On Israel's 60th Anniversary of Statehood: Views From the Empire and the Caliphate

Sometimes, when reviewing the mountain of talk about the situation in that portion of the euphemistically described "Middle East" (understood to encompass that portion of what had been the dar al-Islam whose control has reverted to the people of Israel), one gets the sense of a certain deja vu. The contests over the control--both temporal and spiritual--of that place resemble, at least rhetorically, those of a time when the Caliph sat in Baghdad, the Byzantine Emperor sat in Constantinople, and the in the West the Pope sat in Rome and Emperor in Germany. Each asserted the right to wear the (abstract) mantle of legitimate representative of the paramount communities, for whom each spoke, the one Christendom and the other Islam. Few, of course, spoke for the Jews, a people whose time on Earth was thought to be drawing to an end. But for the others, Christians and Muslims, the Emperor, the Caliph, and at the time peripherally the Pope/Emperor combination in the West, served as the focus of religious and temporal power. See Patricia Crone and Martin Hinds, God's Caliph: Religious Authority in the First Centuries of Islam 114-116 (Cambridge: Cambridge University Press, 1986).

The identity, or near identity, of the fundamental structure of their civilizations may have contributed in no small measure to the acrimony of their rivalry, but it preserved the basic unity of the medieval world, marking off the outsider as a barbarian even as exclusion from Greek culture had marked him off in antiquity. The antagonism of the three blocs was beyond reconciliation, but their struggle was meaningful in the sense that all combatants fought on the same plane and that, therefore, the slogans and reasoning of one party could be understood by the other. The general trend of medieval history may be described as a tendency toward the disruption of this fundamental unity of Christendom and Islam--the end of the Middle Ages marks the end of both identity of structure and equality of achievement.

Gustave E. von Grunebaum, Medieval Islam 8 (Chicago: University of Chicago Press, 1946) ("In the face of constant and bitter hostilities, Byzantines and Persians had always considered each other equals. . . . Now that the Arabs had taken the place of the Persians, it is they in conjunction with the Byzantines who constitute the pillars of civilization." Id., at 53). Among the others, a special opprobrium was accorded the barbarians scattered about the empires of the Greek/Romans and the Arabs. In a great irony, both of these pillars of medieval civilization reserved a great disdain for other peoples. "Aside from the Indians, only their nations are lettered; only they keep aloof from the brutish desires of the barbarians, such as the Turks and the Chinese." Id.

Times change but patterns of behavior tend to have a long half life. Caliph, Byzantine and Holy Roman Emperor are absent form the world today. The Papal office has undergone radical change and the Holy Roman Empire. Still, the world continues to be divided among nations that consider themselves at the forefront of civilization, and the others. We have changed the terminology but not the effect. Christendom remains fractured but aggressive in places like Africa and Asia. The definition of Arab has outgrown its historical origins.

A new conception of what an Arab is was developing in the period between the wars. By 1938, when Arab students in Europe held a conference in Brussels, it was possible to define as Arabs 'all who are Arab in their language, culture, and loyalty,' the latter term being taken to connot 'national feeling.'

W, Montgomery Watt, Islamic Surveys: Islamic Political Thought 118 (Edinburgh: Edinburgh University press, 1968). Among the great empires, special opprobrium continues to be accorded smaller nations considered less civilized or otherwise unworthy. Thus, the spirit of those times--and perhaps a longing for the re-animation of those roles, also exists. It may be possible to characterize the general trend of modern history as a tendency toward the re-institution of the fundamental unity, of an identity of structure and equivalence of achievement, between fracturing and irreconcilable civilizations. This new medievalism is made possible by the leveling effects of globalization. See Thomas Friedman, The Lexus and the Olive Tree 112 (1999). That leveling effect is one of the great glories of globalization, but, it seems, also the method by which the political cultures of the globe will change as well. I am by no means suggesting the usual--the so-called clash of civilizations popularized by scholars such as Samuel Huntington and Oswald Spengler. I refer to a much older an deeper division from which the West has not escaped entirely--that ancient conflict between Jerusalem and Rome. See Martin Goodman, Rome and Jerusalem: The Clash of Ancient Civilization (London: Penguin Books, 2007). Thus, there are substantial insights for the emerging post modern world within this observation of the medieval Mediterranean world.

If, indeed, the trend of modernity is toward a new medievalism (an ironic recasting of the strivings of so-called post modernity in the social sciences, law, culture and religion since 1945), one great spark for the metaphorical re-animation of these ancient divisions and offices has been the global religious and ethnic wars of the 20th century. Many of these conflicts conflated religion and ethnicity. In the 1980s,

however, a notable French publicist, Régis Debray, had already issued a prophetic warning. Modernity, he wrote, "will be archaic or it will not be at all. And when humanity 'in progress' is civilised by its own hand, it simultaneously becomes savage in its head and heart." This is why globalization has the seemingly paradoxical result of renewing "the escalation of tribal conflict and the resurrection of religion, not only on the periphery but at the very centre of the industrial world."

Noël O'Sullivan, Concept and Reality in Globalization Theory , in Globalization, Privatization and Free Market Economy 22 (C. P. Rao, ed., Westport, CN: Quorum Books, 1998) (quoting in part Régis Debray, Les empires contre l'Europe 27 (Paris: Gallimard, 1986)). These include the great war between religion generally and secularism in the West (a contest that has absorbed the Western Papacy , and most brilliantly so in the writings of Benedict XVI), Jewish genocide, intra-religious wars (among Christians and Muslims most spectacularly), and the traditional religious wars (for example Orthodox against Catholic against Muslim in the former Yugoslavia; Hindu versus Buddhist in Sri Lanka; Hindu against Muslim in India-Pakistan; Muslim against Bahai in Iran and on and on).

Let the music begin: Shi'ites against Sunni or Arabs against Persians, Alawites against Sunnis, Cypriot Turks against Cypriot Greeks, Druzes against Marionites, Jews against Muslims, Kurds against Arabs and Persians, Moors against Berbers, Sikhs against Hindus, Singhalese against Tamils, Germanics against Slavics, and Slavics against Turks, the Catholic against the Orthodox, the believers against the atheists, Hazaras and Pashtuns against Russian occupants, Baluchi against Punjabi, Vietnamese against Khmer Rouges and Chinese against Vietnamese or vice-versa.

O'Sullivan, supra., quoting R. Debray, Les empires contre l'Europe (Paris: Gallimard, 1986), 27-28). Though it is true enough that, in contrast to the Medieval era, the current borderlands of conflict have become far more complex, their fundamental character has not changed very much.

The boundaries of these conflicts are territorial, spiritual, cultural and economic. For all its modern complexities, one of the great flash points of these conflicts remains unchanged--Jerusalem and its environs. Except in one respect--the People of Israel now (again) control much of what, well before the medieval settlement, had been for a time the Land of Israel. The end of the great conflicts between Rome and Jerusalem, settled after the last great formal expulsion of a Jewish presence in Iudea, the imperial procuratorial province (renamed Syria Palaestina by Hadrian, and upgraded to proconsular province, has come back to enrich global conflict in its more ancient form. And it has produced a mimicking effect grounded in the great conflicts that came after. In yet another ironic twist, national aspiration has birthed its twin, both the emanations of the oppositional forces they represent. In a manner reminiscent of the failed efforts to strip the People of Israel of their national strivings, efforts continued form Roman to modern times,

Israel has, since its foundation, laboured to undermine any sense of Palestinian identity. Without most of their historic land, the relationship between Palestinians and Palestine could only exist in memory. Eventually though, memory managed to morph into a collective identity that has proved more durable than the physical existence on the land.

Ramzy Baroud, 60 Years of Denial, Al-Jazeera Magazine, May 22, 2008. But then the impossible: "Of course more than mere remembrance is necessary; Palestinians need to find a common ground for unity — Christians and Muslims, poor and rich, secularist and the religious — in order to stop Israel from eagerly exploiting their own disunity, factionalism and political tribalism." Id. Impossible precisely because Palestinian national identity itself remains contested within the greater turmoil of socio-political ordering within the dar al-Islam, a conflict that mimics, in a more intense way, perhaps, the great "conversations about religion and politics within post Reformation Europe.

