In the first paragraph of his surprisingly inept and unfriendly review in the New York Review of Books of Noam Chomsky’s Who Rules the World? (May 2016), Kenneth Roth described the 2003 U.S. invasion of Iraq as a “blunder.” This wasn’t a good sign, since it signaled either ignorance or rejection of the UN Charter’s prohibition of the threat or use of force by states in the conduct of their international relations. This stipulation in the Charter—Article 2(4)—has been described by a distinguished group of international law scholars as the “keystone” and “cardinal rule” of modern international law (see below). It is also a centerpiece of Noam Chomsky’s long-standing criticism of U.S. foreign policy, a fact about which Roth—the long-time head of Human Rights Watch—also seemed unaware. Roth’s “blunder” (defined as “a stupid or careless mistake”) signaled what was to come, and indeed spiraled downward into a web of chronic mistake-making in his analysis of Chomsky’s book.
Chomsky and Article 2(4)
In his first book on U.S. foreign policy, American Power and the New Mandarins (1969), Chomsky challenged the political and moral right of the United States to intervene militarily or politically in Vietnam. Chomsky’s first words in that volume were as follows (writing probably in 1968): “Three years have passed since American intervention in a civil war in Vietnam was converted into a colonial war of the classic type. This was the decision of a liberal American administration. Like the earlier steps to enforce our will in Vietnam, it was taken with the support of leading political figures, intellectuals, and academic experts, many of whom now oppose the war because they do not believe that American repression can succeed in Vietnam and therefore urge, on pragmatic grounds, that we ‘take our stand’ where the prospects are more hopeful” (p. 3). Pragmatic concerns about U.S. foreign policy speak to mistakes and blunders in addition to successes and victories, as opposed to legal and moral rights. By calling the 2003 invasion of Iraq a “blunder,” Roth appeared to be unaware that Chomsky had drawn this distinction in nearly fifty years of published criticism of U.S. foreign policy.
In American Power and the New Mandarins, Chomsky also invoked international law as principled grounds for opposition to the war: “Granting the inadequacies and frequent injustice of international law and the institutions set up to give it substance, there is still much truth in the conclusion of the Lawyers Committee on American Policy toward Vietnam [that] the tragedy in Vietnam reveals that the rules of law, when so flagrantly disregarded, have a way of reasserting the calm wisdom underlying their creation. If international law had been followed, both Vietnam and the American people would have been spared what [UN] Secretary General U Thant has described as ‘one of the most barbarous wars in history’” (p. 241). By labeling the Iraq invasion as a mere “blunder,” Roth also seemed to signal that he was unaware as well of key swaths of international law, summarized below, about which the director of Human Rights Watch should be familiar.
In 1967, the Lawyers Committee on American Policy Toward Vietnam—chaired by Richard Falk (Princeton) and which included Richard Barnet (Institute for Policy Studies), John H.E. Fried (CUNY), Stanley Hoffmann (Harvard), Saul Mendlovitz (Rutgers), Hans Morgenthau (University of Chicago), Burns Weston (The University of Iowa), and Quincy Wright (University of Chicago)—issued Vietnam and International Law, a pivotal and enduring analysis of international law and the use of force by states. The Lawyers Committee argued as follows: “The military intervention by the United States in Vietnam violates the Charter of the United Nations”; “The United States has not fulfilled its obligations toward the United Nations [that is], the Security Council has not tacitly approved the military course of the United States in Vietnam”; “The United States failed to seek a peaceful solution as prescribed by the Charter of the United Nations”; and, crucially, “To the extent that the war actions by the United States in Vietnam violate international treaties [including the UN Charter], they also violate the United States Constitution.”
