Kill Osama but not the Dalai Lama?

Bin Laden's death teaches that international law is akin to an ongoing discussion about rights

Allen Z. Hertz was senior advisor in the Privy Council Office serving Canada's Prime Minister and the federal cabinet. He formerly worked in Canada's Department of Foreign Affairs and earlier taught history and law at universities in New York, Montreal, Toronto and Hong Kong. He studied European history and languages at McGill University (B. A.) and then East European and Ottoman history at Columbia University (M. A., Ph.D.). He also has international law degrees from Cambridge University (LL.B.) and the University of Toronto (LL.M.). This posting is a revised version of an essay published in American Thinker on May 12, 2011.


Killing Osama an "open and shut" case?

On May 10, 2011, the New York Times published a Statement from the family of Sheikh Osama bin Laden. The grieving family accused the USA government of unlawful killing in violation of both international law and USA legal principles. I don't have strong feelings about this particular death. However, I still think this could be one of those "teachable moments" about which President Obama has spoken. Specifically, this dramatic killing might remind us that international law is much akin to an ongoing discussion about rights, in which every country and non-governmental organization (NGO) has its lawyers, and every law professor and layman a viewpoint.

And to be sure, the USA government likely has some good legal arguments to justify what it did to Osama. But probably it is a stretch too far to say that the USA government has overwhelming legal arguments that conclusively legitimate this unilateral act committed on the territory of a foreign State.

Osama Bin Laden

Agree who a terrorist?

The government of the People's Republic of China (PRC) applauded the killing of Osama. This should not surprise us, because the PRC government frequently seeks the cooperation of other countries in running its own war on terror. But, that should not cause us to believe that the PRC and USA governments always agree as to who is a terrorist.

For example, look at the case of the Dalai Lama. As a Buddhist spiritual leader, he is revered by millions worldwide. And, there are many who also regard him as a hero because of their perception that he champions the cause of the Tibetan People. By contrast, the Dalai Lama is generally considered to be a villain in China, where he is mostly seen as head of a dangerous separatist movement, alleged to have caused the death of thousands over the last few decades.

Flag of the People's Republic of China

Kill Osama but not the Dalai Lama? 

What legal arguments might the PRC government advance in the unlikely event that it would decide to follow the USA government's playbook with some unilateral action of its own? And here I am thinking of the purely imaginary hypothesis of a People's Liberation Army strike against the Tibetan Buddhist base in Dharamsala, India, to capture or kill the Dalai Lama, whom the PRC government regards to be a criminal just like Osama.

The Dalai Lama

This troubling scenario invites serious reflection on the subjectivity and partisanship of much of the discourse that invokes international law. No surprise there, because whether at home or abroad, law is a social phenomenon tied to politics and political institutions. But, is there a sense in which international law is more directly subordinate to politics than domestic law?


Less commitment to international law?

Domestic law operates within a civil society that is co-extensive with the sovereign State that at home importantly enjoys a monopoly of the use of force. Within that key context, the State normally devotes considerable human and financial resources to various facets of the country's legal system. Thus, a given national government normally has fairly strong incentives to maintain something like the rule of law, i.e. the integrity, consistency, impartiality and efficiency of its own legal system.

By contrast, governments seem to be somewhat less focused on international law, which functions principally in the broader world of States. There, almost every national government seems to be armed to the teeth and largely a power unto itself. Though upholding the rule of law internationally is normally among the interests of national governments, they commonly devote very limited human and financial resources to matters connected with international law and institutions. This marked lower level of investment perhaps suggests that governments may believe that they have more of a stake in domestic law than in international law, which is also less trusted.

Other aspects of perceived national self-interest are in practice often privileged over a government's natural concern for optimal functioning of the international legal system. Though international lawyers tend to think that international law is more important, historians and political scientists often have real doubts about how big a role international law actually plays in the conduct of States.


Law, continuation of war by other means?

Nineteenth-century Prussian military theorist Carl von Clausewitz was among those thinking international law's role to be negligible. A famed proponent of what would later be called Realpolitik, Clausewitz opined that "war is the continuation of politics by other means." On March 27, 1954, The Saturday Evening Post quoted China's Premier Zhou En Lai as cleverly reversing Clausewitz’s famous dictum by saying: “All diplomacy is a continuation of war by other means.”

Significantly, Premier Zhou was not contradicting Clausewitz, because the latter's insight is logically compatible with its converse. In this particular context, international law is legitimately to be understood as part of diplomacy. Thus, it is relevant to note that the chances that international law can sometimes be the continuation of war by other means are significantly enhanced by at least three characteristics of the global system of States:

• Despite the United Nations, there is no "world government" with -- a monopoly of armed force; sovereign executive and legislative authority; and responsibility for the welfare of all humankind, without discrimination.

• Despite the International Court of Justice (ICJ), there is nothing like a "world supreme court" with -- truly independent judges; universal compulsory jurisdiction; and capacity to make final legal rulings that are regularly enforced.

• Despite increasing globalization, each State feels compelled to realize its own vital interests, within a context still significantly marked by stiff competition and difficult partnerships with other States.

Law, tool for political advantage?

A good example of the relationship between politics and international law is provided by the law of the sea. For more than three hundred years, the country with the strongest navy -- once Great Britain and now the USA -- has been the champion of the principle of freedom of the seas, including a right of navigation through "international" straits. By contrast, governments less able to project seapower have tended to favour more expansive jurisdiction for the coastal State. And, exactly these differences play as the USA and PRC governments now approach some disputed questions, including differences over the legal status of parts of the South China Sea.

