 236 feminism  54, 111 fiction theory  150 First World War  172, 173 fisheries  60 fishing rights  60, 87–8, 89 Fitzmaurice, G.G.  84 flag-burning  34 food issues  3, 111, 115, 116, 117 see also gmos Forman, David  92, 94 Fort Myers (Florida)  32, 40 France  21, 35, 57, 58, 238 free market  40, 50, 81 freedom  1, 10, 51, 75, 93, 127, 199 of association/community  16–17, 43 religious  16–17, 42 of speech see speech, freedom of freedom fighters  184, 189–90, 191 French, Peter A. 146, 150, 151, 152, 157, 159, 180 Friedrich, Jörg  183, 185, 190 Friends of the Earth  96 Fukushima nuclear accident  166

267 G8/G20 protests  2, 12, 52, 55, 80, 81, 85, 108, 128, 229 Galtung, Johan  134, 140–3, 144 Gandhi, Mahatma  92 Gangeong (South Korea)  96, 97 gender crimes/law  3, 129, 134, 144, 208–9, 211 see also rape gender/gender-based crimes see women General Motors  155 Geneva Conventions  181–2, 194, 231 genocide  1, 10, 73, 140, 143, 159, 212, 217 cultural  19–20, 94–5 Genocide, Crime of, Convention Against  10, 20, 143, 158 geocide/ecocide  141, 186 Germany  21, 151, 198 Gilbert, Paul  188, 192 Gitlin, Todd  29, 33, 41–2, 44 Gitlow v. New York (1925)  62 global citizenship see transnational/global citizenship global collectivity see human/global collectivity global warming see climate change globalization  1, 8, 37, 52, 68, 85–6, 112, 115–16, 118, 143, 208 counter-hegemonic  53, 54, 55 and neocolonialism  146 violence/terrorism and  181, 184, 187 gmos (genetically modified organisms)  38–9, 54, 97–8, 137, 238 labeling of  97 Goldman Prize  54 golf courses  89–90 Gonzales, Alberto  194 Good Friday Accord (1998)  23 Gorlick, Brian  212, 213, 214, 218 governance  38, 101, 118 Aristotelian  2, 70, 71 democratic, limits of  54, 73 and human nature  72, 73 neoliberal  54–5, 69–70, 71 and new growth theory  227–8 supranational/global  1, 36, 50, 81, 181, 183, 227 missing aspects of  72–3, 74 Grandjean, Philippe  158, 167, 217–18 Great Powers  24, 178, 210, 226

268 Great Powers (cont.) corporations and  22 protectionism of  18 sovereignty and  21 un and  105 Greece  32, 229 Green, James A.  124–5 Greenpeace  25, 27, 54, 80, 128, 239 Greenwald, Glenn  46–8, 211–12, 235, 236, 237–8 greenwashing  68, 78, 97 Greenway, Twilight  97 Grimal, Francis  124–5 Guantanamo Bay  26, 196, 205 Guerin v. Canada (1984)  89–90 Guerra v. Italy (1998)  114, 135, 141 Gulf War (1991)  118, 173 Gurr, Ted  15 Hague Conventions (1899, 1907)  172, 175 Halliburton  95 happiness, pursuit of  71–2 Hardt, Michael  107, 108, 109, 110, 111, 115–17, 120 Harper, Steven  91 Harris, Paul  234 Harvey, J.  13 Hayat, Hamid  236 health issues see public health health, right to  2, 45, 96, 137, 141, 166 public  59, 116, 128, 138, 142, 156 hegemony  27, 75, 178, 184, 188, 216 counter  53, 54, 55, 185 Hentig, Hans von  133 Herndon v. Georgia (1935)  61, 62 Hess, Henner  17 high seas/seabed  59–60 Hiroshima  118, 166 Hitler, Adolf  66, 93, 109, 162 homeless persons  34, 41 Hooper, James R.  22–3 human dignity  103, 195, 198, 203, 210, 227, 228 human rights  1, 2, 12, 74, 80, 108, 114, 143, 176 and artistic/cultural patrimony  57–8 collective/universal  8, 25, 45–8, 66, 148, 188–91, 193, 198 and commons  111–12