By 1971, writing in The Yale Law Journal, Chomsky immersed his criticism of the U.S. war in Vietnam in an international law perspective. This and other early works launched a focused application of UN Charter Article 2(4) in his analysis of U.S. foreign policy. For example, in his 2000 book, Rogue States: The Rule of Force in World Affairs, Chomsky wrote: “There is a regime of international law and order, binding on all States, based on the UN Charter and subsequent resolutions and World Court decisions. In brief, the threat or use of force [by states] is banned unless explicitly authorized by the [UN] Security Council after it has determined that peaceful means have failed or in self-defense against ‘armed attack’ (a narrow concept) until the Security Council acts.” Falk’s Lawyers Committee similarly wrote that Article 2(4) “is not a ‘limitation’ [on the use of force by states] but the keystone of modern international law”; that “threat or use of force are not ‘limited’—in principle they are outlawed”; and that the Charter “confers the competence to use force upon the [UN] Security Council, thus making force the instrument of the world community, and not of individual states.”
With respect to another provision in the Charter (Article 39), the Lawyers Committee wrote: “The essential meaning of this rule of international law is that no country shall decide for itself whether to use force.” About “self-defense” under the Charter (Article 51), the Lawyers Committee wrote: “The right of self-defense under the Charter arises only if an ‘armed attack’ has occurred.” And: “The term ‘armed attack’ has an established meaning under international law” and “was deliberately employed in the Charter to reduce drastically the discretion of states to determine for themselves the scope of permissible self-defense.”
Furthermore, initiating a use of force in violation of the UN Charter, as summarized above, constitutes a “war of aggression” under the Nuremberg Principles (1950) and thus “a crime against peace,” described as “planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances.” The Nuremberg Charter (1945), drafted by the United States, the Soviet Union, England, and France “for the just and prompt trial and punishment of the major war criminals of the European Axis,” had identically defined “crimes against peace.” The Judgment of the Nuremberg Tribunal (1946) by the same four powers, upon convicting several high-ranking Nazi officials for committing wars of aggression stated: “The charges in the Indictment that the defendants planned and waged aggressive wars are charges of the utmost gravity. War is essentially an evil thing. Its consequences are not confined to the belligerent states alone, but affect the whole world. To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”
The chief prosecutor at the Nuremberg Tribunal was Robert Jackson, at the time a justice of the United States Supreme Court. In his 2006 book, Failed States: The Abuse of Power and the Assault on Democracy, Chomsky quoted Justice Jackson’s “eloquent words on the principle of universality,” which in effect also describes the principles that Chomsky has applied to his own assessments of U.S. foreign policy: “If certain acts of violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us…. We must never forget that the record on which we judge the defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.”
Roth and International Humanitarian Law
To some extent, the New York-based Human Rights Watch has reported violations of international humanitarian law and human rights by the United States just as it has reported such violations of other countries. HRW describes its mission toward the United States as follows: “The United States Program of Human Rights Watch protects and promotes the fundamental rights and dignity of every person subject to the authority of the US government. We investigate and expose systemic human rights violations committed by the US federal, state and local governments, particularly in three priority areas: criminal justice, immigration, and national security. We prioritize issues affecting vulnerable populations, especially those that are likely to have difficulty vindicating their rights through the political process or in the courts, such as the poor, racial, ethnic and religious minorities, prisoners, immigrants, and children. Our investigations become the basis for strategic advocacy to press those in power to effect changes in laws and policies to respect fundamental rights.” Accordingly, it has issued many dozens of reports and press releases concerning abuses and misconduct by the U.S. government and its officials. It is indeed likely that HRW has applied universality to U.S. conduct with respect to two of its three priority areas—criminal justice and immigration.
However, in his review of Chomsky’s book Roth failed to apply the principle of universality to U.S. national security policy, HRW’s third priority program, including U.S. policy toward the Israel-Palestine conflict. This was one problematic aspect of Roth’s review, in addition to his apparent lack of familiarity with the UN Charter and the Nuremberg Principles. These problem areas were exacerbated by Roth’s petty criticisms of Chomsky’s book (see below), and his apparent ignorance of Chomsky’s lifelong work that is grounded to a very significant extent in the principle of universality and the rules of the UN Charter that Roth, in turn, did some damage to in his review for the New York Review.
With respect to the Middle East (Israel-Palestine in particular) and international humanitarian law (the Fourth Geneva Convention in particular and Roth’s home turf), Chomsky greatly outperforms Roth in their comparative applications of international humanitarian law (IHL) to the Israel-Palestine situation. When the New York Review invited Roth to review Chomsky’s book—a significant portion of which is focused on Israel-Palestine—it gave Roth an opportunity to apply his IHL-related expertise to help clarify the legal status of key issues pertaining to that conflict. But Roth hardly addressed the issue and, when he did, he did so in strange ways.