And thus the conflict over control of the State of Israel is more than mere war--more than the sour grapes of a shrinking of the dar al Islam (that was reconciled well enough to the loss of the Balkans in the 19th century and Al-Andalus in the 15th century). The conflict thus now serves as a discursive, cultural, political and religious proxy for the conflicts that define our times and that simultaneously re-animate older conflicts, not just between the usual combatants of the last 1500 years, but of that older conflict between Rome and Jerusalem, between Pago-Christianity and Judeo- and post Judeo-Semitism. And because of the identity between the Christian West and the foundations of modern international law and its legal order, it is conflict in which everyone has a stake of varying degrees. See, e.g., Philip Alcott, The Health of Nations: Society and Law Beyond the State (Cambridge: Cambridge University Press, 2002); Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (Cambridge: Cambridge University Press, 2001).

It is a war in which there is little universal truth other than those created by facts on the ground--and the power to hold on to them. Yet it is also a conflict with an overabundance of truth, for all claim the ultimate authority of the entirety of truth in a way that is reminiscent of a different age. As the great leaders of all universalist cosmologies have long recognized--to the victor belongs the entirety. Survival is thus victory. But ultimate victory belongs to those who survive beyond their rivals. For that purpose, in this modern and increasingly medieval age, violence and dialog, properly managed, become the hall marks of law, politics and economics. The rule of law at the international level, serves as the means through which conflict is made permanent, regularized and contained, to be fought through words and bullets. This is the language of law--bureaucratic, managerial, well mannered and brutal in its own way--in which exhaustion serves as victory and the masses are kept protected (for their effective exploitation) and engaged in sensible ways. See Larry Catá Backer, ETA and the Management of Revolution in a Bureaucratic World, Law at the End of the Day, May 14, 2008.

The State of Israel is now celebrating the 60th anniversary of its founding (or re-founding depending on how one understands the circularity of events. This has provided a great opportunity for illumination--not of the merits of the conflict--but of the ways in which the struggle over Israel produces meaning "in the sense that all combatants fought on the same plane and that, therefore, the slogans and reasoning of one party could be understood by the other." von Grunebaum, supra, at 8. In that context, two individuals have, each in their own way, have recently taken on themselves an authority to wear the (abstract) mantle of legitimate representative of the paramount communities, for whom each spoke, the one Christendom and the other Islam. The speeches given and statements made by President Bush and Osama bin Laden on the 60th anniversary of the establishment of the State of Israel provides a great occasion for considering the modern rhetoric of an ancient divide at one of its more important borderland. For those looking for the conventional--this essay is bound to disappoint. I am uninterested in the usual framework for discourse about Israel, considering most of it fodder for the purpose of victory in the war for public opinion (though important enough in the aggregate and in effect on that point). I am interested in the representative rhetoric of individuals who seek to speak for powerful communities. And neither disappoints on that score. Both provide the more solid glimmerings of the reconstruction of a rhetorical plane in which all sides understand each other with a conflict essentially irreconcilable. If the "general trend of medieval history may be described as a tendency toward the disruption of this fundamental unity of Christendom and Islam," id., the general trend of modern history might be understood as the reconstitution of that unity of political religion in the "identity, or near identity, of the fundamental structure of their civilizations" (id.) and contribute as well "to the acrimony of their rivalry." Id.

Notice the symmetry of the approaches of each of these representative figures in constructing their rhetorical stances.

Bin Laden's 22-minute speech, posted on an Islamic militant Web site late Sunday, criticized Arab states for not waging war against Israel. "Those (Arab) kings and leaders sacrificed Palestine and Al-Aqsa to keep their crowns," bin Laden said, referring to the Al-Aqsa mosque in Jerusalem, one of Islam's holiest sites. Israel is weak, he charged, but the Arabs have not fought "even a single serious war to get Palestine back." He even ridiculed the leader of the Lebanese Shiite group Hezbollah, which fought Israel's military to a bloody draw in 2006. Bin Laden said Hezbollah didn't do enough and shouldn't have allowed the deployment of U.N. peacekeepers in southern Lebanon, which he said was "to protect the Jews." He attacked Arab leaders interested in negotiating with Israel: "They have decided that peace with the Zionists is their strategic option, so damn their decision." That would include Abbas, who is holding peace talks with the Israeli government.

Mohammed Daraghmeh and Matti Friedman, Palestinians Cool to Embrace from al-Qaida leader, Associated Press, May 19, 2008. The mirror reverse came from President Bush in his address to the Israeli Knesset:

We gather to mark a momentous occasion. Sixty years ago in Tel Aviv, David Ben-Gurion proclaimed Israel's independence, founded on the "natural right of the Jewish people to be masters of their own fate." What followed was more than the establishment of a new country. It was the redemption of an ancient promise given to Abraham and Moses and David -- a homeland for the chosen people Eretz Yisrael.

George W. Bush, Address to the Members of the Knesset, Jerusalem, Israel, May 15, 2008. A very different picture of the place is painted of the nature of the battle depicted by Osama bin Laden:

The joy of independence was tempered by the outbreak of battle, a struggle that has continued for six decades. Yet in spite of the violence, in defiance of the threats, Israel has built a thriving democracy in the heart of the Holy Land. You have welcomed immigrants from the four corners of the Earth. You have forged a free and modern society based on the love of liberty, a passion for justice, and a respect for human dignity. You have worked tirelessly for peace. You have fought valiantly for freedom.

Id. But the framework is the same: " Some seem to believe that we should negotiate with the terrorists and radicals, as if some ingenious argument will persuade them they have been wrong all along. We have heard this foolish delusion before." Thus the terrible symmetry. ("Tyger! Tyger! Burning bright, In the forests of the night, what immortal hand or eye Courl frame thy fearful symmetry? William Blake, The Tyger).

And then the medievalism. The view from both sides reveals a great gulf at a foundational level. With an unconscious nod to Benedict XVI's notions of faith and reason (see Larry Catá Backer, Benedict XVI, Islam and the Politics of Abusive Discourse, Law at the End of the Day, September 16, 2006, discussing Benedict XVI, “Faith Reason and the University: Memories and Reflections,” Address Delivered at the University of Regensburg, Germany, Sept. 12, 2006). Thus President Bush powerful articulation of the nature of the conflict, and the recognition of its character:

"This struggle is waged with the technology of the 21st century, but at its core it is an ancient battle between good and evil. The killers claim the mantle of Islam, but they are not religious men. No one who prays to the God of Abraham could strap a suicide vest to an innocent child, or blow up guiltless guests at a Passover Seder, or fly planes into office buildings filled with unsuspecting workers. In truth, the men who carry out these savage acts serve no higher goal than their own desire for power. They accept no God before themselves. "

Id. Another symmetry. Who better than the American President, the representative o a secular world order, to suggest the humanism of his opponent, as well as the irrationality of that humanism. Yet, both the President and bin Laden can agree on two points. One is the importance of the struggle.

"The fight against terror and extremism is the defining challenge of our time. It is more than a clash of arms. It is a clash of visions, a great ideological struggle. On the one side are those who defend the ideals of justice and dignity with the power of reason and truth. On the other side are those who pursue a narrow vision of cruelty and control by committing murder, inciting fear, and spreading lies."

Id. But the perspectives are reversed when content is added. The other is the acknowledgment of the importance (the self perceived reality as a metaphor of truth) of the rhetoric at the foundation of the struggle:

"There are good and decent people who cannot fathom the darkness in these men and try to explain away their words. It's natural, but it is deadly wrong. As witnesses to evil in the past, we carry a solemn responsibility to take these words seriously. Jews and Americans have seen the consequences of disregarding the words of leaders who espouse hatred. And that is a mistake the world must not repeat in the 21st century."

Id.

