Philosophy of Nonviolence - Revolution, Constitutionalism, and Justice beyond the Middle East 9780199394203, 2014031026

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Philosoph y of Non v iolence

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Philosophy of Nonviolence R evolution, Constitutionalism, a nd Justice beyond the Middle East Chibli Mallat

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1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Oxford is a registered trademark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016

© Oxford University Press 2015 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging-in-Publication Data Mallat, Chibli.   Philosophy of nonviolence : revolution, constitutionalism, and justice beyond the Middle East / Chibli Mallat.   pages cm   Includes bibliographical references and index.   ISBN 978-0-19-939420-3 (hbk : alk. paper) 1. Nonviolence—Middle East—History. 2. Government, Resistance to—Middle East—History. 3. Social change—Middle East—History. I. Title.   HM1281.M345 2015  303.6'1—dc23

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9 8 7 6 5 4 3 2 1 Printed in the United States of America on acid-free paper Note to Readers This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confirm that the information has not been affected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate. (Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.) You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com

For Tamer and Wajdi, and the 2011 generation

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Summary Contents Preface xiii Gener al Introduction 1. The Middle East Nonviolent Revolution: A Philosophical Manifesto 3 Part ONE | Revolution 2. Introduction: Nonviolence between Order of Reasons and Decrees of Reality 29 3. A Brief History of Nonviolence in the Middle East 33 4. Shattered Political Language: Reconstructing a Humanist Culture of Nonviolence 69 5. Nonviolence: The Central Philosophical Paradox 99 6. Conclusion: Rhythms of Nonviolence 119 Part TWO | Constitutionalism 7. Introduction 123 8. Caveat: Against Secession 125 9. Constitutional Ruins and the Unfathomable Politics of Transition 133 10. Constitution-Writing: LEJFARC’s Universal Template 153 11. Middle Eastern Constitutionalism 175 12. Conclusion: Constitutionalism and Nonviolence 211 Part THREE | Justice 13. Introduction: The Order of Reasons Restated 217 14. “Dictatorship Is a Crime against Humanity” 221 15. Middle Eastern Precedents and Universal Trends 245 16. The Pyramid of Accountability 289 17. Justice and Nonviolence 315 18. Coda: On Foreign Intervention and Nonviolence 333 19. Epilogue: The 2011 Anima 343 Bibliography 349 Index 381 vii

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Detailed Contents Preface xiii Synopsis xiv Highlights xv Acknowledgments xvi Gener al Introduction 1. The Middle East Nonviolent Revolution: A Philosophical Manifesto 3 Definitions 3 A Philosophical Manifesto 12 Revolution and Philosophy 14 Part one | Revolution 2. Introduction: Nonviolence between Order of Reasons and Decrees of Reality 29 3. A Brief History of Nonviolence in the Middle East 33 Basics of Nonviolence Again 35 Dates and Birthdates 36 Protagonists and Leadership 38 Women and Nonviolent Revolution 46 Causes 47 Process 51 The Spiral 61 4. Shattered Political Language: Reconstructing a Humanist Culture of Nonviolence 69 Shattered Political Language 69 Terrorism 70 Fitna and Other Polysemies 73 Reconstructing Nonviolent Culture in the Humanist Tradition 81 The Kawakibi Template 84 Poet Philosophers 87 ix

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Philosophy and Sufism 90 Writing Unviolent History 92 A Cautionary Conclusion 95 5. Nonviolence: The Central Philosophical Paradox 99 6. Conclusion: Rhythms of Nonviolence 119 Part two | Constitutionalism 7. Introduction 123 8. Caveat: Against Secession 125 9. Constitutional Ruins and the Unfathomable Politics of Transition 133 Constitutional Ruins and the New Order 133 Republic Meets Monarchy: The Middle East Monarblic 137 The Unfathomable Politics of Transition 141 Constitutions and Elections 141 The Missing Link: A Grand Revolutionary Coalition 146 Politics and Nonviolence 149 10. Constitution-Writing: LEJFARC’s Universal Template 153 A Dull Exercise, LEJ(F)ARC . . .  156  . . .  Potentially 162 An Alternative View: The Civil Society (CS) Prism 165 Civil Society Vetting the Constitution 168 Civil Society Making the Constitution 169 Civil Society in the Constitution 172 11. Middle Eastern Constitutionalism 175 Sacred Legal Tradition: Of Islamic and Other Middle Eastern Laws 178 Real and Less Real Problems: The Article 2 Template 178 Acid Tests 179 When Scarf Turns into Veil 181 Beyond Acid 188 Aggiornamento: Style versus Substance in the Middle Eastern Legal Tradition 190 An Illustration: Freedom of Religion 195 The Middle East Challenge to World Constitutionalism 197 Constitutionalizing the Judiciary 198 Sects, Subordination, Federalism 203 Opening “New” Windows 206 12. Conclusion: Constitutionalism and Nonviolence 211

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Part three | Justice 13. Introduction: The Order of Reasons Restated 217 14. “Dictatorship Is a Crime against Humanity” 221 Domestic Construction of Judicial Accountability: Reviving the Legacy of the French Revolution 224 From the Fog of “Law of the War Crime” to “Crimes against Humanity” 237 15. Middle Eastern Precedents and Universal Trends 245 Damascus and Beirut 1860 246 Iraq, False Starts from 1987 to 2003 255 Sabra and Shatila, Belgium 2001–2003 263 Baghdad 2005. The Trial of Saddam Hussein 268 Beirut 2004. Mu‘ammar al-Qaddafi Indicted 271 Beirut 2005, the Special Tribunal for Lebanon 276 Bashir and Qaddafi before the ICC 281 Conclusion: Crime against Humanity as Philosophical Category 283 16. The Pyramid of Accountability 289 Trials 289 About Procedure, Briefly, from the Victims’ Point of View 290 Who Should Try the Dictator? 291 The Voice of the Victims 295 Evidence 298 Other Mechanisms of Accountability: Reparations, Lustration, Reconciliation, Constitutions . . .  304 Lustration Laws and Truth Commissions 307 Lustration 308 TRCs 310 Constitutions and Accountability 312 Conclusion: The Pyramid’s Uneven Allure 313 17. Justice and Nonviolence 315 Minor Philosophical, Major Political Problems 318 Becoming a Dictator 318 Golden Exits 319 On the Death Penalty 321 On “the Right to Kill a Dictator” 329 18. Coda: on Foreign Intervention and Nonviolence 333 Foreign Military Intervention as War 334 Foreign Military Action as Judicial Implementation 338 19. Epilogue: The 2011 Anima 343

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Bibliography 349 Table of Authorities for Works Cited 349 Court Cases 349 Legislation, Premodern 353 Legislation, Modern 354 United Nations 355 Other International Treaties and Instruments 355 Official National Reports 356 NGOs, Human Rights Organizations Reports, Databases 356 Books, Articles, and Book Chapters 357 Cultural References 379 Index 381

Preface

i In 2011, two types of momentous events rocked the Middle East. The first event went generally unnoticed. It was the formal secession of South Sudan, a precedent that bodes ill for the region. The second event has preoccupied the world ever since. It was the eruption of the Jasmine and Nile revolutions in Tunisia and Egypt, which deposed entrenched presidents-for-life in a few days of massive nonviolent street mobilization. Revolution soon spread across the region as the “Arab Spring.” As part of the planet-wide resistance to authoritarianism, revolution in the Middle East has been brewing for years across a region firmly held by an interlocked set of dictatorial systems. There were serious cracks in the authoritarian dam in Lebanon in 2005, in Iran in 2009. In 2011, the dam broke across every single country in the region. The revolutionary eagle has taken its flight, and its feathers are colored by the universal allure of nonviolence as the central contribution to history in the making. It is also haunted by the violence of actors from entrenching regimes, the revolution’s military and religious hijackers, and the Damocles sword of secessionism and failed states. In the Middle East, the eagle has yet to land. Its nonviolent yearning is as formidable as the disappointment its failure may carry. Neither success, nor failure, is pre-ordained. This book is a philosophical treatise on nonviolence as the nexus of historical change in the Middle East and beyond. We need to better understand nonviolence with concepts that inform the march of revolution with meanings, both abstract and concrete. The ongoing revolution of the Middle East is a world-historic phenomenon driven by universal aspirations for freedom and dignity. It leaves no part of humanity untouched. To understand and shape the revolution underway, participants and supporters across the globe are forced to navigate the treacherous channels of violence imposed by xiii

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absolutist rulers who refuse to leave, and the espousal of violence by their challengers and/or successors in military garb, sectarian outfit, or messianic calling. When the revolution turns violent, it must self-critically renew its commitment to nonviolent political change. This provides the gist of the first part of this book, on nonviolence as revolutionary process. The second part examines constitutionalism as the translation of nonviolence into new institutional arrangements that post-dictatorship societies are seeking to build on the ruins of the ancien régime. This translation, we shall see, is never absolute. Absolute nonviolence can preside over the revolution, but no government can operate without violence under state monopoly, in a process accepted, negotiated, mediated, and massively endorsed by the people through a working rule of law. There is a third, constitutive layer of nonviolence. The cathartic closure of a successful nonviolent revolution is projected, as the revolution unfolds, in the victims’ demand for justice from the dictator and his aides, most importantly in their judicial trial, and in related forms of accountability such as compensation, truth and reconciliation processes, and lustration laws. Nonviolence without justice, this book argues, lacks an essential element in the structure of its philosophy.

Synopsis From a companion book to the Arab Spring, this book turned into a reflection on a much wider philosophy of history, with, at its heart, 2011 as a cutoff date between violence and nonviolence. In the early days of the revolt spreading across the Arab world, it was clear that revolutionary ideas could not be confined geographically, and that it would be wrong to read history through a narrow Arab lens. The Middle East appeared as a more convincing theater, and developments in Israel, Iran, and Turkey would soon confirm intuition. But the book forced a reflection that went beyond turning Arab into Middle Eastern, and embraced a full philosophy of history, with nonviolence as its defining anima. I set the philosophical scene in Chapters 1 and 2. In the first part, on revolution and nonviolence, the brief restatement of key events in and around 2011 (Chapter 3) moves into a rediscovery of nonviolence in the culture of the Arab-Islamic classical age, and in its most appealing contemporary vectors (Chapter 4). It then enters into a more abstract exercise in the analysis of the “perpetual peace” genre as it developed in the eighteenth century, and the conflict between peace considered to be eternal and the naturally violent system that democracies live by daily (Chapter 5). In constitutionalism (Part 2) lies the extension of the nonviolent revolution into an institutional framework; in judicial accountability (Part 3) rests the promise that the revolution makes to its nonviolent protagonists, to see justice done against their victimizers, on top of whose chain of command sits the dictator. Constitutionalism limited to the Middle East is not meaningful. After standing against the specter of secession (Chapter 8), and the region’s national and regional fleeting politics (Chapter 9), comparative constitutionalism puts the revolution in its place as part of a universal template designed in the Atlantic Enlightenment two hundred years earlier

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(“LEJFARC”, Chapter  10), before going back to the wider constitutional challenges the Middle East poses to the world (Chapter 11). Justice is the subject of Part  3. As a global phenomenon, international criminal law puts the Middle Eastern experiment in proper perspective (Chapter 13). This flows from the prominence of a universal fight that defines dictatorship as a crime against humanity (Chapter 14), and incorporates advances and retreats of justice in the Middle East and the rest of the planet (Chapter 15). Justice so far in that part focuses on trials, but it is inscribed in a larger pyramid of accountability (Chapter  16). Some of the persistent philosophical questions for justice after dictatorship follow in Chapter 17. A Coda discusses justice and foreign military intervention when the revolution is nonviolent (Chapter 18). The Epilogue serves to open some windows, especially on gendered anima as the future of a philosophy of nonviolence (Chapter 19). The three parts of this book are the three necessary parts of the philosophy of nonviolence erupting on the scene of history in 2011. This work evolved significantly since the world’s fascination with nonviolence displayed on the streets of Tunis, Cairo, or Manama in the first months of 2011. As demonstrators engulfed the whole Arab region with a common determination to shun violence in the rallying cry “silmiyya, silmiyya”—“nonviolent,” “peaceful,” and as regimes from Oman to Morocco were terrified by the spread of the new atmosphere of courage and freedom, the world’s imagination was fired up by the promise of nonviolent change in the Middle East. As I conclude this book, the picture is gloomier, with an eerie caliphate announced by a millenarian sect, and another general dominating Egypt, but I  never harbored the illusion that any revolution could proceed without counterrevolution, indeed that any nonviolent revolution could proceed without a violent counterrevolution. Highlights This has been a far longer book than anticipated, and I would like to propose a few shortcuts to the reader who does not have the time or patience to read it all. The book will hopefully have an appeal to several audiences, both activist and academic, across the continents. I do not quite believe that a philosophy can be directed to one part of humanity defined geographically, and I was careful to keep in mind both Western and Eastern readers, even if the regional take may be less interesting to some. For those interested in philosophy, Chapter  1 (General Introduction) sets the scene, Chapter 5 dwells on the eighteenth-century debate on perpetual peace, Chapter 10 focuses on the constitutional framework persisting since the Enlightenment and the alternative civil society prism, and Chapter 17 discusses justice and nonviolence. The international relations experts may wish to read Chapter  5 on perpetual peace, Chapter 7 on secession, and Chapter 18, which makes a brief argument on foreign military intervention. For those who have little patience for law, Parts 2 and 3 can be dispensed with, save perhaps for the first part of Chapter 14, which discusses the legacy of the French revolution, and parts of Chapters 17 and 18 that deal with the dictator’s “golden exit,” the death penalty, and non-legal aspects of the pyramid of accountability.

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Constitutional lawyers will be mostly interested in Part 2, and the international criminal law specialists in Part 3. The legal historians may find useful Chapter 5 on the formation of the perpetual peace genre aka democratic peace theory, and Chapters 14 and 15, which cover the history of war crimes and crimes against humanity. Those who care in particular for the Middle East: Chapters 3, 4, 11, and 15 are the most “local.” Those not particularly interested in the Middle East might wish to read only Chapters 1, 5, 10, 14, and 16 to 19. Summaries of various length and focus are available in Chapters 2, 5, 6, 12, 13, and the Epilogue. And for those who think that personal, practical, tangible activism should not find a place in a book with “philosophy” in the title, I have devised a writing device. In the text, footnotes with numbers in italics underline the peculiarity of activism. They can be easily skipped. Other, “normal” footnotes include the original texts in various languages, particularly Arabic, German, and French. This makes them sometimes long, but I thought the reader would enjoy having easy access to them in the far more telling original, especially for classical texts sometimes a millennium old. All translations are mine, if not otherwise mentioned. I use the standard transliteration of Middle Eastern languages, minus the diacritics, which appear only in the bibliography. When one date appears, it refers to the Common/ Christian era (c.e.) in the Gregorian calendar. When two dates appear, the first is to c.e. or b.c.e. (Before the Common Era), the second to the Hegire (hijri, AH) calendar. All mistakes and shortcomings are of course mine. Acknowledgments This book is dedicated to my sons, and to the ’11 generation, in my mind at least as important as the generation of ’89 that stormed the Bastille. My boys joined my wife Nayla and me in nonviolent demonstrations in Beirut in February and March 2005 as teenagers, but the 2011 revolution was very much their own. They have come of age in more ways than can be fathomed through the ups and downs of a revolution they loved. It is understandable that the generation that made the revolution may be disillusioned by the way it has turned in most countries. If only this book vindicates some of the immense achievements of their generation, and the windows it opens on a better future, it will have been worth the trouble. Together with my family, longtime friends were always there for me as I made progress in the difficult journey. My world-class colleagues in scholarship and action, Andrew Allen in London, John Borneman in Princeton, Aziz Rana at Cornell, read the manuscript and provided important remarks that I  was not always able to integrate. Their interest and encouragement removed the last remaining reluctance to see the book to the press. Other close friends who helped with critical, qualitative support in one or more chapters include Frédéric Desportes, John Donohue, Edward Mortimer, Gareth Smyth, Jihad al-Zein, Deen Chatterjee, Anver Emon and Duncan Pickard. At Oxford University Press, the leadership of John Louth, and the thorough dedication of Blake Ratcliff and his editorial staff, especially Alden Domizio, helped me navigate exacting standards in another significant OUP moment of my life. Balamurugan Rajendran oversaw the production process, with

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minutious copyediting by Brooke Smith. To all, my deep thanks. I am also grateful to anonymous readers of the manuscript in its early phase. I am lucky to be part of several distinguished scholarly communities that hosted the development of the various concepts tested in the book. They range wide and far, in the United States, Europe, and the Middle East, where early sections of the book were put to the test. Colleagues at Harvard, Yale, Utah, the Salzburg Global Seminar, and the École des Hautes Etudes en Sciences Sociales in Paris, and at the Libyan and Yemeni UN missions, as well as various political leaders and NGO partners across the region, offered unique platforms for the concepts variously imposed on their attention, and they patiently listened to unpolished thoughts as the book developed. It is hard to keep track of the various lectures given, and the conferences I participated in since 2011 with this book in mind. I am particularly thankful to the law school communities at Harvard and Yale during my visits in Cambridge and New Haven in 2011 and 2012. The Middle East Legal Studies Seminar at Yale Law School, animated by Owen Fiss and Tony Kronman, has been since 1999 an annual haven of reflection. At Yale Law School, also, the past three years were regular occasions to share some of this book before pointed audiences in the annual Robert L. Bernstein International Human Rights Symposium, which Jim Silk directs. It would take too long to thank all the colleagues who have impressed on me as the book was taking shape, but the friendship of Robert and Jacqueline Fossaert, of Owen and Irene Fiss, and of Paul Kahn and Cathy Iino, has been priceless over two decades. I have published enough works that underline the intellectual mentorship of Fossaert, Kahn, and Fiss, so this book only continues their inspiration. Colleagues in leading human rights organizations, especially Amnesty International and Human Rights Watch, set the standards. The reader will note the reliance on their reports from the field in this book, but I should also acknowledge the constant interaction with so many colleagues at Amnesty International, with whose leaders I have now interacted closely for almost two decades as the lawyer of AI’s Middle East regional office. At Human Rights Watch, my long-standing interactions with Kenneth Roth and so many other friends have been important in shaping the views of the book. My lifelong colleague and friend Samir Doumit, a brilliant lawyer who supported creatively several of the international criminal cases I discuss in the book, and my trusted assistant through the years, Nada Chahine, were always there to keep me from erring too much. Mara Revkin, Yale Law School ’15, Pierre-Ange Savelli, Sciences-Po ’14, Michael Pomeranz, Yale Law School ’14, helped with research, style, and syntax, as did many students in various related seminars across the world, in Cambridge, New Haven, New York, Salt Lake City, Paris, Hamburg, Tunisia, Sanaa, Beirut, and Cairo, among other vibrant places. I am particularly grateful to Jordin Albers, Utah Law School ’14, who went through the whole manuscript, corrected its most egregious formulation, added qualitative research, and put in shape the bibliography in her efficient and graceful ways. What is unusual in working on the march of nonviolence in the Middle East is the impact of the march of history on an author’s personal involvement. This personal involvement informs the reflection into sometimes daily action that accompanies unfolding, critical events. It is not benign to analysis. That a writer operates in a context that shapes the views he expresses in a book is a platitude. That the author’s action, however marginal, defines his

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philosophy, a contention that is essential to understanding the strengths and weakness of this work, needs to be better acknowledged. The connection between personal and collective action is discussed in the general introduction of the book. I argue that action impacts the philosophy of history that I call “radical idealism” in ways that go beyond the contextual participation of an individual. Action becomes part of the truth of the philosophy of nonviolence. Of all the communities with whom I shared the revolution, the one that most anchored this work is Right to Nonviolence. Wonderful colleagues on RN’s Board inspired this book. Mentioning them is the least I can do, which does not express even a modicum of my debt to their intellectual companionship:  Ishac Diwan, Carlos Eddé, Trudi Hodges, Deena Hurwitz, Sadeq Jalal al-Azm, Mansur al-Jamri, Yang Jianli, Baber Johansen, Jane Mansbridge, Maria Pia di Bella, Eman Shaker, Adel Sherif, Jamil Mroue, Martin Boehmer, Sharhabeel al-Zaeem, Abraham Udovitch, Lucette Valensi, Ayman Nour, Soli Ozel, as well as Paul Kahn, John Borneman, John Donohue, and Edward Mortimer again. To all, my deep gratefulness for a trust that operates despite what I am sure is a healthy disagreement, in part or sometimes in full, with my analysis. I have little doubt, nonetheless, that they share my philosophical quest. Beirut, July 15, 2014

General Introduction i

Action is perfection and force incompleteness.1 Mulla Sadra Action sometimes precedes truth.2 René Char

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Definitions Call it “the Middle East nonviolent revolution.” And don’t be disheartened by its setbacks. From the start of the revolutionary march in Tunisia and Egypt in early 2011, I  have defended this label against the “Arab Spring,” which is as inchoate as it is poetical. “The Arab Spring” is incorrect because it ignores the precedent of the Green revolution in the summer of 2009 in Iran, and the Cedar revolution in Lebanon in 2005–2006. Both saw critical masses of people on the streets trying to chart a way out of the long nightmare of the late twentieth century in a revolution marching against the established order. The “Arab” Spring is also wrong because it ignores Israeli Jews, a people profoundly intertwined in fate with Arab Palestinians within Israel, in the West Bank, Gaza, and the refugee camps. “Arab” ignores Turkish and Iranian Kurds, as well as the Kurds of Iraq and Syria, who are key to understanding the revolutionary developments in four central Middle Eastern countries. In freezing a culturally constructed dichotomy between Arabs and non-Arabs, it imposes a moral and political dead end that forecloses opportunities for solidarity across ethnic and national divides. “Spring” is an elusive metaphor that undermines the magnitude of the revolutionary phenomenon and the inevitable counterrevolution that is bound to follow. In casting it as a season, we ignore the lasting power released by the movement of tens of millions of people, and we project an optimistic character that makes success

“Al-‘amal kamal wal-quwwa naqs.” Sadr al-Din al-Shirazi, known as Mulla Sadra (d.1650), Al-hikma al-muta‘aliya fil-asfar al-‘aqliyya al-arba‘a (transcendenting wisdom in the four rational journeys), Qum: Mustafawi, 2nd ed. 1999, Vol. 3, 58. On Mulla Sadra, see ch.3, nn.75–78 and accompanying text. 2 “[L]‌a vérité ne précède pas obligatoirement l’action.” Full citation below note 29. 1

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pre-ordained. The Middle East revolution follows no natural outcome; it is an ongoing struggle, fundamentally indeterminate. “Arab” is not an absolute misnomer, and has distinct advantages. This book is not a stickler for definitions on a range of words and concepts with heavy historical and cultural baggage. The region defined as Arab rests on a linguistic community of Arabic-speakers, and “Arab” in this sense is a largely neutral descriptor—a less discriminatory label than “Muslim” or “Christian.” The early enlightenment in the region, roughly from the late nineteenth to the mid-twentieth century, is generally described as an “Arab renaissance,” a Nahda, because Arab-speaking Muslims, Jews, and Christians, including a fair number of agnostics, created a world that transcended their traditional horizons through a commonalty of language. The Arab Nahda represents a “Liberal Age,”3 an awakening or revival roughly dominant in-between the two world wars.4 For all its colonial shortcomings, many Middle Easterners remember the Nahda as a gentler era of social interaction, with a far less brutal governmental imprint than they have experienced since. The same pan-Arab spirit gave way after the Second World War to the worst forms of nationalism, sometimes depicted as “Dark Arabism” because of its dominantly fascist, extreme, and dictatorial expression.5 Arab nationalism pushed into extremes provided a warped ideological justification. Its most violent illustration was the system adopted by the Syrian and Iraqi Ba‘ths in power for a half century. The Arabism of the Nahda, by contrast, had clean hands. The Arabism that dominated the latter part of the century was steeped in the blood of its victims, with obdurate forms of “Arabo-fascism” that persist in the countries of the Arab world where the revolution has not yet been successful. The nationalism of language, we have learned over centuries, is not oppressive per se. It can be. In the same way, there are extreme, violent ideologies based on sect and religion rather than on language. They include Islamo-fascism, a term one should not shy away Albert Hourani, Arabic Thought in the Liberal Age, original London:  Oxford University Press 1962, rpt Cambridge 1983. (Standard introduction to the thought of the Nahda and its principal thinkers.) 4 Nahda (literally standing up, waking up) is translated as “awakening” in the classic work of Georges Antonios, The Arab Awakening, first published in 1938 at Khayats, Beirut. The translation of the book in Arabic is actually al-yaqza al-‘arabiyya, Beirut:  Dar al-‘ilm lil-malayin 1962, rather than nahda. Nahda is the more current word for that period, not to be confused with the Islamist movement in Tunisia that adopted it in the 1980s. This is the term used for instance by Marwan Muasher (Mu‘ashshar), The Second Arab Awakening, New Haven: Yale University Press 2014 (arguing that the second Arab awakening’s focus is on pluralism). 5 Dark Arabism has an even more sinister pedigree, similar to dark American nationalism eliminating nonwhites from citizenship, or enslaving them. In dominant legal texts and harsh practice in Arab and US history, and elsewhere, slavery has been a wide-ranging institution, and has seeped into the resentful collective memory of the victims: “We talking slavery now, Europeans in the West, Arabs in the East. And of course, African on African: Where two Blacks stand, none stand together. The Blacks are decimated.” This quote appears in an illustrated “comics” book on the life of Martin Luther King, Jr. by Arthur Flowers and Manu Chitrakar, I See the Promised Land, Toronto: Ground Books Press, 2013 (Original India: Tara Books 2010), 14. See also Murray Gordon, Slavery in the Arab World, London: Rowman & Littlefield 1989, on the region’s legacy of human servitude; Amir Idris, Sudan’s Civil War: Slavery, Race, and Formational Identities, Queenstown, Canada: Edwin Mellen Press 2001, on the continued practice of slavery in present-day Sudan. Bernard Lewis summarizes that research, which he partly pioneered, in Notes on a Century: Reflections of a Middle East Historian, New York: Viking 2012, 108–109; 301–304. 3

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from, as well as Judeo-fascism, both a daily phenomenon in the region and beyond, as were forms of killing ideologies in the name of Christ in the early ethnic-cleansing years of the Lebanese civil war. On the more positive side of Arab nationalism, satellite stations, Internet and Facebook sites, sms and Twitter feeds, were all deployed in Arabic to network, rally, document, and inspire the revolution. It is therefore true and good that the revolution is also Arab.6 But it is more correctly Middle Eastern, despite the dominantly Arab lingo among the revolutionaries. In fact, the revolution unfolding may be more than just Middle Eastern. A spirit of renewed and rejuvenated struggle against dictatorships the world over should prompt us to consider that the Middle East nonviolent revolution holds a universal promise. In 2011, tremors in authoritarian Russia grew as the autocrat at the helm turned increasingly supportive of the worst dictatorships in the region. Fears at the core of the Communist Party’s hold over China because of the potential precedent of Egypt’s Tahrir Square were real. The year 2011 created its specific ripples in the “Occupy” movement on the streets of large US cities, all the way to Hong Kong a few years later. The Middle East revolution carries a tangible promise of universalism, particularly because its origin had a nonviolent character. An early word about nonviolence, coupled with revolution, is in order. Nonviolence is a bare, simple concept. “Nonviolence” as I use it in this book is the refusal to use physical violence against fellow human beings in order to advance one’s political interests. Here I partly share the perception of most contemporary nonviolence theoreticians and advocates for whom nonviolence is a tool, at best a method. But I think there is much more to it than a method used during the upheaval to avoid shedding blood. Nonviolence is more than a means to an end. Nonviolence as philosophy of history redefines revolution as tantamount to violence. When we think revolution in modern (or ancient) history, we associate it immediately, almost unconsciously, with violence. Revolution without violence was generally inconceivable up to the end of the twentieth century, as if the absence of violence in massive political change were antithetical to the very nature of a revolution. The great revolutions in modern history—the American and French revolutions, the revolutions of Europe and the colonies in the nineteenth and twentieth centuries, the Russian revolution of 1917, the Chinese revolution in the late 1940s, not to mention the revolutions of premodern age, all the way to slave rebellions in recorded antiquity—are all, along with dozens of others, unquestionably violent. So unquestionably indeed that we presume that a revolution is violent, because we cannot illustrate a single major revolution, including failed ones such as the Spartakist revolution in Germany after World War I, that does not take violence for its premise. Violence and revolution go together like two sides of the same coin. A revolution that does not shed blood is not a revolution. Or so we thought.

Basic 2013 data of native speakers in the Middle East:  Arabic 223  million, Persian 56  million, Turkish 51 million, Kurdish 21 million, Amazigh 15–22 million, Hebrew 5 million, with many speaking more than one language. This set of data come from Ethnologue (a comprehensive reference work cataloging global languages by number of native-speakers) at www.ethnologue.com/world. These figures seem to err on the conservative side. As important a factor is the widespread use of one or more languages in addition to one’s native, especially English and French as lingua franca in former colonies.