Index context-dependent  68 corporate disregard for  21–2, 38–9, 146 and duties of state  196 and global citizenship  81, 82 and Indigenous people  146–8 and international law  14, 16, 25, 66, 82, 208, 216 of peoples  139 protest and  13 and responsibility to protect see responsibility to protect self-defense and  124 universality of  136 violations of, right to truth about  196–7 Human Rights, European Convention on  182 Human Rights, European Court of  123, 135 Human Rights, un Commission for  146–7, 197, 237 Human Rights, un Declaration of (1948)  16, 66, 82, 208, 216 human/global collectivity  3, 25, 38, 80, 129, 193, 201, 208, 239 humanitarian intervention  22, 175 humanitarian law  14, 118, 135–7, 174, 176, 192, 210, 224 hunting rights  89 ibm  145–6 icc (International Criminal Court)  19–20, 85, 103, 128 iccpr see International Covenant on Civil and Political Rights icerd see Racial Discrimination, International Convention on the Elimination of All Forms of icescr see International Covenant on Economic, Social and Cultural Rights icg (International Crisis Group)  99 icj see International Court of Justice icrc see Red Cross, International Committee of icty (International Criminal Tribunal for the former Yugoslavia)  173–4, 176, 180 Idle No More movement (Canada)  3, 81, 90–2, 120

Index imf (International Monetary Fund)  38, 50, 52 immigration  54, 137 imperialism  3, 50, 102, 117 legal  31 India  108, 156, 185 Indigenous people  73, 76, 80–1, 101, 135, 213 rights of  25, 95, 112–13, 114, 146–8, 233 Indigenous Peoples, Convention on the Rights of  129 Indonesia  95 inequality  48–51, 63–4, 120–1, 165–6, 187, 229 Inglott, Peter Serrecino  58 ingos (international non governmental organizations) see ngos instrumental rights  154, 157–8 International Commission on Intervention and State Sovereignty (iciss)  213–16, 219 international community  18, 20, 23, 57, 102, 214, 231 lack of executive power for  74, 75 International Court of Justice (icj)  9, 82, 83, 103, 105, 123, 173, 175, 180, 225 International Covenant on Civil and Political Rights (iccpr)  135–6, 138, 198 International Covenant on Economic, Social and Cultural Rights (icescr)  39, 135–6, 138 International Criminal Court (icc)  19–20, 85, 103, 128 International Crisis Group (icg)  99 international human rights law  25, 51, 66, 103, 118, 135–40 international law  1, 50–1, 67, 103–4, 117, 143, 215 basic rights in  137 common heritage (ch) principle in  58–60 cosmopolitanism and  72 crime in  17–18 criminalization of corporate behavior in  233 failure of  128–9, 208 foundations of  9 and Israel-Palestinian conflict  23 jus cogens norms in  10, 21, 84, 85, 140, 160

269 and municipal law  73 ngos and  56 and rules of war see under war self-defense in  124–7, 128 self-determination in  18, 19 terrorism in  183–6, 191 un Security Council and  105–6 us and  27, 109, 170 and war on terror  125, 171, 174, 177–81, 182, 192–3, 194–5, 198, 236, 238 International Law, Declaration on Principles of, Concerning Friendly Relations  18 International Union for the Conservation of Nature (iucn)  81, 96, 97 internet  25–6, 39, 70, 77–8, 85 and democratic practices  26, 80 misinformation/misguided activism on  98–100 Iran  23–4 Iraq  54, 216 Islam  31, 35, 212, 235 Israel  18, 116 and icc  85 and Iran  23–4 as nuclear power  23 Israel-Palestine conflict  12, 14, 20, 68, 110, 127, 185, 189 Avaaz and  99–100 bds movement and  99 corporations and  220–1 destruction of homes in  22 dissenters accused of anti-Semitism in  30, 231–2 illegality of Israel in  23, 220, 222–4 and Israel-us relations  20, 23, 24 ngos and  54 and Palestinian sovereignty  18, 23 protests against  30 Road Map for Peace  23 Russell Tribunal on (RToP)  220–5 torture in  202–4, 205 un and  18, 20, 23, 217, 223, 224–5, 231 us and  20, 23, 24, 85, 108, 222, 223, 224, 231–2 Wall in  223–5 Italy  21, 32, 108, 149, 229, 237–8 iucn see International Union for the Conservation of Nature