For example, Article 49 of the Fourth Geneva Convention, which applies to Israel’s occupation of the Palestinian territories, states: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” This clear legal directive as applied to Israel’s settlements in the West Bank is universally recognized by UN member states, except Israel, the United States and a small number of other states, as prohibiting and outlawing the settlements. In fact, Israel and the United States (under presidents Bill Clinton, George W. Bush, and Barack Obama) are the only two countries in the world that do not recognize the applicability of the Fourth Geneva Convention to Israel’s occupation of the Palestinian territories (see Friel, Chomsky and Dershowitz, chapter 6, “The Fourth Geneva Convention,” pp. 107-22).
In a 2009 op-ed piece in the Los Angeles Times, Sarah Leah Whitson, the long-time director of HRW’s Middle East and North Africa Division, addressed the legal status of Israel’s settlements this way:
The debate over Israeli settlements in the occupied Palestinian territories is often framed in terms of whether they should be “frozen” or allowed to grow “naturally.” But that is akin to asking whether a thief should be allowed merely to keep his ill-gotten gains or steal some more. It misses the most fundamental point: Under international law, all settlements on occupied territory are unlawful. And there is only one remedy: Israel should dismantle them, relocate the settlers within its recognized 1967 borders and compensate Palestinians for the losses the settlements have caused.
Removing the settlements is mandated by the laws of the Geneva Convention, which state that military occupations are to be a temporary state of affairs and prohibit occupying powers from moving their populations into conquered territory. The intent is to foreclose an occupying power from later citing its population as “facts on the ground” to claim the territory, something Israel has done in East Jerusalem and appears to want to do with much of the West Bank.
The legal principles were reaffirmed in 2004 by the International Court of Justice, which cited a U.N. Security Council statement that the settlements were “a flagrant violation of the Fourth Geneva Convention.” The International Committee of the Red Cross and an overwhelming number of institutions concerned with the enforcement of international humanitarian law have concurred in that view.
Here, HRW’s Whitson speaks powerfully while describing the clear legal status and political implications of Israel’s settlements under the Fourth Geneva Convention. Roth, on the other hand, when presented with an opportunity to apply IHL to the U.S.-backed stupendous illegality of Israel’s settlements in the West Bank, declined to do so in any meaningful sense, and thereby further undermined the already infinitesimally small odds of U.S. compliance with IHL on this count and related others.
Thus, even within HRW’s official realm of international humanitarian law, on the settlements issue and others on Israel-Palestine, Roth wrote without agency of his own and instead used others as narrative mouthpieces, as follows: “In the Middle East, Chomsky focuses in particular on US hypocrisy toward Israel. Washington’s attitude toward the West Bank settlements is illustrative. The Carter administration, like most of the world, recognized that the settlements violate the Fourth Geneva Convention’s prohibition on transferring an occupying power’s population to occupied territory.” Roth then wrote, incorrectly: “The US government has never repudiated that view.” Roth is thus apparently unaware that, beginning in 1996, the UN General Assembly began issuing short, stand-alone resolutions focused exclusively on reaffirming the applicability of the Fourth Geneva Convention to the Israel-occupied territories. In each vote the United States, under presidents Clinton, Bush, and Obama, voted against the otherwise unanimous international consensus by denying the applicability of the Fourth Geneva Convention to the Israeli occupation. Similarly, since 1996 the United States voted against General Assembly resolutions citing the illegal status of Israel’s settlements under the Fourth Geneva Convention (see Friel, Chomsky and Dershowitz, p. 110-12).
Roth and Weaponized Drones
As bad as this is, it isn’t the only instance of Roth’s mishandling of IHL as applied to a key security policy. For example, Roth wrote about U.S. drone attacks overseas without directly criticizing or condemning the attacks; rather, he criticized Chomsky for condemning the attacks. In one instance, Roth wrote:
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One reason often driving the U.S. government to ignore international norms is a sense of impunity. For example, until recently, only the United States had weaponized drones, so why should the US bother to articulate and respect rules governing their use? But such technological monopolies are inevitably short-lived, and America’s many years of using drones without articulated standards are much more likely to influence how other countries behave when they too have weaponized drones than any belated effort at standard-setting.