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As this book progressed, I  was struck by how the great revolutions of history are read to be “naturally” violent. This is true across the board of modern history and historiography, whether we go back to the protagonists of the Atlantic revolution, from George Washington to Mirabeau or Danton, and, in the case of its historians, from Michelet to Georges Lefebvre, Albert Mathiez, Robert Palmer, or François Furet;7 or whether we narrow the field to the last century, from Lenin or Trotsky, E.H. Carr and Eric Hobsbawm on 1917, Hannah Arendt and Walter Benjamin on revolutions of the twentieth century,8 Frantz Fanon on the war for independence in Algeria and elsewhere,9 Leninist vanguard party epigones from Mao and Ho Chi Minh to the Ba‘th and Islamist theoreticians, let alone fascist advocates of the Mein Kampf-crude style, and all the way to the more sophisticated reflections of Foucault and Agamben.10 Revolution is coterminous with violence. Nothing was more striking to me, as my thoughts unfolded in this book, than this “natural” association between revolution and violence across the board of dominant protagonists and historians of the modern revolution. From the 1776 revolutionary war of independence to the fall of the Bastille early in the French revolution, no actor or commentator doubted the reality of violence as means to revolutionary success, or indeed its legitimacy. It would have been hard for the general who led the American revolution, the master of ceremony in the first anniversary of the French revolution on July 14, 1790, or the advocates of all-out war against the “foreign counterrevolution” in 1792 France and 1920 Russia to think in nonviolent terms. Some historians might have been unimpressed or supportive of revolutionary violence, as in the case of Albert Mathiez and the Société d’Etudes Robespierristes, who argued in favor of the Terreur. Others may have been disturbed by the bloodshed, as one can read in Michelet’s Histoire de la révolution française (1848–1853), which ominously ends with the execution of Robespierre (Vol.6, Paris: Chamerot 1853). In that legacy, the distress with the violent side of the revolution is more strongly articulated in its latest recognized scholar, François Furet, Penser la révolution française, Paris: Gallimard 1978. Yet they all share violence as a given in a revolution. 8 In the first chapter of On Revolution, New York: Penguin 1990 (original 1963), Arendt expresses this violent nature that modern revolutions share with ancient times, “Antiquity was well acquainted with political change, and the violence that goes with change . . . ” (at 21). The great loss of the aftermath of the (violent) revolution, she argues in the book, is that of spontaneous movements that are taken over by parties and elites. The same understanding of violence in the philosophy of history can be seen in Benjamin’s “Critique of Violence,” where he perceives violence as a right for both the State and the “revolutionary general strike,” Walter Benjamin, Selected Writings, Volume 1: 1913–1926, Marcus Bullock and Michael W. Jennings eds., Cambridge, Mass: Harvard University Press, 2004, 235–252, at 239–240 (original 1921). And in the latter part of her life, Arendt discusses nonviolence tangentially in “Reflections on Violence,” The New York Review of Books, February 27, 1969, reflecting on the revolution in 1956 Budapest and 1968 Prague, and in Paris’s “Mai 68.” It is telling that even then, she misses the importance of nonviolence qua philosophy of change as the most striking characteristic of the revolutionaries in the streets of Prague and Paris (though not of Budapest). 9 Frantz Fanon, Les Damnés de la Terre, Paris: Maspéro 1961, ch. 1, “De la violence dans un contexte international,” where Fanon fully legitimizes violence of the independence movements against colonialism as natural, considering the massive colonial violence that they use weapons to combat in self-defense. 10 Unlike the advocates of violence from various fascist or socialist ilk who take it as a given in political action, or indeed like Nazism see violence as a value per se, Agamben sees the democratic government as the wielder of force under cover of law to consecrate a constant state of (violent) exception, see, e.g., “The State of Exception as a Paradigm of Government,” ch. 1 of State of exception, Chicago: University of Chicago Press 2005, original Italian 2003. There is a similar overall sense of suffuse universal exercise of power qua violence by all governments in Foucault’s writings, which I do not share either, despite any admiration for the signal “archeology” of power that he constructs in political philosophy. 7

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It is noteworthy, from this perspective, that the mass movement that stretched over a period of thirty years in Gandhi’s extraordinary trajectory is not usually conceived in terms of a revolution. In part, this is function of the time frame. When popular resistance does not overthrow the dominant oppressor for three decades, as in India’s struggle for swaraj (self-determination, independence) in Gandhi’s famous treatise of 1909, the revolution loses its natural edge as a sudden, intensive moment of change. An alternative explanation is more subtle, which suggests that Gandhi was more successful in limited “local satyagraha (truth-force) campaigns,” rather than in pan-Indian “continental movements.”11 The question of scale and time frame is therefore important, and there is no easy answer, for both conjure up the need for a bright line between revolution and evolution. A revolution happens when success is premised on a major objective being reached, such as the ejection of an occupier, or the removal of a dictator. Shorter objectives appear as counter-climactic, even self-defeating. A  revolution tends to be naturally fast-paced. Liberation movements that extend over decades of struggle against colonialism are generally not described as revolutions. Still, one recognizes a revolution easily enough. It differs from a coup by method and numbers. It differs from a collective moment of upset by bearing a minimal amount of self-consciousness. Revolution translates in the Middle East paean into a collective “the people want. . . . , ” a common slogan shouted on the streets by a large enough number of people moved by the same objective. “The people want to bring down the regime,” “the people want to try the dictator,” “Irhal, Leave, Dégage, Out, Game Over” are the core slogans of the revolution. There is an economy of scale and intensity in a revolution. A revolution requires a critical mass of people in the street, marching against an established order that they can hardly change otherwise. A few people demonstrating for a raise in salary, or for the protection of benefits about to be taken away by some new law, does not constitute a revolution. More puzzling for defining a revolution is the time frame in which it unfolds. Usually, a massive nonviolent revolution prevails in a matter of days, or weeks, or months. But it may not succeed in removing the dictator, and can stretch over years. In that case, the time frame becomes fraught with the disruption and protractedness of a recurrent, steady mobilization in the street. It also makes the nonviolence of the early days subject to the 11

Judith M.  Brown, “Gandhi and Civil Resistance in India, 1917–47:  Key Issues,” in Adam Roberts and Timothy Garton Ash eds., Civil Resistance and Power Politics:  The Experience of Non-violent Action from Gandhi to the Present, Oxford: Oxford University Press 2009 (a collection of a number of twentieth century experiments in nonviolent action across the world), 43–57, at 54:  “Gandhi’s campaigns of non-violent civil resistance in India aroused more support than any previous political movement in the subcontinent . . . Despite the novel outpouring of fervour Gandhi’s satyagrahas had very diverse results; and this enables us to make more nuanced judgements about what the ‘success’ or ‘failure’ of non-violent civil resistance might actually mean. His local satyagraha movements, as in 1917–18 and again in 1928, tended to be much more ‘successful’ in terms of achieving the desired socio-economic or political objective . . . By contrast the pan-Indian movements were always far more diffuse in their support and consequently far more likely to contain groups with very different motivations and priorities, however tightly Gandhi might attempt to control the personnel and the objectives. In these continental movements there was often no direct and immediate link between non-violent civil resistance and a desired outcome, so in a strict sense they could be considered as ‘failures.’ ”

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risk of some taking up arms and ruining the whole spirit of the revolution by shedding governmental blood. The time frame in that case gets further complicated by geography. Some cities, even some large swathes of territories in rural areas can be freed from the clutches of the dictator, for a period that is long enough to solicit the establishment of an alternative order, possibly even a structured revolutionary government, to run the liberated zone. These questions will recur in the book, but they are of an essentially practical nature that does not undermine the more abstract level at which the philosophical enquiry is conducted here. If a structured opposition morphs into a government of the free zone, or even if it emerges abroad, the nonviolent dimension of the revolution does not need to be undermined. In any case, the time frame itself is less of a problem in the context of an enquiry that tries to make sense of the Middle East revolution over the full span of a generation extending geographically to many more countries, in the way the Atlantic revolution makes better sense over two continents and a span of time of two to three decades in the late eighteenth century. Before dwelling on the concept of the Atlantic revolution, I propose to briefly address the term “nonviolence” in the context of some of the contemporary writers on the subject. Unlike them, I tend to conceive this book holistically as a philosophy that ties conceptually together thought and action, means and ends, process and substance. Rather than nonviolence, some scholars use “civil resistance,” “people power,” or simply “dissidence.” Intellectual leaders of a burgeoning trend that straddles the planet express their preference for using “nonviolent” to qualify a movement, a strategy, a revolution, a conflict, rather than nonviolence as a self-contained concept. Adam Roberts, perhaps the foremost current theoretician of nonviolence, prefers the term “civil resistance” to “nonviolence.” “Civil resistance is a type of political action that relies on the use of non-violent methods. It is largely synonymous with certain other terms, including ‘non-violent action’, ‘non-violent resistance’, and ‘people power.’ ”12 The emphasis in Roberts’s work on civil resistance is on “non-violent” (with a hyphen) as an adjective rather than a noun, a qualifier of some sort for mass movement (“people power”), rather than as a self-standing concept. The emphasis has been taken on by other prominent figures of nonviolence:13 “The term ‘nonviolence’ should not be used as a synonym for the technique of nonviolent action, because nonviolent action is often practiced for pragmatic reasons and is not necessarily tied to a general belief in abstention from all violence.”14 In this utilitarian perspective, nonviolence is a tool or an ensemble of tools rather than an ethical philosophy. My approach here is far more radical, with a concept of nonviolence—in one word—as the nexus of a universal philosophy, made coherent through the example of the Middle East revolution, but not limited to it. Among the many thinkers and practitioners of nonviolence,

Adam Roberts, “Introduction”, in Adam Roberts and Timothy Garton Ash eds., Civil Resistance and Power Politics, above n.11, 2. 13 For instance Peter Ackerman, author with Christopher Kruegler of Strategic Nonviolent Conflict:  The Dynamics of People Power in the Twentieth Century, Westport, CT: Praeger 1994; and, with Jack DuVall, of A Force More Powerful: A Century of Nonviolent Conflict, New York: Palgrave 2000; Ackerman is the founder of the International Centre for Nonviolent Action. 14 Gene Sharp, Sharp’s Dictionary of Power and Struggle:  Language of Civil Resistance in Conflicts, Oxford: Oxford University Press 2012, entry for “nonviolence,” 193. 12

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Vaclav Havel strikes me as the more ambitious exponent of a fuller intellectual scope than one limited to nonviolence as a utilitarian tool: “Dissident” movements, as I  have tried to indicate, share exactly the opposite view. They understand systemic change as something superficial, something secondary, something that in itself can guarantee nothing. Thus an attitude that turns away from abstract political visions of the future toward concrete human beings and ways of defending them effectively in the here and now is quite naturally accompanied by an intensified antipathy to all forms of violence carried out in the name of a better future, and by a profound belief that a future secured by violence might actually be worse than what exists now; in other words, the future would be fatally stigmatized by the very means used to secure it. At the same time, this attitude is not to be mistaken for political conservatism or political moderation. The “dissident” movements do not shy away from the idea of violent political overthrow because the idea seems too radical, but on the contrary, because it does not seem radical enough.15 Closer to Havel, I support here a radical intellectual view of nonviolence steeped in a new philosophy of history where “the future would be fatally stigmatized by the very means used to secure it.” In Lady Macbeth’s words, “the future” of nonviolence is “felt in the instant.” In the philosophy of history defended in this book, nonviolence is the conceptual crucible linking together revolution, constitution-making, and judicial accountability. More limited expressions of nonviolence, ranging from workers’ strikes to mobilization against crime in a neighborhood, partake of this philosophy, but require the ethical framework to be better honed and adjusted. So does nonviolence in a family context, generally against women and children. This is not a focus of mine here. Purists might be disappointed by a deliberate glossing over nuances and variations at the expense of precision. It is hard to do otherwise. Variations across the world in the use of the terms “nonviolent” and “nonviolence” are prisoners of syntax and vocabulary, and beholden to the specificity of the shifting historical expression of the philosophical concept. The context of nonviolence for Martin Luther King Jr. cannot be the same as the one that Christ or Gandhi lived and projected. Christ’s kingdom was not of this world. Martin Luther King’s nonviolence was a fight against racial injustice, and that of Gandhi against colonial domination. Words also matter. In Hindu, ahimsa, “nonviolence,” was a privileged word for Gandhi, even though he also makes significant use of Satyagraha, “truth force, nonviolent resistance to wrong.”16 In the Arab Spring, “silmiyya, peaceful”—meant as in “peaceful movement, demonstration or revolution”—was more current in the early days, but la‘unf, literally “no violence,” a neologism, has been increasingly forceful in public discussion and street use. There is little point in adopting or rejecting one or the other word. They belong to the same family. But this book gives preference to “nonviolence” over “civil resistance” or

Vaclav Havel (d.2011), The Power of the Powerless (1978), available at http://vaclavhavel.cz/showtrans. php?cat=clanky&val=72_aj_clanky.html&typ=HTML, ch. 17. 16 As translated in the glossary of the Cambridge Companion to Gandhi, Judith Brown and Anthony Parel eds., Cambridge: Cambridge University Press 2011, xi, x. 15

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“peace/peaceful,” and uses la‘unf, “nonviolence,” without a hyphen or a space, so that a distinct concept of nonviolence emerges from these pages in a philosophical spirit that is at the same time ethical, tactical, and strategic. Against violence as “midwife of history,” nonviolence is the philosophy of revolutionary change.17 Nonviolence, I am suggesting on the occasion of this journey into the Middle East revolution, is turning into a more powerful nexus of history than its nemesis—violence—was over the span of four millennia in the recorded journey of humankind. Universalism is perforce geography-sensitive. Regardless of the terminological passage from Arab to Middle Eastern, and from thence to the world, as human rights advocates in China and Russia take their cue from the latest success and failure in Cairo or Sanaa, much in the planet’s future depends on the outcome of the Middle East upheavals—from the price of oil to the massive movement of populations and the tragic fate of refugees, both among the nationals who escape government violence and the guest workers who are unable to continue living in the turmoil of societies wrecked by the rulers’ violence against their people. We shall see. Wishes have been buried more often than not on the tortuous paths of history. What cannot be doubted is that the Middle East has been at the center of world concern ever since the fall of a petty and ruthless dictator in Tunis on January 14, 2011. Diachronically, the revolutionary wave is deep, at least a generation long. To assess that longer trend we have the benefit of the conceptualization of the Atlantic revolution from the late 1770s into the early 1800s. “The Atlantic revolution” is a concept coined by historian Jacques Godechot, who pioneered with his colleague R.R. Palmer the wider look into

In Anti-Dühring (1877), Friedrich Engels mentions Marx at the origins of the metaphor of force being the midwife (Geburtshelferin) of profound historical change: “That force, however, plays yet another role in history, a revolutionary role; that, in the words of Marx, it is the midwife of every old society pregnant with a new one, that it is the instrument with the aid of which social movement forces its way through and shatters the dead, fossilised political forms.” A full digital English edition of Anti-Duhring can be found on http://www.marxists.org/archive/marx/works/1877/anti-duhring/ch16.htm#087. Original German at http://www.mlwerke.de/me/me20/me20_136.htm#Kap_IV: “Daß die Gewalt aber noch eine andre Rolle in der Geschichte spielt, eine revolutionäre Rolle, daß sie, in Marx’ Worten, die Geburtshelferin jeder alten Gesellschaft ist, die mit einer neuen schwanger geht |siehe Karl Marx, [the following reference is added here: »Das Kapital«, Bd. I, in: Karl Marx/Friedrich Engels: Werke, Bd. 23, S 779, where the association of violence with midwivery of history appears.] daß sie das Werkzeug ist, womit sich die gesellschaftliche Bewegung durchsetzt und erstarrte, abgestorbne politische Formen zerbricht.” Engels criticizes in this passage economist and philosopher Eugen Dühring (d.1922)’s argument of a peaceful reconciliation between capitalists and workers. The reference to Karl Marx is to the process of violent appropriation of peasant land by nascent capitalism, see Capital (1860), vol. 1, ch. 24, German edition at http://www.mlwerke.de/me/ me23/me23_741.htm#S779: “In der wirklichen Geschichte spielen bekanntlich Eroberung, Unterjochung, Raubmord, kurz Gewalt die große Rolle.” (“In real history, the larger role is known to be played by theft, subjugation, robbery, murder, in short by violence.”) In the present book, I  originally heavily relied on “midwife” as a metaphor, but “nexus” became the more accurate concept for nonviolence as the work grew. Nexus is more precise and more encompassing of the various aspects of nonviolence that include the new social contract and the judicial accountability sought in the historical revolution afoot in the world via the Middle East. Oxford Dictionaries define nexus as “(1) a connection or series of connections linking two or more things”; and “(2) as central or focal point.” Nonviolence operates in this work as nexus in these two acceptations. It is a connection of the three moments of the philosophy of history, and a focal point for the human beings involved in it as actors of change. I also use anima, for reasons explicated in the last chapter.

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the political convulsions that hit the two sides of the Atlantic in the American and French revolutions at the end of the eighteenth century, all the way to the Napoleonic wars.18 This is a long span of time, which makes our reflective journey premature as we learn from revolutions past. History never quite repeats itself, but there is accumulation of knowledge that always informs the way we see the present moment. Like generals always fighting the last war, revolutionaries tend to model their revolution on the last one they remember, from their own history or from the example of neighbors, close or far. And yet the revolution is by essence disjunctive. One safe prediction is that the Middle East has embarked on a long-haul revolutionary transformation, with dust unlikely to settle before a generation. In some of the expectations elicited by the massive street movement against dictatorship, the Middle East revolution has already joined in magnitude such world-historic tidal waves of which the Atlantic revolution was the first in modern history. I will now address my use of the word “democracy” in this book. Like the proverbial elephant, democracy is easily recognized. As in my Introduction to Middle Eastern Law (2007), I consider democracy, republicanism, good governance, rule of law, human rights, judicial review, accountability, and transparency as part of a general conceptual frame that stands against dictatorship, tyranny, arbitrariness, human rights violations, corruption, “grave breaches of international humanitarian and human rights law,” structural injustice, and institutionalized discrimination.19 The fluid verbal cornucopia can be simplified into democracy and dictatorship as the two conceptual poles of political philosophy and practise in the modern age. Transitions from dictatorship to democracy are part of a systemic global process of change with blurred lines, but the two central poles are well circumscribed and understood, and they are lived in the flesh daily by people benefiting from a set of basic rights that democracies respect and dictatorships deny. These remain “first generation” rights, on which this book purposefully aligns its horizons, even if a revolution can and should move beyond them. A more generous understanding of social and economic rights that defies or tempers the injustice carried by an unbridled capitalist system may provide the next level of revolutionary expectations, but it does not constitute the central meaning of the philosophy of nonviolence in opposition to dictatorship, a meaning limited to basic rights in their barest, first-generation expression: right to life, freedom of expression, formal equality before the Jacques Godechot, Les Révolutions, 1770–1799, Paris: Presses universitaires de France, 1963 (English tr. by Herbert H. Rowen, France and the Atlantic Revolution of the Eighteenth Century, 1770–1799, New York: The Free Press, 1965). Godechot’s pioneering reflection on the Atlantic revolution was started with his colleague R.R. Palmer in the 1950s in a celebrated article, Jacques Godechot and Robert Palmer, “Le problème de l’Atlantique du XVIIIe au XXe siècle,” Relazioni del X Congresso internazionale di scienze storiche, Roma, 1955, vol. 5. Storia Contemporanea, Firenze: Sansoni, 1955, 175–239, see especially at p.226 the convergence of revolutionary ideas in America and on the European Continent. 19 Chibli Mallat, Introduction to Middle Eastern Law, Oxford:  Oxford University Press 2007, 7:  “[T]‌he actual battle for democracy, human rights, the rule of law, good governance, is political and not legal. For our Middle East societies and countries to come of age, believers in democracy, human rights, the rule of law, good governance, call it what you will, must come to power and lead their societies. The work of lawyers, human rights defenders, or judges, is heroic, but it remains marginal. The battle for law in the Middle East is political.” 18

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law, right to vote and be elected, due process, and the protection of victimized individuals and minorities, including through effective judicial remedies. These first-generation rights constitute the background to the Middle East revolution, and define its success and failure. The continuity of nonviolence from the revolution into the period following the flight of the dictator is determined by this consciously “lower” bar. It does not rise to more ambitious changes that, in typically Marxist fashion, aim to replace the whole mode of production in an individualistic, capitalist system by a full counter model where the state takes over key economic operations; nationalizes manufacturing, agricultural, and financial enterprises; and distributes jobs and proceeds in accordance with a “communist” mode of economic production. This is not what the Middle East nonviolent revolution is about. Its assessment stops at the more formal rights inhering in the citizen as individual, and in her basic rights to physical integrity, freedom, and equality. This might come as a disappointment to those who are active in the revolution for more ambitious socioeconomic goals, but a revolution in first-generation rights is still a formidable break with a past ruled by naked dictatorship. Nor should one discard the elimination of corruption as one of the basic rights that such a lower-bar revolution naturally aims for if it wants to be successful. Corruption correlates intimately with despots, and establishes massive inequality that leaves the bulk of the citizenry in the economic ditch created by a pervasive economic system geared to the arbitrary whims and economic greed of the dictator and his close family and aides. In my approach here, corruption contradicts rule of law and/or democracy rather than operates as a challenge to effective economic equality. A Philosophical Manifesto This book is meant as a philosophical manifesto for the Middle East nonviolent revolution. The momentous events we live are informed by a philosophy of nonviolence looking for its bearings amid a worldwide earthquake rightly perceived as defining for the future of the planet. This reflection is not for the starry-eyed, who believes in messianic ends of history, be they couched in Muslim, Jewish, or Christian “salvation speak” as theological and teleological rhetoric. It is not for the conspiracy theorist or the simpleminded, who thinks that the West hatches systematically unfolding plans to maintain its colonial hegemony, that “Islam is the solution,” that the military guarantees peace, or that easy shortcuts and banal generalities are available to remedy sixty years of persistent violence and dictatorship and four millennia of pain and joy. Structural propensity for violence—deeply embedded at all levels of the state apparatus, chiefly in the security services and Interior ministries—is systemic and takes time to overcome. It does not simply vanish with the removal of the dictator. As philosophical manifesto, the book is first and foremost a tribute to the Middle Easterners and like-minded nonviolent revolutionaries across the world, whose extraordinary achievements have inspired the revolution in the spirit of Hegel’s Owl of Minerva.20 Hegel, Preface to the Philosophy of Right (1821): “Um noch über das Belehren, wie die Welt sein soll, ein Wort zu sagen, so kommt dazu ohnehin die Philosophie immer zu spät. Als der Gedanke der Welt erscheint sie erst in der Zeit, nachdem die Wirklichkeit ihren Bildungsprozeß vollendet und sich fertig gemacht hat. Dies, was der Begriff lehrt, zeigt notwendig ebenso die Geschichte, daß erst in der Reife der Wirklichkeit

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Something different has been stirring in the region, and philosophy comes at dusk in the poetical Hegelian image: a formidable transformation underway in the expression of nonviolence as nexus of history. No philosophy worth its name can ignore Hegel, but I hope to go in this philosophical journey beyond some of his formidable system. Following Martial Gueroult, I adopt a mode of radical idealism, the contours of which the book seeks to better define as the revolution marches on. I also adapt Gueroult’s order of reasons to capture nonviolence during the revolution, and its continuity and transformation in constitution-making and in judicial trials after the revolution has deposed the dictator. With all three moments coming together, nonviolence turns into the nexus of the philosophy of history:  in transformed Hegelian terms, in its spirit, or anima. If the most striking aspect of the Middle East revolution is nonviolence, as I will examine in more detail in “a brief history of nonviolence in the Middle East” in Chapter 3, then this central contribution must rise to the challenge it poses for world history. The years 2011, 2014, even 2025 are too short a time frame to assess the enduring philosophical nature of nonviolence. Revolutions go wrong, or awry. World historic revolutions tend to be conducive to regional and international wars, with the French revolution’s Terreur as its ugly face domestically, and Napoleon as the epitome of how distorted and much bloodier the path of the revolution can turn a decade after its start, in Bonaparte’s wars projected in Egypt and the Levant first, then across Europe. Fifteen years of mass killings stretching from England to Russia ensued. In momentous and complex events, it may be wise for the analyst to wait and see, but this is a luxury Middle Eastern revolutionaries cannot afford, both for their friends who took to the streets in an open espousal of their philosophy of nonviolence for the dream of a better, free country, and for the inevitable domestic, regional, and worldwide impact that naturally obtains from the Middle East revolutionary earthquake. One does not always have the luxury of thinking through the revolution in media res, yet one cannot avoid its philosophy as action proceeds. As revolutionary action seems to stumble, participants in the revolution may simply “return to their automobile.”21 For the das Ideale dem Realen gegenüber erscheint und jenes sich dieselbe Welt, in ihrer Substanz erfaßt, in Gestalt eines intellektuellen Reichs erbaut. Wenn die Philosophie ihr Grau in Grau malt, dann ist eine Gestalt des Lebens alt geworden, und mit Grau in Grau läßt sie sich nicht verjüngen, sondern nur erkennen; die Eule der Minerva beginnt erst mit der einbrechenden Dämmerung ihren Flug.” Georg Wilhelm Friedrich Hegel, Werke (Grundlinien der Philosophie des Rechts), Frankfurt a. M.: Suhrkamp 1979, 20 vols., vol.7, at 27–28. Nisbet translates: “A further word on the subject of issuing instructions on how the world ought to be: philosophy, at any rate, always comes too late to perform this function. As the thought of the world, it appears only at a time when actuality has gone through its formative process and attained its completed state. This lesson of the concept is necessarily also apparent from history, namely that it is only when actuality has reached maturity that the ideal appears opposite the real and reconstructs this real world, which it has grasped in its substance, in the shape of an intellectual realm. When philosophy paints its grey in grey, a shape of life has grown old, and it cannot be rejuvenated, but only recognized, by the grey in grey of philosophy; the owl of Minerva begins its flight only with the onset of dusk.” G.W.F. Hegel, Elements of the Philosophy of Rights, Cambridge: Cambridge University Press 1991, ed. Allen Wood, trans. H.B. Nisbet, 22–23. 21 From the song “Paris Mai,” by Claude Nougaro (d.2004) on the Paris 1968 “revolution,” “ . . . et chacun est rentré chez son automobile,” in a record released in October 1968. The young Bertolt Brecht (d.1956) has a similar theme on the failed Spartakist revolution of 1918–19, “Ich bin ein Schwein, und das Schwein geht heim” (“I am a pig, and the pig goes home”). Trommeln in der Nacht (Drums in the Night, 1919), Act 5.

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revolution to endure, it needs a meaning. Nonviolence provides the most powerful meaning to the millions who have shaken the dictatorial status quo and its immense injustice over a good half century. There is more to a revolution than philosophy. Philosophy is not the only tool to understand and live the revolution. Philosophy is just one important tool to understand the wider world. So are law, history, sociology, languages, and the economy and geography of a society—here the Middle East—its literature, films, and people. The revolutionary festival is for each to personally enjoy and probe in the discipline she finds most alluring, more probably in the discipline closest to her profession and interests. Hence from my legal perspective the constitutionalization of human rights in a new social contract, and the accountability needed to deal with a dictatorial past. 22 Still, in the order of priorities for understanding our intense interaction with the revolution, it is philosophy, not law or any other discipline, which stands at the apex for those who seek in the same inevitable breath to understand our surrounding world and live it as revolutionary change. Revolution and Philosophy The disconnect between thought and action is the nemesis of all revolutionaries. Any marching world-historic revolution requires a long-hauled, sustained activism, with no place for a hands-off attitude on account of the luxury of retrospective consideration. Dirty hands are the name of the game of politics, in revolutions and otherwise.23 Some disconnect between thought and action is as real as it is inevitable. Add to the disconnect the fact that the individual, be he a chronicler of events or an actor in them, or both, is drowned in a momentous process in which hundreds of millions of people participate, across the whole planet, including each state and society to a certain degree. This must be a humbling thought, but it does

(N.B. The footnote in the text is in italics, denoting a “personal” involvement presented in the Preface, in the section on “highlights.”) This interest- or profession-guided position comes to me in an understanding of the Middle East as a human rights advocate, an occasional constitutional drafter particularly attentive to sectarianism and the Islamic law tradition, a long-time supporter of nonviolence as the privileged means for change, and secondarily as a serendipitous postulant to elected office in my presidential campaign in Lebanon in 2005–2006. I am therefore more sensitive to the legal framework in which understanding and acting come together in extraordinary moments such as the ones intensively lived in the campaign, and lived again on a wider scale since January 2011. 23 Here is how Hoederer, the party chief, conveys this to Hugo, the idealist hero of Sartre’s famous play: “How keen you are on your purety, my little guy! How scared you are of dirtying your hands. Well fine, stay pure! What is the use and why do you come to us? Purity is an idea of fakirs and monks. You intellectuals, bourgeois anarchists, use it as a pretext to do nothing. Do nothing, not move, hold on your elbows tight to your body, wear gloves. Me, I have dirty hands. Up to my elbows. I have plunged them in shit and blood. So what? Do you think one can govern innocently?” (“Comme tu tiens à ta pureté, mon petit gars! Comme tu as peur de te salir les mains. Eh bien, reste pur! A quoi cela servira-t-il et pourquoi viens-tu parmi nous? La pureté, c’est une idée de fakir et de moine. Vous autres, les intellectuels, les anarchistes bourgeois, vous en tirez prétexte pour ne rien faire. Ne rien faire, rester immobile, serrer les coudes contre le corps, porter des gants. Moi j’ai les mains sales. Jusqu’aux coudes. Je les ai plongées dans la merde et dans le sang. Et puis après? Est-ce que tu t’imagines qu’on peut gouverner innocemment? ”) Sartre, Les Mains sales (1948). Reference in the last sentence to governing innocently is to a speech of Saint-Just in 1792, see Chapter 14 note 35. 22

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not exempt us from thinking through a process that goes beyond our head, as each one of us stands in her own way and with her own mind to be counted.24 To see more clearly into the thicket of philosophy and revolution, let us consider two opposite theses on the place of philosophy in life: “Philosophy’s aim  .  .  .  is not the reform of politics, but the development of understanding.”25 “Philosophers have only interpreted the world, in various ways; the point is to change it.”26 Both statements, contradictory as they sound, are difficult to assail. One can hardly gainsay the defense of philosophy’s aim as the development of understanding. Philosophy has no agenda other than the intellectual one it sets for itself. Accordingly, reforming or revolutionizing the political scene is not contingent on any philosophical understanding of politics, so tight and impervious the disciplinary wall that divorces political action from philosophical reflection. Idealism—the detached realm of thinking—has long been the dominant school of philosophy that busies itself with understanding. Because it is dominant, idealism is also criticised by philosophes engagés of all hues and cries, in a counter-tradition epitomized by the young Marx’s famous aphorism, “philosophers have only interpreted the world, in various ways; the point is to change it.” That counter-thesis to idealism rejects a philosophical understanding of the world unless it is moved by change and, for Marx, a teleology that ends class struggle in some teleological paradise. The first thesis keeps the two levels separate. Understanding and action have different remits. As a higher form of understanding, as meta-discipline, the aim of political philosophy is altogether different from the reform of politics. When philosophers interpret the world, their work is not tied to reforming it. The second thesis subordinates understanding to a teleology of revolutionary change. Let philosophers interpret the world, the aphorism goes, no matter. So long as they do not seek to change it, their understanding is irrelevant, “immaterial” to the revolution. Because it puts “matter” in command of all thought, including the most abstract thought, the thesis stands at the antipode of idealism. Its defenders call it materialism. In the approach adopted in this book, a key variation is introduced that both philosophical traditions miss despite their pith.27 The difference does not derive from gauging