270 Japan  21, 75 Jefferson, Thomas  111, 230 Johnson, Lyndon B.  63 journalism  47, 54 jus ad bellum/jus in bello  82, 171, 176, 179–81, 192 jus cogens norms  10, 21, 84, 85, 140, 160, 173, 182, 193, 203, 221 jus utendi et abutendi  60 just protest  52, 66, 90–2 justice  2, 10, 12, 32, 44, 52, 71, 73, 145, 160, 168, 227 social  16 Kantian philosophy  189, 190–1 Kelly, Michael J.  22 Kelsen, H.  106 Kennedy administration  65 Kesselman, Mark  77 Khan , Samir  170 King, Martin Luther Jr.  43–4, 63, 64, 66, 92, 230 Kintzele, Kathryn  94, 96 Kirgis, Frederic Jr.  18 Koh, Harold  177 Koskenniemi, , Martti  50 Kosovo  23, 176 Kraut, Richard  71, 72 Kunstler, Margaret Ratner  230 Kunstler, Sarah  32, 33, 34, 35, 230 Kyoto Protocol(1997)  187 labor markets  68, 69, 81 labor rights  61, 76 Lamb, Susan  82, 84 land-based rights  89 Landrigan, Philip  158, 167, 217–18 Lantier, Alex  219 law and citizenship  11, 101–2 and civil resistance  67–70 international see international law meta-state  75 and morality  10–11, 42–4 “new” 210–11, 213 right to  164 Roman  60, 150, 183, 210 rule of see rule of law as violence  66

Index lawlessness  1, 2, 8, 27, 31, 40, 74, 77, 178–9, 208, 212, 232 Le Louis case  29 leadership  27–8, 73 legal positivism  9–11 Leopold, Aldo  113 lex lata/lex ferenda  9, 143 liberal principle  8 liberal state  7–8, 11, 31, 44 liberalization  54 Libya  217, 219 life, right to  2, 45, 96, 138, 141, 170, 197 lobbies  1, 79 localism  69–70, 80 Locke, John  111 Lopez-Ostra v. Spain (1994)  114, 135, 141 McClusky, Martha  163, 165 McDonald’s  77 Mack, Kenneth W. 63 MacLean, Nancy  63 McMahan, J.  121–2, 189 McNamara, Robert  95 maiming  141–2 Mamdami, Mahmood  109, 110 Manning, Bradley  26, 170 marketization  54 Mars, P.  15–16 Marten, Janos  40 Marty, Dick  194, 198 Marx, Karl  69–70 Massey, Rachel  148 Mattei, Ugo  8, 29, 30, 49–50, 51, 61 Mayers, Rebekah  146, 147 Meadows, Robert J.  134 media  11–12, 27, 39, 45, 79, 108, 174 Mendelsohn, B.  133–4 mens rea  150, 160, 223 Merton, Thomas  64 Mexico  39 Michaels, Martin  39 Mickelson, Karin  69 Middle East  27, 219 Milgram experiment  46–7 militarism  118, 129, 142–3, 169, 226, 233 Miller, Arthur S.  75–7 mining industries  60, 73, 233 mncs (multinational corporations) see corporations