At the same time, this represents a re-animation that is by no means an imitation. The fault line represented by the re-introduction of a Jewish presence in the land taken from the Canaanites adds a new element. It marks a great event in the evolution of conflict managerialism as international law. In that context, the reaction by political actors in the United States to President Bush's speech is both arrogant, silly, and self-absorbed in a pathetic sort of way. See Obama Blasts Bush, McCain Over Attacks, CNN Politics.com, May 18, 2008. But that is the essence of the new managerialism, as it communicates and educates the masses to its logic. And it suggests the naturalization of medievalism within American politics as well. Yet such sad little internal American politics ought not to distract overmuch from the greater issues being framed within the rhetorical maneuvering that characterize the conflicts over Jewish Israel. Those rather than the noises coming from the American presidential campaign will be with us for quite some time to come. Sigh.

ETA and the Management of Revolution in a Bureaucratic World

Modern revolutionary movements--whether separatist movements like those in Sri Lanka, Kosovo or Tibet, irredentist movements like those in Ireland, political movements like those in the Philippines, or ethnic/religious/colonialist movements like those in Iraq--have shifted in tactics to suit the conflict management model of international relations in vogue today. See Larry Catá Backer, On Negotiating With ETA, Law at the End of the Day, July 2, 2006.

At the core of these tactical changes are an astute combination of dialog and violence. Dialog is used when it is likely to increase a perception of moderation and reasonableness. Violence is carefully staged to make it appear that the opposition is in the wrong. This is usually easy to accomplish--through the use of human shields, by carefully targeting police and military targets', or by striking political figures. Children are one of the greatest efforts of well managed acts of violence. Positioning them to ensure their murder is one of the greatest, most visually compelling tactics of successful guerilla violence in a world in which the reporting of the violence is a far greater force than the violence itself. These tactics are wedded to a well targeted public relations campaign designed to spotlight the evils of the opposition and veil the evils of the revolutionary vanguard. The media can be counted on to be complicit in this facade building as long as the events--violent and non-violent alike--are appropriately staged. But so can states. Dialog is also a means of seeking to manage the conflict--to postpone violence or to better manage and limit its scope to those targets the loss of which can be sustained with little effect on the power of political elites to hold on to the apparatus of state. States seek to wear the revolutionaries out through endless dialog that might suppress or contain violence. Their own resort to violence is constrained by the rules that make states appealing in the first place. Revolutionaries use violence as a means of destabilizing states enough to gain advantages in endless negotiations through which small concessions eventually might lead to capitulation. While the masses are educated in the fantasy of dialog leading to compromise, states and revolutionaries use voice and violence to effect total victory or substantial collapse of the opponent within the constraints of a set of rules increasingly legal and bureaucratic. Everybody wins. . . . .

One of the most profound strategists of this new two faced approach to revolutionary action is Jerry Adams, of Ireland. In a revealing talk in 2006, delivered to a receptive audience at the University of Barcelona, Adams nicely summarized the objects of this strategy. See Larry Catá Backer, Jerry Adams in Barcelona: On the Politics of Self-Determination in Constitutional Systems, Law at the End of the Day, June 8, 2006.

This is the last insight Mr. Adams offered his Catalan hosts: Be firm in the inevitability of your goals, and work for their attainment. All negotiation leading the Catalan people closer to the goal are to be welcomed, but are to be understood as mere temporary measures on the road to inevitable independence. When that road becomes blocked, by the intransigence of those who disagree with the self-determining will of the Catalan people, then violence might help prod the parties back on the road to “peace” that is the fulfillment of the desires of the ethnos seeking to assert a fuller sovereignty. But dialog is not something to be left to the politicians, Mr. Adams reminds us. The battle in the political realm requires marshaling the media and civil society involvement. Because political communities in democratic states are particularly sensitive to the expressions of popular will (however changeable), it behooves political actors to ensure that this popular will is appropriately expressed. Mobilization of political, social and intellectual cadres is essential if this task is to be successfully accomplished. That was part of the secret of Sinn Fein’s success, especially in the United States.

For the Catalans, as for the Basques and Irish, Mr. Adams suggests that violence might well be the only lubricant necessary to animate dialog. This is a lesson that the IRA has been reinforcing to their ETA colleagues, and suggesting to friends of Catalan independence in Barcelona.

Id. This cycle is unavoidable, yet plays out in a context in which the masses are expected to react with wonder every time cycles of dialog and violence turn. It was with this in mind that one confronts the sad little story recycled by the BBC on the continuation of the struggle between the Spanish central government and the Basque separatists commonly understood as organized through ETA. ETA Blamed for Spanish Bomb Death, BBC News Online, May 14, 2008. It seems a car bomb went off outside a police barracks in the Basque region (that is to say, in the Spanish Basque region, French Basques are better behaved). No one claimed responsibility. But people seemed to understand who ought to have set it off.

"No group has said it carried out the attack, but the region's governor blamed the Basque separatist group Eta. Juan Jose Ibarretxe said the group was ruining the name of the Basque people with its campaign of violence. The bomb exploded outside a police barracks in the small town of Legutiano, near the Basque regional capital Vitoria. If confirmed, it would be Eta's first fatal attack since Spain's general election two months ago, and the sixth since Eta broke a ceasefire in 2006. "

Id. All of the calssic elements of the new form of dialog/violence were present. A new elections cycle was set to start in the region, the need to elect more independence minded politicians (or to scare off less appropriately minded politicians) is great, a military target was chosen, and only one middle aged male was killed. "The group said it was behind the murder of a former Socialist councillor outside his home, two days before the 9 March general election." Id. The result was a sort of half hearted condemnation from local officials. ""I want to tell Eta not to ruin the name of the Basque people by using us as an excuse for extortion and murder," Mr Ibarretxe told reporters. 'We're sick of your violence," he added. " Id. But it was a close call, as the report warned ETA. " Some 40 people, including women and children, were in the compound when the bomb went off, officials said." Id.

What to do? Talk, of course. More condemnations will be issued. The press will be somewhat interested, but less so than had women and children been killed. The state might use the violence for its own political effect, but the threat of local violence is more likely to affect local elections than the promises of the far off national capital. The political wing of ETA will renounce the state as the cause of the violence. And more discussion will be had in the hopes that talk will serve as a sort of cease fire while the forces of both sides regroup, appeal to the media, invoke the democratic process (the irony is great here, at least from ETA's part), and the cycle will begin again. All is right with the world.

Neo Colonialism in Civil Society Clothing or the Rise of Human Dignity as the First Supra National Principle of International Law?

As the Burmese government continues to keep its borders tightly closed, the international community has increased the tempo and volume of its call for an intervention in Burma. U.N. Calls for Burma Aid Corridor, BBC News Online, May 13, 2008. I have already suggested the way in which these calls for intervention without consent on the basis of a relatively new and potentially powerful international principle of "responsibility to protect" will begin to further shift the distribution of power between states and the "collective of states" currently operating within the United Nations framework. See Larry Catá Backer, Disaster in Burma: Bad Government Response, Worse Resort to International Law, Law at the End of the Day.

The nature of the international community's actions are revealing and provide a window on the shape of international law to come. That window provides a view that will be sure to discomfit people of all political shades. I summarize the most interesting parts of this future:

1. It seems that the old imperial powers remain at the forefront of international governance. "France, Germany and the UK said they would make the proposal to the UN Security Council, but acknowledged they did not have unanimous support from the EU, French Human Rights Minister Rama Yade told reporters in Brussels." U.N. Calls for Burma Aid Corridor, BBC News Online, May 13, 2008. And, of course, the Americans are also seeking intervention. The difference between the old imperial powers and the Americans is that the former has learned well that the modern battlefields in the struggle for dominance lie in international fora and use the language of law and diplomacy. The Americans, a more traditional political culture, is still focusing on the battlefield when all else fails. The Europeans are looking to the long run, the Americans to the short run. For all that, it is not Cuba, Venezuela and Nicaragua, or even the nations of Southeast Asia that are seeking the invocation of collective intervention--it is the old imperial powers. That might trouble some. Might the "responsibility to protect" doctrine serve as a cover, another tool of intervention in the affairs of states whose leaders the elites in the developed world have come to loath? There seems to be no escape from domination for smaller states. In the 19th century, subordination came in the form of direct military power and the development of a system of colonialism and subordinating treaty relationships. In the 20th century, the community of nations substituted economic for military domination. In the 21sty century, the most powerful states will take it on themselves a power to determine under what circumstances their representatives may intervene for the good of the citizens of a particular state. Yet what is good for the goose is likely indigestible for the gander. The next time a hurricane destroys Louisiana it is doubtful that there will be anything like a successful effort to intervention in the face of American ineptness in relieving the sufferings of its residents.