Kant, An Answer to the Questions: What Is Enlightenment? (1784), in Perpetual Peace and Other Essays, Ted Humphrey trans., Indianapolis, IN: Hackett 1983, 41. 25 Paul Kahn, Sacred Violence, Ann Arbor: University of Michigan Press 2008, 15. 26 Karl Marx, Theses on Feuerbach (1845), Thesis xi: “Die Philosophen haben die Welt nur verschieden interpretiert, es kömmt drauf an, sie zu verändern.” (Emphasis in original), English text from Marx and Engels complete works available at http://www.marxists.org/archive/marx/works/1845/theses/original.htm. 27 The complexity can only be briefly described here: Marx defended the importance of an economic theory of capitalism in a long enough treatise on Capital, most of it posthumous (4 vols., the first volume was the only one published in his lifetime, in 1860) and the importance of “praxis” in texts and positions that went from what to do with the cutting of trees in the neighboring Rhenanian forest in his youth, to actively canvassing 24

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the autonomy of philosophy or the importance of practice affecting philosophy. Such a contradiction has long been solved by the relativization of polarized positions on the uses and misuses of philosophy in politics, in a “practicalist idealist” form most human beings adhere to willy-nilly.28 We all accept that an individual does not reform politics without some philosophical understanding of the world, and that philosophy and other disciplines retain an autonomy that separates thinking from acting. One can hardly disagree with this premise. The disagreement operates at a more abstract level. In the momentous events unfolding in the Middle East, as in all world-historic developments, action modifies the philosophical understanding of the revolution. This modification, in turn, is essential for understanding the revolution and acting in it. Historic change cannot be blind to the interpretation of the world that philosophy, at the most abstract level, commands. Nor can the philosophy of history be impervious to revolutionary action. The philosophical convergence between both embattled/materialist and detached/ idealist philosophers is captured in a short poem by René Char (d.1988): “Towards your frontier, you humiliated life, I  walk at last with confidence, warned that truth does not

people and programs for the First International in his mature age. For the early Marx, the reference work is Auguste Cornu, Karl Marx et Friedrich Engels: Leur vie et leur œuvre, in four volumes, Paris: Presses Universitaires de France 1955–1970. The episode of Marx as editor-in-chief of the provincial newspaper the Rhenanian Gazette, and his position on the “vol du bois” is discussed in Cornu, vol. 2, Du libéralisme démocratique au communisme, La “Gazette rhénane,” Les “Annales franco-allemandes”: 1842–1844, 74–80. Marx was also the convenor and main participant in the First International Socialist. That formidable organizational dedication is a hallmark of much of his life. Nor does Paul Kahn exercise his leadership of an international human rights center at a leading American law school as a purely theoretical pastime. While sceptical of the human rights movements, his writings always acknowledge the real efforts they undertake. Such critical attitude is far more useful than irenic approaches that get “mugged by reality.” Kahn’s main works operate in conceptual triangles with law at the center, from writings on law, love, and culture (Law and Love: The Trials of King Lear, New Haven, CT:  Yale University Press 2000; The Cultural Study of Law:  Reconstructing Legal Scholarship, Chicago:  University of Chicago Press 1997) to norm formation, community, and legitimacy (The Reign of Law: Marbury v. Madison and the Construction of America, New Haven, CT: Yale University Press 1997; Legitimacy and History:  Self-Government in American Constitutional Theory, New Haven, CT: Yale University Press, 1992.) His later triangular interest moves away from the legal field, with the triangle constituted by sacrifice, evil, and violence (Sacred Violence, above note 25; Out of Eden: Adam and Eve and the Problem of Evil, Princeton, NJ: Princeton University Press, 2007). For the somber view of Kahn on human rights, see his criticism of liberalism in Putting Liberalism in Its Place, Princeton, NJ: Princeton University Press, 2008; and, on the lethal iterations of political sovereignty, see Political Theology: Four New Chapters on the Concept of Sovereignty, New York: Columbia University Press, 2011. A good introduction to the dominant themes of his political vision can be found in “Sacrificial Nation,” Utopian Blog, March 29. 2010, http://www.the-utopian.org/post/2340099709/ sacrificial-nation. 28 Gandhi: “I am not a visionary. I claim to be a practicalist idealist.” (1920), in Raghavan Iyer ed., The Moral and Political Writings of Mahatma Gandhi, Oxford: Oxford University Press 1986–1987, 3 volumes, ii, 299. This is a trope often repeated, in a Middle Eastern context by Lebanese leader Kamal Junblat (assassinated by the Syrian regime in 1977), a self-professed Gandhian. See, e.g., Kamal Junblat, Muqaddima li-rub‘ qarn min al-nidal (Introduction to a quarter of a century of struggle), Beirut: al-Dar al-taqaddumiyya 2nd ed. 1987 (Original ca 1974), 86.

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necessarily precede action.”29 This poetical aphorism opens two windows on the eternal dialectics between truth and action, theory and practice, philosophy and politics, as I see them unfolding in the Middle East convulsions of the early twenty-first century. Let me paraphrase the great French poet. The first part says:  “Toward the frontier of humiliated life, in the long night of the modern Middle East age of ruthless dictators, the men and women of the revolution walk with the certainty of truth.” In this first window into the Middle East revolution, marching is physical action, and marching operates with confidence and inevitability in its self-consciousness. The nexus between action and philosophy, more precisely the nexus of action to truth, philosophy’s meta-object, is therefore far more intimate than both engaged or detached philosophers may be ready to concede. There is more to the poem than reckoning the revelation of truth in historic changes of mass proportion that we call revolutions. Opening a second vista, Char writes that “la vérité ne précède pas obligatoirement l’action. Truth does not necessarily come before action.”30 Necessarily, obligatoirement, is a key qualifier in the poem. Action is sometimes forced to precede truth. Sometimes truth comes before action; sometimes it does not. Philosophical truth faces deadlocks and impasses, aporia that action resolves, sometimes. In a world where the individual is always overtaken by forces far beyond his and her practical reach, the reach itself provides an answer to the impasse. Shorn of philosophy, however, that reach misses its most important resonance in world-historic terms. Truth is also in action, which sometimes precedes philosophy. Before, during, even after the revolution, the detached philosopher lacks the modifying keys that revolutionary action yields. The keys that unlock history in a revolution are not merely the expression of an opportunistic, empirical, trial-and-error exercise. One does not have to change one’s philosophy as events, however momentous, unfold. But one’s philosophy, however well-honed or systematic, cannot be unmoved by the cluster of momentous developments that forces new categories on it. As a world-historic revolution constitutes a qualitative break with the past, and a potential breakthrough for the future, the previously dominant categories of thought are no less modified by it than by a paradigmatic revolution in physics or biology.31

“Vers ta frontière, ô vie humiliée, je marche maintenant au pas des certitudes, averti que la vérité ne précède pas obligatoirement l’action.” René Char, “Plissement,” in Oeuvres Complètes, Paris: La Pléiade, Gallimard 1983, 147. For a germane use of the poem, see my The Middle East into 21st Century, Reading: Garnet 1996, ch. 1. 30 Id. For the French poet, this is exemplified in his personal context as an armed resistant to Nazism who does not have time for the full truth to appear all clad in the Owl of Minerva’s gear before he acts. For a rich biography of Char, see Laurent Greilsamer, L’Éclair au front. La vie de René Char, Paris: Fayard 2004. At 160–162, Greilsamer relates Char’s contempt of Louis Aragon, member of the French communist party and former friend. Aragon had chosen to use poetry as a means to political ends, in contrast to Char’s decision not to publish immediately the fragments he wrote while being engaged in armed resistance. Char referred to him as the “inexhaustible mimetic slug Aragon” (“l’intarissable limace mimétique Aragon”). Siding with Char, Greilsamer comments: “Poetry is no longer a precious and holy space for the very few, but a weapon for political struggle” (“La poésie n’est plus cet espace précieux et sacré de quelques-uns, mais l’arme d’un combat politique”). Despite the context and his personal engagement, Char rejected the subordination of poetry to political propaganda, but action had to come first. 31 Paradigm shift is the concept coined by Thomas Kuhn in The Structure of Scientific Revolutions, Chicago:  University of Chicago Press 1962. Such breaks, breakthroughs, “moments” are variations on a 29

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Without a philosophy of its own, there is no revolution worth its name. In the philosophical approach to the massive revolutionary tide in the Middle East in 2011, action operates variably in modifying the philosophy of the marching revolution. This is no head-on criticism of sceptics, including the detached philosopher, or an exaggerated simplification of the claims of engaged philosophy. Nor is revolution more than a base and inconsequential jacquerie when it fails its own philosophical calling.32 On the multiple plateaux of a revolutionary moment, human understanding, philosophical and otherwise, is profoundly coextensive with action. Every person comes to the Middle East with his own very personal bundle. Revolutionaries’ political action and philosophical worldview are joint and several. An individual in the midst of a massive turmoil occupies a tiny position within a human tide that transcends her by the millions of other individuals with whom she shares the march for change. The expressed objectives of the revolution are choices informed, at the higher level of human thought, by one’s substantive views of issues across the board of human concerns. Philosophy helps shape these objectives, and the present effort seeks to contribute to the philosophical quest for action in the Middle East revolution, in the same breath as the philosophical quest for understanding it. To use Lucien Febvre’s lectures in the midst of the German occupation of France, “the power of words” shapes the revolution as much as its vocabulary gets shaped by the march of the revolution. Philosophy is the more abstract expression of the multileveled action of the “power of words in history.”33 This is materialism in active revolutionary theme of radical intellectual innovation in a given field, that goes from philosophers of science Gaston Bachelard and Thomas Kuhn to political philosopher Louis Althusser’s “coupure” and the emergence of “continent histoire” as a new scientific field, see Louis Althusser, Lénine et la philosophie, Paris: Maspéro 1969; and to the concept of “outlier” and “black swan” popularized by Nassim Taleb, The Black Swan: The Impact of the Highly Improbable, New York: Penguin 2007. 32 The Jacquerie was a popular revolt in medieval Europe staged by peasants who were violently repressed and derided by the elite as “Jacques.” Shakespeare’s Jack Cade in the first Histories echoes the inchoate anarchy and brutality of the movement. Jack Cade, the leader of a revolt against Henry VI in 1450, is intent to get rid of all law, “Dick (the butcher): The first thing we do, let’s kill all the lawyers. Cade: Nay, that I mean to do.” Shakespeare, Henry the Sixth, Part II, IV, ii (1623); and to destroy all property: “There shall be in England seven halfpenny loaves sold for a penny; the three-hooped pot shall have ten hoops; and I will make it felony to drink small beer. All the realm shall be in common, and in Cheapside shall my palfrey go to grass. And when I am king,—as king I will be,— . . . there shall be no money; all shall eat and drink on my score; and I will apparel them all in one livery, that they may agree like brothers, and worship me their lord.” (Id.) See also Falstaff’s echo of war/revolution as destruction of the value of property in Henry the Fourth, Part I, II, iv: “you may buy land now as cheap as stinking mackerel.” In the context of the Middle East revolution’s impact worldwide, the “Occupy” movement in the United States and the large Israeli demonstrations of July 2011 belong to this category. See in this sense Alasdair Roberts, “Why the Occupy Movement Failed,” Public Administration Review, vol. 72, 2012, 754–62 (on how the movement was limited in its organizing philosophy that impaired its ability to articulate demands). W.J.T. Mitchell, Bernard Harcourt, and Michael Taussig, Occupy: Three Inquiries in Disobedience, Chicago: University of Chicago Press 2013, provide a more optimistic view of the revolt, generally arguing that a “new political grammar” (Harcourt) was set on by the movement. 33 “Le pouvoir des mots en l’histoire” appears in Febvre’s lectures at the Collège de France, delivered under German occupation. Lucien Febvre, Michelet et la Renaissance, Paris: Flammarion 2002 (Original 1942– 1943), 21:  “Définitions, formules . . . Mais précisément, ce que voudrait être ce cours,—c’est, en dernière analyse, un essai sur le pouvoir des mots dans l’histoire.” (“Definitions, formulas . . . But precisely what this

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participation; it is also idealism brought up to its furthest conceptual level. I  find it best expressed in Martial Gueroult’s “radical idealism.”34 Bottling up Gueroult in a few sentences is futile, but two forceful concepts in his large oeuvre provide building blocks to the present enquiry. One is radical idealism. The other is “the order of reasons,” which he finds in the systematic progression of Cartesian philosophy moving from absolute doubt to absolute certainty in Descartes’s Discourse on Method (1637) and Meditations (1641).35 Against a dominant postmodern, Deleuzian philosophy of a thousand planes all operating together, Gueroult’s philosophical reflection exercises a rigor of priorities in the thinking process that the philosophy of nonviolence commands in my present enquiry. Here the order of reasons works in the Middle East revolution’s ascent through three levels, expressed in the three main parts of this book’s progress: revolution, the constitutional moment, and justice.36

course would like to be, —in last analysis, is an essay on the power of words in history.”) This is an ancient theme illustrated in world literature in the battle between the pen and the sword. For a nonviolent revolutionary context use in the Middle East, see my Presidential Talk, Beirut: Jadid 2007, back cover and French “Préface,” at 14; and in Arabic as “Quwwat al-kalima fi ri’asat lubnan, b‘abda ‘unwanan lil-‘alam” (“the power of the word in a Lebanese presidency, [the city of] Baabda as address for the world”), at 234–36. 34 Martial Gueroult (d.1976) is a formidable pilosopher of the Renaissance and the Enlightenment, but he is still relatively poorly known in his native France, and even less so abroad. I rely in this chapter mostly on his Philosophie de l’ histoire de la philosophie, Dianoématique Livre 2, posthumously published at Paris: Aubier 1979. This is the second part of Gueroult’s philosophical system, published before the first Livre. The first book was later published in three tomes, also at Aubier: Dianoématique, Livre 1: Histoire de l’ histoire de la philosophie, Vol. 1: En Occident, des origines jusqu’ à Condillac, 1984; Vol. 2: En Allemagne, de Leibniz à nos jours, 1988; Vol. 3: En France, de Condorcet à nos jours, 1988. Gueroult worked on Philosophie de l’ histoire de la philosophie between 1933 and 1938, never completing it, despite the unique expression of his own original philosophical system constituted by a massive research project. See Ginette Dreyfus, “Avertissement de l’éditeur,” in Gueroult, Philosophie de l’ histoire de la philosophie, 9. 35 For Gueroult, there is an “order of reasons” that guides Descartes’s two short masterpieces, Le Discours de la Méthode and Les Méditations, starting with universal doubt, rising to the cogito as its solution, suppressing the evil-and-dreamlike obfuscation of the ultimate devil (Malin), and ascending to universal certainty underlined by science, conceived both as metaphysics and mathematics. Gueroult developed the concept in two large volumes on the method of Descartes. Descartes selon l’ordre des raisons, tome 1: L’Âme et Dieu; tome 2:  L’Âme et le corps. Paris:  Aubier-Montaigne 1953. (English tr. by Roger Ariew, Descartes’ Philosophy Interpreted According to the Order of Reason, 1:  The Soul and God and 2:  The Soul and the Body. Minneapolis: University of Minnesota Press, 1984–1985). The present book uses “order of reasons” repeatedly. 36 A word about my large debt to Deleuze’s Mille plateaux, Paris: Editions de Minuit 1980, and the so-called postmodern philosophy it represents, may be appropriate here. To use Foucault’s famous prediction, “the century” has already become “Deleuzian.” Foucault:  ‘Mais un jour, peut-être, le siècle sera deleuzien. “Theatrum philosophicum,” in Critique, 232, 1970, 885–908, also in Dits et écrits, Paris: Gallimard 2001, i, 943–967, at 944. The structure of Deleuze’s Mille plateaux, composed of historical planes that are not chronological, could be adopted for many books (and films; see for instance Quentin Tarantino’s Pulp Fiction, 1994), including the present one. Here are simple examples: A constitution may or may not precede a trial of the dictator. Is there value in examining constitutionalism (Part 2) before justice (Part 3)? Within the treatment of justice, the trial of Mubarak has been conducted haltingly, on and off, whereas the trial of Zein al-Abidin was completed in absentia soon after his removal. Both preceded the trial of Seif Qaddafi, who was indicted before the revolution in Libya succeeded, and tried afterwards. In this context, Deleuze’s

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In the order of reasons, the main moment of the revolution is philosophical rather than legal. With the Middle East upheavals moving across twenty-five countries of kaleidoscopic variety and intensity, philosophy allows building a salutary distance to that moving target, a revolution unfolding. Law is of more fleeting help than philosophy, owing to the waltz of constitutions, electoral statutory shenanigans, and wobbly party and factional politics. Even more fleeting is the process of accountability that is central to mark the old regime’s passing to the new, with difficult trials and lustration laws everywhere. The revolutionary street clamors for justice and demands accountability for the ruler’s decades of repression and corruption, and law has a lot to say about trials. Still, in the many planes of revolutionary understanding, philosophy comes first in the order of reasons, including in new constitutions and the trials of deposed dictators that it informs through nonviolence and the limits nonviolence faces when the revolution has won. This philosophical unity in nonviolence of multiple levels and expressions is a central argument of this book. The other, more important inspiration of Gueroult’s posthumous Philosophie de l’ histoire de la philosophie, is the emergence of a system of philosophical thought that he called “radical idealism.” In this fascinating conclusion to his lifelong study of great Enlightenment philosophers, he takes on Hegel’s reading of history as Reason unfolding in the Spirit and vesting ultimately in the State. Gueroult pushes Hegelian idealism to a higher “radical” level:  “Radical idealism sets, in effect, Hegelianism on its head:  instead of moving from a demonstrated system to deduce, as conclusion, the reality of the history of philosophy, it moves from this reality to deduce a system. In this way the reality of history no longer rests on that of a system, but the system rests on the reality of history. Yet it is evident that it is only in the latter case that history has its own reality. In the other eventuality, the self-sufficient reality of the system substitutes itself to the reality of history. The latter course is effectively what happens with Hegel.”37 Hegel’s system remains in Gueroult’s view always

shifting planes offer a model that is more useful than a chronological order of judicial trials. This negates the legitimacy of the treatment adopted in this or most other books, which are linear and chronological in their (conscious or unconscious) belief in the order of reasons. In the larger course of the Middle East revolution, chronology cannot be decisive if the more philosophical thesis in the order of reasons adopted here is based on an Atlantic-like set of events, which proceeds differently in each country, but also operates at a regional/universal level. As a simple Deleuzian application of Mille plateaux, it is always a telling exercise if the reader can shuffle the various chapters of any book without losing much of the argument. On the other hand, I argue that the order of reasons is superior in philosophy if it can be coherently maintained. Neither the constitutional moment, in the argument of this book, nor the trial of dictators could start before they are removed from power. But even then, there are counter facts usefully read in Deleuzian philosophy as irrelevant chronology, for instance Qaddafi’s indictment by the International Criminal Court taking place before he was deposed, or the argument made in this book that the dictator’s trial is key to a philosophy of nonviolence well before he is defeated. See Chapter 14. 37 Gueroult, Philosophie de l’ histoire de la philosophie, above note 34, 224: “L’idéalisme radical est, en effet, le renversement de l’hégélianisme: au lieu de partir d’un système démontré pour en déduire, comme conclusion, la réalité de l’histoire de la philosophie, il part de cette réalité pour en déduire un système. Ainsi la réalité de l’histoire ne repose plus sur celle d’un système, mais celle d’un système sur la réalité de l’histoire. Or il est évident que c’est seulement dans ce dernier cas que l’histoire a une réalité propre, car, dans l’autre éventualité, la réalité auto-suffisante du système se substitue à la sienne. C’est en effet ce qui se produit avec Hegel.”

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short on reality. But rather than bringing it down to earth in the fashion of the materialism of the embattled philosopher, Gueroult pushes Hegelian philosophy to the extremes, which he calls radical idealism or Dianoémathique.38 He does so by building a philosophical systems which rests first and foremost on “the reality of history”, which he also calls “the decrees of reality.” Gueroult builds on Hegel. So does my much more modest journey in this book. The paradox of history, revolutionary or otherwise, is that philosophers cast an absolute doubt on the lessons of the past as a guide to the truth. Philosophical truth may have a history, internal as per past philosophers, and external as per revolutions, longue durée, or economic cycles. Yet history is irrelevant to philosophy because philosophy as a system constructs truth irrespective of either internal (philosophy) or external history (politics, the arts, social and hard science . . . ). “The position of all philosophy is the preliminary putting into doubt of any given reality—and of all the realities conceived as such by other philosophies.”39 Philosophy is not subjected in its truth to time, and Hegel and Gueroult’s encyclopedic thought seeks to capture the above-time nature of philosophy as truth. Plato’s philosophy does not age. Nor does Wittgenstein’s. This is the major Hegelian contribution to the eternal claim of philosophy: The thought which may first occur to us in the history of Philosophy, is that the subject itself contains an inner contradiction. For Philosophy aims at understanding what is unchangeable, eternal, in and for itself: its end is Truth. But history tells us of that which has at one time existed, at another time has vanished, having been displaced by something else. Truth is eternal; it does not fall within the sphere of the transient, and has no history. But if Truth has a history, since this history is only the representation of a succession of past forms of knowledge, the truth is not to be found in it, for the truth cannot be what has passed away.40

In Greek “Dianoema” means doctrine, so dianoemathics is the study of doctrines, namely philosophical doctrines, which Gueroult also calls “Idées-systèmes.” Gueroult uses the two terms interchangeably. I prefer “radical idealism” to “dianoemathics,” for what could be philosophically more “radical” than the idea of nonviolence? 39 Gueroult, Philosophie de l’ histoire de la philosophie, above note 34, 103: “La position de toute philosophie, c’est la mise en doute préalable de la réalité donnée—et de toutes les réalités conçues comme telles par les autres philosophies.” 40 Hegel, Lectures on the History of Philosophy, Haldane trans., 7–8, http://archive.org/stream/lectureson thehis01hegeuoft#page/8/mode/2up; Hegel, Vorlesungen über die Geschichte der Philosophie, in Werke, above note 20, Vol. 18, 24: “Der Gedanke, der uns bei einer Geschichte der Philosophie zunächst entgegenkommen kann, ist, daß sogleich dieser Gegenstand selbst einen inneren Widerstreit enthalte. Denn die Philosophie beabsichtigt das zu erkennen, was unvergänglich, ewig, an und für sich ist; ihr Ziel ist die Wahrheit. Die Geschichte aber erzählt solches, was zu einer Zeit gewesen, zu einer anderen aber verschwunden und durch anderes verdrängt worden ist. Gehen wir davon aus, daß die Wahrheit ewig ist, so fällt sie nicht in die Sphäre des Vorübergehenden und hat keine Geschichte. Wenn sie aber eine Geschichte hat, und indem die Geschichte dies ist, uns nur eine Reihe vergangener Gestalten der Erkenntnis darzustellen, so ist in ihr die Wahrheit nicht zu finden; denn die Wahrheit ist nicht ein Vergangenes.” This paragraph is also cited in Gueroult, Philosophie de l’ histoire de la philosophie, above note 34, at 40. 38

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Hegel is right, says Gueroult, but his system falls short on three major accounts: But, 1. By representing philosophy as the dialectics of the Idea, Hegel suppresses it as history; 2. By conceiving it as the development of the Spirit, he destroys it in its reality; 3. By setting it as the confused image of the logical becoming, he ruins its philosophical interest to the benefit of Logic.41 These three Hegelian devices, the suppression of the philosophy of history by Dialectics, the destruction of the reality of philosophy by the Spirit, and the ruining of philosophy by Logic, undermine philosophy by straitjacketing it in arguably impoverishing Hegelian categories.42 This is where Gueroult is no longer Hegelian. For him, “Hegel does not consider the history of philosophy as it is truly given by experience, and does not ultimately concern himself with founding the fact of this integrally respected experience. Speculatively, he conceives first a system of the Spirit, and then deduces a priori, from this system, and as consequence, the true concept of the history of ideas, a concept with which the history of philosophy needs to conform a priori.”43 Radical idealism is the key to Gueroult’s modification of Hegel’s philosophy, because idealism finds its ultimate expression in forcing philosophy to alter its understanding of the truth by steeping it in history, as it unfolds in its immediacy or in the understanding of a more distant past. For the Middle East revolution also, “the [philosophical] system rests on the reality of history.”44 The philosophy of the Middle East revolution does so by embracing nonviolence as its central “spirit,” to use a Hegelian term; or, to follow more precisely in the steps of Gueroult, by adding another layer of “reality” to his “Idées-systèmes,” a key layer defined by complex historical events that are so many

Gueroult, Philosophie de l’ histoire de la philosophie, above note 34, 256–257: “Mais:

41

1. En la représentant comme dialectique de l’Idée, il (Hegel) la supprime comme histoire; 2. En la concevant comme développement de l’Esprit, il l’anéantit dans sa réalité; 3. En la posant comme l’image confuse du devenir logique, il la ruine dans son intérêt philosophique au profit de la Logique.” A caveat to the reader is in order here: the shortcuts used for Hegel, and for Hegel’s criticism by Gueroult, give little credit to the immensely powerful Hegelian legacy. I would need to go into far more details to develop what Hegel’s Dialectics, Spirit, and Logic are, and why Gueroult (and me, pace him) finds it deficient for the philosophy of history. This would require a book-like treatment. With all my criticism of the master philosopher in the history of human kind, I still find Hegel’s lectures on the history of philosophy, above note 20, to be the best introduction to philosophy two hundred years after they were delivered. 43 Gueroult, Philosophie de l’ histoire de la philosophie, above note 34, 250: “Hegel ne considère pas l’histoire de la philosophie telle qu’elle est vraiment donnée dans l’expérience, et ne se préoccupe pas au fond de fonder le fait de cette expérience intégralement respectée. Spéculativement, il conçoit d’abord un système de l’Esprit, et déduit ensuite a priori de ce système, à titre de conséquence, le vrai concept de l’histoire des idées, concept auquel l’histoire de la philosophie doit a priori se conformer.”  44 Gueroult, Philosophie de l’ histoire de la philosophie, “reality of history” as cited above note 34, 224. Elsewhere, Gueroult speaks of “décrets de réalité, decrees of reality,” id., 231, which I will often use in the present book. 42

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“decrees of reality”: “The common reality cannot reach [philosophical] reality except to the extent [reality’s] indeterminacy stops . . . But the passage from the indeterminacy of common reality to a synthesis of determinations is not made by this common reality, it is made by philosophical thinking which, by establishing the determination parameters creates Ideas, philosophies. We return here to the pole of philosophical reality: the foundation of reality must place itself again within the acts of philosophical thinking.”45 Where I join Gueroult in the criticism of Hegelian dialectics is the rejection of the equation between victim and victimizer in the master-slave template, and the cyclical metaphor of dialectics with Hegel’s concept of Aufhebung (elevation, sublimation) to solve the deadlock at every phase of the cycle. I do not believe there is any such cycle or spiral, and find the Deleuzian philosophy of unequal planes in Mille Plateaux more adequate, and Robert Fossaert’s rainbow approach more alluring.46 Where I also understand Gueroult’s criticism of Hegel’s Spirit is in Hegel’s oblivion to reality, which explains for instance how he saw the Spirit as a tyrant parading on his horse.47 Hegel moves from his formidable mind to the facts, but the facts are as hard as Empedocles’s shoe, who reminded the Greek philosopher’s students of his material, sinning existence beyond all the philosophy they learned from him. Where I also share Gueroult’s distance to Hegel is in his mistrust of an increasingly mathematized Logic. Logic is simply insufficient as a tool for the unfolding of the rational process, for reason operates in breaks that elude the rigor of whatever logic Hegel or other great minds, including the legal theory of Islamic jurists known as usul al-fiqh, are capable of producing. Where I differ from Gueroult is in his general imperviousness to action as a central philosophical modifier. The acts of philosophical thinking, I propose to add here to Gueroult, are the acts of nonviolence. Nonviolence operates as a massive reality modifying the concept of revolution, and of history, thereby modifying the categories of philosophy under which human destiny has been previously thought. There is, of course, more to a revolution than nonviolence. A revolution is political in a larger sense. People want to bring down the regime: they march for the dictator to leave, for the dictator to be tried, for free and fair elections; they may ask for an international intervention to protect civilians, or for an international indictment or a national tribunal to try

Id., 232: “Le réel commun ne peut parvenir à la réalité que dans la mesure où cesse son indétermination . . . Or le passage de l’indétermination du réel commun à une synthèse de déterminations n’est pas le fait de ce réel commun, mais celui de la pensée philosophante qui, posant les déterminations, est créatrice d’Idées, de philosophies. Nous revenons ici vers le pôle de la réalité philosophique: le fondement de la réalité doit se replacer dans les actes de la pensée philosophante.” 46 For Deleuze’s citation, above note 36. Robert Fossaert, born 1926, has been a guiding pole of my political and philosophical reflection over the past four decades, and a close friend and correspondent since the 1990s. The rainbow metaphor operates on a double level. It is used to show that the study of society can be done through the Natural order, which is the one that basic science uses; the Human or Man order, which is the approach of psychology and related analysis of the individual, and the Social order, which is the study of thousands and millions of human beings interacting. The S order is the one that Fossaert consecrates his lifework to. The rainbow layering is also used to show that studying society is best done through three light refractions, the political, economic, and cultural-ideological, all three allowing a complete vision, under their respective angle, of the overall social structure in the past and present of humanity. See s.v. Fossaert in the index. 47 See full quote of the letter of Hegel in Introduction to Part II, below, at note 1 and accompanying text. 45

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their victimizers. They ask to be represented in power. They march to vent their frustrations, many of which are economic. They march for the joy of asserting their freedom. They march in anger for their loved ones killed by the dictator. They march to show solidarity. They march for the community, the neighborhood. They march to chant and dance for life. They operate, Zarathustra-like, the most formidable dance that philosophy can ever conceive.48 All of these motivations are subsumed under political demands that are common, legitimate, and real. These are shared, even if each one of us marches with a different political priority in mind. I  have for instance argued, and then taken action when the argument showed its limitation on paper, that the removal of the “coercively extended president” was a sine qua non for the success of the Cedar revolution in Lebanon in 2005. In that particular prodrome of the Middle East revolutions of 2011, the Cedar revolution needed the budding dictator out as a first necessary step.49 That specific action helped create a faint echo in 2005 Egypt, which grew for similarly extended presidencies across the Middle East revolution in 2011 in a common benchmark: the outright call for the dictator to “go” as the rallying revolutionary denominator for millions of people. Felling the dictator brings together all the revolutions across the region, and this unifying call succeeded in Tunisia, Egypt, Libya, and Yemen, in the course of 2011. The fight for democracy in the shape of removing dictators may not be highfalutin philosophy, but action modified by an understanding of the dictator’s removal as priority is a strong illustration of revolutionary truth, and not an insignificant one when a generation-long despot comes tumbling down. And yet, deposing the dictator is not the most important trait of the Middle East revolutions as a world-historic phenomenon. The corpses of dictators fallen by the wayside of violent revolutions can hardly be counted in history. Nonviolence bringing a dictator down is something else. The philosophy of the Middle East revolution, as it gets informed and transformed by action, requires a more abstract level of understanding than bringing down dictators. That level embraces its Gueroult-modified Hegelian spirit while a protean set of zillions of events and actions at all possible societal developments is marching alongside. Domination, as well as class and economic interests, get mostly associated with world-historic revolutions: I argue in this book that they are not the most important ones when it comes to 2011. Nonviolence is. Nonviolent revolutionary action emerges as key to the revolution’s philosophical understanding. Reforming politics comes in the same breath with action. Philosophy as understanding is very much part of action, and its most abstract and faithful companion. That revolutionary action operates in a bound manner, within a bound context, is obvious. That

Friedrich Nietzsche, Also sprach Zarathustra (1888), I, 7, “Ich würde nur an einen Gott glauben, der zu tanzen verstünde, I would only believe in a God who’d understand how to dance.” Nietzsche’s masterpiece includes two chapters entitled “dance-songs” (part II, 10, and part III, 15). 49 See, e.g., Mallat, Presidential Talk, above note 33: “Here is how to get rid of Emile Lahoud,” at 177–179; “Lebanon’s moment of decision”, 122–124. The revolutionary tide did not succeed in removing the Lebanese president-turned-dictator from power in 2005–2006, but the action directed at the symbol of entrenching authoritarianism created its own sphere of “truth.” The revolutions that started in 2011 in the Middle East have in common the central call for the president to leave: “irhal,” which they learned from the failures of the Lebanese and Iranian revolutions of 2005–2006 and 2009. 48

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revolutionary action varies in emphasis along dozens of disciplines, is also obvious. Less obvious is the modifying action for long-held truth, which we call philosophy, and which following Gueroult I call radical idealism. In the radical idealism of revolutionary action in the Middle East, I find the truth of the emerging philosophy of history in nonviolence. Life is larger than can be dreamed of in any philosophy because truth does not necessarily precede action, and because action operates at several levels and in various depths across an immense spectrum of events and people to transform philosophy as it also gets transformed by it. The fact that action is bound in relative time, space, discipline, language, speaker, or writer does not minimize the challenge of understanding the philosophy of the Middle East nonviolent revolution as it unfolds before our eyes as nonviolent actors. Truth does not necessarily precede action. Quite the contrary. * * * This chapter is dense at times. Let me summarize it for the tired reader in a short philosophical credo. History is moved by a philosophy that takes violence for granted as the nexus of change. The year 2011 decrees a philosophy of history that opens up a novel understanding, a radical idealism shaped by our action and the action of the millions who took nonviolently to the street. The nexus of nonviolence animates this new philosophy of history.