Index Mohammed, Khalid Sheik  195 Monsanto  38–9, 97, 98, 116, 146, 147, 148, 238 Monsanto Protection Act (2013)  238 moral wrongs  13 morality  12, 64–5, 146, 209 law and  10–11, 27, 168 and legal positivism  10–11 political rulers and  72 protest and  2, 8, 11, 127 self-defense and  123–4 violence/non-violence and  92–4, 189–91 war and  136 Mozambique  17 Munich Olympics attack (1972)  184 murder  76, 96, 122–3, 140, 156, 160, 161, 188, 212 Musqueam people  87–8 Myers, Steven Lee  179 myths, social  69 Nader, Laura  8, 29, 30, 49–50, 51, 61 nafta (North America Free Trade Association)  38, 39, 101 Namibia  18 national security  30, 94, 96, 97, 197, 198, 201 Native Americans  135 native communities  3 nato  173, 174, 176, 219 natural law  9, 10, 42–3, 58, 209 natural resources  68, 224 and indigenous rights  87–8 plunder of see plunder natural rights  154, 157, 164 natural systems  72, 73 Nazi Germany  31, 66, 109, 145–6, 159 negligence  21, 34, 76, 121, 135, 158 Negri, Antonio  107, 108, 109, 110, 111, 115–17, 120 neocolonialism  3, 50, 51, 117, 146 neoliberalism  1, 24, 25, 54–5, 69, 112, 143, 227, 228 climate change and  187 and deregulation  45 plunder and  49–50 terrorism and  183, 184 three pillars of  54

271 new growth theory  227–8 New World Order  118–19 New York (us)  59 New Yorkers Against  32 Newman, Dwight  115 ngos (non governmental organizations)  2, 52, 53–78, 80, 232 goals/principles of  54, 55, 60, 96 and international law  56 limited power of  108 and transnational citizens  53–4 Nguyen, Phan  231 Nieburg, Harold  15 Nigam, Sonya  233 Nigeria  96–7, 139 9/11  46, 117 post-   30, 178, 181, 192, 230 see also war on terror non-aggression principle  18 non-violence  64–7, 92 North America  50, 65, 71, 86, 87, 101, 230, 231–3, 234, 239 North American Free Trade Association (nafta)  38, 39, 101 Northern Ireland  23 nuclear industry  137, 139, 166, 168 nuclear weapons  23–4, 118, 125, 166, 175, 177 Nuremberg principles  3, 23, 143, 149, 158–63, 211 and racist corporate practices  160–3 Obama administration  47–8, 63, 211, 235, 238 obesity  116 O’Brien, David Paul  33–4 Occupy movement  2, 12, 27, 29, 29–52, 53, 68, 239 “99\rdblquote slogan of  32, 33, 41, 117 and civil rights movement  44, 63–4 collective human rights and  45–8 expressive conduct and  40–2 goals/principles of  32, 41–2, 60, 67, 96 historical/political context of  29–32 inequality/plunder and  48–51, 63–4 lack of structure/agreement in  32–3 legal aspects of  32–6, 44 local-global issues and  80 popular support for  29

272 Occupy movement (cont.) as revolt against law/injustice  42–4 self-defense and  123, 127 spread of  32 and symbolic speech acts  33–5 targeting of protest by  117, 128 us Constitution and  33, 35, 46, 127 and World Social Forum, compared  56 Ogoniland (Nigeria)  96–7, 139, 187 oil industry  68, 96–7, 148, 166 Oldfield, Trenton  31–2 Oldham, John  148 Omar, Abu  149 omnicide  141, 187 Oosthuizen, Gabriel  105–6 Orr, Wendy  205 Oxford-Cambridge boat race incident (2012)  31–2 Pakistan  178–9, 200, 234, 236 Pardo, Arvid  59 Pareene, Alex  149 parens patrae  58–9 Parker, Karen  191, 192 patrimony, artistic/cultural  57–8 patriotism  1, 12, 31, 65, 118, 119, 225 anti-, dissenters accused of  30, 35, 47 Paye, Jean-Claude  234 peaceful assembly, right to  2 Pease, Donald E.  118–19 Peres, Shimon  99 persons  76, 158–9, 166 legal see under corporations legal-natural, assumption of parity between  145, 209 natural  36–7, 38, 151 pesticides  23, 38, 90, 97, 138, 167, 168 Plessy v. Ferguson (1896)  68 plunder  49–51, 57, 193, 208 police  17, 76, 168, 202–3, 230, 239 political elites  71–2, 74 and voter apathy  77 political rights  7–8, 38, 120, 128, 226 political violence  14, 15–16 politics, end of  77, 79–80 pollution  73, 135, 136, 137, 138, 139, 142, 166–9, 233 radioactive  136, 137