In Mare Liberum (1609) Hugo Grotius formulated
 the principle that the sea is international.

Law, so certain?

Enhanced thoughtfulness and deeper awareness of divergent perspectives are urgently needed in discussions that rely on the authority of international law. For example, some supporters of the current USA administration have, for a number of years, tended to speak too emotionally and with too much certainty about alleged violations of international law, e.g., by the USA government under President George W. Bush. Within the USA and abroad, this bad habit of being so dogmatic about international law was perhaps accentuated by the debate that began in 2003 over the USA government's role in Iraq.

"International law" rhetoric may also have become somewhat more hyperbolic, due to the proliferation of NGOs like Amnesty International and Human Rights Watch. Questions of international law now regularly receive attention from an increasing number of lawyers and laymen working for a variety of NGOs. There, a polemical discourse is shaped by the circumstance that many NGOs are both special-interest groups and political-action lobbyists.

With this recent experience in mind, it might be useful to encourage calmer, and more wide-ranging and illuminating exchanges about international rights and wrongs. This is difficult, because such an ongoing, open dialogue requires a mutual respect, able to accommodate the other viewpoints that almost invariably deserve to be considered. Audi alteram partem, hear the argument of the other side!

International law is akin to
an ongoing discussion about rights
where every country and NGO has its lawyers
and every law professor and layman a viewpoint.

"Lawfare" versus legal system?

Many Arab and Muslim countries, as well as some of their friends and allies, regularly use international law as "other means" for waging a never-ending war against Israel. They do so principally because they reject Israel's legitimacy and permanence as "the" Jewish State, i.e. as the political expression of the self-determination of the Jewish People in a part of its aboriginal homeland.

Overemphasis on anti-Israel "lawfare" is regrettable, inter alia, because that pattern of behavior undermines the consistency, integrity and reputation of international law and institutions, including the United Nations. Such persistent "lawfare" also likely lowers confidence in the possibility that there could ever be an international legal system that, in some significant sense, is both impartial, and respectful of the principle of the equality of States.


International Court of Justice political?

A prominent instance of anti-Israel "lawfare" was United Nations General Assembly Resolution ES-10114 (December 2003) requesting an advisory opinion from the ICJ on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. In July 2004, the ICJ gave an advisory opinion that referred to "the Palestinian People" more than a dozen times. By contrast, absent was any reference to "the Jewish People" or to its specific rights between the Jordan River and the Mediterranean Sea. These Jewish rights are clearly set out, for example, in stipulations of the 1922 League of Nations Mandate for Palestine which is akin to a multilateral treaty.

A skewed reading of the Mandate for Palestine, and largely irrelevant generalizations about the broader system of Mandates established after the First World War, helped the ICJ reach conclusions that conveniently dovetailed with the strong political prejudice already inherent in the 2003 request from the General Assembly. Neither balanced nor persuasive, this advisory opinion probably further impaired the credibility of the ICJ, which previously had already lost much ground in its efforts to keep the trust of governments.


Goldstone Report lawfare?

Similarly flawed was the 2009 Report of the United Nations Fact-Finding Mission on the Gaza Conflict, which was headed by Justice Richard Goldstone of South Africa. The mission's mandate was, "to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza." However, the Goldstone Report notably ignored the rule against bias with respect to mission members, procedure and conclusions. Moreover, Judge Goldstone in 2011 significantly admitted that the mission's report had serious mistakes and did not meet the standards for a judicial or quasi-judicial proceeding.

Judge Goldstone admitted that the 2009 Gaza report
had serious mistakes and did not meet
the standards for a judicial or quasi-judicial proceeding.

The Goldstone Report, the advisory opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory and numerous other instances of anti-Israel "lawfare" suggest that  international law and institutions could play a larger and a more positive role, if more attention is devoted to scrupulously respecting fundamental requirements of fairness and natural justice. As in disputes involving other countries, Israel has explanations and arguments that deserve to be both impartially heard and carefully considered.


Soon regret precedents we set today?

The Obama administration now finds itself involved in a series of controversial international operations of its own -- as in Libya, Yemen and Pakistan. Perhaps this might bring more people round to an understanding that it's probably high time to be somewhat less categorical about what is said to be legal and illegal.

Moreover, fewer exaggerations about international law would be prudent, because with regard to legal system, "what's sauce for the goose is soon sauce for the gander." And certainly, that folksy reminder also applies to the legal discourse on Osama's case.

Barack Obama's Muslim Childhood

What President Obama Could Learn From
UK Prime Minister Benjamin Disraeli

Allen Z. Hertz was senior advisor in the Privy Council Office serving Canada's Prime Minister and the federal cabinet. He formerly worked in Canada's Foreign Affairs Department and earlier taught history and law at universities in New York, Montreal, Toronto and Hong Kong. He graduated from McGill University with First Class Honours and the Minister of Education's Gold Medal in History. He holds a Ph.D. in East European and Ottoman history from Columbia University and law degrees from Cambridge University and the University of Toronto. This is a revised version of "Religion and Politics: What Barack Obama Could Learn from Benjamin Disraeli," first published in American Thinker on August 27, 2010.

USA President Barack Obama

How did Disraeli deal with Jewishness?