Why does the regime insist that the revolution is armed? Why does it have to go to such great lengths to say there are armed groups? Does this not tell you something? Does it not tell you that the choice of nonviolence and peace is the right choice, and that it is the choice that the regime is scared of? Facebook, “The Syrian Revolution against Bashar al-Asad,” entry June 11, 2011

Part one Revolution i

2 Introduction Non violence between Or der of R easons and Decr ees of R eality

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This first part of this book moves through three themes. A  first chapter seeks to absorb decrees of reality that 2011 brought to the Middle East around a massive popular movement that spared no country, in a revolution most remarkable for the nonviolent way it challenged successfully or unsuccessfully entrenched dictatorships. The second chapter looks into the deeper cultural legacy of nonviolence in a general, purposefully selective brush of a culture several centuries deep. The third chapter is a reflection on a paradox of the philosophy of history. How can a revolution be nonviolent, when its success brings back violence as an essential prerogative of the state? As Rousseau lamented once, one cannot provide a whole picture instantly, and there is necessarily an intellectual sequence that Gueroult describes as the order of reasons in his reading of Descartes’s method. I will return to this order of reasons on various occasions for the unity and coherence of the present investigation. In this first part, three apparently disjointed themes (a revolution inscribed in time and place, a cultural reading of a tradition, and a philosophical paradox) come together in support of a philosophy of nonviolence as the nexus of history. The methodological discussion in the General Introduction established a philosophical perspective for the irruption of nonviolence on the world, in this case a continent-wide revolution across a large land mass called the Middle East. I vindicate views that are colored by my own action as interpreter and participant, an action that works alongside millions of germane actions by nonviolent protestors in the various countries of the region. They get shot at, arrested, harassed and tortured, but reply in the exact opposite way by refusing to physically harm their victimizers. These are facts. As decrees of reality, they need to be 29

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documented to avoid getting lost in irrelevance to other facts and readings that would otherwise take precedence over them. The first chapter responds therefore to the methodological principles reached in my understanding of the “reality decreed” by the Middle East in 2011. It underlines salient aspects of the modern history of resistance to dictatorship, and debunks the myth of “surprise” that descended onto the world in early 2011. A revolution is always a surprise. As a breakthrough of large proportion for its participants, it does not look like anything that happened to one’s country in recent human memory. And yet there is more to it than the surface of the massive, determined, nonviolent demonstrations that are tied together by the revolutionary drive to oust the dictator. The fact that these massive demonstrations were nonviolent no longer constitutes a surprise when the prism of understanding is corrected, as we read more carefully the immense scene of resistance in the past generation of struggle that preceded the full revolutionary outbreak. In the radical idealist narrative, the emphasis is on the general traits of nonviolence during the mass upheavals themselves, whether the upheaval succeeds or not. For one learns sometimes more from a failed revolution than from a successful one. The second chapter goes to the cultural expression of nonviolence in the Middle East. A culture steeped in exclusive violence for its political expression will simply prevent nonviolence from prevailing in history as its new spirit. Here the sloganeering language in the revolutionary street is simply insufficient, even when millions are doggedly shouting for peace and nonviolence. People work through a deep culture that the chapter addresses with a different lens than the one generally used. In the received philosophy of history, the dominant universal paradigm has been dictated by violence in revolutions and other types of collective conflicts, domestic and international, which we call wars. Something snapped in the late twentieth century. It came on the wings of Gandhi’s movement and on the similar express belief in nonviolence during the civil rights march in America. It accelerated in the late 1980s in Eastern Europe and at Tien an Men. It stuttered in Lebanon and in Iran, and beyond the Middle East in Burma, Ukraine, and Georgia, in the first decade of the twenty-first century. The Middle East turned in 2011 as its most expressive instance, the more so as violence has dictated the everyday life of its citizens in a continuous atmosphere of war through the twentieth-century establishment of Israel over Palestine, but also in dozens of other instances as diverse and devastating as the killing fields in the First World War, the Algerian revolution, and the Iran-Iraq war. Middle Eastern violence went unmistakably global in New York on September 11, 2001. I wanted therefore to look at a different cultural history of the Middle East, a selective one, for sure, but a necessary counterpoise to the prevailing canon that reads the region’s public space politically as a simple expression of a deeply ingrained violent culture generally associated with Islam and Islamic law. Then comes the third chapter, where the Middle East is barely mentioned, in action or in thought. This is a chapter on the philosophical reflection on perpetual peace. Historically, the philosophical debate culminated in Kant in 1795. The choice of the Perpetual Peace genre is dictated by a search, in the philosophy of history, of the most powerful legacy of universal thinkers of violence in the domestic and international public sphere. Kant read utmost violence, correctly, in war. He was inspired by a stream of thinkers on how to avoid future European wars in the wake of the Peace of Utrecht at the beginning of the eighteenth century. The initiator of the genre, the Abbé de Saint-Pierre, was a negotiator at Utrecht,

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and he wanted to see the peace achieved transformed from localized treaties in 1712–1713 to a European-wide set that made war impossible. He failed, of course, but the reflection continued through the full eighteenth century, especially with Rousseau and Kant. It has not subsided since and is known nowadays as the democratic peace theory, where republics, or in twentieth-century parlance democracies, do not go to war against each other. There is a massive problem in the democratic peace theory, and it is not realpolitik. Following on a tradition that goes at least back to Max Weber, Robert Cover’s “Violence and the Word” (1986) reminds us that democracies are built on violence, not least in the iconic judge “dealing out death and pain every day.” Putting together Chapter 1 (the reality of a massive nonviolent revolution) and Chapter 3 (how nonviolence is impossible inside a democratic state) poses the following conundrum: If the revolution is totally nonviolent, how can it perpetuate its success in a state that is inherently violent? The detour in Middle Eastern culture in Chapter 2 is a necessary addendum, for it inscribes the future of a nonviolent philosophy of history in deeper cultural antecedents. These cultural prodromes of nonviolence get metamorphosed from minor referential instances to a full-blown programmatic reading of nonviolence in a major philosophical mode, all the more real as they inform the Middle East nonviolent revolution’s rocky journey.

3 A Brief History of Nonviolence in the Middle East

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Pictures of war-torn Tripoli and Aleppo’s relentless destruction make it difficult to speak of nonviolence. And yet 2011 marks a special moment of the advent of nonviolence as the philosophy of the Middle East revolution. This reality needs to be documented. The 2011 revolution in the Middle East is not the first case of peoples’ nonviolent challenge to dictatorship in the world. The massive revolution of 1989 against the Soviet system in Eastern Europe was thoroughly nonviolent, but nonviolence in 1989–1991 Europe, including the collapse of the USSR, was obscured by the larger context of the Cold War and the reunification of Germany, and by the determined yearning of most Eastern countries to join the European Union. Paradoxically, it was also obscured by the limited violence exercised by the regimes in place. The Middle East revolution is different in all these aspects. By 2011, the Cold War had become a fading event in humanity’s collective memory, and there are in the Middle East no evident centripetal forces of the West-German or EU type to rally around. So comparison has turned to other historical precedents. In a country such as Syria, the violence has been so numbing that the government’s mindless repression of its own citizens’ open revolt since March 2011 was likened to the suppression of slave uprisings in the premodern age.1 Writers in the West, worried or disappointed by the lack of liberal social movements taking

The signal violence in Syria has made recurrent the qualification of Syrian citizens as slaves (‘abid), and the massive repression of Syrian uprisings as a “slave putdown.” See, for instance, Lebanese writer Elias Khoury’s use of in‘ itaq (a legal concept in classical law deriving from ‘ itq, manumission) in “al-thawra ka-fi‘ l in‘ itaq,”(Revolution as an act of liberation from slavery), Al-Quds al-‘arabi (London), July 5, 2011; and Palestinian lawyer Nimer Sultany, “hawla suria wal-wajeb al-akhlaqi,”(On Syria and moral obligation),

1

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on the leadership in the post-revolutionary phase, have drawn parallels to the 1848 revolution in Europe, full of promises in its early phase, then rapidly subdued in various forms of authoritarianism.2 Ultimately, similarities and differences matter little. In the comparison between 2011 and other nonviolent revolutions, the search for hard causality and tight linearity does not help. Any genealogy is impossible to prove, and the search for a zero-moment equated with the fall of the Bastille makes for generally elusive markers of birth.3 The course taken in each country is perforce inspired by others, perforce different in its own way. Several similarly massive moments in human history beckon for comparison. Such historical and comparative lenses are alluring but of limited use. Measuring what is happening in the Middle East by other momentous events such as slave rebellions in antiquity or in the classical Islamic period, or the continent-wide upheavals in 1848 or 1989 in Europe, is merely indicative. More relevant in world-historic terms is the peculiarity of the Middle East revolution of 2011 in its own nonviolent philosophy. Nonviolence conjures up epic struggles from Christ, to Gandhi, to the American civil rights movement and the Argentinian mothers of the disappeared, through to the 1989 successful revolutions in Europe and the failed one at Tien an Men. This cumulative atmosphere hovers heavily over the Middle East upheavals, but the expression of nonviolence was very much local. Some preliminary considerations are therefore in order both in general terms and in the specificity of the Middle Eastern history of nonviolence.

Al-Quds al-‘arabi, July 1, 2011. On April 15, a month after the beginning of the Syrian revolution, a statement from a group of Syrian members of the opposition likened the treatment of the citizens to that of slaves (“mu‘amalat al-‘abid wal-raqiq’). See ‘bayan al-lajna al-suriyya lil-inqadh wa i’tilaf al-taktattul al-suri al-muwahhad,”(Statement of the Syrian Salvation Committee and the United Syrian Coalition), April 15, 2011, http://www.transparentsham.com/sham. 2 This includes historian Eric Hobsbawm (who died shortly afterward in 2012). See Andrew Whitehead, “Eric Hobsbawm on 2011: ‘It reminds me of 1848 . . . ’ ”BBC News, December 22, 2011. See also the interview of French historian and essayist Emmanuel Todd, “Rising Literacy and a Shrinking Birth Rate: A Look at the Root Causes of the Arab Revolution, Part 3: Arab Spring More Like ‘European Spring of 1848’ than Collapse of Communism,” Der Spiegel (English online version, May 20, 2011); and Francis Fukuyama, “Future of History: Can Liberal Democracy Survive the Decline of the Middle Class?,” Foreign Affairs vol. 91, 2012, 53–61. See also Middle East historian Robert Springborg, “Whither the Arab Spring? 1989 or 1848?,” The International Spectator, vol. 46, 2011, 5–12. Their common emphasis is that similar to the continent-wide uprisings of 1848, the aftermath has been a disappointment. On this discussion in Arabic, see Paul Salem, al-Anzima al-mutakassira (the broken regimes), Beirut: Nahar 2013, 16–18. 3 Not surprisingly, the fall of the Bastille as the symbol of the revolution, and the subsequent celebration of the event on July 14, have their own controversial history, starting with the mockery of the event by Monarchists on account that the Bastille inmates were seven all in all, including a drunkard. More convincing is the analysis of Georges Lefebvre, who mentions that about a hundred Parisians were killed that day when the governor of the prison ordered the guards to shoot into the crowd. Georges Lefebvre, Quatre-vingt-neuf, Paris: Maison du livre français 1939, 130. In either case, the violence associated with the fall of the Bastille is not denied or questioned. Never was the French revolution’s philosophy or any other instance in the Atlantic revolution considered nonviolent.

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Basics of Nonviolence Again Again, reference is to physical violence, not mental coercion in whatever shape.4 No doubt there are gray areas in violence. Sleep deprivation and drill interrogations can be so harsh as to cross the line easily. Nonphysical violence is even more painful in vicarious ways, as in threats made against members of the family. Yet the exercise of recognizable forms of nonphysical violence and the threat of vicarious violence do not figure high on the map of nonviolent revolution from the perspective of the revolutionaries. These special cases may be central in other circumstances, but they do not constitute a fruitful quest considering the massive nature of a revolution. Other instances of nonviolence are not revolutionary in the sense adopted here of a revolution understood as a mass popular movement seeking to overthrow a regime in power. Some instances are individual.5 The individual’s resistance is best expressed in Antigone standing against the unfair law of Creon. Antigone is a role model who puts limitations on our idea that the philosophy of nonviolence, or even the philosophy of the Enlightenment, are unprecedented. But an individual hero does not make a revolution on her own. Until her case becomes revolutionary, where she is vindicated massively on the street with a view to overthrowing the political system, the parameters of her action are qualitatively different. This is also true on a larger scale, typically in a strike or a demonstration with a limited objective. On its own, the strike or the demonstration does not rise to a revolution understood

For a view of violence as not only physical, Rabab al-Sadr, “Al-‘unf fil-mafhum wal-mu‘alaja (Violence, concept and treatment)”, and my rejoinder, “ta‘ liq ‘ala maqalat rabab al-sadr: khususiyyat al-‘unf al-jasadi (commentary: the specificity of physical violence)”, Nahar (Beirut), August 8, 2013. 5 The case of Antigone is paradigmatic as the classic play by Sophocles (ca 440 B.C.E.) through the modern remake presented by Jean Anouilh in 1944 making her stand against French collaboration with the Nazis. The central theme of Antigone is the correct moral stance taken by a single person against the unjust law of the city, in Sophocles’s original play the refusal to provide a proper burial to her brother on account of his betrayal of Athens. This also finds echoes in the defiance of Victor Hugo to the dictatorship of Napoleon III in his readiness to stand up alone if necessary in his famous verse, “Et s’il n’en reste plus qu’un, je serai celui-là.” (Hugo, “Ultima verba,” in Les Châtiments, 1853.) The poem is dated on the first anniversary of the coup that brought Louis Napoléon to dictatorial power, December 2, 1852, and was written during Hugo’s exile in Jersey. On the contemporary democratic scene, civil disobedience is exemplified by the draftee who refuses to perform military service in opposition to a war he considers unjust. This dissidence may well be rooted in his belief in nonviolence, yet it operates outside a revolutionary framework. When thousands such conscientious objectors pull in society around their fight in what they consider an unjust war, as in Vietnam, the same action could become qualitatively different. Daniel Markovits has developed an alluring theory of civil disobedience in a democracy to remedy the “deficits” that the system produces, Daniel Markovits, “Democratic Disobedience”, Yale Law Journal, vol. 114, 2005, 1897–952. However germane to this book under an abstract philosophical concept of nonviolence that extends to Antigone-like single dissidence against an unjust law such as the proper burial of her traitor-brother, draft dodging, or violence against women in the household, this discussion is outside the scope of my present enquiry. This book is about the nonviolent move of millions against a dictatorial system, otherwise known as revolution, and the consequent philosophy of history that it entails. A fuller scale reflection on nonviolent philosophy that includes other more limited topics is alluring, but requires a level of philosophical abstraction that I do not think useful to engage in at this stage, and I only allude to it briefly in the Epilogue. 4

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as a massive movement capturing the imagination of the national and international scene, and as the involvement of a critical mass of citizens in one or more countries to remove their authoritarian government. The involvement of tens of millions of people in nonviolent protests seeking to depose a dictator solves another profound puzzle of the modern human rights journey. In an archetypal theory of revolutionary nonviolence, many a paradox in modern philosophy is set on its head, from the ticking bomb of the terrorist to the upside-down hierarchy of punishment, where the state may kill but may not torture.6 A simplification occurs because of the sheer massiveness that a revolution elicits in terms of suffering and dilemmas. There is scant meaning for a ticking bomb in a nonviolent revolution, and if revolutionaries cannot kill, then of course they cannot torture. These quandaries of the modern age get suddenly resolved in a revolutionary situation, for the very act of killing as the main subset of physical violence is forced outside the universal pale of revolutionary action.7 The strict ban on torture as a lesser subset is second nature to a revolution that refuses to kill, and gets naturally belittled in the larger order of things that the revolution compels philosophy to consider, including in game theory puzzles and other dilemmas proper to a particular context that is non-revolutionary. In the same vein, let me dispel from the outset an all too common criticism. A knee-jerk rejection of the nonviolent nature of a revolution is that blood is shed for all to see. Of course blood is shed, but it is only shed by the government. In fact, there is no place for nonviolence unless the government is violent. Middle East revolutionaries are by and large nonviolent, while dictators are by definition violent. The frantic repression of unarmed demonstrators by Middle East governments is the reason the revolution against them is so characteristically nonviolent. Nonviolence is the philosophy of the revolution, its anima, because of government repression as its condition, revelator, and reinforcer. Insistence on revolutionary nonviolence is key to defeating governmental violence. Dates and Birthdates The “official” birth of the revolution is dated in the self-immolation of a young street vendor in a small Tunisian provincial city on December 17, 2010. This captures the collective imagination well, and birth myths built on sacrifice cannot be willingly discarded. Still, the enthusiasm about that event is dented by my strong reservations on sacrifice as part and

Paul Kahn, Sacred Violence, Ann Arbor: University of Michigan Press 2008, 1: “If we are quite willing to kill, why not torture?” This is the “puzzle of torture,” which raises severe dilemmas in democratic societies that have banned torture, against the “ticking bomb” of the apprehended terrorist. I am grateful to Michael Pomeranz, who assisted my research in 2011, to note the dismissal of this central question in a nonviolent revolution by putting the formula on its head: “if we are not willing to kill, why torture?” When killing is outside the scope of the nonviolent revolutionary’s action, there is no dilemma left. The puzzle is solved by the effective rejection of both killing and torture by the revolution. 7 This is another offshoot of the philosophical debate that nonviolent revolution forces on our horizons: the challenge to self-righteous democratic countries using force all too easily to get at the enemy as they define it, in particular the “terrorist” and the innocent around him. The conundrum of drones, to use a technological novelty in the second decade of the twenty-first century, has no place in a nonviolent revolution. The same is true for terrorism. 6

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parcel of nonviolence.8 Self-immolation is a different category from the risk that nonviolent demonstrators incur when they face a clear or present danger, in the shape of a tank marching or an armed governmental thug shooting at them. The extraordinary appeal of nonviolence is the risk incurred rather than the sacrifice offered. True, sacrifice may result because of the asymmetrical positions of one party willing to do harm, and the other party refusing to engage in physical harm-doing to reciprocate. The central difference between risk-taking and sacrifice-making is in the absolute rejection of physical harm by the nonviolent agent erga omnes, including herself. While she puts herself in harm’s way, she will not engage in any harm, be that harm exercised against the dictator’s agent of violence, or harm done willingly to herself. Suicide and martyrdom are the ultimate negators of the nonviolent revolution. Although the line may appear thin, nonviolent revolution acknowledges its revolutionaries as stochastic victims of a brutal dictatorship rather than martyrs deliberately dying for the cause. Nonviolence in the revolution has little tolerance for either suicide or martyrdom. It has no place for “a plethoric burning martyr, or a self-consuming misanthrope.”9 An alternative founding date to the self-immolation of a desperate young man, which the Tunisians recall more readily every year, is the forced departure of the dictator on a plane ultimately bound for Saudi Arabia on January 14, 2011. The flight of Ben Ali is a much happier occasion for the revolution than the unwanted deaths his dictatorship has exacted. This is also true in the case of Egypt. For both the Nile and the Jasmine revolutions, the fall of the dictator marks day one of a new era. The better date of the Jasmine revolution is January 14, 2011, when the people won a major victory in the shape of the end of dictatorship, and it is indeed the date that Tunisians chose to rally around in the following years to celebrate their revolution. In Egypt, the shadow cast by the subsequent military takeover blurs the forced resignation of Mubarak on February 11, 2011, but his fall remains a major marker of the Nile revolution.10 In the larger picture of the regional upheaval, the departure of Ben Ali was for a brief while a Tunisian rather than a Middle Eastern event. The year 2011 went unmistakably “Middle Eastern” because of Egypt.11 Until January 25, 2011, Tunisia was too small to speak

On the Bouazizi “myth,” see Nadia Marzouki, “Saving the Revolution, Representing the People: The Challenges of Tunisia’s Political Transition,” paper presented at Yale Law School Middle East Legal Studies Seminar, Rabat, Morocco, January 2013, 8. I have directly expressed reservations to hunger strikes threatening death in the case of Bahrain to the courageous Khawaja family, and developed the criticism of monk self-sacrifice in Tibet at a conference bringing together the leaders of the opposition to China’s dictatorship, “Mallat Addresses 7th Annual Initiatives for China Leadership Conference,” Los Angeles, April 20, 2012, http:// www.righttononviolence.org/mallat-addresses-7th-annual-initiatives-for-china-leadership-conference/. 9 Hermann Melville, Moby Dick (1851), New York: Norton critical ed. 2002, 326. 10 Like Tunisia, the date competes with the first massive demonstrations on January 25, 2011, in Egypt. In both cases, the dates indicate the distinct fall of the wall of fear, but this matures into success only when the dictator has been deposed, and that happier and more precise date is my preferred reference to the Middle East revolutions in the various countries. 11 I have argued that the tipping moment of a revolution can be recognized in the collapse of the will to defend the dictator by his security apparatus, “Game Over: Revolution’s Tipping Point,” Ahram online, August 6, 2011. In the case of the Tunisian revolution, it happened on January 14, 2011, when the head of the army told Ben Ali that the game was up. “It was a sixty-three-year old general, Rashid Ammar, who delivered the fatal blow to the regime, not by staging any kind of coup, but by refusing to shoot at the protesters. General 8

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for the region, but when the Egyptian streets started to fill up decisively that day, and the people of Egypt succeeded in deposing their dictator two weeks later, the revolution became a Middle Eastern phenomenon. Ultimately, there may not be a commonly agreed birthdate of the Middle East revolution. Countries will celebrate their day separately, and the day will be either the moment when fear broke massively as the street mobilized thousands of demonstrators, or when the dictator was finally deposed. But revolutionary joy is for nonviolent philosophy far superior to revolutionary death.12 Protagonists and leadership. In major revolutions, central protagonists are not always easy to identify. There is a revolutionary hard core, mirroring the hard core of the governmental apparatus of repression, but the mass in-between, including the army, police, and politicians of all hues and cries, is more protean. One trait of the Middle East revolution appears negative: it does not have an identifiable leadership for its nucleus. Absence of clear leadership prevents a smoother transition, and complicates the constitutional moment that follows the end of the regime, but the lack of leadership makes also for a wider appeal of the revolution, and reinforces the lack of a rigid hierarchy that is synonymous with coercion. This does not mean that a nonviolent revolution lacks any structure and hierarchy. The models created in that early phase need to be studied more closely by historians and by participants who drew a direct inspiration from, or coordinated with, veteran world nonviolent activists. Until domestic and international networks are better studied, including those painstakingly formed by human rights groups, religious-based congregations, and trade unions, the early mechanisms that challenged the wall of fear built by the dictatorship will remain anecdotal, as will the effectiveness of the new media in making the revolutionary messages “viral.”13 Ammar, the Tunisian army Chief of Staff, had never interfered in politics during his whole career, although he displayed a sincere admiration for the late Bourguiba, his commitment to secularism, and his achievement in developing the country. On 9 January Ben Ali ordered Ammar to crush the uprising in Tunis and in all the major cities . . . On 14 January . . . Ammar provided the ruler with a limited window of opportunity to leave the country safely.” Jean-Pierre Filiu, The Arab Revolution, New York: Oxford University Press 2001, 21. French version, La Révolution Arabe, Paris: Fayard 2011, 36–37. The episode remains not documented enough, but see below note 34 for additional literature on the role of Ammar in Tunisia. In Egypt, heavy repression started with the outbreak of massive demonstrations (January 25, “police day”), and the regime continued its heavy hand most spectacularly in launching its thugs in the “event of the camel, waqi‘at al-jamal” in Tahrir square on February 2, but the army refused to be drawn into shooting the protesters. Mubarak resisted the mounting calls for his resignation until January 11, when Omar Suleiman, his recently appointed vice president and the former notorious head of his repressive apparatus, announced Mubarak’s resignation as the street was filling with literally millions of people on the move. Early day-byday literature on the Nile revolution in for example, Robert Solé, Le pharaon renversé. Dix-huit jours qui ont changé l’Égypte, Paris, Les Arènes 2011. 12 This is another practice that I tried to establish for the celebration of leaders killed by dictatorship, such as Lebanese leader born Kamal Junblat (born December 6, 1917, murdered by the Asad regime on March 16, 1977) and the Iraqi Muhammad Baqer al-Sadr (born March 1, 1935, executed by the Saddam regime on April 8, 1980). I prefer the occasion for their celebration to be their date of birth, rather than the date of their assassination. This is after all the case of Christ. Celebration is for his birth at Christmas, not for his death on Easter Friday. 13 For an early skeletal response to these two questions (the role of foreign nonviolent groups in the Middle East revolution, and the “new” media), see Chibli Mallat and Edward Mortimer, “Chapter One:  The

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One reality is daunting: in the overwhelming nonviolence of the Middle East revolution, there was no acknowledged leadership regionally or even domestically. Hence the sudden infatuation of the media with this or that occasional “hero.” The massiveness and spontaneity of the movement overwhelms whatever organizational skills were displayed to break the dictator’s wall. The lack of a historical leadership has positive and negative consequences during the revolution. Lamenting the lack of leadership, especially one structurally enmeshed with nonviolence mobilization, comes with a silver lining. In a nonviolent philosophy of the revolution, Gandhi and Martin Luther King Jr. should not be indispensable: the tragic assassination of these two formidable leaders exposes the weak chink in the nonviolent armor of the revolutionary movement. In addition to an overwhelming sadness for the loss of larger-than-life revolutionary icons, the difficulty of translating nonviolence institutionally and practically increases once a historic leader is physically eliminated, at least in the short term. In the Middle Eastern pattern of 2011, the nonviolent revolution goes on regardless of leadership. The obsession with leadership may be negative for the philosophy of nonviolence in other ways. It has skewed the narrative of recent Middle East history, and undermined the deeper and more meaningful roots of the nonviolent revolution. As in all matters of importance for world history, narrative is key, and is always disputed. The Middle East nonviolent revolution on the march is no different. The dominant view is that the uprisings were unexpected, that they came as a surprise. Evidence of the “surprise narrative” was seen in the early days of the Jasmine and Nile revolutions, and in the statements of world leaders who had to eat their words only a few days after putting them on the record. The surprise reading is part of a narrative that is premised on an ideological shortsightedness. Surprise is the hallmark of people oblivious to the massive reality of a deep, entrenched system of repression, who are then shocked by the immense tremor that erupts on the street, and end up defending the leaders of authoritarian regimes because of an enduring personal relationship (e.g., the French foreign minister and the Tunisian dictator), or as a regional ally (e.g., the US vice president and the Egyptian dictator), and often as a mix of both.14

Background to Civil Resistance in the Middle East,” in Adam Roberts, Timothy Garton Ash, and Michael Willis eds., Civil Resistance in the Arab Spring, Oxford: Oxford University Press, forthcoming. 14 First to come to mind is the foreign minister of France, Michèle Alliot-Marie, who was proposing to send French police to bolster Zayn al-‘Abidin ibn ‘Ali (Ben Ali)’s repression, and US vice president Joseph Biden speaking of Husni Mubarak as “the non-dictator of Egypt.” See for Tunisia: “Tunisie: les propos ‘effrayants’ d’Alliot-Marie suscitent la polémique,” Le Monde, January 13, 2011. For details on the financial connections between the families of Alliot-Marie and Ben Ali, see Nicolas Beau and Arnaud Muller, Tunis et Paris: Les liaisons dangereuses, Paris: Jean-Claude Gawsewitch 2011, 29–32. Alliot-Marie is on the other hand the “victime expiatoire” of a pattern of high-level corruption between the governing elites in France and Tunisia. For Egypt, see for example, “Joe Biden Says Egypt’s Mubarak No Dictator, He Shouldn’t Step Down,” Christian Science Monitor, January 27, 2011. However, unlike Alliot-Marie, Biden did at least mention the need for the Egyptian ruler “to respond to some of the legitimate concerns that are being raised.” Transcript of Biden’s PBS interview with Jim Lehrer available at http://www.pbs.org/newshour/bb/ politics/jan-june11/biden_01-27.html. For the denunciation of the collusion of European leaders with the North African dictators well before 2011, see Sihem Bensedrine and Omar Mestiri, L’Europe et ses despotes, Paris: la Découverte 2004.