Index Porto Alegre declaration (2001)  55 Portugal  17, 32 post-modernism  79 postnational world  36 poverty/poor  48–9, 74, 115, 135, 142, 218 Powell, Colin  110, 173, 195 privacy laws  35 privatization  25, 54 property rights  111, 164 Prosecutor v. Ayakesu (1998)  160 Prosecutor v. Dusko Tadic (1995)  83, 177–8, 210 protest  7–8, 126–7, 207, 226, 239 Constitutional protection for  33–4 criminalization of  3–4, 31–2, 226, 228–33 defined as terrorism  14 effectiveness of  13 as global movement  9 morality and  2, 8, 11 obligation to  3 third party  12–13 see also civil disobedience; conscientious objection; social movements public health  59, 80, 116, 128, 138, 142, 148, 156, 216, 239 public trust doctrine  58–9 Quatremère de Quincy, AntoineChrysostome  57, 58 R. v. Gladstone (1996)  87 R. v. Mayuran (2012)  122 R. v. Pamajewon (1996)  87, 88 R. v. Sparrow (1990)  88, 89 R. v. Vanderpeet (1986)  87, 89 R2P see responsibility to protect Racial Discrimination, International Convention on the Elimination of All Forms of (icerd)  10, 158, 221, 222 racism  10, 11, 21, 51, 110, 160, 191, 209–10, 212, 217, 236 anti-  111 see also apartheid; civil rights movement radioactive pollution  136, 137 Ramsden, Michael  177, 178 rape  108, 127, 134, 136, 144, 211 rapporteurs, un  23, 191, 233 Ratner, Michael  230

Index Ratner, Steve R.  103, 179–82, 183, 192–3 Raz, Joseph  7–8, 9, 10, 12, 26, 31, 35, 41, 168 Red Cross, International Committee of (icrc)  162–3, 174, 195, 196 Rees, William  69, 70 refugees  137, 162, 217 Refugees, un High Commissioner for  147 religious freedom  16–17, 42 religious insults  35–6 republic of arts/sciences  57, 58 responsibility to protect (R2P)  3, 22, 175–6, 212–33 effectiveness of  216–20 and global civil society  225–8 sovereignty and  214–16, 219 Rice, Condoleezza  199 Rist, John  72 Roberts, Paul Craig  170 Robinson, Mary  110 Roman Law  60, 150, 183, 210 Romney, Mitt  63 Rorty, Richard  119 Roscini, Marco  172, 173, 176 Roundup (herbicide)  146–7, 148 Roundup Ready corn  38–9 RToP (Russell Tribunal on Palestine)  220–5 lack of legal status of  220 Rubin, Jerry  15 rule of law  1–2, 3, 21–4, 31, 52, 121, 145, 165, 220, 238 global  85 and plunder  49–50 Rumsfeld, Donald H.  95, 196 Russia  18, 21, 219 Rwanda  110, 160 Sand, Peter  97, 218 Sands, Philippe  8, 40, 74, 108, 208 Santa Clara County v. Southern Pacific Railroad Company  76, 164, 207, 209 Sarnia (Canada)  166, 167 Saro-Wiwa, Ken  96, 141, 187 Sassen, Saskia  24, 25, 26, 37, 53, 70, 80 Scandinavia  49 Schabas, William  140 Schmid, Alex P.  14–15, 16, 17 school massacres  65 science/technology  71, 116, 227, 228 embedded  74