To the extent that Roth criticizes Obama’s drone strikes, this is basically it. He argues that such attacks abroad by the United States should take place with “articulated standards” and “rules governing their use.” Roth then criticizes Chomsky as follows:
Chomsky does nothing to contribute to what those standards might be, lapsing into denunciatory language about drone attacks being “the most extreme terrorist campaign of modern times.” He describes “assassination” in violation of “the presumption of innocence” without addressing the obvious retort—that combatants in war can be targeted.”
Roth’s position here in part reflects a joint letter in May 2015 addressed to President Obama and signed by several human rights organizations—American Civil Liberties Union, Amnesty International, Center for Civilians in Conflict (CIVIC), Center for Constitutional Rights, European Center for Constitutional and Human Rights, Human Rights Clinic (Columbia Law School), Human Rights First, Human Rights Watch, Open Society Foundations, and Reprieve—about Obama’s policies of targeted killings and drone strikes. In the letter, the human rights groups urge President Obama to “publicly disclose standards and criteria governing ‘targeted killings’; ensure that U.S. lethal force operations abroad comply with international human rights and humanitarian law; and enable meaningful congressional oversight and judicial review.”
By criticizing Chomsky’s condemnations of U.S. drone strikes in this manner—that is, by arguing that Chomsky did not suggest standards of drone use under international humanitarian law—is to suggest inappropriately that Chomsky should limit his criticism of the drone strikes to issues implicating international humanitarian law. Given that the nature of Chomsky’s condemnation of the drone strikes implicates the law of the UN Charter (as summarized above) in addition to their effects on the persons targeted, it seems that Roth sought to limit the boundaries of Chomsky’s criticism, as he limits himself, to international humanitarian law. Thus, Chomsky’s “denunciatory language about drone attacks,” as Roth put it, had to do directly or indirectly with both (a) the legality of the drone strikes in the first instance of their use under the UN Charter, and (b) their horrific, illegal effects under IHL. Since Roth seems opposed, even in a book review, to the coexistence or co-mingling of the two areas of law, he took offense at Chomsky’s broader criticism of the drone attacks.
Roth also objected to Chomsky’s description of the drone strikes as “assassination” and “presumption of innocence” (Roth’s use of quotation marks). As Roth obviously knows, since the point was clearly presented in Chomsky’s book, Chomsky’s concern about presumption of innocence was grounded in an article in the Times (“Secret ‘Kill Lists’ Proves a Test of Obama’s Principles and Will”), which reported that the Obama administration’s drone-strike targeting policies “count military-age males in a strike zone as combatants, according to several administration officials.” Upon reading this section in Chomsky’s book (p. 95), Roth’s indignation was directed at Chomsky for condemning the targeting practice, not at the practice itself.
Likewise, Chomsky’s description of the drone-strike killings as an “assassination campaign, targeting people suspected of perhaps intending to harm us someday and any unfortunates who happen to be nearby” (p. 210), apparently also irritated Roth. Chomsky invoked “assassination” a second time, as follows: “The issue arose after the presidentially ordered assassination by drone of Anwar al-Awlaki, accused of inciting jihad in speech, writing, and unspecified actions” (p. 94). Roth objected, apparently, to Chomsky’s use of “assassination,” although the word in this context was common parlance among some other human rights organizations. For example, in September 2011, shortly after Awlaki’s killing was made public, the Center for Constitutional Rights issued a report titled, “CCR Condemns Targeted Assassination of U.S. Citizen Anwar Al-Awlaki,” wherein CCR’s executive director, Vince Warren, stated: “The assassination of Anwar Al-Awlaki by American drone attacks is the latest of many affronts to domestic and international law. The targeted assassination program that started under President Bush and expanded under the Obama Administration essentially grants the executive the power to kill any U.S. citizen deemed a threat, without any judicial oversight, or any of the rights afforded by our Constitution. If we allow such gross overreaches of power to continue, we are setting the stage for increasing erosions of civil liberties and the rule of law.” It’s very strange that Roth, as HRW’s director, would not identify himself with this line of reasoning and instead target Chomsky and not Obama’s drone program for criticism in his review of Chomsky’s book.