Jewish-born Benjamin Disraeli served a total of seven years as British Prime Minister, during two terms between 1868 and 1880. As a child, Disraeli received Jewish instruction and his family belonged to a synagogue. Though he converted to the Anglican Church at the age of thirteen, Disraeli's Jewish religious and ethnic origins were both well known and frequently discussed throughout his long political career, during which he was proudly philo-Semitic.

Does religion play a role in USA politics?

On August 19, 2010, a Pew Research Center poll showed that a growing percentage of Americans (43%) do not know President Obama's current religion, with another 18% saying that he is now Muslim. This signals a potential political problem for President Obama because USA public-opinion polling consistently tells us that most Americans expect a politician to have firm religious beliefs and are genuinely interested in their leader's religious affiliations.

Why uncertainty about Obama?

Though explicitly philo-Muslim in policy, President Obama has repeatedly affirmed his own Christianity, which he adopted when he joined the United Church of Christ, at some point before his October 1992 marriage to Michelle Robinson. However, there remains the relevant question of his religious evolution before that time, including during his childhood. In this regard, his June 4, 2009 Cairo speech offered: "I'm a Christian, but my father came from a Kenyan family that includes generations of Muslims." Could it be that increasing uncertainty about President Obama's present religious affiliation is connected with his religious history from childhood, just as there was always lively interest in Disraeli's Jewish childhood?

Was Obama Muslim?

Theologically Islam regards all children to be born Muslim and to remain such until adults teach them otherwise. President Obama was probably Muslim during his childhood also because: (1) his paternal grandfather in Kenya was Muslim; (2) his Kenyan father (though Marxist and atheist) was born Muslim, always kept his two Muslim names, "Barack" and "Hussein," and when he died, his family wanted him buried with Muslim rites; (3) infant Obama was given two Muslim names, "Barack" and "Hussein"; (4) his Indonesian stepfather was also Muslim; (5) Indonesian classmates and playmates recall that he attended religious services at school and in mosques, when they believed him to be Muslim; (6) he was registered as "Muslim" at two elementary schools in Indonesia; (7) he studied the Koran in Indonesia; (8) an Indonesian teacher recalls that he was then also learning Arabic recitation of the Koran, which adult Obama has shown that he can still remember; and (9) reflecting on her childhood with young Obama, his half-sister Maya Soetoro in 2007 told The New York Times: "My whole family was Muslim."

UK Prime Minister Benjamin Disraeli

Could Obama learn from Disraeli?

Though in 2008 both Barack Obama and his campaign staff specifically said that he had never been Muslim, the President might perhaps be wiser to follow Disraeli's example in speaking clearly about his religious experience in a way that is more intelligible to ordinary Americans who from childhood are generally people of faith.

A member of the Anglican Church, Disraeli repeatedly affirmed that there was nothing wrong in being Jewish or having converted from Judaism to Christianity. In the same way, there is nothing wrong in being Muslim or having been Muslim. However, suspicion that a previous religion may have been glossed over for political advantage creates a bad impression. Could it be that this is a factor contributing to the growing confusion about President Obama's particular religious faith today?

Okay to ask about Obama's religion?

Setting sociological norms of political behavior is the prerogative of the American people. They are entitled to decide whether it is proper to discuss President Obama's religious affiliation, which is a topic that he himself has broached in his speeches.  Though an articulate minority would strongly disagree, a broad range of public-opinion polling about the role of religion in USA public life clearly indicates that most Americans likely regard President Obama's current religion and religious history to be matters of legitimate public interest.

Obama: Walking on Israel in Chamberlain’s Shoes?

Allen Z. Hertz was senior advisor in Canada's Privy Council Office serving the Prime Minister and the federal cabinet. Formerly he worked in Canada's Foreign Affairs Department and earlier taught history and law at universities in New York, Montreal, Toronto and Hong Kong. He graduated from McGill University with First Class Honours and the Minister of Education's Gold Medal in History. He holds a Ph.D. in East European and Ottoman history from Columbia University and international law degrees from Cambridge University and the University of Toronto.

A version of this article was first published in September 2009 by The Jewish Telegraphic Agency -- JTA: The Global News Service of the Jewish People. Related postings on this website include "Religion and Politics: What Barack Obama could learn from Benjamin Disraeli" and "Obama's Cairo Speech: Line-by-Line Israel Analysis."


Neville Chamberlain’s three years (1937-1940) as British Prime Minister earned him infamy in Jewish history. His appeasement policy enabled Germany to become a giant by subversion of first Austria and then Czechoslovakia. And, with the whole of the Indian subcontinent still under British rule, Chamberlain then had added motivation to want to appease Muslims. Along with British interests in the Arab Mideast, a desire to cater to Muslim public opinion in India was also a factor that contributed powerfully to the 1939 decision to virtually close the doors of Mandate Palestine to Jewish refugees. They were then desperately searching for a haven from Nazi oppression. Nonetheless, Chamberlain told the British Cabinet (April 20, 1939) that it was of:

immense importance... to have the Moslem world with us... If we must offend one side, let us offend the Jews rather than the Arabs.

The fundamental immorality of impeding Jewish migration was all the greater because, with respect to the western part of Mandate Palestine, the international commitment to the Jewish People had already been crystal clear. From the Jordan River to the Mediterranean Sea, "a national home for the Jewish People" had been created via a series of declarations, resolutions and treaties from 1917 to 1923.  But, this was no concern of Chamberlain, who on July 30,1939 wrote to his sister Hilda: "No doubt the Jews aren't a lovable people; I don't care about them myself..."