2. But the old imperial powers are acting, not necessarily for themselves, but as proxy for the rising community of civil society organizations. These organizations have made it clear that they know best in what they do best--react to disasters. No institution, much less a political state--ought to stand in the way of their operation. "Aid agencies say much of the food and equipment is not getting to those who need it because the junta does not have the organisation to transport it." U.N. Calls for Burma Aid Corridor, BBC News Online, May 13, 2008. The market for charity, it seems, appears to work in a manner similar to other markets. It is interesting to hear charitable organizations--organizations devoted to some cause or another--to speak in a way that echoes the discourse of leaders of large multinational corporations. The answer must lie in free movement of operations similar to the free movement of investment and trade behind the operations of large economic organizations. Elizabeth Byers, a spokesperson of the U.N.'s humanitarian apparatus in Geneva stated: ""We need a kind of air bridge or sea bridge, and huge means as... we did during the [2004 Asian] tsunami. It's the same kind of logistical operation. That's why it's urgently needed that we act now," she added." U.N. Calls for Burma Aid Corridor, BBC News Online, May 13, 2008. And, of course, most of these organizations are made up of members of the same social, cultural and economic classes that supply the most powerful states with the members of their political classes.

3. Globalization thus has produced not only a devolution of power to autonomous economic units that operate across borders, but also given rise to a set of autonomous organizations whose business is to provide one or another sort of services across borders. Both aspects f globalization invoke public power to effect their operations. Yet both also seek to avoid the limits of territory in their operations. Both rely on market and market efficiency ideas, a rhetoric of welfare maximization, to diminish the significance of political borders. Privatization of this sort effectively shifts power down and out of the political sphere to the private sector, just as surely as it does when economic enterprises seek to stand in for the state. Thus, states like Burma and others that do not count themselves among the most powerful (what in an earlier time would consist of those states that need not be treated as equals by the family of nations) will experience a shifting of political power out to the international community working through the U.N. and its legal structure (the "responsibility to protect" doctrine) as well as a shifting of power down to civil society elements that appear to be taking on a responsibility to intervene.

4. The Burma crisis is helping refine the construction of an international law edifice based on notions of "human dignity." Human dignity concepts have been the cornerstone of European constitutional development since its adoption as Article 1 of the German Grundgesetz ("The dignity of man is inviolable. To respect and protect it is the duty of all state authority. (2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world. (3) The following basic rights bind the legislature, the executive and the judiciary as directly enforceable law."). It underlies the European Human Rights Convention framework. Yet, something more interesting than the Germanification of international law is at work here. It appears that the notion of human dignity inherent in new legal concepts--like the "responsibility to protect" (full text)--may be morphing from a set of principles to build state capacity to avoid gross breaches of (collective) human dignity, to a tool to be used to remove governments when they fail to act in the aftermath of fortuitous events (like a cyclone--or an earthquake), or to intervene to prevent states form mistreating their people. Thus, Burma is not an isolated event, nor is it an example of the limits of the potential use of the doctrine, but an early and compelling case for its use there, and elsewhere (principally contemporaneously, against Sudan in Darfur). The civil society actor, Responsibility 2 Protect, may have a better sense of this future than most.

The shape of this new international law principle of human dignity--of which the responsibility to protect doctrine forms a part--appears to be grounded in the nation of a new legal hierarchy, at the top of which stands the individual and the collective of individuals. Below the individual (singular and collective) stands the state, political, ethnic, religious and other divisions constituted into self governing (or otherwise governed) communities. The principle rejects the idea of states as the highest source of political power--that is vested in the community of states, which together is vested with an obligation to intervene when states misbehave. The community of nations defines both the character of misbehavior that may give rise to a power to intervene, the nature of the inattention that provides the excuse for intervention, and the process used to intervene. Desmond Tutu, speaking of the Kenyan crisis well articulated the concept;

The horrors of conflict in Africa continue today, but there is also a sign of how rapid response, with support from neighbors and the international community, can save lives and bring hope. In contrast to the crises in Rwanda in 1994 and Darfur in 2003, we see today in Kenya the formation of an international consensus that it is unacceptable to ignore violence of the kind that has occurred in recent months or to consider the crisis as purely an internal matter of the state.

Desmond Tutu, Taking the Responsibility to Protect, International Herald Tribune, Feb. 19, 2008. States, like other divisions of individuals into communities, are arbitrary constructs; individuals are real. "R2P has redefined the conception of state sovereignty by arguing that international community has the responsibility to protect civilians in states that are unwilling or unable to do so." Genocide Intervention Network, The Responsibility to Protect. The whole of sovereignty, therefore, lies in the citizens of the global community.

The development of the general principle of human dignity into a concrete manifestation as a responsibility to protect nicely evidences the workings of international secular constitutionalism built around the United Nations systems. See Larry Catá Backer, God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century, 27 MISSISSIPPI COLLEGE LAW REVIEW 11 (2008). The difference between this framework and the one that preceded it is foundational. No longer a political matter, the relationships among states are increasingly embedded within systems of law. States, like individuals and corporations before them, are increasingly becoming subjects of a binding law enforceable against them and their agents. Law is replacing politics as the language of international relations, and the foundations of those relationships are increasingly the subject of morals and ethics. At the center of this complex of legal constraints stands the individual--at least as theory. In theory, because, as we have noted in the first paragraph, above, it seems that some communal voices (political, social, cultural and economic) may be more powerful than others. But there is no escaping the realities of power, however manifested. In this context, though, the incidental benefit to individuals may be positive.

The Burmese crisis, and those which will follow, suggest the contours of the new notion of state power embedded in webs of political, economic, social and cultural power, to which it is subject. This may be a good thing. With some many people competing for the benefits of caring for the welfare of others, and being rewarded for that care with political, social, cultural and economic power, it is possible that the powerless will also feel the tickle down of of the benefits of this new assertion of power on their behalf. And all will be changed in the process. As Nietzsche noted with hopeful viciousness in the construction of a "European" almost a century before the erection of the European Union:

Thus an essentially supra-national and nomadic type of man is gradually coming up, a type that possesses, physiologically speaking, a maximum of the art and power of adaptation as its typical distinction. . . . The tempo and process of the "evolving European" may be retarded by great relapses, but perhaps it will gain in vehemence and profundity and grow just on their account. . . .

Friedrich Nietzsche, Beyond Good and Evil: A Prelude to a Philosophy of the Future Para. 244 (Walter Kaufmann, trans., New York: Vintage Books, 1966) (original 1886). But recall as well Nietzche's warning, one that is particularly apposite in the construction of one or another global legal order.

But this process will probably lead to results which would seem to be least expected by those who naively promote and praise it, the apostles of 'modern ideas.' the very same new conditions that will on the average lead to the leveling and mediocritization of man--to a useful, industrious, handy, multi-purpose, herd animal--are likely in the highest degree to give birth to exceptional human beings of the most dangerous and attractive quality.

Id. But birth is indeed, a painful and dangerous process, even from out f the herd so carefully constructed beyond the state. See, Larry Catá Backer, The Fuhrer Principle of International Law: Individual Responsibility and Collective Punishment, 21 PENN STATE INTERNATIONAL LAW REVIEW 509 (2003).