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There is more to the erring of a narrative of surprise than personal interest and consequent shortsightedness. The surprise reading is not only approximative: it is wrong. A vision rooted in the surprise of the ill-informed discards the hundreds of prisoners of opinion who rotted in prison and torture chambers. It ignores the thousands who lie in the many cemeteries of the long and predominantly nonviolent resistance over several decades of opposition to authoritarianism.15 Such blindness to the systematic suffering of Middle Easterners also passes under silence the two major upheavals that carried the nonviolent torch in recent memory: the Cedar revolution in Lebanon in 2005–2006, and the Green revolution in Iran in the summer of 2009. Revolutions can fail, fully as in Iran, partly as in Lebanon. They are still characteristically nonviolent, and their sheer size leaves an immense reservoir of lessons, memories, and hopes. The number of journalists, lawyers, professors, human rights activists, and political leaders who have been imprisoned, assaulted, or killed is probably larger in the modern Middle East than in any other place in the world in the last decades. An illustration of the willful ignorance of the suffering comes from Syria. People in the West long for a Middle Eastern Mandela. Nelson Mandela’s profile emerged as one of the most powerful examples of leadership against the tyranny of apartheid because of his three decades in jail. No one puts anywhere near Mandela’s level Syria’s most remarkable dissident, Riad Turk, imprisoned for twenty-five years, including eighteen under Asad father and seven under his son, and hounded every day by a secret police terrified by the thought of the frail, elderly man walking the underground streets of Syria. Asad’s government was right to be scared of him. On March 12, 2011, a trigger to the Syrian upheaval was an article by Riad Turk under the ominous title, “The Time for Silence Is Gone.”16 Sure enough, three days later the first demonstration of the “mothers of the place of Marja” broke out in the heart of Damascus. It was soon followed by the open revolt of Deraa.17

Among the notable books on the Arab Spring in English, Charles Tripp puts the revolution in a rich historical context, including in the struggle of women and in artistic expressions of dissent, The Power and the People: Paths of Resistance in the Middle East, Cambridge: Cambridge University Press 2013. 16 Riad Turk, “laqad walla zaman al-sukut:  lan tabqa suria mamlakat al-samt,” (The time of silence is gone:  Syria will no longer remain the mute kingdom), published on the Syrian al-Ra’ i website, March 12, 2011, http://www.arraee.com/portal/. This link has since died, but the text was also published in the London daily al-Quds. 17 The incident that triggered the Deraa (Dir‘a, south of Damascus) open revolt in the third week of March took place on March 6, when a number of teenagers scribbled the slogans of the Egyptian revolution on the walls of the small city south of Damascus. They were arrested and tortured, and their families humiliated. On the Syrian revolution, we have now the benefit of three excellent books by Fouad Ajami (d.2014), Jean-Pierre Filiu, and Ziad Majed. For the spark in Deraa, see Ajami, The Syrian Rebellion, Stanford, CA:  Hoover Institution Press 2012, chapter on “the boys of Deraa,” 69–82; Filiu, Le nouveau Moyen-Orient: Les peuples à l’ heure de la révolution syrienne, Paris: Fayard 2013, 119–22, “L’étincelle de Deraa”; Majed, Suria, al-thawra al-yatima (Syria, the orphaned revolution), Beirut: Sharq 2013, 52–55. In the brutal censorship of a Syrian leadership forewarned by the revolution closing in from Egypt and Bahrain, news about the atrocities in Deraa and elsewhere broke out through the courage of investigative journalists in the Damascus Reuters office. See Khaled Yacoub Oweis, “Arab Unrest Spreads to Syria, Thousands March,” Reuters, March 20, 2011 (describing in details the various movements across Syria, especially in Damascus and Deraa). Oweis was expelled in the middle of the night of March 25, while his colleague Suleiman al-Khalidi was arrested 15

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Another, very different example is the case of Lebanese leader Musa al-Sadr, disappeared in Libya’s jails since 1978, together with his two companions, cleric Muhammad Ya‘qub and journalist ‘Abbas Badreddin Mu‘ammar al-Qaddafi bought the silence of the UTA and Lockerbie relatives of the victims,18 and of their respective governments, at a time when the family of Imam Sadr systematically refused the tens of millions of dollars that the Libyan ruler was offering them for their silence. They wanted only “Truth and Accountability, al haqiqa wal-musa’ala,” the constant message of a long campaign that accompanied an increasingly successful court case that preceded and anticipated the much later referral of Qaddafi to the International Criminal Court, and his subsequent indictment along with his elder son and the head of Libyan intelligence.19 How many people in the West have acknowledged the long march of Imam Sadr’s family? Or indeed the Libyan citizens’ pleas, such as Mansur Kekhia’s, whose wife the courts in Egypt fined for daring to challenge the disappearance of her husband in Cairo in 1993? 20 How does one describe the lifelong battles launched by the Sadr and Kekhia families, other than as nonviolent resistance to dictatorship? The narrative of surprise is not uniform, although the linkage remains little acknowledged between various forms of civil resistance and 2011. Some cases of nonviolent dissidence are better known than others. In 2000, Professor Saadeddin Ibrahim was imprisoned for three years because he dared to question Mubarak and his family’s cronyism. His colleagues at the Ibn Khaldun Center were harassed, jailed, and ruined. In March 2005, the Cedar revolution’s show of people power against an emerging dictatorship in Lebanon, which led to growing street demonstrations in Cairo, forced Mubarak to amend the Egyptian Constitution to allow other contenders to compete. The Egyptian dictator read the street correctly, which openly questioned his presidential extension and the wish to establish dynastic rule. “La tamdid, la tawrith, no prorogation [of the presidential mandate], no passing it on [to Mubarak’s children],” was already the central demand of the Egyptian street in that early phase, led by the Kefaya movement.21 Mubarak’s amendment was designed and beaten up before he was released and expelled following the intervention of the Jordanian government. See for details www.cpj.org/2011/03/reuters-journalists-under-attack-in-syria-libya.php. 18 UTA: Union des Transports Aériens Flight 772, the French airline brought down on September 19, 1989, by an explosion engineered by Libyan intelligence, according to the French investigation and trial, with all 171 people on board killed. At Lockerbie in Scotland on December 21, 1988, 270 people lost their lives when Pan Am Flight 103 was brought down by a criminal explosion in which Libyan intelligence officers were found guilty in a UN-organized Scottish trial in 2001. The blowing up of the plane over Lockerbie has given way to a long judicial saga that ended with the release “on compassionate grounds” of the only suspect tried and jailed. 19 For details of the Sadr case, see Chapter 15. For documentation, see www.imamsadr.net (mawqa‘ samahat al-imam al-sayyed musa al-sadar a‘adah Allah, site of imam sayyed Musa al-Sadr, may God return him [safely to us]), which features on its front page key documents in the case brought by the family against Qaddafi in Lebanon, including the decisions of the Lebanese courts as well as a New York Times placard, “Arrest Libyan Leader Mu‘ammar al-Qaddafi Today in New York,” September 23, 2009; see also the statement of Sarah Leah Whitson, Middle East and North Africa director at Human Rights Watch, “Use Arab League Summit to Resolve Longstanding Cases,” March 26, 2010. 20 Chibli Mallat, “Forty Years of Qaddafi Impunity and the Megrahi Paradox,” Daily Star, September 1, 2009. 21 On Kefaya (Al-haraka al-misriyya lil-taghyir, the Egyptian movement for change), see an interesting, albeit too negative article, Sherif Mansour, “Enough Is Not Enough: Achievements and Shortcomings of Kefaya, the Egyptian Movement for Change,” in Maria Stephan ed., Civilian Jihad: Nonviolent Struggle, Democratization and Governance in the Middle East, New York: Palgrave Macmillan 2009, 205–18; see also

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to allow other contenders to run for office against the growing unrest inspired in Egypt by the Lebanese revolutionaries meeting in their thousands in Beirut. 22 Ayman Nour took Mubarak on his word and ran for office. As the Cedar revolution declined, Mubarak regained confidence. Nour was jailed for over three years for that act of lèse majesté, and his Ghad party destroyed. 23 Various officials in the West stood for Saadeddin Ibrahim and Ayman Nour, as did leading human rights organizations. Although the international human rights movement was sincere and generally consistent, qualifications are in order about Western empathy with Egypt’s prisoners of opinion despite some officials’ consistent démarches with Mubarak. Governments deal with dictators, and there is little doubt that Western governments colluded strategically with most Middle East dictators for oil, stability, Israel, resistance against communism in the old days, or fear of the Islamist movement scarecrow. An even less happy story is that of Western civil society—and not only oil companies—in the reluctant engagement with Arab and Middle Eastern dissidents. Despite the constant efforts of Amnesty International and Human Rights Watch, the question remains: Why were Riad al-Turk, Mansur Kekhia, Musa al-Sadr, Saadeddin Ibrahim, Ayman Nour, and so many others not household names in the West in the same way as Nelson Mandela or Lech Walesa? One can offer some tangential explanations of this phenomenon:  apartheid in South Africa became intolerable with the rise of Martin Luther King Jr. and the civil rights movement within the United States’ domestic racial scene. The enthusiasm for oppositional labor in Poland was intrinsically linked to the Cold War battles. The Middle East, in contrast, has always appeared far more complex for iconic figures to be embraced in the West, not least because these heroes could not rally Western governments, whose support is always muted by realpolitik interests. The flow of Saudi oil, “the security of Israel,” and Islamic militancy since its excesses in Iran are all part in the West of a seemingly bewildering complexity that muddies the water. I emphasize “appeared” and “seemingly” to advance a more controversial point, which should not be misconstrued as knee-jerk frustration. This point owes to Edward Said’s insistence, on the authority of Michel Foucault, that narrative and the order of discourse can hardly be severed from power.24 This is evident in the Western

Manal Shorbagy, “The Egyptian Movement for Change—Kefaya:  Redefining Politics in Egypt,” Public Culture, vol. 19, 2007, 175–96. 22 For the close connection between Kefaya and the Lebanese civil resistance to the “Lebanese-Syrian security order” before the Cedar revolution, see the reference to our joint work in an interview of the two early leaders of Kefaya, “Muqabala: harakat ‘ kefaya . . . la lil-tajdid la lil-tawrith’ fi masr. Ishaq wal-Sawi: al-daght al-amirki ‘muhimm’ lakin harakatuna dakhiliyya (Interview: the Kefaya movement . . . no prorogation, no passing on in Egypt. Ishac and Sawi: American pressure is ‘important’, but our movement is ‘domestic’)”, Nahar, December 31, 2004. I recall a highly symbolic sms message of support received from Sawi during our almost daily demonstrations in Beirut after the assassination of Hariri. 23 On the close relation between Ayman Nour and Right to Nonviolence, of which he is a board member, see, e.g., http://www.righttononviolence.org/rn-welcomes-dr-ayman-nour-to-advisory-board/, August 27, 2011. 24 Edward Said (d.2003), Orientalism, New  York:  Pantheon Books 1978, 294, 348. Said’s reading of the Palestinian tragedy as a continuation of the colonial project in the light of Orientalism was adumbrated in his influential book at 294, 348, and he developed the argument in The Question of Palestine a year later (New York: Vintage Books 1979). In L’Ordre du discours (Foucault’s inaugural lecture at the Collège de

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governments’ collusion over several decades with the local Middle Eastern despots. Less evident is the fact that the peoples of the Middle East have been massively perceived as different by governments and civil society alike in the West. And by different is meant the wrong type of difference, one that brings in a worldview where the basic human rights of these people are considered to be of lesser value than their Western counterparts’. Ultimately, the Western cold shoulder to Middle East dissent must be read severely. Riad Turk is no Nelson Mandela or Lech Walesa because he is Syrian, and Syrians, like the majority of Arabs and Middle Easterners, increasingly thought of as (hostile) Muslims, will hardly be treated as human rights heroes. Too many openly acknowledged interests stand in the way. To take Turk’s example, until a few days before the Syrian revolution, US intelligence agencies were actively collaborating with their Syrian counterparts, Asad and his family were celebrated in flashy fashion magazines in New York, and the Syrian leaders had remained unscathed for countless assassinations in neighboring Lebanon, let alone the systematic torture and killing associated with their rule inside Syria. One can now better appreciate the “surprise” expressed worldwide at the 2011 upheavals. Suddenly, the Western world discovered that Arabs, Muslims, and Middle Easterners are Shylocks who bleed when they are pricked, and die when they are poisoned. This may happily be over, for Middle Easterners and Chinese alike, and for all humans in-between. Universalism will take time to fulfil its embrace of the revolution from Nouakchott to Beijing, but a mental paradigm shift is afoot, which is impeded or accelerated by the success of the reform of Middle Eastern politics in adhering to the central character of the revolution—its nonviolence. Like all paradigmatic shifts, it may take several decades to blossom, though it can be accelerated, with acceleration as well as disenchantment depending on the wherewithal of the Middle East’s nonviolent aggiornamento. This brings up two other points in the revolutionary process’s choice of nonviolence.

France on December 2, 1970, published as a booklet by Gallimard in 1971), Foucault presented his life project as a historical deconstruction of allegedly scientific fields, ranging from social science to psychiatry: “Le discours n’est pas simplement ce qui traduit les luttes ou les systèmes de domination, mais ce pour quoi, ce par quoi on lutte, le pouvoir dont on cherche à s’emparer (‘Discourse is not simply what translates struggles or systems of domination, but what for, what with we struggle, it is the power that one tries to take over”), text available at http://1libertaire.free.fr/Foucault64.html. In 1975, Michel Foucault turned to criminal law in Surveiller et punir, Paris: Gallimard, which had an immense impact on both sides of the Atlantic for deconstructing received categories in the field, although Foucault expressed his “passable disappointment” at the failure of any effective, meaningful penal reform despite the universal celebration of the book. Foucault, “Qu’appelle-t-on punir?” Dits et écrits, Paris:  Gallimard 2001 (original 1984), vol. II, 1455–65, “passablement déçu” at 1456. In criminal law, the suspension of violence during the revolution raises several issues ranging from opening prisons (that frees prisoners of conscience/political prisoners but also common law criminals), to the difference between these three very different categories of inmates during and after the revolution, and to what Gandhi saw as the establishment of a nonviolent police (!). Below Chapter 5 note 49. Both Edward Said, through his lifeworks on orientalism as the expression of colonialism and imperialism, and Michel Foucault (d.1984) as the most powerful twentieth-century thinker of the connection between knowledge and power, provide an essential background to a philosophy of nonviolence. In international law, the most articulate criticism of the colonial legacy as the founding, forgotten condition for the existence of the discipline of international law itself is demonstrated by Antony Anghie, Imperialism, Sovereignty and the Making of International Law, New York: Cambridge University Press 2005.

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The first is that although nonviolence comes with immense dilemmas, its torch is firmly kept alive against all the temptations of retaliatory violence. On these tragic dilemmas, an early testimony comes from the Lebanese precedent. Shortly after the outbreak of the Cedar revolution, the assassination of Rafic Hariri was followed by the murder of other outspoken critics of Syria, starting with the iconic figure of professor and columnist Samir Kassir on June 2, 2005. A pattern of assassinations against anti-Asad figures undermined the dynamism of an extraordinarily positive moment in the country’s history, and claimed over one hundred victims, dead or severely wounded over the following two years. The counterrevolution culminated in the brutal occupation of West Beirut in May 2008 by the Lebanese supporters of Asad’s Syria, whose philosophy declared absolute commitment to violent action not only against Israel and the United States, but also against all those who were questioning the rule of Syria and the alignment of Lebanon with Iranian interests. The Cedar revolution never retaliated in kind. Against assassinations, it called for justice in the shape of what became the Special Tribunal for Lebanon. Against the violent occupation of Beirut by Hizbullah and its allies, it called for nonviolent resistance, which continued well into the next decade.25 In several meetings of the revolution leadership, violent revenge was often advocated against the Syrian rulers. A simple question was raised time and again: How much effort and money would it cost to put a bomb in a market in Damascus, or in one of the seats of power in Syria? And why not kill the ones who were widely considered to have ordered Hariri’s and so many others’ assassination? The Cedar revolution stood against it, because if a bomb was planted in Damascus, if killers were sent to assassinate Syrian officials, the Lebanese revolutionaries would start to look like the Syrian and Lebanese assassins. By abandoning the nonviolent dimension of the Cedar revolution, its hallmark and its superior moral character would have been lost, and this would further threaten its unity of purpose and the revolution’s dynamism. It would also endanger its character for the future, when it is remembered as template or “general repetition.” The revolutionaries of Tehran in the summer of 2009 followed religiously in these footsteps.26 These are two key harbingers of 2011, and their replication in total and relative successes in most countries of the Middle East revolution confirm the correctness of this philosophy. Keep the torch of nonviolence alive, whatever the setbacks. Its day will come sooner rather than later if the torch is firmly held up and continuously fueled with determination. See, generally, Chibli Mallat, March 2221, Lebanon’s Cedar Revolution:  An Essay on Non-violence and Justice, Beirut: {Lir} 2007 (hereinafter 2221) on the significance of nonviolence in the Lebanese revolt, and the multiple statements during my presidential campaign in 2005–2006 on the vain use of force domestically and regionally, e.g., Ahadith ri’asiyya: Presidential Talk, Beirut: al-Jadid 2008, 49–56, 97–99 (on the need for a nonviolent strategy in Israel-Palestine), 198–200 (on the wisdom of the ministry of interior in avoiding violence against demonstrators), 302–06 (on Hariri as a thoroughly nonviolent Lebanese political leader). 26 Mallat, “Al-murtakaz al-qanuni lil-thawra al-khadra’ fi iran (the legal basis for Iran’s Green Revolution)”, Nahar, July 1, 1989, English variations in Gareth Smyth, “Legitimation Crisis. Interview:  Lebanese Chibli Mallat Outlines Principles for Non-violent Change in Iran,” Tehran Bureau, July 2009; Mallat, “A Legal Manifesto for Iran’s Green Revolution,” The Daily Star, July 7, 2009; in French, “Ce qui ne peut plus durer en république islamique d’Iran,” L’Orient-Le Jour, August 6, 2009. A leading advocate of nonviolence is the Iranian Rahim Jahanbegloo, see his reading of the massive June–July 2009 demonstrations in Tehran as nonviolent, e.g. “The Green Movement and Dignity of Nonviolence in Iran,” October 15, 2012, at Jahanbegloo.com. 25

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The second point in the choice of nonviolence by the revolution concerns the revolutionary narrative. The authors of early books about the revolution, written in days sometimes, were awed by the massive nonviolent phenomenon, and the “purity” of events. Books a year or two later collapsed the post-revolutionary moment with inevitable difficult transitions marred by the jockeying for power, and real violence exercised by remnants of the old system bent on a revengeful counterrevolution and/or individual groups set on stealing the revolution by injecting violence to advance their political agenda.27 There is a difference between the two moments, however. During the rising tide of mass protests, the despot is the symbolic, unifying target of the revolution. Once the despot is ousted, an important marker is set by a signal relief shared by the tens of millions of citizens finally freed from the father figure of despotism and corruption.28 A new, constitutional moment then starts, which responds to a different logic of social interaction after the dictator has been defeated. The use of violence for political gains in that subsequent phase continues to be unacceptable, but the dictatorship is no longer there to allow a clear focus for nonviolent change. Transitions are difficult because there is no ready-made replacement to establish “law and order,” that is a retribution bolstered by the rule of law, which entails some violence as the legitimate Weberian monopoly of the state. The parameters are no longer the same. The ousting of dictatorship signals a different phase of the revolution, one that starts with a victory that it can celebrate. What the revolution does with the victory that has deposed the dictator belongs to a second phase, which is post-revolutionary. The two moments cannot be confused. In the articulation of the order of reasons I  defend here in a more general philosophy of nonviolence, which I try to demonstrate through the “Perpetual Peace” paradigm of the eighteenth century at the end of this Part I, the revolution can be absolutely nonviolent, and it has been so across the Middle East, despite the Libyan and Syrian setbacks. In fact, nonviolence appears the more salient in the light of the negative experience of the revolutions in Libya and in Syria after they resorted to violence. The list of nonviolent upheaval is as long as the rest of the Middle East countries. Nonviolence prevails in the ongoing resistance to dictatorship in Jordan, Sudan, Morocco, and Bahrain, where the movement is relentless. It was strong in Oman in early 2011,29 in Kuwait in 2012,30 in Turkey since the spring of 2013. It is particularly strong in Saudi Arabia, despite the constant effort of the Saudi dictators

In a literature expanding rapidly, two examples are Ajami’s 2012 book on Syria, above note 17, and Gilles Kepel’s political travelogue Passion arabe, Paris: Gallimard 2013. In both books, nonviolence is generally passed under silence. A counterpoint is Filiu’s early book, Arab Revolution, above note 11. Majed discusses the point in Suria, al-thawra al-yatima, above note 17, at 60–63, suggesting that the violence of the repression was such that military resistance was inevitable. This is a crucial point that I discuss in an international context in Chapter 18. 28 John Borneman ed., Death of the Father:  Toward an Anthropology of the End in Political Authority, New  York:  Bergahn Books, 2003, provides thought-provoking studies on the “political figure of fatherhood” as an important nexus to fascism and fatherhood conceived patriarchally in the interwar period in Europe. See especially Maria Pia di Bella, “From Future to Past: A Duce’s Trajectory,” at 33, on the use of patriarchal imagery and propaganda by dictators to communicate their political ideologies to the public. Research in this vein is much needed in the Middle East for the political patriarchs cum dictators. 29 Sa‘id Sultan al-Hashimi, Al-Rabi‘ al-‘umani (“the Omani spring”), Beirut: al-Farabi 2013. 30 For the description by a close observer and occasional participant, see Shafeeq Ghabra, “Kuwait: At the Crossroads of Change or Political Stagnation,” Middle East Institute Policy Paper 2014.2, posted May 20, 27

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to ignore it or turn it sectarian.31 Algeria and Iraq have their own checkered set of demonstrations against a fresh past of immense violence. In Syria, the revolution was massively nonviolent from March to August 2011. In Iran and Lebanon, the ashes of the nonviolent revolutions of 2005–2006 and 2009 hide incandescent cinders. Even in Israel, the summer of 2011 saw some mimicry of Tahrir Square in the largest demonstration in the country since its establishment, with the most interesting expression conducted in “Tent 1948.”32 The philosophy of nonviolence that underlies this reality across the interrelated Middle Eastern scene needs to be developed more systematically in each country.33 In terms of factual narrative of this reality, the revolution can no longer be denied its immense clamor of nonviolence that sets 2011 as a world-historic moment. Martial Gueroult’s “decrees of reality” have forced themselves onto a narrative previously dominated by “surprise.” Women and Nonviolent Revolution Nothing is more stunning in the organizational success of the nonviolent revolution than the role of women in the street. Although this aspect needs a far more detailed anthropological and historical documentation, it is in plain sight for whoever cares to look. The

2014. Tens of thousands of demonstrators took to the streets of Kuwait in 2013, a considerable number in a small country of three million people. 31 For a powerful negator of the supposed calm that prevails in Saudi Arabia, or, in the alternative governmental version, a calm that prevails outside “terrorists and Shi‘is of the Eastern province,” see the account of eleven nonviolent dissenters at the core, Human Rights Watch, Challenging the Red Lines. Stories of Rights Activists in Saudi Arabia, New York, December 2013. 32 The protests in Israel were massive, and focused on “social justice,” an inchoate concept that obscures the more profound division in society between Israeli Jews and non-Jews, and the Israeli-Palestinian issue generally. From the Middle East revolution perspective, perhaps the most alluring expression of the protests rests in the openly acknowledged inspiration from Tahrir, and the setting up of “Tent 1948” (and a Facebook page) in the middle of the protests. See the perceptive article by Inès Weill-Rochant, “De Tel Aviv à Jérusalem: en attendant la révolution . . . ”, Arabsthink.com, August 20, 2011: “Tent 1948 increasingly draws attention. Its demand is clear: social justice for all, for the Palestinians also. It is a matter of including the elephant in the room, an expression used in article to designate the question of occupation which remains taboo. Journalists from the left like Gideon Levy or Joseph Dana would like to see this question effectively integrated in the movements of protest and do not think that the demonstrators can avoid it for much longer. For the moment the only references to the Palestinian question are limited to tent 1948 and the presence of Israeli Arabs.” 33 Adam Roberts, Timothy Garton Ash, and Michael Willis’s forthcoming book on Civil Resistance in the Arab Spring, above note 13, includes individual contributions covering each chapter from a nonviolent perspective. The countries covered are Tunisia (“A Revolt for Dignity: Tunisia as Trailblazer,” by Michael Willis); Egypt (article not available at time of this writing); Bahrain (“Bahrain’s Failed Uprising,” by Elham Fakhro); Libya (“Civil Resistance in Libya during the Arab Spring,” by George Joffé); Yemen (“The Change Squares of Yemen: Civil Resistance in an Unlikely Context,” by Helen Lackner); Jordan (“Hirak! Civil Resistance and the ‘Jordan Spring,’ ” by Jacob Amis); Morocco (“The 20th February Movement,” by Driss Maghraoui, not available at time of writing); Syria (“Civil Resistance in the Syrian Uprising: From Democratic Transition to Sectarian Civil War,” by Raymond Hinnebusch, Omar Imady, and Tina Zintl); Palestine-Israel (“Palestine and the Arab Uprisings,” by Wendy Pearlman).The manuscript chapters available to me are cited below where relevant. I have written with Edward Mortimer an introductory chapter to the book, see above note 13.