Neville Chamberlain, UK Prime Minister 1937-1940
"No doubt the Jews aren't a lovable people;
I don't care about them myself."

As tension now grows over Iran’s race to develop nuclear weapons, President Obama seeks rapprochement with the Muslim world, including dialogue with Iran. Can we ask if there are similarities between Obama and Chamberlain?

April 2009, Obama bows low to the King of Saudi Arabia at G-20 Meeting in London.

With scant foreign-policy experience, both came to office with an abundance of self-confidence to lead a declining Great Power with acute fiscal troubles and far too many global responsibilities. And, each arrived with a strongly held belief that international sins of his own country had to be made right as part of an energetic search for a general peace. Thus, Chamberlain saw the 1919 Versailles Treaty as a draconian imposition that had driven Germany to Nazi dictatorship. Similarly, Obama blames the USA and the West for colonialism and imperialism that are seen to have injured the developing countries, including the Muslim World. And, like Chamberlain, Obama reaches out to opponents, acknowledges their suffering and seems to promise reparation for past wrongs.

Chamberlain (left) too ready to betray friends
in order to appease dangerous opponents.

History’s verdict is that Chamberlain was astonishingly naive. As for Obama, it is too early to say whether he will follow Chamberlain’s path in seeking to appease dangerous opponents at the expense of friends. Chamberlain betrayed Czechoslovakia in 1938. And, had Hitler agreed to refrain from using force in 1939, Chamberlain was then prepared to offer Germany large parts of Poland’s territory.

Assuredly, the Chamberlain-Obama comparison is invidious and, in this partisan vein, it was raised during the USA presidential campaign in 2008. Now the comparison deserves fresh consideration, particularly in the light of President Obama’s June 4, 2009 Cairo speech to the Muslim World.

June 4, 2009, President Barack Obama in Cairo.

In Cairo, Obama sought the appearance of even-handedness in discussing the long-standing dispute between Israel and its Arab neighbors. But, read with an eye to the moral context, his Cairo speech was profoundly anti-Israel. This anti-Israel bias was camouflaged by a dramatic reference to the Holocaust and by other acknowledgements of Jewish suffering over the centuries. Obama was likely advised that such sentiments would resonate with USA Jews. However, Jews in Israel were too canny to be fooled by the Cairo speech, after which public opinion polls there saw his approval rate drop like a stone.

The meaning of “dissimulation” includes speech calculated to cause belief in something which the speaker has not literally said. Is dissimulation dishonest? An answer depends on the context, but honest or not, dissimulation has always been one of the main elements of statecraft -- as 18th-century King Frederick the Great insisted. Obama established his credentials as dissimulator no later than the campaign for the Democratic nomination, when he flip-flopped on his promise that “Jerusalem will remain the capital of Israel, and it must remain undivided.”

In July 2008 Obama said:
“Jerusalem will remain the capital of Israel, and it must remain undivided.”

In 2008, he also denied his childhood practice of Islam; knowledge of the anti-Israel and anti-USA rants of his long-time pastor Jeremiah Wright; and a close relationship with Bill Ayers, a former member of the Marxist terrorist group known as the Weather Underground. His penchant for such implausible denials goes part way toward explaining why current opinion polling shows that USA perceptions of Obama’s trustworthiness are gradually eroding. The three denials were also early predictors that he would be cold to Israel for religious, cultural and ideological reasons.


Illinois State Sen. Obama with Palestinian nationalist Edward Said,
Chicago (May 1998) at an Arab fund-raising event,
where Said was keynote speaker. At Columbia University,
Obama had taken one of Prof. Said's courses.

White House speech writer Ben Rhodes has said that the Cairo speech showed “frankly, just how he [Obama] personally views the conflict.” Rhodes also said that Obama mulled over every line, every word of the speech. This is significant because, with respect to Israel, the Cairo speech was marked by dissimulation and implication that morally condemned the Jewish State, while largely validating the narrative of Arabs and Muslims.

Key dissimulation lay in the phrase: “America’s strong bonds with Israel are well known. This bond is unbreakable.” These exact words were cynically chosen to elicit belief that Obama was expressing approval for current ties with Israel and promising future support. But, linguistically those two sentences neither said that he approved of those “strong bonds” nor offered a promise for the future. They were merely a bare statement of fact, presumably resting on Israel’s popularity with the USA public and in Congress. By contrast, there was both approval and a promise in the pledge that: “America will not turn our backs on the legitimate Palestinian aspiration for dignity, opportunity, and a state of their own.” The dissimulation with respect to Israel was further corroborated by a later passage, where Obama signaled change by saying: “America will align our policies with those who pursue peace.” And, who will be deemed to “pursue peace” must naturally be understood within the moral parameters of “just how he personally views the conflict.”

Dissimulation was also salient with regard to Jerusalem, in relation to which Obama implied that Israel has failed to accommodate the needs of Muslims and Christians. Moreover, the Cairo speech specifically spoke about working for the day when Jerusalem would be “a place for all of the children of Abraham to mingle peacefully together as in the story of Isra.” Here, Obama cynically calculated that non-Muslims would perceive this passage as an anodyne ecumenical reference, while Muslims would understand the Isra story as relating to the Prophet Muhammad’s alleged trip to Jerusalem’s Al-Aqsa mosque. There, the hadith say that Muhammad was validated as God’s final messenger by his prophetic predecessors, including Moses and Jesus. Thus, for Muslims, the Isra story points to their claim to Jerusalem and their belief that Islam is superior to Judaism and Christianity.