Manging the Warfare of the Oppressed--Containing the Exuberence of Darfur Warriors

I have written of the current turn in a certain turn of international relations and law--one grounded in a managerial approach to difference and conflict. See Larry Catá Backer, The Devil’s Advocate: The West, the Invincible Guerrilla, the Value of Violence and the Rise of a Management Model of War, Law at the End of the Day, August 7, 2006. The object is to say that the end goal is conflict resolution, when in fact the object is perpetuation until one side or another gives up in exhaustion. This represents, in a certain sense, the institutionalization of the patterns of behavior pioneered in the modern era in the so-called "Cold War" between the United States and its allies and the former (now vanquished) Soviet Union and its allies. In the end, ironically enough, Ronald Reagan might have been right--the United States was able to defeat the Soviet Union, in part, through a policy of small scale controlled conflict in proxy conflict states (Nicaragua, Grenada, Lebanon) coupled with a policy of extraordinary expenditures, rising wealth and cultural dominance which eventually overwhelmed the Soviet system.

Conflict perpetuation allows all actors to profit from managed instability: non governmental organizations, states, and combatants. Together they become locked in an autonomous and nearly self perpetuating system in which law, economics, and politics are deployed in the arrangement and re-arrangement of power relationships. Conflicts of this type are critical to the organization and growth of certain non governmental organizations, which can expand their donor and member bases, gain access to media and extend their markets in services for the length of time of the conflict. Conflicts, of course, are a great source of raw material for the production of the object critical to the news industry. Conflicts serve to enhance media power to legitimate events. Conflicts enhance the role of news institutions to choose those events worth investment by political institutions and civil society, and those that may not merit the effort. And, of course, conflict serves state interests. A certain measure of instability may be good for business. In some states, that business may be politics. But usually, the business is control. See, Larry Catá Backer, Proportionate Response and the Management of Violent Conflict in International Law, Law at the End of the Day, July 15, 2006

It seems that the Darfur rebels have been naughty of late. "Darfur rebels fought troops in a suburb of Khartoum on Saturday in a bid to seize power. Officials said the attack was defeated, but it was the first time in decades of war that Sudanese rebels brought their battle to the capital." France Condemns Darfur Rebel Attack on Khartoum, Reuters, May 11, 1008. But that is not the role the global media and other elites have set for these groups. Their role is to be pathetic--passive victims of circumstances beyond their control. There is an insatiable appetite for pictures of suffering peoples from a very different place. And the villains are picturesque as well--from Sudanese Arab Muslims to Chinese Communists, the cast of characters is operatic. They are the nice peace loving people whose blood sacrifice will arouse indignation in the West and provide the forces of the developed world--from its military, to its civil society, cultural and political elements--the context in which it can act, once again, for the salvation of the poor (outside their own countries).

But the Darfur tragedy requires all actors to stay in character. That ensures that the crisis proceeds on course for an appropriate length of time and in an appropriate manner. Breaches of role are punished. No better evidence of this than the behavior of the French government to the audacious military actions of the Darfur rebels. "France condemned an attack on the Sudanese capital by rebels from Darfur and called for faster deployment of an international peacekeeping force in Sudan's huge Western region, the foreign ministry said on Sunday." France Condemns Darfur Rebel Attack on Khartoum, supra. France, of course, has its finger in a number of pots. It supports the displaced populations of Darfur against the Sudanese Arab oligarchs, but does not necessarily support secession (that is a privilege apparently reserved for European states playing out the end of racialist state creation with its origins in the 19th century).

France is the former colonial master of Chad, with which it has maintained an intimate relationship with its governing elites. Sudan understood this, and played its cards well. "Sudan broke off diplomatic relations with Chad after the attack, which it said was supported by Chadian President Idriss Deby -- an ally of France, which has troops in Chad who have helped Deby defeat Chadian rebels he said were backed by Sudan." France Condemns Darfur Rebel Attack on Khartoum, supra. The only solution, then, is to maintain the status quo; there are important interests to protect in addition to those of the displaced people whose violent subordination sparked the "crisis." "France is also involved in the region through the European Union's force near Chad's border with Darfur, which is meant to protect refugees and aid workers. France has a big component of the force." France Condemns Darfur Rebel Attack on Khartoum, supra.

Moreover, France's support for the rebels would displease the Chinese. China has significant financial ties with the Sudanese Arab elite, and they are wary of encouraging any political action abroad that may exacerbate their own problems of precedent for Tibet, Taiwan and its Uighar regions. And indeed, the Chinese stayed well in character. "By infiltrating into the Sudanese capital Khartoum and launching attacks, a major rebel movement in the western Sudanese region of Darfur could get nothing but grievous losses and unanimous condemnation by the international society, local analysts affirmed on Sunday." Politically Suicide Attacks by Darfur Rebels in Sudan, China News, May 12, 2008. And at the moment the Chinese are particularly sensitive to the linking of its role in the Sudan with the Olympic spectacle it has long planned. That interference can have political consequences nations like France would rather avoid. China Says Linking Olympics With Darfur Against Olympic Spirit, China News, Feb. 14, 2008 ("China said Thursday it exerts positive efforts to resolve Darfur issue, and that linking the issue to the Olympic Games will not help and is against the Olympic Spirit that separates sports from politics.").

And thus conflict is managed in the Sudan. “Postmodern politics are managerial strategies, its wars, police actions. . . . As for the legitimacy of the system, it consists in its ability to self-construct” (Lyotard, Jean-François. 1997. “The Wall, The Gulf, the System.” In Postmodern Fables. Trans. Georges Van Den Abbeele. Minneapolis, MN: University of Minnesota Press, 200).

The rebel attack can be treated as a publicity stunt by an element of the Darfur rebels by the Sudanese Arab elites. "Sadig al-Madi al-Mahdi, a presidential adviser and the chairman of the Umma Party-Collective leadership, told Xinhua that this attack was "a desperate attempt aimed at snapping the public opinion." Politically Suicide Attacks by Darfur Rebels in Sudan, China News, May 12, 2008. And it was belittled. "But this was a politically suicide attack by the JEM which will lose the support of the Darfur people," the Sudanese well-known political analyst said. " Politically Suicide Attacks by Darfur Rebels in Sudan, China News, May 12, 2008. On the other hand, the Chinese and the Sudanese Arab oligarchs can continue to be berated in the Western press. See, e.g., Eric Reeves, An Up Close View of Brutality in Darfur, Christian Science Monitor, May 12, 2008; The Real Roots of Darfur, The Atlantic; Oil for China, Guns for Darfur, Business Week, March 2008. All the while, global business and political communities continue to deal with them. Oil for China, Guns for Darfur, Business Week, March 14, 2008. The pictures of suffering evoke great sentiment, filling the coffers of non governmental organizations, extending their business and operations, and providing a tremendous amount of fodder for "event" coverage in the news media of all stripes. All this is necessary and laudable, but made necessary and laudable by the continuation of conflict, managed that way by states. Consider the work of the Darfur Consortium. And international military forces are called in--not to resolve the conflict--but to manage its borders. France, unlike the Darfur rebels, understands its role in this drama. It p`lays that role well. And the others will fall in line.

"'France calls for an acceleration in the deployment of UNAMID, a resumption of political dialogue and the application of accords contributing to the easing of tensions in the region.' UNAMID is the joint U.N.-AU force in Darfur. Only about 9,000 of the envisaged 26,000 UNAMID peacekeepers have been deployed in Darfur, a region roughly the size of France. Western governments have blamed Khartoum for the slow pace of deployment, saying it has dragged its feet in approving the force's composition and set up unnecessary obstacles."

France Condemns Darfur Rebel Attack on Khartoum, supra. I do not condemn the system. To some extent systems of conflict containment and exhaustion reduce the scope of severity of violence, at least sometimes and to some extent. And that is a step forward from completely unregulated systems of violence. I merely regret the subterfuge necessary to keep it from falling apart. That subterfuge creates a tension with principles of transparency in democratic countries. But paradox of this sort is the essence of law and political relations in the West. See Larry Catá Backer, Legal and Photographic Fictions, Law at the End of the Day, August 20, 2006.

Disaster in Burma: Bad Government Response, Worse Resort to International Law

The Burmese disaster has grown from small to staggering. The recent cyclone has caused a tremendous amount of damage. Like all such natural disasters, the Burmese cyclone serves as a harbingers of additional, man made, disasters. I will mention two.