Roth’s Petty Criticisms
Elsewhere, Roth wrote: “Chomsky’s book is not an objective account of the past. It is a polemic designed to awaken Americans from complacency.” Whether a book is objective or polemical, either approach can be appropriate as long as the book is factual. A key question is whether Roth convincingly undermined the factual basis of Chomsky’s book, or even a page or paragraph of it. If Roth had built such a case in his own mind, he failed to write it down in his review.
For example, Roth wrote, with respect to Chomsky’s book: “China is largely ignored.” However, the index entry for “China” in Chomsky’s book reads as follows: “China, 43, 51-52, 57-58, 70-74, 82-83, 98, 105, 222, 237, 243-46, 248-40.”
Similarly, Roth wrote: “Russia emerges with respect to nuclear issues but little else.” Well, the nuclear weapons issue between the United States and Russia is a pretty damned important issue, one would think, and it’s bizarre that Roth would dismiss such a focus. Also, the chapter in which Chomsky discusses Russia and nuclear weapons — “The Doomsday Clock,” a reference to the Doomsday Clock of the Bulletin of the Atomic Scientists — is arguably the most important in Chomsky’s book. It apparently went over Roth’s head.
Roth also wrote:
Chomsky’s selective use of history limits his persuasiveness. He blames the Middle East turmoil, for example, largely on the World War I-era Sykes-Picot agreement that divided the Ottoman Empire among British and French colonial powers. He’s right that the borders were drawn arbitrarily, and that the multiethnic and multiconfessional states they produced are difficult to govern, but is that really an adequate explanation of the region’s turmoil?
Chomsky’s reference to the Sykes-Picot agreement—on essentially the last page of the book—was presented as a glance back at, and cautionary note about, the Western-interventionist historical context of the turmoil in the Middle East. Thus, Chomsky wrote: “Repeated Western interventions since [the Sykes-Picot agreement] in the Middle East and Africa have exacerbated the tensions, conflicts, and disruptions that have shattered the societies. The end result is a ‘refugee crisis’ that the innocent West can scarcely endure.” Chomsky’s more comprehensive explanations of Middle East turmoil can be found, not surprisingly, in Chomsky’s chapters on the Middle East: “Terrorists Wanted the World Over” (pp. 22-30); “The Oslo Accords: Their Context, Their Consequences” (pp. 115-27); “Israel-Palestine: The Real Options” (pp. 135-42); and “Cease-fires in Which Violations Never Cease” (pp. 189-197), in addition to extended sections on “Israel and the Republican Party” (pp. 78-81) and “The Iranian ‘Threat’ and the Nuclear Issue” (pp. 81-83). Somehow, Roth found no “explanation of the region’s turmoil” in these chapters, but instead inexplicably ventured out to the last page of the book to miscast Chomsky’s accurate depiction of the Sykes-Picot agreement, signed in 1916, as an historical, Western-interventionist root to contemporary Mideast turmoil.
Roth also wrote: “Nor was much attempt made to update earlier chapters in light of later events. The Iranian nuclear accord and the Paris climate deal are mentioned only toward the end of the book, even though the issues of Iran’s nuclear program and climate change appear in earlier chapters.” Am I nuts or might “updating earlier chapters” logically occur in chapters “toward the end of the book”? And is there, or is there not, a chapter in Chomsky’s book titled, “‘The Iranian Threat’: Who Is the Gravest Threat to World Peace?” on U.S. policy toward Iran in addition to Israel, the Mideast, nuclear weapons, and the Iranian nuclear accord (pp. 218-29), all of which is precisely what the political context of the Iranian nuclear accord entails.
Furthermore, the recent Paris agreement on climate change was drafted during the first two weeks of December 2015 and signed in April 2016. These dates are noteworthy when viewed in the context of Roth’s complaint that “the Paris climate deal [is] mentioned only toward the end of Chomsky’s book,” the publication date of which was May 2016.