For two centuries, the political and legal doctrine of the self-determination of Peoples has been an engine of world history. The Cairo speech significantly referred to the Palestinian People at least five times without offering a hint that Arabs living around the Jordan River did not generally self-identify as a distinct "Palestinian People" before the late 1960's. By contrast, Obama referred only once to the very ancient Jewish People, not as proud bearer of rights, but in its Diaspora persona as victim. Otherwise, Obama used “Israelis” or words that implied an “Israeli People.” Obama’s terminology thus favored a newborn Palestinian People and implicitly challenged Israel’s legitimacy by ignoring its key political and legal claim to embody the self-determination of the Jewish People, whose subjective-objective national identity reaches back at least twenty-five centuries.

In Cairo, Obama had nothing to say about close to 1400 years of persistent Arab and Muslim discrimination against Jews, including periodic persecution of the Jews in the Holy Land (Eretz Israel). By contrast, he repeatedly implied that Israel is responsible for Palestinian Arab suffering from 1948 to the present. Thus, he referred to Palestinian refugees, failures in economic and social development, “daily humiliations… that come with occupation” and a so-called “humanitarian crisis” in Gaza. Evidently, how Obama “personally views the conflict” is deeply flawed. For example, would the Mideast have had any Jewish (circa 850,000) or Arab (circa 600,000) refugees had Arabs locally and generally followed Jews in embracing the 1947 UN General Assembly resolution calling for peaceful creation of two new States, the one "Jewish" and the other "Arab"?

Similarly, the Cairo speech falsely implied that Israel has been the obstacle to a "two States" solution. Thus, Obama said nothing about Prime Minister Sharon’s unilateral withdrawal from Gaza in 2005. And, he was silent about Yasser Arafat and Mahmoud Abbas’s failure to accept far-reaching "two States" offers by Prime Ministers Barak and Olmert, in 2000 and 2008 respectively. This goes to the crux of the long-standing dispute. Since the 1937 Peel Report, first Zionists and then Israel governments have repeatedly accepted the partition idea, i.e. two States for two Peoples. By contrast, Arabs locally and generally have largely rejected the principle of "the Jewish State," i.e. the idea of having there an independent country to embody the self-determination of the Jewish People.

In Cairo, Obama deliberately chose to ground rights in mere suffering. This was curious, because as a lawyer Obama had to have known volenti non fit injuria -- the Common Law principle that the plaintiff cannot recover damages to the extent that he himself has caused the harm. Moreover, plaintiffs are required to take timely steps to mitigate their losses, no matter how caused. But, the Cairo speech never asked to what extent Palestinian Arab suffering might be the result of their own bad choices, including their share of responsibility for starting the 1948 war, which was a self-proclaimed Arab attempt to exterminate the Jews living between the Jordan River and the Mediterranean Sea.

The Cairo speech repeatedly drew from the familiar arguments of Israel’s bitter enemies. First, Obama’s present-tense references to “Palestine” clearly begged the question, because there is still no State by that name. Second, Obama slandered Israel by implying a false comparison between the suffering of Palestinian Arabs and that of Black people in the USA. Third, this invidious comparison was reinforced by a gratuitous reference to “segregation” which seemed to slyly point to the canard that Israel is an apartheid State. Fourth was an inappropriate nod to White South Africa and other instances where indigenous Peoples offered “resistance” to colonial rule. Fifth, Obama implied that Palestinian Arab suffering can be equated with the Holocaust, which is a grotesque and wildly inaccurate comparison that is close kin to the calumny that Israel behaves like Nazi Germany. Finally, Obama implied that the European murder of six million Jews was the ideological basis for Israel’s creation.

As a lawyer, Obama had to have known that Israel validates itself, not by the Holocaust, but by virtue of the political and legal doctrines of aboriginal rights (normally minority rights) and the self-determination of Peoples. The Jewish People has aboriginal rights in the same way as do the native "First Nations" in Canada. And, the Jewish People invokes its self-determination right exactly as does the great Arab People, whose self-determination is already expressed in the twenty-one countries that explicitly self-identify as Arab.

The Cairo speech pandered to Arab and Muslim prejudice by ignoring the presence since pre-Biblical times of large numbers of Jews in the Mideast, including some who -- in each and every decade -- lived in the Holy Land (Eretz Israel). There, of all extant Peoples, the Jewish People has the strongest claim to be aboriginal. For this reason, two decades before the Holocaust, the aboriginal rights of the Jewish People were embedded in international law by the settlement after the First World War. Within a larger Mideast and global framework, justice was done because simultaneously there was creation or recognition of several new Arab States that were freed from Turkish rule and placed on the road to eventual independence; as was the “national home for the Jewish People,” from the Jordan River to the Mediterranean Sea.

By ignoring the Jewish People’s aboriginal and self-determination rights, the Cairo speech was notably devoid of a compelling moral or legal rationale for Israel’s creation. In Cairo, Obama called for an end to Palestinian violence which was dignified as “resistance.” But, apart from an appeal to end reciprocal suffering, he offered Arabs and Muslims no convincing moral or legal reason for stopping what they largely consider to be their just war against the Jews.