First, the Burmese disaster has demonstrated that secretive tyrannies, like those of the present junta, can survive only as long as they can stand alone. But self sufficiency in all things is increasingly impossible in a globalized world. The Burmese junta stands at a crossroads with no good options for it. One alternative is to keep its borders closed. That would prevent outside interference but might exacerbate the internal political situation. Its power and infrastructure weakened, the junta might well be deemed to have lost its mandate form heaven. Such a regime is more likely to be challenged by within. There are many ambitious members of the current junta and even more ambitious outsiders (generously supported by foreign patrons) eager to lead a march on the junta.

Alternatively, the junta could attempt to open its doors, even only just enough to accept enough aid to prevent internal unrest. But this is a dangerous alternative. States do not give without strings. The international community (or at least those which are followed by the global media) has been itching to rid itself of this junta in favor of a more conventionally compliant government. This is an itch without ideological fastidiousness. It is harder to exploit a developing economy that is not fully plugged into the system. And there is a lot of money ready to be invested in exploitable places.

And, of course, there is always democracy. What could be more heartwarming than more pictures in global media sources of happy individuals casting their vote for a government of their choice--as long as that choice includes only alternatives that might not upset other, more powerful, economic and political actors. That is a sad consequence--donor nations will take the opportunity to topple (or weaken) the regime in the hopes of overthrowing it. But the consequence may not be a deep and well institutionalized democratic system. Violent and quick changes of this type are more likely to lead to popular tyranny than to stable and deep democratic institutions. Aristotle has taught is at least that much. But I guess one stakes one's opportunity where one can find them--and the donor states might use the form of democracy to exercise power behind the scenes. In any case, and whatever the deficiencies of a successor regime, opening doors might well lad to such regime change in the absence of a well orchestrated and deliberate opening to the rest of the world. But the Burmese junta is not the Cuban Communist Party (or even that of Vietnam) and they do not have the luxury of time for planning a controlled engagement with the outside world.

It is in this context that one can understand the very important political nature of the question posed by the question of aid to Myanmar. This makes the American reaction both perverse and suspicious: "US Secretary of State Condoleezza Rice today urged Burma's junta to allow international aid into the country to help victims of the cyclone, saying it should not be a political issue. "What remains is for the Burmese government to allow the international community to help its people. It should be a simple matter. It is not a matter of politics," Rice told reporters." Burma Death Toll May Rise Higher, The Irish Times, May 7, 2008.

Second, and perhaps more important, is the use of the Burmese disaster as an excuse to extend the reach of international law, extend the power of the United Nations to intervene unilaterally in the internal governance of states, and curb the power of states to determine appropriate courses of actions as states. It appears that the French, perhaps eager to outdo the pushy charity of the Americans, recently suggested that states do not have a right to keep other states from extending their charity in the event of a natural or other disaster. The

French foreign minister, Bernard Kouchner, suggested that the United Nations should invoke its “responsibility to protect” civilians as the basis for a resolution to allow the delivery of international aid even without the permission of the military junta.“We are seeing at the United Nations if we can’t implement the responsibility to protect, given that food, boats and relief teams are there, and obtain a United Nations resolution which authorizes the delivery and imposes this on the Burmese government,” Mr. Kouchner told reporters in Paris. He is a co-founder of the aid group Doctors Without Borders.

Seth Mydans, Myanmar Faces Pressure to Allow Major Aid Effort, The New York Times, May 8, 2008; see also France Suggests Bypassing Myanmar Reticence Over Aid, Reuters, May 8, 2008. At least it was to the United Nations, that the French were broad minded enough to assert, have the right--indeed the duty--to disregard sovereign will as expressed by a duly constituted and recognized (even if tyrannical) government and deliver its global charity directly without the consent of the state.

Elements of the international aid community joined in this call to arms against state intransigence. See, e.g., U.S. Campaign for Burma, Tell the UN Secretary General Now: United Nations Must Order Aid Be Allowed Inside Burma, CARE2.com (referencing the French call for international unilateralism). And that is no surprise considering the double hats worn by the French foreign minister. Myanmar Faces Pressure to Allow Major Aid Effort, supra. After all, who are the leaders of a state to halt the provision of aid deemed useful by the international non-governmental community. And who knows better about the need for aid than those whose business it is to deliver it. "According to Naing Aung, secretary general of the Forum for Democracy in Myanmar – based in Thailand – “the intervention of international experts is vital, because the regime is unable to cope with the emergency”. Cyclone Nargis, pressure on the junta to accept international aid, Asia News, May 5, 2008. They are right of course, but also so terribly wrong. To alleviate suffering now, they mean to change the stage on which future actions can be assessed.

The United Nations has appeared to be reluctant to run with this idea for the moment, especially since the pressure on Myanmar might be sufficient to force the junta's hand. "In 2005, the United Nations recognized the concept of “responsibility to protect” civilians when their governments could or would not do it, even if this meant intervention that violated national sovereignty. But it has been rarely applied." Myanmar Faces Pressure to Allow Major Aid Effort, supra. At the same time it has enlisted the media and the international NGO community to do its dirty work--leaking documents is a nice step in that direction. "A leaked UN internal document accused Burma of "dragging its feet" in refusing to allow aid workers visas, adding disturbingly there is no indication of when "this will be sorted out."" David Williams, Burma Cyclone Death Toll Set to Reach 100,000 as Secretive Junta 'Holds Up Aid Efforts,' The Daily Mail, May 7, 2008.

Still, the French paint a pretty picture. The French would have the international community (presumably through the apparatus of the United Nations): (1) determine when conditions in any state are severe enough to warrant charity, (2) when the refusal of a state to permit the introduction of this charity from one or another source is unreasonable, (3) determine the form and character of the charity to be delivered, (4) determine the bearer of such charity (presumably either through a U.N. agency or more likely through agencies of other states of global non-governmental actors, (5) presumably use force, if necessary, to deliver this charity for the good of the recipients.

There is nothing more bracing than the manifestation of control by a global community intent on doing good. It is even more bracing when these acts of kindness are ostensibly so benign. But but as the poor the world over understand--charity does not come cheap. In this case, charity is the velvet glove over the steel glove of a global effort to rid itself of a regime many states have tired of. It is also a cover to permit the free movement of the international charity community. It it meant to move power from states (at last from poor and recipient country states) and shift it to international or supra national entities. States will not be deemed capable of determining their own best internal interests with respect to aid from abroad in the same way that under supra national financial regimes, states are incapable of arranging their economic affairs.

There will be no winners from this tragedy--the Burmese state apparatus will be sunk under the weight of its own arrogance and fear. Political states, especially those which in earlier times might have been candidates for the wrong end of unequal treaties or annexation into the empires of powerful states will find their sovereignty further eroded in the face of a transfer of a power to know when things are bad and to decide to act on them from the state to the international community. Of course, this shift does not affect France--yet. But it certainly affects those states whose sovereignty is already eroded int he face of the power of multinational corporations, and supra national organizations. But worst of all, of course, is that while leaders dither and great matters of state are debated, the people suffer. "Residents of the former capital along with many Buddhist monks have joined forces in their attempts to clean the streets and re-establish order. According to witnesses quoted by The Irrawaddy newspaper, the army is occupying itself in relief efforts only in those residential areas of the city where the ruling class live. " Cyclone Nargis, pressure on the junta to accept international aid, Asia News, May 5, 2008. In this, of course, the world has changed very little from the beginning of recorded history.

An Apartheid for All Seasons: Bolivia and its Autonomy Movements

Almost 2,500 years ago Thucydides reminded us, in describing a bitter intra-ethnic way among the Greeks, that even the most powerful and evocative political terms, could be so stretched and distorted as to lose all meaning.

"Revolution thus ran its course from city to city, and the places which it arrived at last, from having heard what had been done before, carried to a still greater excess the refinement of their inventions, as manifested in the cunning of their enterprises and the atrocity of their reprisals. Words had to change their ordinary meaning and to take that which was now given them. . . . "

Thucydides, The Peloponnesian War Book III, Chp. X, 189-190 (John H. Findley, Jr., Trans., New York: Modern Library Editions, 1951).