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moment women are no longer a central part of the demonstration we see in the street as we live it or on TV screens, nonviolence in the revolution is in trouble, and the revolution itself in clear danger as it naturally becomes militarized by young men, defecting or not, replicating the violence of the regime against them by taking up arms. Slowly and surely, there are fewer women on the street, the revolution gets more brutal on both sides, and the regime increasingly wins the argument of “civil war” and “war against terrorism.” I will close this all-too-brief section on the gendered structure of the nonviolent revolution with two counter-examples. One took place soon after Mubarak was brought down, when both the military and the Islamists started their hijack of the revolution by targeting women on the street in the most repulsive manner. In the case of the military and a resurgent Mubarak police, it was the infamous “virginity tests.” In the case of Islamists, it was the immense and systematic harassment of unveiled women in the heart of the ongoing demonstrations. Another sign of the undermined nonviolent revolution is also apparent to the discerning observer. Sooner or later, some leadership of the revolt emerges. Just watch who is on the forefront of the delegations. If there are women who prominently lead alongside men, the revolution is going well. The more women are forced to retreat in the face of balding and gray men “representing” the revolution, the closer the epitaph of the revolution and its nonviolent anima. In gendered spirit, the feminine anima, is a theory of the nonviolent revolution yet to be written. Causes Beyond individual protagonists and the issue of gender, the class dimension of the Middle East revolution is etiologically compelling. The roots of the revolution are evidently anchored also in the ever-narrowing economic horizons of the massive majority of the citizenry, and in the rampant corruption that exacerbates the dictator’s entourage exercising its stranglehold over the economy. Massive disenchantment includes a large and complex array of interests in a classical prism of class struggle defined by the malfunctioning and unfair economy. There has been good work already on the socioeconomic causes of the Middle East revolution.34 Its reading in terms of class struggle is therefore possible, but such narrative The best example is Gilbert Achcar, Le Peuple veut:  Une exploration radicale du soulèvement arabe (Paris: Sindbad Actes Sud, 2013), also available in English and Arabic translations, see especially c­ hapters 1 and 2 on the blocked development in Arab countries and the special mode of rentier capitalism that exacerbates deadlocks and corruption. For a multilayered causal early analysis of the Tunisian revolution, a wealth of details, and the demystification of various protagonists, including the army chief Rashed Ammar, above note 11, see Michel Béchir Ayari, Vincent Geisser, and Abir Kefra, “Chronique d’une révolution presque annoncée”, L’Année du Maghreb 2011, Paris: CNRS 2011, 359–87. The issue also includes a rich analysis of the “new media,” another area of the revolutionary “festival” not addressed in any detail in the present work. See Romain Lecomte, “Révolution tunisienne et Internet: le rôle des médias sociaux,” id., 389–418. For the socioeconomic “roots” of the revolution, see, e.g., Filipe R.  Campante and Davin Chor, “Why Was the Arab World Poised for Revolution? Schooling, Economic Opportunities, and the Arab Spring,” The Journal of Economic Perspectives 26, 2012, 167–87; Clemens Breisinger, Olivier Ecker, and Perrihan Al-Riffai. Economics of the Arab Awakening:  From Revolution to Transformation and Food Security, International Food Policy Research Institute, 2011. For an analysis of the economic and demographic

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misses the philosophical core of the revolution, where economic imbalance and corruption are part and parcel of the primarily constitutional-political nature of the dictatorship. Frustrated economic expectations provide a revolutionary line of investigation that helps understand the fight against the corruption of despots. Socioeconomic factors in the revolutionary maelstrom are evident, but the core of the Middle East upheavals in 2011 is to be found in the trampling of basic human rights, not in economic disenchantment. Like corruption, which dictatorship aggravates, poverty, marginalization, and chronic joblessness also explain the upheaval and its rapid spread, but they remain secondary in accounting for the distinctive nonviolence that shapes the ongoing revolution in search of dignity and other basic human rights, including nonviolence as the yearning of the citizen democratically ruling and ruled by law. That the citizen is also humiliated by the denial of work and economic well-being should not obscure the forest for the trees. Reading the Middle East revolution through the socioeconomic lens is alluring but peripheral. It cannot explain why the revolution is nonviolent. Another methodological mistake would be to fall for a blind focus on a single country. There is a growing literature for each country’s revolution.35 Within the overall Atlantic-like, Middle East-wide, generation-long revolutionary prism emphasized in the present journey, the distinctiveness of each country is obvious in domestic terms, as well as for the interaction with the immediate neighborhood. If only for geographical reasons, the revolution in the Yemen has been weakened by a regional setup dominated by Saudi Arabia. Bahrain’s Pearl revolution evidently suffers from its geopolitical isolation and size, and its initial revolutionary tide was defeated by a military invasion that included all the Arab Gulf countries with a similar predilection for absoluteness and family descent. Shi‘ism also plays a different role across the region, from irrelevance in Tunisia and Libya to constituting a central factor in divided societies such as Bahrain, Saudi Arabia, and even Yemen. The role of Iran, defined by the Shi‘i identity of government openly expressed by its ruling ayatollahs, becomes then factors contributing to participation in the Egyptian revolution, see Mansoor Moaddel, “The Arab Spring and Egyptian Revolution Makers: Predictors of participation,” Population Studies Center Research Report, University of Michigan 2012, Report # 12-775. For an overview of the different factors contributing to the uprisings in Tunisia, Libya, and Egypt, see Lisa Anderson. “Demystifying the Arab Spring: Parsing the Differences between Tunisia, Egypt, and Libya,” Foreign Affairs, vol. 90, 2011, 2. A rich issue of the Middle East Development Journal, guest-edited by Ishac Diwan, brings together several articles on the socioeconomic causes of the revolution, all sharing the following common factors: “[T]‌he youth bulge, the rising education and aspirations, a more autonomous middle class increasingly frustrated by a perceived rise in the inequality of opportunities in the midst of an environment with rising repression, and cronyism under-delivering on the job front.” Ishac Diwan, “Introduction: Political and Economic Transformations in the Arab World,” Middle East Development Journal, vol. 5, 2013, 1–5, quote at 3. 35 In addition to the several references cited in this chapter, here is a small sample of Arabic books: on Saudi Arabia, Mashari ‘Abdel Rahman al-Na‘im, Ittijahat al-nukhab al-sa‘udiyya (“trends among Saudi elites”), Beirut: al-Intishar al-‘arabi 2012; ‘Ali ibn Muhammad al-Rubai‘, Al-thuwwar al-judud fi al-sa‘udiyya (“the new revolutionaries in Saudi Arabia”), Beirut: Madarek 2011; on Tunisia, ‘Azmi Bishara (Azmeh Beshara), Al-thawra al-tunisiyya al-majida (‘the great Tunisian revolution), Doha:  Arab Center for Research & Policy Studies 2012; Collective, Min qabdat ibn ‘Ali ila thawrat al-yasamin (“from the grip of Ben Ali to the Jasmine revolution”), Dubai: al-Misbar 2011; on Egypt, Collective, Yawmiyyat al-thawra al-misriyya (“daily chronicles of the Egyptian revolution”), Beirut: Arab Scientific Publishers 2011; on Yemen, Hussein Safialdin, Rabi‘ al-yaman (“the Yemen spring”), Beirut: al-Tawfiq 2012.

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important. Sectarianism, in this case the millennium-old schism between Sunni and Shi‘i Islam, draws in communitarian defense mechanisms as well as the active search for foreign alliances that direct the focus away from basic universal rights. Dictators are naturally keen to overemphasize a narrow view of sectarianism cum nationalism in order to undermine the revolution from its central fight to dislodge them. This is illustrated dramatically in foreign military intervention. In counterrevolutionary Bahrain, every single unit in the military Desert Shield invasion led by the Saudi government is Sunni.36 In counterrevolutionary Syria, the military intervention on the side of the regime is spearheaded by Iran and Lebanon’s Hizbullah and is composed only of Shi‘is. This deep divide bears heavily on the hopes and fears of nonviolent revolutionaries. Typically, the hope is for a common platform of citizenship against dictatorship, while the dictators fan and hone sectarianism to mask their determination to stay in power come what may. The fear, which materializes all too evidently, is that the dictator’s obvious response is sectarian. Nowhere is this better illustrated than by Syria’s ‘Alawi-Shi‘i president and by Bahrain’s Sunni king. In national terms, citizenship and nonviolence go together. In the upheaval straddling over twenty countries and a half billion people, the central question goes to its political philosophy—namely, whether change adumbrated by the ongoing revolutions can be premised on the nonviolent character collectively advocated by millions in the streets of Sanaa, Damascus, and Bahrain, as it was the case in Tunis and Cairo until the rulers were deposed. As nonviolence is the conscious, overarching method of the street protests that turned massive in the Cedar revolution in Beirut in 2005–2006, since 2009 in Tehran, and in 2011 across the region, the defining character of its political philosophy needs to be also understood in its wider historic development. There are here several additional pitfalls. Part of the revolutionary story is organizational. A number of foreign groups claim a role in the nonviolent movement of the Arab street, a role that should not be denied.37 One problem is that “indigenous” and “foreign” nonviolence can easily turn into battlegrounds for egos and recognition, rendering immense disservice to the profound nonviolence of the millions who took to the streets. Nonviolence is not rocket

For context on the Saudi-led invasion by the name of dir‘ al-jazira (the Jazira shield), see, e.g., Elham Fakhro, “Bahrain’s Failed Uprising” above note 33. I have closely lived the event as I had been solicited by the US State Department, leaders of the Bahraini opposition, and circles close to the more moderate Crown Prince to join then US Assistant Secretary of State Jeffrey Feltman to start a “constitutional options” dialogue in Manama, where I was due to arrive on March 14. After checking in at the Boston airport on the evening of March 13 to board the plane bound for Manama, I received a call from Washington to cancel the flight as government violence had suddenly engulfed the country. The episode is recounted briefly in Caryle Murphy, “Bahrain Becomes Flashpoint in Relations between US and Saudi Arabia,” Global Post, April 13, 2011. This (superficial) participation led to some derogatory op-eds by Monarchist ultras in Bahrain. 37 There are various testimonies of the inspiration and support provided by the legacy of Gene Sharp, the International Center for Nonviolent Conflict, and Otpor, the nonviolent movement that helped rid Serbia from Milosevic’s dictatorship. See, e.g., David Kirkpatrick and David Sanger. “A Tunisian-Egyptian Link That Shook Arab History,” New York Times, February 13, 2011. See also the two articles, respectively on Serbia and Tunisia, as preface to Gene Sharp, Sharp’s Dictionary of Power and Struggle: Language of Civil Resistance in Conflicts, Oxford: Oxford University Press 2012: Joshua Paulson, “Case Study: Serbia 1996– 2000”, 10–33; Jamila Raqib, “Case Study: The Tunisian Uprising and Protests, December 2010–January 2011,” 34–52. 36

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science, and I find the “listing” of some of its “methods” childish.38 In the larger scheme of causality, osmosis was also regional and international, and this explains the world-historic occasion of the Middle East revolution. In February 2005, Lebanon revolted nonviolently “because” of the Orange revolution in Ukraine. In 2011, Egypt revolted “because” of Tunisia. The rest of the Arab Middle East revolted “because” of Egypt. Anyone who lived these revolutions vividly remembers the collective, regional, and transnational dynamism in widely shared television images. In turn, regional and international inspiration contributed to the revolutionary explosion because civil resistance and nonviolence suffused the Middle East ethos of the revolutionaries. A multilayered causality becomes therefore compelling in many ways.39 Yet, no one cause but a very general “humiliation” rises to the level of the civil resistance carried out domestically over years of nonviolent struggle exploding on the streets in a revolution.

Despite his enduring role in putting nonviolence on the world map, see for instance the “198 [!]‌Methods of Nonviolent Action” of Gene Sharp, e.g. in Sharp’s Dictionary of Power and Struggle, above note 37, 330–38. See also for another type of similarly shallow list—notwithstanding the otherwise wide scope of a nonviolent reading of history, Mark Kurlansky, Non-violence: The History of a Dangerous Idea, New York: Modern Library, 2006, paperback ed. 2008, at 183–84: “The Twenty-Five Lessons.” Such lists are didactically useful but theoretically inconsequential. 39 An episode in the life of Syrian opposition leader Riad Turk illustrates the story of the Lebanese revolution itself. Before the killing of Rafic Hariri in 2005, there was significant resistance to the dictatorship that the Syrian regime was establishing slowly and surely in Lebanon, culminating in the threat made by Asad against Hariri to impose an extension in the presidency of Asad’s by then central ally Emile Lahoud. The atmosphere of fear imposed on Lebanon had by then been breached in many ways. At the forefront speaking up was Sélim Abou, the rector of the Jesuit university, who was the first to undermine the silence in 1996 and then every year in March on the occasion of the annual speech on the day of Saint Joseph, the University patron. See Abou’s speeches in Les Libertés, Discours annuels du recteur de l’université Saint-Joseph de 1996 à 2003, Beirut: Presses de l’université Saint-Joseph 2003; in English, Freedoms: Cultural Roots of the Cedar Revolution: Annual Speeches of the USJ Rector before the Faculty, 1996–2003, Beirut: Presses de l’université Saint-Joseph, 2005. Also Mallat, 2221, above note 25, chapter on the Cedar revolution’s “intellectual roots,” 65–77. By the summer of 2000, a burgeoning, loose anti-Syrian alliance led by Walid Junblat and the Maronite Patriarch Nasrallah Sfeir, and joined by Hariri, defeated in the elections the more committed Asad supporters. No doubt the invasion of Iraq and its liberation from Saddam Hussein’s dictatorship three years later played also an important atmospheric role, in Lebanon and elsewhere, see, e.g. Edward Mortimer’s Stein lectures, part one, delivered November 15, 2012, on file with the author. The gradual break of the wall of silence in Lebanon also led to the projection of a documentary in Beirut on the life of Riad Turk. “Ibn al Am,” available on YouTube. The documentary is by Muhammad ‘Ali Atasi. ‘Ali is the son of the former president of Syria Nureddin Atasi, who was removed in a coup by Hafez al-Asad in 1970, and jailed until his death in 1992. (To be accurate, he was released a few weeks before his death, in a ploy used by dictators either suffering from a sudden pang of conscience, or more likely because death in prison might create the spark of collective street anger they dread.) The documentary consists of discussions conducted by Atasi with Riad Turk in the brief period separating Turk’s release from prison and his renewed incarceration. The documentary is particularly moving in the scenes where Turk showed how he was able to overcome despair and keep his sanity by collecting small pebble-like scoria in his daily lentil soup, and then assemble and reassemble them ad infinitum in geometrical figures. Iraqi sometime minister of oil, and then leading nuclear physicist Hussain al-Shahristani recounted to me a similar story through his ten years of solitary jail for refusing to help Saddam build a bomb. He would “solve mathematical equations in his head” to keep sane. Atasi’s Ibn al Am was especially moving because of the strong emotional 38

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There are hundreds of courage stories in “the years of lead” across the Middle East. Properly described, they are instances of collective nonviolence that meshes in its courage human relations at their best. They are not an import, nor are they exclusive in their indigenousness. Causality in the history of nonviolent revolution conjures up a pointillism where the lines connecting the dots are far thicker than training done by some Serbian nonviolent group, or the self-congratulatory foreign heroes aplenty. The Middle East did not wait for them. Countries in the region have been described as a “vast prison” forty years ago by Kamal Junblat, an open if not always consistent advocate of nonviolence.40 This is the complex reality of an interdependent world where the revolutionary weight is always domestic, and where outside nonviolent organizational support is important, but ultimately secondary to the immense creativity of a people revolting. Process As the nonviolent revolution was unfolding across the Middle East, one could increasingly sense the extraordinary dimension of what was happening.41 In the streets, and among the ties between him as the son of Nureddin Atasi and the longest-serving political prisoner of Syria, carried out by the title of the film, ibn al-‘amm, cousin, which is the way Turk addressed the young ‘Ali. When ‘Ali Atasi’s film premiered in the “Beirut theater (masrah beirut)” in March 2001, the organizers had to face the Lebanese-Syrian security regime, which was being assailed from various quarters, but never as strongly symbolic as the domestic Syrian situation in the shape of its foremost dissident, Riad Turk. The atmosphere was thick as a brick during this premiere, which I attended. My strongest reminiscence was its conjuring up the classical scenes recounted in the heyday of fear in East Europe by the Polish dissident Jan Kott (d.2001) in his celebrated Shakespeare Our Contemporary (1964). I recall that the theater was so full it was hard to find a place. Elias Khoury, a courageous columnist and novelist, led the discussion. At the scene I also recognized two members of the American Embassy, and there were a number of European diplomats. After what was clearly a temptation by security agents to prevent the show and expel the audience, the showing was left undisturbed. No doubt the presence of several Lebanese public figures, and of the diplomats, was a major deterrent. The story epitomizes the much more complex currents in a revolution than one single factor. 40 The first, most famous instance, which cost him his life, was Kamal Junblat’s description of Hafez al-Assad’s Syria as “the vast prison,” a few days before he was assassinated in March 1977. See Kamal Jumblatt, I Speak for Lebanon, London:  Zed 1982, 88. (Original French, Pour le Liban, Paris:  Stock 1978). Junblat is a towering Lebanese and Arab figure of the second half of the twentieth century. Although he was a self-professed advocate of Gandhi’s lifestyle and nonviolence, and the leader of what may be considered as a proto-nonviolent revolution in 1951 against the extended presidency of first Lebanese president Bishara al-Khuri (it was called ‘al-thawra al-bayda’, the white revolution, as opposed to bloodshedding “red” revolutions current then). Junblat later opted for violence in the 1958 revolution and the 1976 revolution-turnedcivil-war of Lebanon. On Junblat’s contradictions and appeal as a leading Arab political leader and thinker, see Mallat, “fi sirr iqbal bidayat al-qarn ‘ala kamal junblat: al-tariq al-thaleth wa dinamiyyat al-la‘unf (On the allure of Kamal Junblat for the century:  the third way and the dynamism of nonviolence),” Nahar, April 14, 2001. 41 I am grateful to my students of the course “Middle East nonviolent revolution,” taught at Harvard Law School in fall 2011, for many of the insights discussed in this section. In numerous publications, leaders in the nonviolent movement have emphasized nonviolent tactics designed to increase their chances of success. As important for success is an understanding of the counterrevolutionary measures that are honed by surviving dictatorships. The physical targeting of key figures of the revolution is one shared commonalty, and was actively taught by Iranian security to their Syrian counterparts. Another is the particular attention

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millions participating, change unfolded on a high road of thought and action, theory and practice, coming together in a “radical idealist” philosophical system. In an upheaval where the mobilization of millions takes place, sometimes over several months and years as in Bahrain and Yemen, it is remarkable how nonviolence can remain dominant. Limited violent incidents carried out against the government do not undermine the massively nonviolent character of the movement, so long as they are incidents and their perpetrators denounced, and so long as the perception of nonviolence as the exclusive means carried out in the street holds its ground. Some events that fly in the face of the nonviolent tide do not taint for a good faith observer the massiveness of what is happening on a massive scale. In a 2011 documentary on Gene Sharp, one of the leaders of the nonviolent revolution carried out in Serbia against Milosevic explains how “there is always the risk of an idiot ruining the whole movement.”42 Some “idiots” are angry people who simply do not rise to the historic occasion; others may be planted by the government. The former are few and far between when millions of unarmed people pour into the streets day after day. A version of the latter, the so-called agents provocateurs, was evident at various stages in Tunisia and Egypt, and proliferated in the Yemeni, Syrian, and Bahraini scenes, let alone in revolutions carried out on a lesser scale of mobilization in Kuwait, Morocco, Jordan, or Saudi Arabia. There is always room for restraining these agents provocateurs without losing the nonviolent philosophy of the revolution. If they are planted by the government, they become part of the apparatus of repression, and they simply exercise state violence deviously and surreptitiously. The refusal of genuine revolutionaries to use violence against them is a variation on revolutionary nonviolence pursued against the rest of the security forces. If they are not planted agents, and constitute a marginal collection of violence-bent individuals in the much larger popular mass of nonviolent revolutionaries, constraining them can take place in a number of ways that fall short of physical harm. In short, the agent provocateur is part of governmental repression, and the idiot is an exception. Revolutionary nonviolence is undermined by neither. In a phenomenon that involves millions acting nonviolently, the idiot revolutionary who chooses to kill the policeman, soldier, or governmental thug dents the purity of nonviolence and taints its revolutionary appeal. This action may be blown out of proportion by the government, but it cannot undermine the massive countervailing action of people on the side of nonviolence. Should violence grow to become dominant in the revolution, however, the moral and practical superiority of nonviolence is lost. This is a real risk that occurred in Libya early on, as Benghazi rose in arms against Qaddafi’s men who had invested the city, and in Syria when almost five consecutive months of a massively nonviolent revolution started to fritter away before the rise of violence. For the revolution to consciously seek nonviolence as its message is central to its character. The negative example of the first Palestinian Intifada in 1987 is illustrative of that risk. The Intifada was not generally perceived as nonviolent, even by its actors. It is not enough

given to public space in the capital. A demonstration in the capital has manifold the impact of a similar demonstration in another part of the country. A third is control over the Internet, which authoritarian governments from China to Saudi Arabia carefully monitor and constrain. Dictatorial regimes actively learn from each other, often more efficiently than the nonviolent movements themselves. 42 Film “How to Start a Revolution” (2011), shown at Harvard Law School, October 11, 2011.

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to say that stones thrown by kids against tanks are so ineffective as to become nonviolent. This is not sufficient because the self-perception of the nonviolent revolution is key, and stone throwing, even by kids, even against Goliath, defeats this self-perception. Goliath was killed by David’s stone. To read the first Intifada as a nonviolent revolution, as was done by an empathetic author two decades later, is enticing but wrong.43 A clear, express, conscious choice of nonviolence is a necessary condition for the philosophy of the nonviolent revolution to honor its historic calling as midwife of historical change. Tactical limitations will not do. This was also true for the revolution against the Shah in 1978–1979. The massive popular upheaval does not qualify as a nonviolent revolution, despite the non-armed march of millions, because the spirit that animated it was violent.44 No better slogan tells the violence of the Iranian revolution, despite the largely unarmed demonstrations, than its dominant call: “death to the Shah, marg bar dictator,” and “death to America, marg bar amrika,” and by implication death to all who stand in the way of the revolutionaries’ ascent.45

Mary Elizabeth King, A Quiet Revolution:  The First Palestinian Intifada and Nonviolent Resistance. New  York:  Nation Books 2007. Wendy Pearlman’s  Violence, Nonviolence, and the Palestinian National Movement, Cambridge: Cambridge University Press 2011, is more nuanced. Mubarak ‘Awad is a key pioneer of the nonviolent movement in Palestine-Israel. 44 This is against the argument made by Erica Chenoweth and Maria Stephan, Why Civil Resistance Works:  The Strategic Logic of Nonviolent Conflict. New  York:  Columbia University Press 2011, which is an excellent book with various case studies, but I disagree with their reading of Iran’s 1979 revolution as nonviolent, at 92–118. The histories of the Islamic revolution and its aftermath by Ervand Abrahamian, Iran between Two Revolutions, Princeton, NJ: Princeton University Press 1982; Shaul Bakhash, The Reign of the Ayatollahs, New York: Basic Books 1984; and Said Arjomand, After Khomeini, New York: Oxford University Press 2009, have little place for nonviolence in their analysis. Abrahamian revises this reading in a recent article, “Mass Protests in the Iranian Revolution 1977–79”, in Adam Roberts and Timothy Garton Ash eds, Civil Resistance and Power Politics: The Experience of Non-violent Action from Gandhi to the Present. Oxford: Oxford University Press 1989, 161–78, but I do not think he succeeds in bringing the Iranian revolution under the canopy of nonviolence. 45 Although the rediscovery of nonviolence in history is always welcome, it is hard to view the 1978–1979 Islamic-led revolution as animated by a nonviolent spirit. Nor am I  aware of literature in Persian from Khumaini (Khomeini) or his circles that doubt the legitimacy of violence in the overthrow of the Shah or the opposition to their rule since. In an e-mail exchange on this specific topic, leading Iran historian Abbas Amanat wrote me a comment worth reproducing in full:  43

Of course it all depends how one defines non-violence. In practice during the first stage of the revolution, i.e. 1978-early 79 leading to the fall of the Shah, the violence (measured by death and injuries in street clashes etc.) was very low. In my estimate it was probably less than a thousand despite extremely inflated figures announced then by the revolutionaries and claimed now by the Islamic Republic. The low casualties were more due to the Pahlavi regime’s reluctance to use force that to anything else. But even if we add the executions and other acts of violence in the early days of the revolution and all the atrocities in detention (1979–1983), the actual numbers may not exceed a few thousand (probably 3,000). From 1983 to 1989 however the numbers increase dramatically given secret execution of a few thousands of the Left and of the Mojahedin in prisons. I would say by 1989 the figure is something close to 10,000. It can be argued that compared to earlier mass revolutions, particularly Marxist inspired (Russian and Chinese for example) or non-Marxist such as Mexican revolution and French revolution, the Islamic revolution was on the lower end of the spectrum. Of course if you add the Iraq-Iran

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Then there is a modicum of self-defense that is acceptable in nonviolence, so long as it is limited and occasional. Self-defense can be calibrated, as in domestic criminal law, by imminence, proportionality, and inevitability. The requirement is even more compelling in the protection of others. Defending one’s child with some measure of coercion against state repression is such a morally compelling case that Gandhi himself endorses it in a brief and poignant text in a far less controversial context: “I hope you will not consider that it is still physical force, though of a low order, when you would forcibly prevent the child from rushing towards the fire if you could.”46

war casualties as a manifestation of the revolutionary course, then the few hundred thousand casualties dramatically tilts the scale and makes the Islamic revolution as one of the most violent. But it seems to me that that war, despite its revolutionary impulse and apocalyptic character, should be treated independent from the revolutionary process. In terms of its ideology, if such a concrete notion can be applied to the Islamic revolution, the issue of violence is more complicated. To my knowledge Khomeini himself never called for a jihad-like armed uprising. In the earlier days he emphasized, though more out of expediency than conviction, that revolution will succeed through sacrifice and giving blood of unarmed masses. After February 1979 increasingly he demonstrated a callous attitude toward “revolutionary trials” and executions (some in early hours of the day on the roof of the Alavi school in Tehran where he was staying). The revolutionary spirit and expressions too turned more violent and so did the revolutionary institutions such as the revolutionary courts and Revolutionary Guards and the spontaneous organs such as the revolutionary Komitehs. Violence expressed not only in executions of the “corrupter of the earth” but in illegal detentions and confiscations, in suppressing freedom of speech, press and individual rights (such as mandatory hijab), close down of the political parties and ruthless suppression of Mojahedin and the Marxist Fada’iyan. Despite many revolutionary slogans with violent messages and obsession with blood (more giving that taking though), it is difficult to see a preconceived ideology of violence as a path to revolutionary salvation. If anything, some emphasis, hypocritically no doubt, was on the Islamic “compassion.” I can think of two statements by Khomeini however with explicit violent messages. In 1982 (or thereabout, I am not sure of the date) on the occasion of street clashes with the armed Mojahidin, he justified their ruthless suppression by reference to the Prophet’s massacre of the Jewish tribes of Medina (Banu Qurayda was one of them) and Ali’s active involvement in that event. In 1988, after the ceasefire [with Iraq] and famous drinking of “chalice of poison,” he explicitly issued a fatwa allowing the Revolutionary Courts to retry and execute the “infidels” which resulted in about 6,000 to 8,000 of the left and Mojahedin inmates serving their terms to be systematically executed. This is probably the most violent, indeed criminal, expression I can think of. We of course can detect in Khomeini’s writings (for instance in the Islamic Government) a sense of anger and contained violence but seldom explicit. Given Shi‘ism’s preoccupation with martyrdom and a vengeful apocalyptic jihad, it is surprising that violence was not institutionalized beyond the Revolutionary Courts, Revolutionary Guards and such legislations as the law of qisas [talion]. Abbas Amanat, e-mail to author, November 25, 2013. 46

Mohandas K.  Gandhi, Hind Swaraj and Other Writings, ed. Anthony J.  Parel, Cambridge:  Cambridge University Press 1997, 89. This is an occasion to express my diffidence toward the particular emphasis on a few phrases and statements attributed to such nonviolent figures as Gandhi (here, in the episode of child and fear) and Christ (as in the episode of his anger against the merchants at the Temple, whom he forcibly expelled) to undermine the whole edifice of nonviolence that they defended through their life, in words and in action.

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Nor does nonviolence mean suicide, and revolutionaries have a moral duty to exercise self-preserving care. Because of its importance in the philosophy of nonviolence, I  will repeat the caveat adumbrated above: physical sacrifice is anathema to the nonviolent philosophy of the revolution, whether inflicted on others or onto one’s own body. Taking risks by demonstrating in the street despite tanks and snipers is one thing, self-immolating an altogether different one. Nonviolence has no patience for physical sacrifice, however much people are awed by the despair of a street vendor, and the copycat suicides that followed across the region. As in the celebrated response of Spanish philosopher Miguel de Unamuno to the fascist cry celebrating death, nonviolent revolution cannot brook sacrifice, let alone suicide, as a constituent element. Nonviolent revolution is philosophically poised to celebrating life hic et nunc, with no exception: “I have just heard the senseless and necrophiliac shout of ‘Viva la muerte!’ To me this is the same as shouting Death to Life! And I, who have spent my life creating paradoxes that provoked anger from those who could not understand them, I have to tell you, with authority in the matter, that this ridiculous paradox is repulsive to me.”47 A revolution is a celebration of life, never of death, and nonviolent revolution the more such a celebration. The temptation of violence is real in other pressing ways, as is evident in the Libyan revolution, where the Right to Protect civilians has been enshrined in the euphemistic clause of “all necessary means” (i.e., including military ones) of United Nations Security Council Resolution 1973 to prevent the revolution’s collapse in March 2011. Maybe there was no choice, as Benghazi was about to be reoccupied by a vengeful Qaddafi. By then, however, the revolution itself had become massively violent. This is a matter for a more careful enquiry on the nexus between domestic revolution and foreign intervention. Anticipating this discussion in Part III of the book, let me just say for now that a nonviolent revolution should be capable of taking care of its own.48 In the Middle East revolution, Libya was the first, critical exception to nonviolence, an unfortunate one that underlines in contrast the dogged efficacy of nonviolence in the palpable successes achieved in 2011 in Tunisia, Egypt, and Yemen, and in the incomplete revolution afoot in Bahrain, Morocco, Sudan, or Saudi Arabia. The Libyan rebels were wrong to take up arms against Qaddafi, for the day they did was also the day they lost the nonviolent revolution to the logic of a civil war, the formation of battlefronts, and the immediate collapse of the Libyan capital into the firm clench of the dictator.49

Miguel de Unamuno’s stand at the University of Salamanca on October 12, 1936, against fascist general Millán Astray is well-known in Spain: “Acabo de oír el grito negrófilo de ‘¡Viva la muerte!’. Esto me suena lo mismo que ‘¡Muera la vida!’. Y yo, que he pasado toda la vida creando paradojas que provocaron el enojo de quienes no las comprendieron, he de deciros, con autoridad en la materia, que esta ridícula paradoja me parece repelente.” Spanish text e.g. at Wikipedia entry “José Millán-Astray.” My translation is adapted from Paul Preston, Comrades! Portraits of the Spanish Civil War, New York: HarperCollins 1999 (Kindle), ch. 1, text accompanying footnote 80. 48 The following more substantial conclusion is developed in Chapter 18, “Coda, on Foreign Intervention”: if a nonviolent revolution is being threatened by massive force from a government seeking to subdue it by killing a large number of civilians, it is better for outsiders to exercise a degree of violence to preserve the revolution from defeat, rather than for the revolution itself to turn violent. 49 See my “Libya’s Revolution: A Troubling Legacy of Violence,” Ahram online, August 30, 2011. 47