To the contrary, Obama probably diminished prospects for peace by alienating Jews in Israel and failing to provide Arabs and Muslims with an ideological foundation for a peaceful process to respectfully reconcile the prior rights of the Jewish People with the subsequent rights of the newborn Palestinian People. The latter now has claims to self-determination and some territory. But, such Palestinian claims cannot cancel the prior rights of the Jewish People, which notably include the right not to be killed by neighbors. This means that the newly self-identified Palestinian People lacks the right to wage a war of national liberation against the Jewish People, the presence of which is not colonial.

Though repeated lip service was paid to Israel’s "right to exist," the Cairo speech consistently painted a moral picture that seemed to argue the contrary. Saying “threatening Israel with destruction is deeply wrong” was probably calculated to resonate with USA Jews who are grateful for Israel’s survival. By contrast, most Jews in Israel have the commonsense to understand that their country deserves much more than mere survival. They know that Israel urgently needs the same rights normally enjoyed by other countries, and that Israel must be judged according to the identical standards regularly applied to other States, in the same or similar circumstances.

Obama’s existential focus was too starkly minimalist to accommodate Israel within the world of States, where each country is driven to advance its own economic and political interests. Given the USA’s touted “strong bonds” with Israel, Obama ought to have said less about a “right to exist” and more about USA help in advancing any number of Israel's aims. The bad news here is that Obama perhaps intends to sell Israel short. This recalls national security adviser James Jones’s earlier quip that the new USA administration was not about to “throw Israel under a bus.”

The structure of the Cairo speech implausibly suggested that Iran’s race to develop nuclear weapons is today less “a major source of tension” than “the situation between Israelis, Palestinians and the Arab World.” In discussing this Iranian nuclear threat, Obama seemed to signal that he might be willing to break with a decades-old understanding that the USA would refrain from publicly addressing whether or not Israel has nuclear weapons. The implication here was that Obama would perhaps follow Chamberlain’s playbook by making Israel’s nuclear weapons part of a broader deal, embracing Iran and other States in the region.



Iran's President Mahmoud Ahmadinejad
has threatened "to wipe Israel from the pages of history."

Was a major shift in USA foreign policy heralded by the speech’s apparent challenge to Israel’s ideological foundations and security interests? Obama placed a special focus on Palestinian Arab suffering that disturbingly recalls Chamberlain’s exaggerated concern for Czechoslovakia’s three million Sudeten Germans. Chamberlain’s myopia rapidly led to the destruction of interwar Czechoslovakia, then the only democracy in Eastern Europe. With Europeans appearing as themselves and the Palestinian Arabs as the Sudeten Germans, does President Obama cast himself as Chamberlain?

The British Prime Minister earned obloquy by being too eager for a general settlement at the expense of “people of whom we know nothing.” While irresponsibly failing to face the question of Hitler’s ultimate aims, Chamberlain recklessly sought peace by catering to German demands, including at the 1938 Munich Conference. Is Obama similarly searching for a general settlement that betrays Israel’s vital interests to the advantage of 21st-century Hitlers as portrayed by Iran’s leaders with the help of proxies, including Syria, Hezbollah and Hamas?

A careful reading of the Cairo Speech suggests that Obama may believe that a weaker Israel now suits the interests of the USA. If so, he should honestly tell the American people why, instead of offering a fabric of dissimulation and implication. And, friends of the Jewish State should see Obama’s moral condemnation of Israel as a flashing red light that warns of the possibility of betrayal; just as Czechoslovakia was pressured to accept an unsafe peace that was prelude to disaster.

Neville Chamberlain with Adolf Hitler in September 1938.

Cairo and After: Does Obama Seek a Weak Israel?

This article was written after President Obama's September 23, 2009 speech to the United Nations General Assembly in New York. It was first published on January 18, 2010 by Israel Resource Review: Behind the News in Israel.


United States President Barack Obama’s June 4th Cairo speech to the Muslim World sought the appearance of even-handedness in discussing the long-standing dispute between Israel and its Arab neighbours. But, read with an eye to the moral context, the Cairo speech was arguably profoundly anti-Israel. This bias was camouflaged by a dramatic reference to the Holocaust and by other acknowledgements of Jewish suffering over the centuries. Obama was likely advised that such sentiments would resonate with USA Jews. However, Israelis were too canny to be fooled by the Cairo speech, after which public opinion polls there saw his approval rate drop like a stone.

White House speech writer Ben Rhodes has said that the Cairo speech showed “frankly, just how he [Obama] personally views the conflict.” Rhodes also said that Obama mulled over every line, every word of the speech. This is significant, because with respect to Israel, the Cairo speech was marked by dissimulation and implication that tended to morally condemn the Jewish State, while largely validating the narrative of Arabs and Muslims.

The meaning of “dissimulation” includes speech calculated to cause belief in something which the speaker has not literally said. Is dissimulation dishonest? An answer depends on the context, but honest or not, dissimulation has always been one of the main elements of statecraft. Obama established his credentials as dissimulator no later than the race for the Democratic nomination. Then, his campaign staff publically acknowledged the dissimulation in his earlier promise that “Jerusalem will remain the capital of Israel, and it must remain undivided.”

In July 2008 Obama said: “Jerusalem will remain the capital of Israel, and it must remain undivided.”

In Cairo, key dissimulation lay in the phrase: “America’s strong bonds with Israel are well known. This bond is unbreakable.” These exact words were cynically chosen to elicit belief that Obama was expressing approval for current ties with Israel and promising future support. But, linguistically those two sentences neither said that he approved of those “strong bonds” nor offered a promise for the future. They were merely a bare statement of fact, presumably resting on Israel’s popularity with the USA public and in Congress. By contrast, there was both approval and a promise in the pledge that: “America will not turn our backs on the legitimate Palestinian aspiration for dignity, opportunity, and a state of their own.”