I was reminded of this passage this week in reading the well spun article describing the current state of inter and intra ethnic politics in Bolivia from an establishment newspaper in the West. Both sought to empower their description by invocation of a word that, through these sorts of invocations, seems to have lost all meaning--or acquired a number of interesting meaning. That word is apartheid. Apartheid, itself, has had something of a curious history. Apartheid was once a descriptor of a very particular political culture created by the minority European-origin settler population of what became the Republic of South Africa, the term has morphed into a substantially more elastic concept. Yet, though its meaning has become dynamic, there has been an equally strong effort to keep the original level of opprobrium generated by its original application in South Africa. Apartheid, then, has changed from a description of a particular historically embedded system of governance, to a judgment that a particular set of uses of state power are always illegitimate. That judgment has been fashioned into international law binding on (willing) states. See United Nations (30 November). International Convention on the Suppression and Punishment of the Crime of Apartheid. An even more expansive understanding of actions constituting apartheid international criminal law binding on individuals and other organs against which state power can be asserted. See Article 7 of the Rome Statute of the International Criminal Court (defining the crime of apartheid).

But the term has also escaped its limits as a legal or historical term. It has come to mean any form of institutionalized race segregation. See Merriam Webster. More, it has come to mean any sort of segregation by a characteristic deemed suspect--and that list is growing. Anything from social or economic class, religion, ethnicity, to age and the like might, if the system for segregation on the basis thereof is sufficiently institutionalized (de facto or de jure), qualify as apartheid. In this popular sense, though, the word loses much of its power to describe a set of actions universally condemned in the current era. Ironically, though, the institutionalization of a legal structure of condemnation of a more precisely understood version might tend to conflate the moral horror of the South African race experience with situations substantially more benign. Worse, perhaps, it can be used as a sort of accusatory name calling to achieve specific political ends. Apartheid is thus now history, international legal obligation, universal criminal activity, and calumny. And effectively manipulative calumny at that--an accusation with all of the heat of awful historical practice and the weight of legal condemnation, but without the niceties of specificity, proof or a necessary conformity to the precise meaning of the term in law. Apartheid, in this sense, serves as a political tool, rather than as either a description or a judgment. It is meant to sway the passions and shut down reason. It legitimates the actions of the mob without the niceties of the process or judgment of law. Apartheid as calumny appears sometimes more powerful than either if only because it escapes the burden of accountability and the discipline of reason.

The story takes us to Bolivia, a country that has seen its share of invasions and ethnic struggles for dominance since well before the arrival of the Europeans in the 16th century. The current version of that struggle divides the Bolivians along race, ethnic, religious and language lines. Each of these groups then struggle for control of the apparatus of the state for the purpose of gaining access to the power to distribute the country's wealth and to to set the dominant tone for the constitution of Bolivian culture. For a long time, the settler population maintained a constant dominance--sometimes aided by its mestizo elements, and sometimes not. Since the election of Evo Morales, however, indigenous peoples have sought the upper hand. This has led to the proposed adoption of a new constitution. See Larry Catá Backer,Democracy Part VII: Constitutionalism and Indigenous Peoples in the Bolivian Constitution, Law at the End of the Day, December 9, 2007. It now lead to the counter-thrust by the old elites and their allies--an autonomy movement designed to limit the power of the indigenous dominated central government to reach to local affairs. Autonomy movements, in themselves, have been quite useful to the left, and appear to be denounced only when the people seeking it are more distasteful to taste makers. See Larry Catá Backer, Kosovo: A Threat to China and Russia; a Great Benefit to Israel, Law at the End of the Day, March 14, 2008. For this purpose, the assertion of apartheid is meant to have an effect similar to the old blood libel against the People of Israel--it is meant to rouse fury and deaden the intellect in the service of the object for which it was deployed.

The article purported to report on the tense political situation in Bolivia, where elites representing a variety of social, ethnic, religious and class elements have been seeking to rework the national arrangement of power dispersion since the election of Evo Morales. See Rory Carroll and Andres Schipani, Revolt Against the Peasant President, The Guardian, May 4, 2008. The authors reported on current efforts to thwart the Bolivian central government's efforts to shift power to certain indigenous elements, in part, through a radical change in the Bolivian Constitution, by securing autonomy for the less indigenous (and richer) Santa Clara region of the country. The efforts for autonomy in Santa Cruz is reported in negative terms. First the set up:

The tide of left-wing and indigenous movements sweeping to power across South America is about to hit a wall of resistance. In country after country the old order has collapsed, ending decades, and in some cases centuries, of rule by white elites. Their time is supposed to be up. Santa Cruz, however, did not get the memo.

Id. The region is described as a "wealthy lowland region" that is seeking to repudiate the leftist agenda of the Bolivian central government, "the so-called "pink tide." Id. There is a sense of bathos in the description of those behind the autonomy move.

"The insurgents are a coalition of rich ranchers, establishment politicians, right-wing militias and ordinary voters. They want to defend Santa Cruz's economic interests - its cattle, soy crops and gas reserves account for almost 30 per cent of GDP - as well as a sense of identity at odds with indigenous political ascendancy."

Id. These people, the reporters tell us, are engaging in an "an audacious - and illegal - challenge to Evo Morales." Id. And then the climax of condemnation, placed in the mouth of a foreigner involving himself and his organization.

Others see less noble motives for the initiative. 'Bolivia essentially used to function as an apartheid state, and the psychology of the elite is very defensive,' said Jim Shultz, director of the Democracy Centre, a Cochabamba-based think-tank sympathetic to government aims.

Id. This notion is elaborated by a member of Morales' government:

Until a 1952 revolution, indigenous people were not allowed near the presidential palace in La Paz, let alone to vote, and their empowerment under Morales has discomfited many pale-skinned Bolivians. 'Racism and exclusion is a part of this autonomy process,' said Gabriela Montano, the President's envoy to Santa Cruz. In a recent interview her boss was more forthright: 'They do not accept a peasant and an indigenous person as a President of the republic.'

Id. The Los Angeles Times version of these events, more discrete, also noted the core issues of assimilation and the fight for control of the cultural foundations of Bolivia--to establish the dominant foundations for Bolivian culture, language, politics, etc. "Each side has accused the other of recklessly dealing the race card. Morales calls himself a champion of indigenous rights, but critics here say he is fostering a volatile struggle of race and class in South America's poorest nation." Patrick J. McDonnell, In Bolivia Autonomy Vote Deepens Divisions, Los Angeles Times, May 4, 2008. Still, the underlying objective was hard to hide: there can be only one dominant group to serve as the normative standard in Bolivia --as tolerant as it might be of others.

Racism, exclusion, apartheid. The connection from one to the others is easy enough to build. Time is both of the essence and non-linear. 1952 was yesterday. But who is doing what to whom? And is the measuring stick for the legitimacy of what is done today that which was done yesterday? It seems that the answer is laced with irony. The response to this challenge from the reactionary forces of the indigenous central government in Santa Cruz is both simple and effective: "several thousand government supporters have converged on Santa Cruz in the past 48 hours, vowing to disrupt a referendum they view as an attempt to destabilise their champion in La Paz." Id. See also, Cortes de ruta contra el referéndum separatista en la zona más rica de Bolivia, La Nación, May 4, 2008 (" Santa Cruz, la próspera región boliviana que hoy realiza un referendo autonómico, amaneció con cortes de rutas en poblados aledaños en rechazo a la polémica consulta tras una noche de rumores sobre ocupación militar, que resultaron falsos").

Apartheid? The autonomy proponents--white, mestizo and wealthy for the most part suggest that their actions are grounded in economics and local control over resources. These are also great objectives of progressives--especially when the objects of these efforts are indigenous or populations more easily influenced by the international community and its values. The autonomy opponents--indigenous, dependent and poor see this in race and ethnic terms. But also in terms of power. Having gone to all that effort to wrest power from the European and mestizo elements of Bolivian society at the national level it seems that the fruits of their victory will be snatched through a political device once valued for its use in aiding powerless subordinated groups. The irony runs deep.