273 Scovazzi, Tullio  57, 58, 59, 60, 173, 197 Sea, Convention on the Laws of (unclos)  59–60 seas, high  59–60 Seattle (Washington)  52, 55, 81, 85, 108, 229 Second World War  107, 145–6, 160, 162, 172, 174, 175 see also Nuremberg principles security rights  136, 137 self-defense  2, 121–8, 129, 152, 168, 226 anticipatory/pre-emptive  3, 125 and culpable threats  121–4 and environmental harms  93–4 limits to  20, 121 not recognized as human right  124 and protests against violence  124–7 reasonableness and  122–3 terrorism as  189–90 and war on terror  177, 179, 196 self-determination  14, 18–20, 87, 127, 184, 185, 192, 223 Sellin, Thorsten  134 Shah, Sikander Ahmed  179 Shea, Jamie  173 Shell  79, 96, 166, 187 Shoraka, Sarah  97 Shue, H.  112, 136, 137, 144 Siddiqui, Haroon  35–6 Silva, Mario  200 Simon, Yves  85 Slattery, Brian  86, 89, 90 slavery  21, 29–30, 61, 76, 93 Smith, Tony  227 social movements  1, 27–8, 96, 168, 207, 239 artistic/cultural patrimony and  57–8 and authority  28 and decline of politics  80 global reach of  127, 229 and internet  25–6, 77–8 legality of  2 limited power of  108, 110, 117–18 ngos and see ngos and tradition of dissent  29–30 socialism  31, 68, 69, 117, 227, 228, 229 Somalia  110 Soros, George  99 South Africa  18, 20, 76, 203, 221, 222

274 South America  194, 205, 233 see also Columbia; Ecuador South Korea  96, 97 sovereignty  21, 24, 178, 179, 200 and citizenship  37 and common heritage (ch) concept  9 diminishing power of  22–3, 70 qualified  18 and responsibility to protect  214–16, 219 Sovereignty, International Commission on (iciss)  213–16, 219 Soviet Union  7, 178 Spain  32, 196, 229 speech acts  33–4, 39 speech, freedom of  2, 40, 127, 138, 164, 209, 232 geopolitical aspects of  36–40 limits on/criminalization of  35–6, 68, 235 Spence v. Washington (1974)  34 state collective rights of  113–14 decline of  36, 37 legitimacy of  8–9, 25 liberal/illiberal  7–8, 26, 31, 36 violence perpetrated by  16 state of exception see exceptionalism state secrecy  197, 198 Stavenhagen, Rodolfo  113 Stephens, Beth  145, 146, 150, 154, 158 Sterio, Milena  21, 22 Stiglitz, Joseph  45, 48, 49–50, 120–1, 154, 155, 156, 157, 158, 165, 168 structural violence  3, 4, 120–1, 129, 140–3, 168–9, 215, 239 victims of  134, 226 student movements  30, 54 subsistence rights  136 Sudan  212–13 Suh, Younbae  96 suicide bombers  20, 190–1 surveillance  48, 179, 237 sustainable development  49–50, 101 Sweden  26 Syngenta  97, 98 Syria  200, 219 Taliban  174, 178182 Talisman Energy  212–13