Dissimulation with respect to USA support for Israel was corroborated by a later Cairo passage, where Obama threatened change by saying: “America will align our policies with those who pursue peace.” And, who will be deemed to “pursue peace” must naturally be understood within the moral parameters of “just how he personally views the conflict.” The highly conditional nature of Obama’s support for Israel was again revealed in his September 23rd UN General Assembly speech, where he implied that the USA’s “unwavering commitment” to Israel would have to be paid for by concessions to fulfill “legitimate claims and rights of the Palestinians.”

In Cairo, dissimulation was also salient with regard to Jerusalem, in relation to which Obama implied that Israel has failed to accommodate the needs of Muslims and Christians. The Cairo speech specifically spoke about working for the day when Jerusalem would be “a place for all of the children of Abraham to mingle peacefully together as in the story of Isra.” Here, Obama cynically calculated that non-Muslims would perceive this passage as an anodyne ecumenical reference, while Muslims would understand the Isra story as relating to the Prophet Muhammad’s alleged trip to Jerusalem’s Al-Aqsa mosque. There, the hadith says that Muhammad was validated as God’s final messenger by his prophetic predecessors, including Moses and Jesus. Thus, for Muslims, the Isra story points to their claim to Jerusalem and their belief that Islam is superior to Judaism and Christianity.

For two centuries, the political and legal doctrine of the self-determination of Peoples has been an engine of world history. The Cairo speech significantly referred to the Palestinian People at least five times without offering a hint that Arabs living around the Jordan River did not generally self-identify as a distinct Palestinian People until after the mid 20th century. By contrast, the Cairo speech referred only once to the very ancient Jewish People ---not as proud bearer of rights--- but in its Diaspora persona as victim. Otherwise, Obama used “Israelis” or words that implied an “Israeli People.” Obama’s terminology thus favoured the Palestinian People and implicitly challenged Israel’s legitimacy by ignoring its key political and legal claim to embody the self-determination of the Jewish People, whose subjective-objective national identity reaches back more than twenty-five centuries. This glaring omission was implicitly acknowledged in the General Assembly speech, where Obama included one reference to Israel as “a Jewish state.”

In Cairo, Obama had nothing to say about close to 1400 years of Arab and Muslim discrimination against Jews ---including periodic maltreatment of Jews in the Holy Land (Eretz Israel). By contrast, he repeatedly implied that Israel is responsible for Palestinian suffering from 1948 to the present. Thus, he referred to Palestinian refugees, failures in economic and social development, “daily humiliations… that come with occupation” and a so-called “humanitarian crisis” in Gaza. Evidently, how Obama “personally views the conflict” is deeply flawed. For example, would the Middle East have had any Jewish (circa 850,000) or Arab (circa 650,000) refugees had Arabs locally and generally followed the Jews in embracing the 1947 UN General Assembly resolution calling for peaceful creation of two new countries, "the Jewish State" and "the Arab State"?

Similarly, the Cairo speech falsely implied that Israel has been the obstacle to a "two States" solution. Thus, Obama said nothing about Prime Minister Sharon’s unilateral withdrawal from Gaza in 2005. And, he was silent about Yasser Arafat and Mahmoud Abbas’s failure to accept far-reaching "two States" offers by Prime Ministers Barak and Olmert, in 2000 and 2008 respectively. This goes to the crux of the long-standing dispute. Since the 1937 Peel Report, first Zionists and then Israel governments have repeatedly accepted the partition idea, i.e. "two States for two Peoples." By contrast, Arabs locally and generally have almost unanimously rejected the principle of Israel as "the" Jewish State, i.e. as the political expression of the self-determination of the Jewish People in a part of its aboriginal homeland.

In Cairo, Obama deliberately chose to ground rights in mere suffering. This was curious, because as a lawyer Obama had to have known volenti non fit injuria ---the Common Law principle that the plaintiff cannot recover damages to the extent that he himself has caused the harm. Moreover, plaintiffs are required to take timely steps to mitigate their losses, no matter how caused. But, the Cairo speech never asked to what extent Palestinian suffering might be the result of their own bad choices, including their share of responsibility for starting the 1948 war, which was a self-proclaimed Arab attempt to exterminate Jews living between the Jordan River and the Mediterranean Sea.

The Cairo speech repeatedly drew from familiar arguments of Israel’s enemies. First, though there is now no independent State called “Palestine,” the question was begged by present-tense references that also appeared in his General Assembly speech. Second, the Cairo speech slandered Israel by seeming to compare the suffering of Palestinians with that of Black people in the USA. Third, this invidious comparison was reinforced by a gratuitous reference to “segregation” which seemed to slyly point to the canard that Israel is an apartheid State. Fourth was an inappropriate nod to White South Africa and other instances where indigenous Peoples offered “resistance” to colonial rule. Fifth was the implication that Palestinian suffering can be equated with the Holocaust, which is a grotesque and wildly inaccurate comparison that is close kin to the calumny that Israel behaves like Nazi Germany. Finally, the Cairo speech misrepresented the murder of six million Jews as the ideological basis for Israel’s creation.