But there is more. The autonomy movement also has been condemned by leftist foreign states, with a deliberate reference to Kosovo--"Chavez has labeled Bolivia's autonomy vote "Operation Kosovo," referring to the breakaway former province of Serbia. He and Cuba's Fidel Castro have said Bolivia faces a grave danger of breakup." Patrick J. McDonnell, In Bolivia Autonomy Vote Deepens Divisions, Los Angeles Times, May 4, 2008. Kosovo reminds the builders of multi-ethnic states from out of the detritus of empires and colonial adventurism that an alternative to living together is living apart. Those who hold power in the remnants of these failed experiments in imperialism and boundary drawing face the need to acknowledge the reality of a necessary vertical relationship among communities making up a state, especially in the current anti-assimilationist climate. Some groups will be subordinated to the dominant elements of the social order and that subordination will be expressed in politics. At the same time, because of the nature of 19th century state creation, many subordinated groups live in a coherent territory. The same forces that produced Czechoslovakia from out of the Austro-Hungarian Empire in the early 20th century, and the Czech Republic and Slovakia out of Czechoslovakia at the end of that century, has become a stronger force in the 21st century. Charges of apartheid, thus, is a sword that can as easily plunge into the heart of multi-ethnic multi-racial states, as it is a weapon for controlling taboo behavior within states.

Bolivia presents a glimpse at a possible future for the conduct of politics in multi ethnic and multi racial states. This is a future in which apartheid plays a part. It is also a future in which clarity becomes a more difficult condition to maintain. And the utility of apartheid shrinks as a useful and effective international tool of control of state power wrongly used.

The Panopticon in Space: Holland and the Domestic Spy Eye in the Sky

It was only a matter of time before technology brought the oppressive hunger for control of many states--especially democratic states--a new toy. As I have suggested in a longer work, Larry Catá Backer, Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes, 15 Indiana Journal of Global Legal Studies -- (forthcoming 2007), states are moving toward systems of regulation not through law but with surveillance. Behavior is to be controlled through monitoring and incentive. Law--positive commands to to or not do certain things--will increasingly assume the role of administrative regulation: specific directions to behavior in increasingly minute aspects of behavior. Modern democratic states are now able to assert a measure of control of individual behavior that, in another time, might have been thought of use only to totalitarian leaders with a pathological need to control behavior. Traditionally, in democratic states, culture and non-political institutions, bore a great responsibility for the inculcation of basic social and behavioral values. Legislation might fill in the gaps, or seek to move these cultural understandings, but would not substitute for them. But exceptions since the early 20th century has proven the rule. In the United States, for example, the state took a leading role in changing cultural notions of racial and gender relations. That required increasingly complex and sophisticated legislation. Law became administrative and a cultural substitute. A similar arrangement took place in the regulation of economic relationships. Though the state had traditionally intervened more vigorously in this area, the character of those interventions changed dramatically from the end of th 19th century, and since the early 21st century has essentially sought to substitute the state for other foundations of economic culture. The result has been a greater emphasis on surveillance, disclosure and transparency. See Larry Catá Backer, Surveillance and Control: Internal, External and Governmental Monitoring of Corporate Insiders After Sarbanes-Oxley, 2004 MICHIGAN STATE LAW REVIEW 327 (2004).

The intrusiveness of law, and its substitution for what Michel Foucault called govermentality, was further accelerated as non-governmental institutions increasingly lost their legitimacy as sources of political culture. This trend was deepened as democratic societies blame more self consciously multi-cultural, multi-racial, and multi-ethnic. In that context, the least common denominator of culture proved increasingly to be the state and its apparatus. Alas, then, the world has made great strides in another direction since 1945. The future of law is not so much the legislative expression of the popular will but the monitoring of individuals and the increasingly minute prescription of behavior. In this world deviance will be easier to control--that is to say, difference will be better domesticated in a world in which surveillance and regulation will substitute for culture and assimilation of values. This is the Eden of the totalitarian, it is now ours. Law is being used as a substitute for culture in the construction and enforcement of even the most basic behavioral norms. And the political state stands at the center of this web of law based culture.

But with all great changes, so with this one--the fundamentals first change in the smallest and least significant matters. Habits are changed not by challenging fundamentals but by training the citizenry to new behavior patterns in the mundane everyday tasks of life. There is nothing more threatening than the assertion of state control over the smallest actions of life--yet there is little else that is harder to resist. Banality is the greatest defense of the most far reaching changes. And as small habits change, attitudes can be massaged to accept without resistance the greater imposition. Resistance is futile when so little appears to be at stake. See Larry Catá Backer, Race, “The Race,” and the Republic: Reconceiving Judicial Authority After Bush v. Gore, 51 CATHOLIC UNIVERSITY LAW REVIEW 1057 (2002).

It was with this in mind that I read an interesting article in a Spanish publication, D.G. Bujarrabal, Los satélites verán por dónde andan en coche, Qué, May 5, 2008. "Holanda ha aprobado una medida pionera en el mundo y que hará que más de un conductor tenga que rascarse el bolsillo. Se trata de un peaje electrónico basado en navegación por satélite y que establece el pago en función de los kilómetros que cada vehículo recorra en cualquier carretera del país." Los satélites verán por dónde andan en coche, supra., ("Holland has approved a pioneering first of its kind measure and that will cause more than one driver to reach into his pocket. This measure will create an electronic toll based on satellite navigation systems in autos that imposes charges on car use based on the kilometers that each vehicle travels in any highway of the country") The system will obtain a subtantial amount of information about every vehicle and its use in Holland: every automobile will now have a record stored in the servers of the state. That record will consist of the use of the auto on the roads of Holland.

And the purpose of this vast system of surveillance is banal: the imposition of taxes and fees for use of the roads. With this system the state can not only monitor usage but also seek to change behavior by altering its fee structure to suit its sense of appropriate behavior on the road. " Los precios variarán según el vehículo (si es un medio de transporte colectivo, un todoterreno o un utilitario más o menos antiguo), los horarios y el tipo de vía por el que se circule." Id., ("Prices will vary by vehicle model and type (if it is a collective transport, an all terrain vehicle or a by age of vehicle), the time of use and the type of road used.").

What could be more just? "“Es un sistema más justo que el actual porque pone precio a la contaminación que realmente generamos”, explica Miguel Ángel Martínez Olagüe, director de Desarrollo Corporativo de GMV, una empresa española que participa en el complejo desarrollo tecnológico, del que ya se están haciendo las primeras pruebas piloto." Id. ("It is a fairer system than the one used now because it prices the pollution which we actually generate", explains Miguel Angel Martinez Olagüe, director of Corporative Development of GMV, a Spanish company that participated in the system's complex technological development, which is already undergoing pilot testing.") The great principles are thus deployed in the defense of this system--fairness, sustainability, traffic control, and the like. This is hardly the stuff to raise eyebrows. It is difficult to conceive of its benign purposes as sinister in the least. Indeed, privacy concerns are dismissed as paranoid: "Martínez Olagüe asegura que “no hay un seguimiento continuo, los datos se registran y se descargan sólo cada cierto tiempo”. Además, explica que en el centro de proceso de datos se utilizarán “códigos de anonimato” que impedirán asociar una persona con sus movimientos por carretera." Id. (Martínez Olague assures us that "there is no a continuous monitoring, the data are registered and discarded only during specific time periods." In addition, he explained that the collection units will employ data anonymity codes that they will impede the the association of individuals with his movements on the highway").

But information has no limits. Anonymity protocols are nice, but they will hardly impede a state or other actor with authority to overcome the anonymity barriers. information can always be diverted to new purposes. It long survives it useful life, especially when the state finds other uses for the information. It will be necessary, for example, at the most prosaic level, for studies to be conducted on road use, or the use of certain types of cars. The European Union will likely be interested in the data for its own purposes. And intelligence agencies, of course, will be delighted with th information for its own purposes. But most important, perhaps, is the recourse to satellite monitoring for both taxation and for changing culture. In this case the changes are innocuous--th driving habits of those who use the roads in Holland. But tools, once developed, will find other uses.