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The immense brutality that descends on peaceful demonstrators creates dilemmas, no doubt. In the case of Libya, the first week was important, and one could see the oscillation between a violent expression of wide-scale revenge in Benghazi, in large part centered on revenge for the mass killing of over 1600 inmates at the Abu Salim prison in 1996, many of whom were from the city; and between the demonstrators of Tripoli, who were by and large nonviolent. The details of the quasi-immediate militarization of the Libyan revolution still need to be investigated, amid a huge confusion that will preclude the emergence of a precise picture before the wide range of actors in those first few days is better mapped.50 Meanwhile, Libya’s quick descent into outright violence can be provisionally reconstructed as follows:51 Benghazi was and will long remain an angry city. It had been systematically punished by the regime for over half a century, and looks like it was forgotten in time. Even the monument to the nationally celebrated hero of resistance to the Italians, ‘Umar al-Mukhtar (hanged by Mussolini in 1931 at age seventy-three), had been razed to the ground by the regime. Benghazi’s massive resentment and the quick collapse of Qaddafi’s rule in mid-February 2011 are functions of this overwhelming reality of distrust and anger at whatever reeks of Tripoli. Benghazi is also close to the large oil fields in the East from which it never benefited. In Benghazi, where it all started, there were nonviolent demonstrations on February 15 and 16 in various squares, especially in front of Benghazi’s main tribunal, because of the arrest of Fathi Terbil on February 15, 2011. Terbil was the young lawyer who had represented the victims of the 1996 Abu Salim massacre, and security agents arrested him briefly that afternoon. This provided the spark for the Libyan uprising amid the revolutionary atmosphere that had spread across the Middle East. Demonstrations increased the following days in size and vigor. Negotiations with representatives of the regime collapsed as soon as force was reined in on the demonstrators. The core of Qaddafi’s apparatus of repression was overwhelmed, and large sections of the security forces in the city rallied the revolution, killed or pushed out the few Qaddafi agents left, and took over the arms and ammunition left behind. By February 21, Benghazi was free but full of brandished weapons by armed youth. As the cities in the East were capable in the first weeks to liberate themselves from Qaddafi’s men, a front started to form with the Benghazi revolutionaries stretching their power westward from the Tripolitan coast, and to some extent from the cities far to the West, near Algeria. The violent character of the revolution increased with their advance, and the “fall” of the cities on the way to Tripoli came with a pincer strategy also developing from Misrata, another “punished city” fighting to free itself from Qaddafi’s clutches, and the armed revolution moving from there onto Tripoli. Tripoli itself, where demonstrations were initially nonviolent, was cowed by the fierceness of the violent revolution unfolding outside. The capital always being the most important prize of the revolution, Qaddafi poured massive organized repression in Tripoli’s rebelling neighborhoods, very much the Ethan Chorin has reconstructed the murky events in remarkable detail, see his chapter “Benghazi, the First Five Days,” Exit the Colonel: The Hidden History of the Libyan Revolution, London: Saqi, 2012 (Kindle), which shows February 20 as the date when the revolution becomes irreversibly violent. 51 In a brief visit to Benghazi in June 2013, I raised the question with some of the colleagues who had participated in the early days, and they confirmed by and large Chorin’s account. The account here is a mix of his description and my own visit. 50

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way Asad was particularly attentive to preventing any form of nonviolent demonstration inside Damascus, and fiercely repressed the very first nonviolent gatherings in the capital, epitomized in nonviolent philosophy by the women of Marja Square. Qaddafi then turned his army and mercenaries to regain the freed cities. From the perspective of nonviolence, by the second week of the revolution, its philosophy had failed as process of change. This failure was important, for Libya and the rest of the Middle East.52 It is no coincidence that the Bahraini rulers chose all-out repression a few weeks later, and that the Syrian dictator followed suit. Against the sceptics, who see nonviolence as a serendipitous occurrence of the Middle East revolution and use the Libyan case to diminish its importance, the reality is that of a powerful, conscious determination of the revolutionaries in the rest of the region, where demonstrations were large and sustained, and where people refused to take up arms, clearly inspired by the nonviolent precedents in Tunisia and in Egypt. In Bahrain, Yemen, and for several long months in Syria, the refusal to resort to violence was a conscious choice of hundreds of thousands of people. That clear appreciation of the power of nonviolence, in contrast to the revolution in Libya, can be read in the leitmotiv carried by the Facebook coordinator of the “Syrian Revolution against Bashar al-Asad” quoted at the beginning of this part: “Why does the regime insist that the revolution is armed . . . Why does it to go to such great lengths to say there are armed groups . . . Does this not tell you something? Does it not tell you that the choice of nonviolence and peace is the right choice, and that it is the choice that the regime is scared of? . . . If the choice for peaceful means were wrong, wouldn’t the regime behave differently?”53 Rebels in Libya made a mistake in taking up arms against Qaddafi, and lost Tripoli on the very day when the military front was constituted. The same is true for Syria after the revolution slowly militarized over the summer of 2011. The transformation of the Syrian revolution from massive nonviolence to creeping violence deserves to be more carefully examined. Ramadan was about to start, end July 2011, when the revolution was still dominantly nonviolent. The revolutionaries had even made a public vow of nonviolence in some cities, and the pinnacle of success was achieved in Hama, which the American and French ambassadors visited on July 7, 2011. The envoys emphasized the insistence by the revolutionaries on protecting governmental buildings rather

Jean-Pierre Filiu mentioned in conversation in summer 2012 that he had met a senior religious leader in Libya who was lamenting the turn to violence of the revolution. It also appears in the work of a remarkable group of longtime activists around the Libyan Center for Future and Strategic Studies, whose first publication after the fall of Qaddafi was about the need to lay down weapons, Budhur, 1, 2011–2012, cover page and dossier entitled ‘li-nulqi al-silah wa nahmul al-qalam’ (to throw away weapons and bear up the pen). Once the revolution militarizes, as Chenoweth and Stepan showed across their case studies, above note 44, and as we shall examine more closely in Part II of this book, it is much harder for the post-dictatorship passage to democracy. 53 “Limadha yusirr al-nazam ‘ala anna al-thawra musallaha (Why does the regime insist that the revolution is armed?),” June 11, 2011, Facebook al-thawra al-suriyya didd bashshar al-asad, www.facebook.com/Syrian. Revolution, http://tinyurl.com/6gyoyru: “limadha yusirr al-nazam ‘ala al-thawra al-musallaha . . . limadha yastamit liyuthabbit anna hunak jama‘aat musallaha . . . ala yukhbirukum dhalik shay’an . . . yukhbirukum anna khiyar alla‘unf wal-silm huwa al-khiyar al-sahih wa huwa al-khiyar alladhi yafza‘ minhu al-nazam . . . law kana khiyar al-silm khata’ alan yakun tasarruf al-nazam mukhtalifan?” 52

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than torching them.54 That visit to Hama was highly symbolic, as was the strength of the nonviolent movement in the city, the historical heart of which Asad father had leveled to the ground in 1982. So how did Syria’s revolution turn violent? The move to violence grew over several weeks incrementally. From concurring reports of colleagues in the Syrian opposition, it was triggered by the piecemeal collapse of the army, with soldiers defecting and returning naturally to their home in villages and cities they hailed from. The process went roughly as follows: when defections take place slowly, as was the case in Syria, it is easier for the government to retaliate against the individual soldier. Several soldiers were immediately executed for refusing to take their commanders’ orders to shoot into peaceful crowds. Even if the soldier escapes that grueling fate, his escape home can be traced by the security apparatus, and he is caught up with easily. If he is missing and is not found at home, then his family becomes the target of particularly cruel retaliation. With war-wired male soldiers often keeping their weapons, the natural inclination is to defend themselves, their families, and their neighborhoods, for what is dearer to a human being than his family? Sometimes, when the defections are more important, units mobilize to defend their cities, as was the case in Deir al-Zor in August 2011, at a time when the revolutionary committees were actually asking returning soldiers not to use their weapons, because they wanted to keep their city nonviolent. As defections mounted, such dilemmas increased. The slow and chaotic rise of the Free Syrian Army, which was not taken seriously at the beginning because it paled in comparison with the massive unarmed demonstrations recurring daily across the rest of the country, developed in time to militarize the revolution and allow in turn for brutal Islamic militants to pour in from across the world with the aid of the worst and most sectarian governments of the Gulf.55 The resort to violence is forever part of the tragic history of an epic

See “A Note from Ambassador Robert Ford,” posted to the US Embassy’s official Facebook page (July 10, 2011), www.facebook.co187-208m/note.php?note_id=10150237831306938. 55 For a converging description of the militarization of the revolution through the dilemmas facing defecting soldiers, see Ajami, The Syrian Rebellion, above note 17, 145–46: “It was kill or be killed in the ranks of the army. A 25-year-old lieutenant from the central province of Homs supplied details of the workings of the army. Four months earlier, he had been off duty, in his village, when the army raided his place. He could not bear what he had witnessed. Soldiers had burst into the home of a suspected activist. They had shot the man’s wife and daughters in the legs to force them to reveal the man’s whereabouts. A 20-year-old soldier, also from Homs, said his unit was often told to shoot at innocent bystanders. ‘I saw with my own eyes an unarmed older farmer in a village in Homs province go by on a bicycle, and were ordered to shoot him in the back.’ An efficient army had been put together—Sunni recruits, Alawi commanders, and battalions from different brigades thrown together. These soldiers didn’t know each other and had no history of familiarity and comradeship. The soldiers were never in doubt that they themselves would be struck down if they didn’t follow their orders.’ From the young lieutenant again: ‘I got out because I need to live with a clear conscience. I joined the army to protect my people and my land, to free the Golan, not Homs and Deraa.’ The military units were given orders to ‘kill or kill’—kill the protesters or kill those soldiers who refuse to obey orders. Soldiers were banned from using cell phones, they could watch only state television, and they were given a steady diet of lectures about the goodness of the Assad family and the benevolence of the leader. The soldiers were deployed up front, the mukhabarat [intelligence services] operatives behind them. Snipers on rooftops would fire at soldiers pointed to them by the officers and the mukhabarat. Soldiers who wanted out of the killing and stopped firing could be summarily executed on the spot. The military uniform offered no protection. The regime and its intelligence agencies had prepared for this moment.” See also Filiu, Le nouveau Moyen-Orient, above note 17, 147–50, who considers Ramadan (July 2011) as “a turning point, un 54

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Syrian revolution that had its extraordinary and obdurate beginnings in nonviolence. The mistake in resorting to violence has turned the Syrian revolution into a tragedy of biblical proportions. This brings up another point compelled by the Libyan and Syrian turn of events, and underlined by the multiplication several fold of the victims when the revolution militarizes:  nonviolent revolutions must succeed. This is not as trite as it first sounds. “Some non-violent campaigns can be seen as reluctant or unwitting harbingers of violence. For example, if they are perceived as failures, they may be followed both by the emergence of groups using armed force and by military intervention from outside the territory concerned.”56 In a Middle East where expansive violence has been the dominant midwife of history for at least a hundred consecutive years, success is an existential matter for nonviolence. For decades, organized violence through wars and armed revolts has spanned the full gamut of assassinations, suicide killings, missile strikes, air and tank battles, and even the use by Saddam Hussein of chemical weapons against his own people and against his Iranian foes. Any suggestion that violence was pointless to advance one’s interests made little headway, and nowhere was the persuasive efficacy of violence more troubling than in Israel—the bulldozer state that continues to ethnically cleanse non-Jews by force, sixty years after its emergence over the forced flight of nearly all the citizens of Palestine. Despite Israel’s relentless violence against the Palestinians, it must be acknowledged that Israeli governments have been careful never to exercise violence against those they consider their own, Jewish Israelis, and that, contrary to the rest of the Middle East, intra-Jewish disputes are solved by and large without bloodshedding.57 This makes for a qualitative difference with the rest of the Middle East.58 Still, considering Palestinians in Israel, Jerusalem

tournant dans la crise,” at 147. See also Hinnebusch et al., “Civil Resistance in the Syrian Uprising: From Democratic Transition to Sectarian Civil War,” above note 33; Majed, Suria, al-thawra al-yatima, above note 17, 52–55. 56 Adam Roberts, “Introduction,” in Adam Roberts and Timothy Garton Ash eds, Civil Resistance and Power Politics, above note 43, 1–24, at 20. 57 There are two important cases in recent memory that are exceptions to the rule. On February 10, 1983, a grenade was thrown into the crowds of protesters against then Defense Minister Ariel Sharon for the massacres at Sabra and Shatila, in which Emil Grunzweig, a young activist, was killed. Nine other Israeli Jews were wounded, including the future speaker of the Knesset Avraham Burg. Prime Minister Yitzhak Rabin was assassinated on November 4, 1995; in both cases, however, the (Jewish) killers were tried and jailed. Then and since 2011, Palestinian and Israeli leaders have proved incapable of finding convergence in shared nonviolence despite the deep fracture occasioned by the killings and the clear agenda of commonalty between the two peoples the Grunzweig and Rabin assassinations epitomized. 58 Part of this important difference comes from the unique constitutional setup in Israel, which includes “Israeli Arabs” (who prefer to call themselves “Palestinians in Israel”). The Jewish leadership in Israel also controls various aspects of the life of the rest of the Palestinians in Jerusalem, Gaza, the West Bank, and the refugees. The difference with the other Middle Eastern countries also comes from the failure of the Palestinian leadership to rise to the challenges of the Middle East revolution, precisely by shifting the terrain in the street to a joint action with like-minded Jewish Israelis. See above note 32. In 2011, a move was orchestrated by the Syrian regime and Hizbullah to march on Israel from South Lebanon and the Golan. While marches of the sort could be a unique occasion to build a bridge over the barbed wires of tight frontiers, the march in the Golan and South Lebanon were organized in a spirit of “invasion,” and were a clumsy and cynical attempt by Asad and his allies to deflect the Syrian revolution

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and the 1967 Occupied Territories, and the refugees of 1948 not to be a central part of Israeli responsibility on account that they are not Jewish is too facile. Once you paint your own community into an exclusive national, linguistic, or religious group, the exercise of democracy within it does not exonerate your responsibility for people over whose lives you have evident control. No wonder that the guiding motto in the region since the expulsion of hundreds of thousands of Palestinians from their land in 1948, from the coup fomenters since 1949 to the Islamic revolutionaries of century’s end, is that “what is taken by force, can only be restored by force,” the most famous of Egyptian dictator Jamal ‘Abd al-Naser’s bland slogans. The signal contribution of 2011 is that, despite Israel, the motto is no longer true. A firm belief in raw power is not limited to the Middle East, but it is in the Middle East that it appears most dominant in the early twenty-first century. Nonviolence in the most violent region on earth makes the Middle East revolution particular. The historical emergence of the idea has yet to be studied in detail, and requires a more structured intellectual reconstruction of complex processes, but the reality of nonviolence consciously pursued by millions can hardly be denied—whatever the scepticism that remains for the importance and sustainability of its staying power. Success is therefore key to the paradigmatic philosophical shift from violence to nonviolence. It is hard to define success. What is plain is that Qaddafi’s removal was a sine qua non for any new start in Libya, as were the forced departures of Saleh, Mubarak, and Ben Ali. The Cedar revolution failed when the “coercively extended president” remained in power despite the massive street movement that brought half the working population of Lebanon on the street after the assassination of his challenger.59 It was a lethal Lebanese mistake that it did not say to the president to “leave” on day one of the revolution as the Tunisians and Egyptians did, in the pattern that has become key in the “monarblics,” where republics turned openly dynastic, and which is also evident in the need to remove all the Arab monarchs, and the Supreme religious Leader in Iran.60 It is also true that the Arab revolutionaries into a war with Israel. Tens of people were killed by the usual excessive force used by Israel, and the Palestinians of the Yarmuk camp in Damascus revolted against the diversionary slaughter engineered by Asad. See Pearlman, “Palestine and the Arab Uprisings”, above note 33. Why nonviolence has failed in Israel-Palestine is a vast topic I will not develop further here, but the rediscovery of absolute nonviolence may well break a century-old deadlock. 59 This was the central reason for the resistance of Rafiq Hariri to the diktat imposed by Bashar al-Asad in August–September 2004 to change the Lebanese Constitution in order to allow Emile Lahoud to remain in power, and is officially documented in the UN investigation that followed Hariri’s assassination in February 2005. It was also the central reason for my presidential campaign aiming at removing Lahoud and replacing him with a president “that looked like us,” i.e., like the Cedar revolutionaries. Some of this history is recounted in Mallat, March 2221, above note 25, at 41–44, specifically the early “banner” for the revolution, in which “Démission, istaqilu !!” was called for (but interpreted as that of the prime minister and not the president). See Michael Young, The Ghosts of Martyr Square, New York: Simon and Schuster 2010, 34. For the revisitation of the argument on the occasion of several electoral contests in spring 2014, see Mallat, “No More Presidents-for-Life: The Nonviolent Struggle Goes On,” Ahram online, April 19, 2014. 60 On monarblics, and the nature of monarchical power in the Gulf, Jordan, and Morocco, see Chapter 8 section entitled “Republic Meets Monarchy: The Middle East Monarblic.” The Iranian Constitution refers to the position of Khumaini and his successor Khamene’i as rahbar, leader (as in the sinister German Führer), the Arabic rendering commonly used is milder, murshed, guide, which is also the title of the Muslim Brotherhood top position.

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learned from the failures of the Cedar revolution, and from the Iranians who refrained from calling for the departure of Supreme Leader ‘Ali Khamene’i in the summer of 2009. Since 2011, “the dictator must go” is, correctly, at the center of revolutionary mobilization across the region. The political demise of the effective heads of absolutist regimes is therefore essential to the success of the Middle East revolutions. There is no exception. The Spir al For the anatomy of the success of nonviolence, we also need to understand the downward spiral forced on the dictators. The resulting landscape determines to a significant extent the trajectory of the constitutional moment that follows. The Tunisian dictator’s repentance speech provides a useful guide to the logic of the downward spiral across the span of the Middle East revolution.61 When people started taking to the street in increasingly larger numbers, Zein al-‘Abidin ibn ‘Ali made the typical argument of conspiracy, Islamist extremists, and foreign powers set to destroy Tunisia. In what would be his last speech the day before he fled Tunisia on January 14, 2011, he presumed it would be sufficient to defuse tension with a grandiloquent De Gaullesque “Je vous ai compris.”62 The speech opens with “I talk to you” repeated many times, which is a declaration of intention on the part of the OPT [Ousted President of Tunisia] to seek communality and solidarity with the people as addressees in discourse. YOU establishes the addressees as a viable category not side by side with the speaker as is encoded in the syntactic sequence of both pronouns on a level, but still at one remove from the deictic [contextual] center. It is interesting to note that what made this change from non-dialogue to dialogue is not a miracle, but the pressure in the streets. This need for solidarity was made all the more urgent for the OPT since he declared: “I understood you” many times, which was an acknowledgment that the OPT did not understand the people, which is why there was no dialogue. For a president to declare that he has understood his people for the first time in 23 years means that he was living on another planet. I reckon that most Tunisians, if not all, must have reacted to “I understood you” as “Too late, dear!”63 For a linguistic reading of Ben ‘Ali three last speeches, see, e.g., Zouheir A. Maalej, “The ‘Jasmine Revolt’ Has Made the ‘Arab Spring’:  A  Critical Discourse Analysis of the Last Three Political Speeches of the Ousted President of Tunisia,” Discourse and Society, vol. 6, 23, 2012, 679–700. 62 Discours du Général de Gaulle à Alger (June 4, 1958) e.g. in René Rémond, 1958, le retour de de Gaulle, Paris: Editions Complexe 1998, 166. The Ben Ali speech on 13 January triggered wide hilarity in Tunis, and the Tunisian dictator fled the following day. The humor is captured by a Tunisian artist, Nadia Khiari, who started a delightful series of cartoons collected in part in her Willis min tunis masirat al-thawra al-tunisiyya (Willis from Tunis the destiny of the Tunisian revolution), Beirut: Sharikat al-matbu‘at lil-tawzi‘ wal-nashr 2012, original French Paris La Découverte. The first cartoon, at 7, depicts mice dancing in the street on the news of their president announcing in his speech that the price of cheese had been reduced, with Willis the hero cat representing Ben Ali saying “Je vous ai compris.” 63 Maalej, “The ‘Jasmine Revolt’ Has Made the ‘Arab Spring,’ ” above note 61, at 690. 61

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Similar expressions are found across the board of challenged authoritarian rule, running an expected gamut throughout the arc of Middle East authoritarianism: “I, your president and king for life understand you; we need to reform and I am keener than you to do so. Let’s start a dialogue for legal and constitutional change, which will take place as soon as you get off the streets and return home for normal life under my leadership to resume.”64 This is the easily discernible reaction of a dictator on the defensive trying to buy time against the revolutionary tide in an effort to diffuse it into oblivion. The pattern is solidly at work across the Middle East revolution. When the first “I understand you” fails to bring the people off the street, others follow:  “Your grievances are legitimate, and I  am considering a serious change, I’ll forego my constitutional mandate to run again, I’ll allow competition for the presidency, I’ll resign soon, I’ll resign at some ambiguously defined date . . . “65 Nothing works. Neither the Tunisian ruler nor his Egyptian colleague had time to fulfill their empty promises for reform. In other countries where the heads of state are able to survive longer, the governing system sticks to the vague mantra of reform and dialogue without yielding ground on the most important item: relinquishing executive power. Throughout 2011, dictators on the defensive promised meaningful reforms in the shape of constitutional amendments. The amended constitution, in these cases, is mostly a replica of the dormant texts of the old regime, and consists of superficial revisions.66 Reform never touches the core, the absolute power of the ruler, and people know the stratagem all too well, having lived through similarly disingenuous gestures time and again during the long night of the dictatorship. It is all too easy for voices on the outside, in the UN and in various chanceries, to propose giving the dictator “another chance.” They simply undermine the correct revolutionary impetus to bring down the head of the system’s authoritarian structure.67

This has been a common pattern started by Ben Ali in a discourse of January 10, 2011, and then taken up with various intensities of mild self-criticism (“we, very generally described, made mistakes we need to correct”) to cosmetic constitutional changes in such places as Syria, Oman, and Morocco. This is how Ben Ali described the instructions he gave to his prime minister as a sign of willingness to make reforms: “Convene a national conference to be attended by representatives of constitutional bodies, political parties, national organisations and components of civil society, a number of academics and skills of various sectors, as well as representatives of the regions set out their views.” Available at http://www.albab.com/arab/docs/tunisia/ ben_ali_speech_10012011.htm. 65 Paradigmatic example in Mubarak and Saleh’s undertaking to hold presidential elections soon, or at the end of their current mandate. 66 A constitutional amendment was enacted by Bashar al-Assad in February 2012 to eliminate Article 8, which had entrenched the power of the ruling Ba‘th party. In 2005, Mubarak called on parliament to amend Article 76 of the constitution, which required future independent presidential candidates to receive the nominations of a certain number of local officeholders. In March 2011, embattled Yemeni president Ali Abdullah Saleh promised a new constitution and a national referendum. All these constitutional changes fell short of any meaningful change, as the president/king remained firmly in power. 67 I find this argument conveyed well in Sharp’s early work, From Dictatorship to Democracy: A Conceptual Framework for Liberation, East Boston: The Albert Einstein Institution, 4th US ed. 2010, original 1973, 64

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What makes the regime spiral downward further is that strong sense of déjà vu for the people who have borne the brunt of the dictator’s long line of unfulfilled promises. In countries ruled by one man and his progeny for years, talk about revisiting basic laws is never new. The pattern is familiar. There is always a moment in the not-too-distant memory when a so-called “reform” was aggressively flaunted by the regime, doubling up as a public relations tool to improve its international reputation. When the promise of reform gathers some pace with well-meaning opponents, the rug is drawn away from under their feet, and many end up in prison. A typical example is the Damascus Spring of 2001, when a youthful new president, for whom the 1972 constitution had just been amended in order to reduce the minimum age bar so as to fit him and him only, covered the outrage by playing up the superficial trappings of reform:  juvenile looks, cosmopolitan talk, fashionable suits, and computer interests, all part of a burnished image mostly projected to ingratiate his regime with the West. Many locals, desperate for change, rushed into the vaunted breach, and mobilized in private homes, which were renamed clubs as any gathering in public remained forbidden.68 Public declarations were issued, and they were soon followed by a heavy crackdown. Reform, the Syrian and other “springs” proved tragically to those who believed in them, is impossible. Leading reformists, many one-time “friends” and “counsellors” of the dictator, ended up in prison.69 Not surprisingly, no one was ready to test the dictator’s promises again ten years later. The question of why reform proved impossible in 2011 is an important one. Why does the dictator’s self-serving readiness to engage in constitutional reform fail to stave off the revolution? After all, he expresses his wish to respond to the people, and to open a dialogue to that effect. Why doesn’t the opposition engage him on his word? Although the first response is the lack of trust by seasoned opponents who have lived his false promises in the flesh time and again, as we just saw, another more subtle explanation for why the system cannot reform is the profound contradiction between the dictator opening up and a simultaneous, stubborn refusal to accept the expected results of the promised reform. Authoritarianism cannot brook a logic of reform. Examples range widely. A forerunner of 2011 can be found several years earlier in Iraq and Israel. Saddam Hussein shared with successive Israeli governments the promise of a constitution in the last decade of the twentieth century. In the case of the Iraqi dictator, the disclosure of a draft constitution in the summer of 1991 cannot be understood outside the considerable pressure exerted by the population after eight years of a devastating war he initiated

c­ hapter 2 on “The Dangers of Negotiation,” 9–15. For a discussion of the dictators’ “golden exit” in the context of judicial accountability, see Part III, Chapter 17 of this book. 68 Arabic nadi, muntada, of which the most famous then was convened by Suhair al-Atasi, an early icon of the Syrian revolution. Security agents dragged her by the hair the full length of the street adjacent to the women’s stand at the place of Marja on March 16, 2011. See, e.g., Filiu, Le Nouveau Moyen-Orient, above note 17, 99–101 (on the clubs of 2001), 128 (on Marja). 69 Saadeddin Ibrahim in Egypt and ‘Aref Dalila in Syria offer typical examples. Ibrahim had tutored the wife of Mubarak and is a renowned academic across the Arab world, compelling respect in various capitals, including Amman and Doha. ‘Aref Dalila, a Syrian economist and also a prominent academic, was a close advisor of Bashar al-Asad. Both Ibrahim and Dalila were sent to jail for extensive periods by their former advisees.

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against Iran, during which the emergency situation was legitimized and the ensuing misery relentlessly reinforced by the long and brutal conflict. When the war with Iran came to an end in 1988, the justification for the continued harsh treatment of the population was lost, pressure to open mounted inexorably, and the Iraqi ruler finally responded with the promise of a draft constitution in late July 1990.70 Then suddenly, on August 2, Saddam Hussein decided to avoid the risky slope of domestic reform and invaded Kuwait. Any talk about a real constitution was shelved until he was deposed by the American-led invasion thirteen years later. In Israel, the ruling Jewish majority has been unable and unwilling to enact a permanent constitution to replace the series of Basic Laws that have governed the country since 1948, out of refusal to accommodate the growing assertion of the non-Jewish Arab-Palestinian minority.71 Any form of equality sought by Palestinians could simply not accommodate constitution-writing by the dominant group. The “Israeli Arab” would not see her equal right to land fulfilled, her history of dispossession and marginalization would not be acknowledged anywhere, her ties to Palestinian across the 1967 borders would be precluded, and the right to return to Israel/Palestine would continue to be limited to Jews. The other Palestinians in the West Bank, Gaza, and the 1948 and 1967 refugees would find even less room in Israeli constitutional drafts. Sustained, high-level efforts around the Israel Democracy Institute to get to a constitution were shelved.72

The draft constitution was mentioned in the Arab press on July 31–August 1, 1990. A full text (mashru‘ dustur jumhuriyyat al-‘ iraq li-‘am 1991, draft constitution for the republic of Iraq of 1991) is posted on the Supreme Judicial Council site, http://iraqja.iq/view.80/. This draft is probably the same as, or is substantially close to, the one announced before the invasion of Kuwait. It consists of 179 articles. Clearly Saddam Hussein was not ready to relinquish power, as the very paragraph 4 of Article 84 on the election of the president indicates: ‘idha asfar al-tarshih ‘an wujud murashshah wahed, tujra al-intikhabat, wa-yu‘add al-murashshah ra’ isan muntakhaban idha hasal ‘ala al-aghlabiyya al-mutlaqa min ‘adad al-musawwitin, if the candidacy process results in one candidate only, elections are carried out and he is considered elected if he receives the absolute majority of the number of voters.’ The “leading role” of the Revolutionary Command Council established in the “Interim” Constitution of 1970, has given way to a full presidential system tailored on Saddam Hussein’s persona (Article 173). 71 See Daphna Sharfman, Living without a Constitution: Civil Rights in Israel, Armonk, NY: M.E. Sharpe 1993, discussing the deliberate decision by David Ben Gurion and his followers to reject the idea of a written constitution in order to preserve a state of emergency that persisted until 1966, and continues in the West Bank to the present day as direct military rule. Another problem, which is the exact correspondent to the discussion about Islamic law in other Middle Eastern countries, is the challenge of reconciling Jewish law derived from the Torah with the principles of secular statehood over the resistance of Orthodox Jews, whose view was exemplified by Meir David Levinstein. Levinstein stated during the debate over the constitution in 1947: “There is no need in Israel for a man-made constitution; if it contradicts the Torah of Israel, it is a revolt against the Almighty; if it is identical with the Torah, it is superfluous . . . We shall regard the imposition of a secular constitution as an attempt to give a bill of divorcement to our sacred Torah.” See S. Zalman Abramov, Perpetual Dilemma: Jewish Religion in the Jewish State, London: Associated University Presses, 1976, 139. This will sound particularly familiar in a Middle Eastern context to the shari‘a advocacy of “Article 2,” which I examine in the next Part. 72 These frustrated efforts can be followed on the site of the Israeli Democratic Institute, see the collective work pursued under the leadership of former president of the Supreme Court Meir Shamgar, resulting in Constitution by Consensus, Jerusalem: IDI 2007, available on IDI.org. The proposed constitution was 70

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These two examples, profoundly different considering the raw brutality of the Iraqi dictator and the real margins of freedom of speech in Israel, are telling markers in the wide Middle Eastern spectrum of authoritarianism. Despite their deep differences, they both underline a systemic tendency for the ruling group to confront political deadlock in society with a constitutional effort that is frustrated and eventually abandoned. In the typical logic of brutality that has marked his political life more than any other ruler in the region, Saddam Hussein could not tolerate any opening that would risk emboldening his aides, let alone the Iraqi people, demanding their right to more power. Iraq’s invasion of Kuwait one day after the draft constitution was announced is hardly a coincidence. Rather than embarking on domestic reform, a foreign war was a far safer bet for the prolongation of the Iraqi despot’s absolutism. It worked for Hussein by giving him another thirteen years in power. The pattern of Israeli wars is more complex, but the constant domestic and regional pressure to let the Palestinians into the better lives of Jews in the Jewish state are key to understanding most of Israel’s systemic violence. The Iraqi example may appear extreme because of the superlative violence of Saddam Hussein’s rule, but the pattern is the same across the region. At the turn of the new century, a cascade of similar “reforms” took place, in the Spring of Damascus in 2001, which lasted only a few months before its leaders were thrown in prison yet again; in 2002, the Emir of Bahrain traded up his title to “King” in a decree that declared the country a “constitutional monarchy.” The announcement was accompanied by an open invitation to Amnesty International to advise him on human rights reform. Three years later, the political situation had deteriorated to a level of repression worse than the one that preceded the so-called reforms. The “constitutional monarchy” that the Emir-turned-King flaunted was emptied of power-sharing significance. In 2005, under street pressure inspired by the ripple effect of the Cedar revolution, the Egyptian dictator amended the constitution to allow for competitive presidential elections. The limits of reform were soon made painfully clear when Ayman Nour, the president’s most prominent rival, was jailed soon after he dared to advance his candidacy. By the beginning of 2011, no meaningful domestic change had occurred anywhere in the region, while republics were openly turning dynastic. rejected, not surprisingly, by Palestinian Israelis because of express discrimination in the proposed constitution against non-Jewish citizens in the definition of the state as “Jewish and democratic.” The statement by one of the authors of the foreword to the text is telling. The foreword is entitled “I Believe by the Authors,” and Amir Avramovit states at 38: “Throughout all the years of its existence, Israel has discriminated against its Arab citizens, treating them with inequality, and causing deprivation. This is not because it is a ‘Jewish and democratic’ state. On the contrary, inequality, deprivation, and discrimination constitute conduct which is neither democratic nor Jewish, and it is time to put a stop to this.” That candid statement would warrant a constitution that does not privilege Jews over non-Jews, and to its credit, the proposed constitution does not ascribe to Jewish citizens any particular positions in government. Yet the sentence that follows shows the depth of the incoherence. Instead of having a constitution for everyone, especially for the Palestinians in Israel whose subordination by Jewish Israelis the author had just acknowledged, the argument is for the Palestinians to seek their state elsewhere: “I believe in the right of the Jewish people to establish a nation-state of their own, as well as in the right of the Palestinian people to establish a nation-state of their own.” For a “counter-constitution,” see the “Democratic Constitution” proposed the same year by Adalah, one  of the leading human rights organizations in Israel, available in several languages on their website, adalah.org.