As a lawyer, Obama had to have known that Israel validates itself, not by the Holocaust, but by virtue of the political and legal doctrines of aboriginal rights and the self-determination of Peoples. Aboriginal rights are normally minority rights. Thus, the Jewish People claimed its right to its homeland in the same way as do the Inuit and First Nations in Canada. And, the Jewish People invoked its self-determination right exactly as does the Arab People, whose self-determination is already expressed in the 21 countries that explicitly self-identify as Arab.

The Cairo speech pandered to Arab and Muslim prejudice by ignoring the continuous presence since pre-Biblical times of large numbers of Jews in the Middle East, where they were around one million in 1900. And, these Middle Eastern Jews always included some who, in each year since antiquity, lived in their ancestral homeland, which by the 19th century had become significantly under-populated by comparison with both Roman times and today. Thus, of all extant Peoples, the Jewish People has the strongest claim to be aboriginal to the Holy Land (Eretz Israel).

For this reason, two decades before the Holocaust, the long-affirmed aboriginal rights of the Jewish People were explicitly and generally recognized by a series of consistent declarations, treaties and international enactments from 1917 to 1922, when the League of Nations created a “national home for the Jewish People” between the Jordan River and the Mediterranean Sea. Within a larger global and Middle Eastern framework, justice was done ---because simultaneously there was creation or recognition of several new Arab States that were freed from Turkish rule and placed on the road to eventual independence, as was the “national home for the Jewish People.”

By ignoring the Jewish People’s aboriginal and self-determination rights, the Cairo speech could only point to an end to reciprocal suffering as a rationale for terminating Palestinian violence which was dignified as "resistance." By relying on this slender reed, Obama probably diminished prospects for peace. Thus, the Cairo speech alienated most Israelis and failed to provide Arabs and Muslims with an ideological foundation for a peaceful process to respectfully reconcile the prior rights of the Jewish People with the subsequent rights of the newly-emerged Palestinian People. The latter evidently now has rights to claim self-determination, independence and territory. However, these new Palestinian claims do not automatically cancel the Jewish People’s prior rights, which notably include the right of Jews not to be killed by their Arab neighbours. Exactly contrary to President Obama's reference to "resistance", the Palestinian People does not have a right to wage a war of national liberation against the Jewish People which is aboriginal there.

Though repeated lip service was paid to Israel’s right to exist, the Cairo speech painted a moral picture that seemed to argue the contrary. Saying “threatening Israel with destruction is deeply wrong” was probably calculated to resonate with USA Jews who are grateful for Israel’s survival. By contrast, most Israelis have the commonsense to understand that their country deserves much more than mere survival. They know that Israel urgently needs all the rights normally enjoyed by other countries, and that Israel must be judged according to the standards regularly applied to other States in the same or similar circumstances.

Obama’s existential focus was too starkly minimalist to accommodate Israel within the world of States, where each country is driven to advance its own economic and political interests. Given the USA’s touted “strong bonds” with Israel, Obama ought to have said less about a “right to exist” and more about USA help in advancing any number of Israel's aims. The real news here is that Obama perhaps intends to sell Israel short. This recalls national security adviser James Jones’s earlier quip that the new USA administration was not about to “throw Israel under a bus.”

The structure of the Cairo speech implausibly suggested that Iran’s race to develop nuclear weapons is today less “a major source of tension” than “the situation between Israelis, Palestinians and the Arab World.” In discussing this Iranian nuclear threat, Obama seemed to signal that he might be willing to break with a decades-old understanding that the USA would refrain from publicly addressing whether or not Israel has nuclear weapons. The implication here was that Obama would perhaps be ready to make the issue of Israel’s nuclear weapons part of a broader deal, embracing Iran and other States in the region.

At Cairo and in the General Assembly, was Obama challenging Israel’s ideological foundations and security interests? An answer can perhaps be found in his special focus on Palestinian suffering. This disturbingly recalls the exaggerated concern for Czechoslovakia’s three million Sudeten Germans that was the moral trigger for the 1938 Munich crisis. Then, myopia on the part of British Prime Minister Neville Chamberlain rapidly led to the destruction of interwar Czechoslovakia, which was the only democracy in Eastern Europe.

With Europeans appearing as themselves and Palestinians as Sudeten Germans, does President Obama cast himself as Chamberlain? At Munich, the British Prime Minister earned obloquy by being eager to appease at the expense of “people of whom we know nothing.” While irresponsibly failing to face the question of Hitler’s ultimate aims, Chamberlain recklessly sought safety by catering to German demands. The General Assembly speech announced that Obama is searching for a general Middle East settlement. Is this a context in which he will betray Israel’s vital interests to the advantage of 21st century Hitlers played by Iran's leaders with the help of proxies like Syria, Hezbollah and Hamas?

A careful reading of Obama’s remarks in Cairo and at the General Assembly suggests that the President may believe that a weaker Israel now suits the interests of the USA. If so, he should tell the American people why, instead of offering a fabric of dissimulation and implication. And, friends of the Jewish State should see Obama’s moral condemnation of Israel as a flashing red light that warns of the possibility of betrayal ---just as Czechoslovakia was pressed to accept an unsafe peace that was prelude to disaster.

Allen Z. Hertz was formerly senior advisor in the Privy Council Office serving Canada's Prime Minister and the federal cabinet. Earlier he worked in Canada’s Department of Foreign Affairs and taught history and law at universities in New York, Montreal, Toronto and Hong Kong. He holds a Ph.D. in Ottoman history from Columbia University and international law degrees from Cambridge University and the University of Toronto.