Index taxes  1, 68, 128 Taylor, Prue  58 Taylor, Telford  172 telecom corporations  48 territoriality  19, 37 terrorism  14–16, 44, 46 and civilian complicity  188–9 and climate change  187–8 and collective human rights  188–91, 193 counter-  15, 182, 191–2, 195, 232 definition/lack of definition of  14–15, 183–6, 188 freedom fighters and  184, 189–90, 191 and human rights  193 as political crime  16–17 protest labeled as  14, 47, 62, 230 root causes of  15, 190–2 as self-defense  189 and self-determination  18, 184, 185 state  17, 183, 185 victims of  191–3 states’ duties and  191, 192 war and  192 war on see war on terror Thoennes, Katie  164, 207, 209 Thoreau, Henry David  64–5, 92–3 Timor  23 tobacco industry  3, 211 torts  94, 95, 209, 211 torture  1, 10, 17, 47, 149, 192, 201–6, 209, 217, 237, 239 Bush indicted for  193–6 by corporations  21 doctors and  202–3, 204, 205–6 Israel and  202–4 motivation of torturers  201–2 see also extraordinary rendition Torture, Convention Against (cat)  193, 198, 201, 202 toxic substances/waste  136, 137, 139, 142, 143 see also crop spraying Toxic Trespass (Goldin-Rosenberg)  167 trade unions  17, 40 transnational/global citizenship  25, 36, 37, 39, 77, 79–86, 100–2, 116, 239 and authority/law  85–6 constructing  81–4

Index and international law  38, 103 and internet  25–6, 80 lack of power of  110 and ngos  53–4 see also global under civil society transparency  2, 170, 235 Trenchard, Hugh  174 Tucker, Vincent  50 Tutu, Desmond  20 unclos (un Convention on the Laws of the Sea)  59–60 unemployment  30, 123, 229 unesco (United Nations Educational, Scientific and Cultural Organization)  39, 56 and artistic/cultural patrimony  57 and World Social Forum  57 Union Carbide  156, 166 United Nations (un)  9, 38, 50, 66, 100 Charter  1, 18, 82, 83, 84, 103, 104, 127, 179, 214, 224 and Security Council  104–6, 125 Commission for Human Rights  146–7, 197, 237 Convention on the Law of the Sea (unclos)  59–60 Covenant on Civil, Political Rights  19 Covenant on Economic, Social and Cultural Rights  19 Declaration of Human Rights  16 Declaration of Human Rights (1948)  16, 66, 82, 208, 216 Declaration on Principles of International Law Concerning Friendly Relations  18 General Assembly (unga)  59, 103–4, 105, 106, 212, 221, 225 Global Compact Primer  55 High Commissioner for Refugees  147 and Israel-Palestine conflict  18, 23, 217, 223, 224–5, 231 rapporteurs  23, 191, 233 Security Council (sc)  18, 20, 21, 82–4, 125–6, 128, 217, 224, 231 controlling interests in  80 legitimacy of  105 omissions of  84

275 powers of  83–4, 104 and un Charter  104–6, 125 and self-determination  18, 20 sovereignty and  214 terrorism and  184–5, 186 us and  19, 20, 21, 104, 109–10, 126, 128, 179, 208, 231 weakness of  19, 103, 104, 107–10 United States (us)  7, 8, 11 agricultural exports of  39 Animal Enterprise Terrorism Act (2006)  230–1 arrogance/insularity of  30 civil disobedience/civil resistance in  1, 67 criminalization of  3, 230–3 see also Occupy movement civil rights movement in  2, 29 Constitution  46, 67, 127, 170, 194 First Amendment  33–4, 35, 40, 164 Second Amendment  65 Fifth Amendment  209 Fourteenth Amendment  68, 76, 145, 164–5, 209 constitutional duality in  76–7 corporate relations in  108 corporate responsibility in  152–3 corporate “rights” in  26–7 and drugs trade  146–7 economic crisis in (2008)  32 erosion of civil liberties in  211–12 exceptionalism of  107–10, 118, 119–20, 125, 129, 169, 225–6, 234, 239 freedom of speech in  35–6 Glass-Steagall Act (1933)  45 hegemony of  27, 75, 178, 188, 216 and icc  85 inequality in  48–9, 63–4, 120–1 and Israel  20, 23, 24, 85, 108, 222, 231–2 “lawlessness” of  1, 2, 8, 17, 77, 108, 178–9 military bases of  94–5 Monsanto Protection Act (2013)  238 and New World Order  118–19 Occupy movement in see Occupy movement Patriot Act (2001)  1, 119, 230 plunder in  49–51