It also should be noted that I was able to read Roth’s review of Chomsky’s book in May 2016 almost certainly because the publisher of Chomsky’s book had sent a pre-publication copy of the book’s galleys to the New York Review of Books months prior to the May 2016 publication date. In fact, the submission guidelines at Publisher’s Weekly for book galleys stipulates: “Submissions must be sent three (3) months—preferably four (4)—prior to the 1st day of the month of publication.” If Chomsky’s publisher, Metropolitan, had complied with the preferred schedule at Publisher’s Weekly, it would have submitted the galleys to Chomsky’s book on or around January 1, 2016; that is, nineteen days after the climate negotiations in Paris had ended on December 12, 2015. Given the tight conjunction of dates, Chomsky and Metropolitan likely went to some lengths to update the book up to the climate agreement in Paris, which they did (pp. 231-33), which (however it was done) compares favorably to yet another of Roth’s trivial complaints about Chomsky’s book.
Roth and Iraq
Finally, is the world best served by Human Rights Watch and other human rights organizations limiting their application of war-related law to international humanitarian law? One way to answer is to ask, What is international humanitarian law? The Red Cross defines IHL (also referred to as the “law of war” and the “law of armed conflict”) as “a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict” on “persons who are not or are no longer participating in hostilities and restricts the means and methods of warfare.” The Geneva Conventions of 1949, including the Fourth Geneva Convention, “provide the foundation for this legal regime.” However, there is at least one other body of law that applies to war: the law of the UN Charter, including the cardinal rule and keystone principle of international law, which is the Article 2(4) prohibition of the threat or use of force. HRW’s exclusive focus on “limiting the effects of armed conflict” without also taking into account the initiation of force in the first place is comparable to a dog chasing its tail: without an additional emphasis on the condemnation of illegal threats of force and launches of aggressive wars, the overall effects of such wars that implicate international humanitarian law and human rights may never end. This indicates that HRW’s organizational mandate as applied to its security policy program is profoundly problematic, the ramifications of which can be seen in some of its publicly issued positions before and after the 2003 invasion of Iraq.
Shortly before the U.S. invaded Iraq, HRW issued a statement, “Human Rights Watch Policy on Iraq,” that began: “Human Rights Watch has worked for more than twenty years in war zones. We believe that our most important contribution to reducing the suffering that war so often entails is to monitor and promote all warring parties’ compliance with international humanitarian law.” Without contesting the illegal U.S. threats to invade Iraq, HRW continued: “Should the United States launch a war against Iraq, we will insist that the United States and its military allies as well as Iraq comply with international humanitarian law.”
Post-invasion in 2004, Roth wrote: “Human Rights Watch ordinarily takes no position on whether a state should go to war.” Roth explains: “The issues involved usually extend beyond our mandate, and a position of neutrality maximizes our ability to press all parties to a conflict to avoid harming noncombatants.” Without denigrating or rejecting in principle HRW’s post-invasion programs, one might ask: might a reduced incidence of aggressive war, say, pursuant to an expansion of the international law mandate among the world’s leading human rights organizations to include Article 2(4), ultimately protect more persons than the serially un-opposed initiation of such wars?
If you were a citizen of Iraq in 2003, wouldn’t you have welcomed strong opposition within the United States and around the world by the leading human rights organizations against a U.S. invasion in violation of the cardinal rule and keystone principle of international law, even more so than post-invasion access to you by HRW, assuming post-invasion possession of life and limb, home and family?
The traditional separation between international humanitarian law and the UN Charter among the human rights organizations, including HRW, functions in practice as a concession to the discretion of states to resort to “the supreme international crime,” as Roth demonstrates. It thereby seems that Roth’s focus on international humanitarian law to reduce war-related human suffering is unnecessarily narrow. And that Chomsky’s incorporation of both Article 2(4) and international humanitarian law into a lifetime of book-writing reflects a superior analytical framework which, if more widely adopted, would likely reduce the incidence of aggressive war and thus the war-related humanitarian disasters that are ineluctably bound to “crimes against peace” by war-making states. It seems that Roth didn’t know enough, or care enough, to make that point.