276 United States (cont.) political apathy in  79 political elites in  71, 74 Right in  45, 63, 119 right to public health in  59 segregation in  17, 61–2, 63, 68 social movements in  1 strikes in  76 Supreme Court  59, 63, 76, 178 Terrorist Surveillance Act (2006)  14, 22, 62, 74 tradition of protest in  29–30, 61 and transnational citizens  26 un and  19, 20, 21, 104, 109–10, 126, 128, 208, 231 Vietnam War protests in  29, 33–4, 68 and war on terror see war on terror United States v. Abney (1976)  34–5 us Day of Rage  32 van der Dennen, Johan M.G.  15 Van der Vyver, J.D.  20 Vanzant, James G.  17–18 Vasak, Karel  113 Venezuela  117 victims/victimization  13, 133–5, 143–4, 208–12, 229, 239 of corporations see under corporations and crime  16 legal redress for  210–12, 220 of structural violence  134 typology of  133–4 Vietnam Syndrome  118 Vietnam War  166, 176 protests against  29, 33–4, 68 violence  2, 14, 42 by states  16 capitalism and  180 cultural  140, 144 deprivation as  142 eco- see ecoviolence/ecocrime justifiable  92–4 law as  66 maiming  141–2 political see terrorism resistance to  20 self-defense and  121–4

Index structural see structural violence typology of  141 violentia cuiusdam  66 Vogel, Howard J.  133 Wal-Mart  155 Walker, Anders  61, 62 Wall Street (New York)  2, 117 war  14, 74, 81, 114, 136–7 crimes  3, 23, 95, 108, 144, 160–3, 183, 211, 212, 225, 236 definition of  177–8 and environmental hazards  175–7 and human rights violations  176–7 permanent state of  169, 211 and plunder  57 and responsibility to protect  212, 215 rules of  171, 172, 192, 209 and collateral damage  175–6 new categories of combatants in  210 non-combatant immunity in  173– 5, 177 and prisoners of war  181–2, 184, 192 US and  174, 176, 179–80 war on terror  3, 26, 30, 169, 170–206, 209, 234–8 Canada and  200–1 collateral effects of  30 complicity and  180–1 drone attacks in  170, 171, 177–9, 209, 234–5 and “exceptional power” 31, 119, 120, 234 and human rights violations  171, 182, 190, 192 illegality of  125, 171, 174, 177–81, 182, 192–3, 194–5, 236, 238 and indictment of Bush  193–6 self-defense justification for  177, 179, 196 treatment of prisoners in see extraordinary rendition victims of  179–83, 238 Warren, Elizabeth  41 Watson, Paul  92 Webster, Daniel  126 Weiss, Thomas G. 216, 219

277

Index welfare state  24 Wenreb, Lloyd  10, 11, 12, 42 Weschler, Herbert  61 West, the  74–5 Westra, Richard  186 whistleblowers  190 Wikileaks  26 Williams, Paul R.  22–3 Windsor (Canada)  166, 167 Winkler, Matteo  199, 200 Wolfgang, Marvin E.  134 Wolfrum, Rudiger  106 women  108, 133, 135, 144 rights of  129, 138 see also gender crimes Women, Convention for the Elimination of Discrimination Against  158 working class  76, 118

World Bank  50, 99 World Economic Forum  56, 80, 81 world governance  1, 82–3 World Health Organization  211, 224 World Social Forum (WSF)  54, 55–7, 63–4, 80 and civil rights movement  63–4 principles of  56, 60 and unesco  57 wto (World Trade Organization)  38, 50, 52, 55, 101 Yemen  178, 179, 200, 234–5 Yugoslavia, former  23, 110, 176 see also icty Zinn, Howard  92–3 Zyklon B  159