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The lack of trust in a challenged ruler is one element of the Greek tragedy that makes his call for a constitutional dialogue empty, and the reluctance of the ruler to give up any power is an additional element in the making of the mass uprising. The multidimensional chain reaction at play in the revolutionary spiral needs to also factor in the determination of the course of the revolution once it starts. The dictator who awakens to a street challenge to his rule embarks on constitutional reform precisely because of the popular revolt. By doing so, he gives moral authority to his challengers. Both his challengers and his supporters know that he would not have budged otherwise, and the deadly cycle begins. Once the dictator appears to yield to street pressure with the insincere paean, “The people have legitimate grievances, let’s engage in dialogue,” the street is emboldened by its relative success, and there are more demonstrations to prevent procrastination and increase the pressure. The natural propensity of the ruler is to unleash the apparatus of repression against the demonstrators, and he sends his deadly thugs,—fida’iyyi Saddam, Asad’s shabbiha, Mubarak’s baltajiyya, Khumaini’s chomaqdar, Bashir’s janjawid, ‘Abdallah’s matawi‘a—the various branches of the not-so-secret police, trusted army battalions, and eventually the full army. He will not hesitate to also call on the forces of neighbouring dictatorships, if he can, to repress the growing uprising: in Bahrain Saudi-led troops, in Libya mercenaries from Africa and former Eastern Europe, in Syria Hizbullah and Iranian “advisors.” All-out repression sometimes works, and the jury will long be out on the strength of the counter-revolution in several countries. But fear has abated, in part because the Middle East ruler’s acknowledgment that “the people have legitimate grievances” is also an expression of his impending demise. This means that something is seriously rotten in his realm, and whatever cosmetic change he offers to repair it only accelerates the spiral downward. Meanwhile, demonstrations grow with victims whose blood calls for more protests. For each death, one can surmise that at least twenty family members and friends take to the streets, initially in the funerals. Their grievances are soon transformed from individual outrage to family and neighborhood solidarity, leading to collective political action against the government nationwide. The cycle of demonstrations-deaths-more demonstrations gets gradually worse. The demand for change hardens daily, with real change basically meaning that the people have the right to choose their own leaders, and to punish those who have killed their close kin. The spiral goes viral. The ruler responds to “the people demand the fall of the president” by closing down a dialogue window that has anyway yielded little, and by disseminating a counter-narrative:  conspiracy orchestrated by “foreign fingers,” in the words of Hosni Mubarak, becomes the axis of reactive discourse, to which is added the accusation that radical Islamists are behind the revolution, in an attempt to deflect world criticism of the crackdown. In general, the dictator’s foreign conspiracy narrative is directed toward the West, and in particular the US government, with a wink toward the alleged control of US foreign policy by Israel. There are variations with the Gulf and Iran, where the scarecrow used is a mixture of sectarian retrenchment where possible, and the denouncing of foreign, Iranian/ Israeli/Western conspiracy.73 This narrative conveniently glosses over the fact that the ruler 73

There are numerous reports in Arabic. See in English e.g. by Hosni Mubarak, speech delivered on February 10, 2011, www.washingtonpost.com/wp-dyn/content/article/2011/02/10/AR2011021005290.html:  “I do not find it a mistake to listen to you and to respond to your requests and demands. But it is shameful and I will not, nor will ever accept to hear foreign dictations, whatever the source might be or whatever the

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experiencing an uprising has been formally aligned with the West for decades, benefits from billions of dollars in American military aid, or has a peace treaty with Israel. As repression grows the mantra shifts slightly, despite the obvious contradictions in the new discourse. The regimes are concerned that the West may antagonize them, and in their mind, the usually sympathetic coverage by international news and the principled position of human rights organizations are conflated with decision-makers in the Western governments as one large conspiring bloc. The language of the regime is often confused. A Western conspiracy is decried as well as an Islamist one, however contradictory to each other. The resort to the label of terrorism-irhab, and of chaos-fitna, constitutes the common linguistic ground. The main problem by then is the spiralling logic of repression. At this late stage in the unraveling of the embattled regime, the rhetorical pattern includes the dictator’s wish to pass new laws on freedom of information, on political parties, on competitive parliamentary elections, or the reshuffling of ministers and cabinets. But these last-hour self-preservation tactics never work, for it all sounds as the same old litany, further distrusted by the people’s perception of the potentate’s fear and the discovery of their own unsuspected power. The nonviolent street knows that its mobilization has forced the discourse to change, but it does not trust change to prevail so long as the chief operative continues to manipulate the rules. With the collapse of trust, the emboldening of the opposition, and the increasing bloodshed against nonviolent demonstrations, not a single concession appears to work. It is therefore wrong to think that the dictator can easily escape the revolutionary spiral that descends on him by enacting concessions. If he recoils by suggesting constitutional reform, the spiral gets more viral. If he rejects any change, the revolution continues and feeds upon the inevitably growing repression and the cycle of death. Either path is fraught with peril for him. Ends of reign have an implacable fatal logic in revolutionary times. This renders the departure of the head of the regime a necessary condition for the success of the Middle East revolution, as was the case in Tunisia, Egypt, Yemen, and Libya in 2011. It is not a sufficient condition for a revolution to succeed, but it is a necessary one. For the success of nonviolence over time, institutionalization is the measure of any durable success. And as the dictator’s one-man rule ends, take two of the Middle East revolution begins—its constitutional moment, the subject of Part II of this book.

context it came in”; by Bashar al-Asad, speech delivered at Damascus University on June 20, 2011, www. al-bab.com/arab/docs/syria/bashar_assad_speech:  “It is only natural that the common question today is: What is happening to our country, and why? Is it a conspiracy, and if so, who stands behind it? Or is it our fault, and if so, what is this fault?” On February 23, 2011, Qaddafi gave a hallucinating televised address, known by the vernacular used as the “zenga zenga speech,” where he expressed his determination to kill every single opponent: “I will call upon millions from desert to desert. We will march to purge Libya inch by inch, house by house, alley by alley (zenga zenga).” On March 2, 2011, he designated the main culprit in his mind: “There is a conspiracy to control the Libyan oil and to control the Libyan land, to colonize Libya once again.” Reuters, March 2, 2011.

- al fitnatu qadimatun - la‘ana Allahu man qatalaha Nagib Mahfuz1

4 Shattered Political Language R econstructing a Humanist Cultur e of Non violence

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Shattered Political Language There is always a special cultural, ideological dimension to great revolutions, which shatters the traditional political language. The “philosophes,” Rousseau, Voltaire, Montesquieu, Diderot, were celebrated with the advent of the French revolution, and the revolution produced in turn a political language that went well beyond their inspiration. The Atlantic revolution immortalized the authors of the Federalist Papers on the American side of the ocean, and shared Thomas Paine between the United States and France. The Russian and Chinese revolutions took their intellectual cue from Marx and Engels, and produced their own poorer philosophical expression in Lenin and Mao. The European revolution of 1989 built its culture on the foundations laid by Jean Monnet and fifty years of sui generis law ensuring economic success and human rights in the Western part of the continent, in a model of soft power resistance carried into Eastern Europe’s cultural sphere by dissident leaders such as Vaclav Havel, Adam Michnik, or more organized groups such as the Polish Solidarity trade union. Building on fifty years of resistance to dictatorship that stretches back to the Enlightenment, the 1989 European revolution held to an impressive degree the

“Fitna/chaos is coming.—God curse whoever fights it.” This is from memory, as I could not locate the quote in Mahfuz’s large oeuvre. The occasion is the return of a sheikh home. As he enters the bedroom, his wife pulls on his robe (shaddathu bi-jilbabih) and says, “fitna/mayhem is coming.” To which he answers, as he undoes his robe, “God curse whoever fights it.” The reference is to a well-known hadith (saying) attributed to Prophet Muhammad, al-fitnatu na’ imatun, la‘an Allah man ayqazaha (Fitna is asleep, God curse those who awaken it).

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torch of nonviolence.2 The Middle East revolution has its own set of cultural references that we now selectively consider. The revolution must also combat negative concepts. I start with the one that Middle Eastern autocrats most brazenly manipulate to reinforce those in the West who support dictatorship in the name of economic interests and alleged stability: terrorism. Terrorism For all governments in the early twenty-first century, any violent dissent is equated with terrorism, irhab. Middle Eastern dictators did not find it difficult to adapt for their own purposes the concept bandied about by Western governments well before 9/11. They portray antiterrorism measures as the exact equivalent of the measures carried out in the West. The US Global War against Terrorism (GWOT), followed by the US Global War against al-Qa‘eda (GWAQ), are perfect matches to whatever Mubarak, Asad, Ben Ali, or the kings of Saudi Arabia, Bahrain, or Jordan learned to use as their main justification for the authoritarianism they exercise inside their countries.3 The collaboration between Western and Middle Eastern security services against the common terrorist enemy was real and intensive. It received a typical illustration in Maher Arar the case of a Canadian national of Syrian origin whose fate epitomizes the collusion of repressive agencies among Canada, the United States, and Ba‘thist Syria, and the collapse of due process in the international My preferred introduction to the spirit of the European construction remains Monnet’s Mémoires, Paris: Fayard 1976 (English tr. by Richard Mayne, London: Collins 1978). Monnet’s vision brought together Germany and France after a century of hatreds and killing, and his Mémoires underline a unique combination of vision, pragmatism, and networking behind the monument of inter-country peace and human rights that Europe started to build over the ruins of the Second World War. For the nonviolent movement that led to the collapse of the Soviet dictatorship in Eastern Europe, see Tony Judt, Postwar: A History of Europe since 1945, New York: Penguin 2005, especially “the power of the powerless,” 559–84 (on the profound intellectual change in Paris among former leftists), and “the end of the old order,” 585–633 (on the revolutions in each country, and the central role of Gorbachev and his decisive choice not to use force); for nonviolence, Timothy Garton Ash, The Magic Lantern: The Revolution of 1989 Witnessed in Warsaw, Budapest, Berlin, and Prague, New York: Random House, 1990; Vaclav Havel, The Power of the Powerless (1978), available at http://vaclavhavel.cz/showtrans.php?cat=clanky&val=72_aj_clanky.html&typ=HTML, which is remarkably lucid for his perception of the power of nonviolence through the collapse of the East European system. See also Chapter 1, note 15. 3 In a wide-ranging literature, two solid lawyers have held on to their attachment to human rights against exceptional measures by the US government under cover of the war on terrorism, depicted in the ugly acronyms GWOT and GWAQ that were respectively adopted by the two successive administrations since 9/11. In the Great Terror War, New York: Olive Branch Press 2003, Richard Falk anticipates in notable detail the US government undermining due process and international human rights. In several analytical writings, most comprehensively “Aberration No More,” Utah Law Review, 2010, 1085–99, Owen Fiss demonstrates how all three branches of the US government have been consciously derelict in protecting the spirit and letter of the US Bill of Rights in the age of terrorism. For a sobering reminder of the use of terrorism by Middle Eastern autocrats, see the 2014 law passed by the Kingdom of Saudi Arabia on the crimes of terrorism and terrorism financing (Nazam jara’em al-irhab wa tamwilih), Umm al-qura, (Saudi official gazette, named after the classical reference to Mecca as the “mother of villages”), 30 Rabi‘ al-awwal 1435/31 January 2014; Amnesty International, “Saudi Arabia: New Terrorism Law Is Latest Tool to Crush Peaceful Expression,” February 3, 2014. 2

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field exemplified in the case. In 2002, Arar was detained in a joint Canadian-US operation at a stopover in Chicago on his way back from holidays in Tunisia. He was sent to Syria via Jordan as part of the collaboration against terrorism between American and Syrian security services and tortured in Damascus where he was jailed for almost a year, until he proved of little interest to the Syrian government, which deported him back to Canada. Maher Arar was luckier than others. He was eventually compensated by Canada, after a Canadian Commission of Enquiry established in 2004 found that he had been wrongfully deported, and recommended a wide review into the Canadian support to the practice of “extraordinary rendition.”4 While “renditions” remain obscure in terms of numbers and details, as any secret program naturally tends to be, the Arar case represents the tip of an iceberg that brings systematically together Western democracies and Middle Eastern dictatorships in the “common fight against terrorism.” For Middle Eastern autocrats, the amalgamation of terror with dissent does not stop at violent groups. Repression of any critical speech wilfully confuses armed and unarmed dissent as their target. They harass, silence, ruin, arrest, and kill political dissent of all hues and cries. The elastic and undefinable category of “terrorism” has several advantages from their point of view. Two hundred years after “Terror” was put on the active agenda of governmental action in France,5 with its tragic consequences on the French revolution; fifteen years after parties to the International Criminal Court, with the US government at the helm, refused to introduce terrorism as a crime that the Court could adjudicate;6 decades after See Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar (2006), Report of the Events Relating to Maher Arar: Analysis and Recommendations, Ottawa, Ontario, available at http://epe.lac-bac.gc.ca/100/206/301/pco-bcp/commissions/maher_arar/07-09-13/www.ararcommission. ca/fr/26.htm. The Canadian government eventually agreed to a public apology and a settlement worth over 10 million dollars. Arar was less successful in the United States. In November 2009, a federal appeals court in Manhattan ruled that Maher Arar cannot sue for damages because Congress has not authorized such suits, Arar v. Ashcroft, 414 F. Supp. 2d 250 (E.D. N.Y. 2006). Certiorari (i.e., appeal) was denied by the Supreme Court on June 14, 2010. 5 The word “terror” as a political concept was officially adopted for the first time by the French Convention on September 5, 1793, which, on the suggestion of Barère, put terror on the agenda, “la Terreur est à l’ordre du jour.” A dedicated Tribunal Révolutionnaire was tasked by “the law on Suspects, loi des Suspects” twelve days later, on September 17, 1793, to organize what became known as “the small Terror, la petite Terreur.” The law of 22 Prairial de l’an II (June 10, 1794) marks the beginning of the “Grande Terreur” by withdrawing all procedural protection from those suspected of being opposed to the revolution, including the right to an attorney (“Art. xvi. La loi donne pour défenseurs aux patriotes calomniés, des jurés patriotes: elle n’en accorde point aux conspirateurs.” Text of the law available at http://gallica.bnf.fr/ark:/12148/bpt6k56373g/ f1.image). It includes a long list of what constitutes an “enemy of the people,” allows (and encourages) denunciation, and removes all procedural protection to the accused, whose sentence is death. See Georges Lefebvre, “Sur la loi du 22 Prairial de l’an II,” Etudes sur la Révolution française, Paris: Presses universitaires de France 1963, 108–37. The Terror in 1793–1794 claimed some 40,000 civilian victims, half of whom were executed extrajudicially. On this period, see, e.g., Albert Soboul, Histoire de la Révolution Française, II, De la Montagne à Brumaire, Paris 1962: Idées/Gallimard, 9–130. On Robespierre as “State terrorist,” see Albert Mathiez, “Robespierre terroriste,” in Etudes sur Robespierre, Paris 1973, 63–91 (original 1920). 6 Patrick Robinson, “The Missing Crimes,” in A. Cassese et al. eds., The Rome Statute of the International Criminal Court, Oxford: Oxford University Press 2002, Vol. 1, 497–525, esp. the section on “International terrorism,” 510–21 (lack of general definition of terrorism, little time at Rome conference to get a consensus, over- and under-breadth character of terrorism in criminal law). 4

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the better American judges repeated previous findings that “ ‘terrorism’ is a term as loosely deployed as it is powerfully charged,” and that they were “regrettably . . . no closer now than eighteen years ago to an international consensus on the definition of terrorism or even its proscription,”7 the prime political crime of the age continues to operate as the pliable tool of the stronger party’s policy. Nowhere is this truer than in the Middle East. By subsuming any criticism under the inchoate umbrella of terrorism, the brutal arm of the Middle Eastern state punished dissent regardless of whether it was liberal, left-wing, populist, or religious. It did not matter whether dissent was violent or not, and it was particularly convenient to amalgamate all expressions of criticism under the terrorism label. The amalgamation is consciously honed to discredit human rights advocates, who are portrayed as naïve, utopian, or hypocritical, and who are forcibly subsumed under Islamist violence. Saudi Arabia’s 2014 Anti-terrorism law is a typical expression of a long practice. Terrorism is defined in the broadest possible terms, including any criticism of the regime in Saudi Arabia or its basic laws, or any impairment to the country’s reputation or standing. The law criminalizes any individual, Saudi or non-Saudi, who has committed terrorism anywhere in the world, or supported it financially.8 In terms of cooperation between Western and Middle Eastern security agencies, the case of Yemen is also telling: despite the massive nonviolent revolt of 2011, the thirty-year-old dictatorship kept striking powerful security deals with Western governments on account of the activities of the Qa‘eda nebulous in Yemen, in a tactic that proved extremely useful to all Middle Eastern governments, from Israel and Saudi Arabia to Syria and Morocco. By and large, the portrayal of dissent as terrorism serves both the domestic and international levels, and human rights organizations are left to shout in the wilderness in defense of due process. Security of the West and security of the East are lumped into one-and-the-same strategy of counterterrorism: the stated objective is violent Islam, the scarecrow brandished by dictatorships. All dissent is dealt with in the same brutal way. The governments use targeted killings, torture, and a wide array of repressive measures upon the mere suspicion of the elusive crime of terrorism.9 Not a coincidence, terrorism started as a concept in the modern world when the French revolutionaries in power at the end of the eighteenth century established it first in the “loi

United States v. Yousef, 327 F.3d 56 (2d Cir. 2003), also quoting Judge Harry Edwards in Tel Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984). Harry Edwards’ concurring opinion can be found at https:// bulk.resource.org/courts.gov/c/F2/726/726.F2d.774.81-1871.81-1870.html. 8 For text of the law in the official Saudi Gazette, see above note 3. Article 1 of the law defines terrorism inter alia as “harming the reputation or standing of the country, al-isa’a ila sum‘at al-dawla aw makanatiha,” Article 3 considers terrorism to have been committed by any person, national or foreign, inside the country or abroad. The law amalgamates financing terrorism with terrorism, and a special court expedites cases. The French calque of the law of 22 Prairial, above note 5, is remarkable as a reminder of state terrorism two-and-aquarter centuries later. 9 An “Arab Convention on the Suppression of Terrorism” saw the light in 1998, at a time when no such convention was possible in the international arena. It was signed in Cairo on April 22, 1998, and established a close coordination between Arab ministers of interior for their policy of repression. Text available at https:// www.unodc.org/tldb/pdf/conv_arab_terrorism.en.pdf. 7

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des suspects.”10 It was a measure taken by the revolutionary government, and it removed all procedural rights for a person merely suspected of being counterrevolutionary. The French Conventionalists established Terreur as an official state policy that drove suspects to the guillotine with no other form of process than the prosecutor’s action on the basis of an unchecked information, a vindictive neighbor’s tip, a rumor, or his own whims. It removed due process while ascribing terror to whomever it decided to consider an enemy. Modern government use of “counter”-terrorism is emphatically disingenuine. As declared governmental policy during the French revolution, “terrorism” had at least the advantage of avoiding hypocrisy. Not surprisingly, the Terreur led to the revolution eating its own children, Saturn-like as in the frightening Goya painting of the god devouring his son for fear that he unseats him. Modern age parallels are not difficult to find in the slippery slope of dispensing with substantive criminal procedure domestically and internationally, from wiretapping and flight exclusion lists to extraordinary renditions and drones. They put the French antecedent on its head by refusing to acknowledge that terrorism is state-made. At least Robespierre and his power-crazed and conspiracy-theory lot were straightforward in their use of language. The year 2011 shattered the language of terrorism that cemented the association between the West and the Middle East dictator, so massive was the nonviolent revolt against the rulers. Nonviolent revolutionaries speak an alternative language of nonviolence that renders the terrorism scarecrow irrelevant. Much of the Islamic movement itself quickly internalized nonviolence, in good will or bad faith depending on the perspective one chooses, and joined the revolution advocating a “civil state,” dawla madaniyya, as opposed to a religious one, dawla diniyya, which they previously described as one ruled by Islamic law. The classical use of “terrorism” by the Middle East autocrats could no longer be brazenly countenanced in the West. What defeated the amalgam goes deeper than convenience. Nonviolence is the means chosen by the revolutionaries to mark a profound difference with all previous popular revolts. By adopting the philosophy of nonviolence, the revolution challenges dictators by laying them bare as mass criminals shooting into unarmed crowds. Use of the terrorism mantra is vain against thousands demonstrating peacefully in the street. Thanks to nonviolence, terrorism suddenly lost its universal patina. As neologism, terrorism dominated the political vocabulary of the Middle East until the revolution shattered it in 2011. It will be a long time before the hazily defined crime gets finally discarded, but its irrelevance when dissent is expressed in massive popular nonviolence is increasingly notable: suffice to see its post-2011 resurgence in Saudi Arabia, Syria, or Sisi’s Egypt. Fitna and Other Polysemies A vocabulary with a deeper tradition gets formulated in the concept of fitna—chaos/ mayhem/sedition.

10

See above note 5 and generally Mallat, “Des relations privilégiées entre l’Union Européenne et les pays voisins: Les promesses de l’Art. 8 du Traité de Lisbonne,” Réalisations et défis de l’Union Européenne, Mélanges en hommage à Panayotis Soldatos, Brussels: Bruylant 2012, 539–56, at 547–52, for the continuing confusion of the concept in the European Union.

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Arab and Islamic politico-legal theology includes soul-searching discussions of high intellectual quality around the right to start an armed revolution against the unjust ruler. Its early herald, Hussein son of assassinated Caliph ‘Ali and grandson of the Prophet, rose in arms against the dynastic Umayyad caliphate, and sought to re-establish the trusted “Household of the Prophet” at the helm. Hussein’s revolt was defeated in a bloody battle that established the grand schism in Muslim history, the great fitna that the world of Islam continues to live as the Sunni-Shi‘i divide.11 The battle of Karbala is a unique moment of wounded Shi‘i memory that, in due course, froze the schism into a durable theological split. Shi‘is remember it vividly every year in elaborate ritual pageantry and self-flagellation at ‘Ashura, the tenth day following the killing of Hussein and his party.12 Armed revolts against the unjust/ illegitimate ruler are not uniquely Shi‘i. Time and again rebelling against tyranny is discussed by Sunni jurists and theologians. Armed rebellion is only exceptionally condoned.13 A comparative shortcut is useful. Like the discussions within the pre-schismatic Catholic tradition that culminated intellectually in Thomas Aquinas’s (d.1274) Summa,14 the reader of Islamic classical texts will find the need to avoid sedition a dominant theme—for the ruler is by definition just. But she will also find that the ruler has become sometimes so unjust that he must be deposed.

This is a vast topic, without which any understanding of Islam is lacking. The dispute jelled theologically several centuries after the initial resentment by ‘Ali’s followers (which is what shi‘at ‘Ali literally means) that he was not immediately conferred the political mantle of the Prophet as the leader of the community after Muhammad’s death in 632 ce/10 ah. ‘Ali and eleven of his male descendants, including most prominently his son Hussein who was killed by his political rival Yazid, son of Mu‘awiya (‘Ali’s arch-revival and the founder of the first Muslim dynasty known as the Umayyads), at the battle of Karbala in Southern Iraq in 680 ce (61ah), turned over time into the Imam (with a special aura rendered by a capital letter and no italics in Western translations, while “imam” in lower character is more commonly used for the leader of the Friday prayer). Legally, a major figure of Shi‘ism is Ja‘far al-Sadeq (d.765), the fifth Imam, who injected law into the nascent Shi‘i theology, and started a process of a divergent legal path from Sunni “orthodoxy,” with separate books and institutions supporting Sunnism and Shi‘ism as autonomous legal worlds ever since. For a discussion of the Islamic law schools (madhhab, plural madhaheb), see my Introduction to Middle Eastern Law (hereinafter IMEL), Oxford:  Oxford University Press 2007, 110–22. For legal differences, 26–27, 39, 359–60. Generally on Shi‘ism and Sunnism, good introductions can be found in the many relevant entries of the major encyclopedias, especially the successive editions of The Encyclopedia of Islam. From within the Shi‘i historiographical tradition, S.H. Jafri’s Origins and Early Development of Shi‘a Islam, London: Longman 1979, offers in English a good scholarly viewpoint. 12 The spectacle of blood, gore, and theatrics is impressive. Of course, not all Shi‘is celebrate it. Very few do it nowadays in the extreme form of self-flagellation, and several prominent religious leaders have denounced the practice. Sadreddin al-Sadr, whose Shi‘i credentials can be hardly questioned, offers wise comic relief in a joke that he told me once. It is about a foreigner who arrives in a Shi‘i village in South Lebanon during ‘Ashura, and sees throngs of people crying. He queries his host about the reason for so much grief. Well, the host responds, they have lost their beloved Imam. When was that, the visitor enquired? Oh about fourteen centuries ago, replied the host. So the visitor asks: “and they have just found out?” 13 Albert Hourani, A History of the Arab Peoples, New York: Warner 1991, 142–45. 14 See quote below, note 19. For a perceptive contextual reading, see, e.g., Tomas Rosario, “St. Thomas on Rebellion,” Philosophia, 33, 2004, 72–85 (on a mutiny of soldiers in the Philippines in July 2003 and the analysis of the legitimacy of their rebellion in light of the doctrine of St. Thomas Aquinas). 11

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The modern Arabic word for revolution is thawra (in Iran, enqelab, which in Arabic is used for a coup d’état.)15 Thawra and fitna carry nowadays connotations that generally match their rough modern Western equivalent. Thawra is revolution and fitna sedition, rebellion. Like the word “revolution” in the West, thawra tends to be perceived as a positive development, but it continues to live together with the mirror image of fitna. The age-old debate in the Middle East revolution embodies the battle of language between fitna as civil war and immoral sedition, and thawra as morally justified popular uprising. Common to both East and West is the negative perception of civil war-sedition/fitna, in contrast with a revolution/thawra where the premise is that the insurgents are right in challenging the system.16 The ambiguity is carried out in the political language disturbed by the 2011 Middle East revolution. If a revolt is portrayed as thawra, the legitimacy of the regimes is lost. If fitna, it is chaos, mayhem, sedition, civil war. Fitna additionally dons a sectarian Sunni-Shi‘i dead end, and its corresponding equivalent in other warring sects. While fitna predominantly carries a reprehensible connotation for the jurists, who condemn it as anarchy and chaos, and as the highest danger to law and order, the careful reader will discern hesitation even in the most conservative texts. “Fitna” is a fascinating word

I do not recall having come across the word “thawra” in classical legal texts. I initially thought that classical historians and chroniclers did not associate thawra with revolt/revolutions as the modern age understands them. However, in reference to the well-known “thawrat al-zunj/revolution of the slaves/blacks,” the lexicological register turned out to be richer than I thought. The revolt took place between 255/868 and 270/883 in Southern Iraq, and originates in slave workers from Sudan (“Sud” in Arabic means also black) forced to extract salt in the marshes north of Basra in atrocious conditions. The accounts by Tabari (d. 923, author of an early encyclopaedic history divided in years), year 255/863 relates the start of the revolt (Internet edition of Tabari’s Tarikh, § 2425ff, at http://library.islamweb.net) and by Ibn al-Athir (d.1232, author of al-Kamel fil-tarikh, Cairo: Idarat al-tab‘a al-minyariyya 1357/1938, 9 vols, vol. 5, 346–50) show us a messianic figure in the revolt’s leader, sahib al-zunj (lit. the friend/master of the blacks), promising a better, more equal life to them. Ibn al-Athir does not use the word thawra, but mentions khuruj (literally going out, at 346), and fitna (at 347). But the earlier Tabari does use the verb thara, plural tharu, as well as tha’er, revolutionary, and thawra, all within the context of the revolt/revolution (Tabari, Tarikh, at § 2426). Note that the stem verb thara, th/a/r is a cognate of tha’ara, th/’/r, to exact vengeance, a common reference in the classical world of Arab tribes, and is obviously associated with killing. Not surprisingly, the concept of revolt/revolution in the Islamic classical age “tracks” its Western equivalent in a general association between uprising/revolting and killing. Nonviolence does not come naturally as a germane concept in either classical or modern accounts of revolutions. See for the association of revolution with violence in the West, Chapter 1 notes 7–10 and accompanying text. 16 A turn in the Arabic use of thawra as a “positive” development openly associated with the French revolution may be dated at 1883. In his one-author encyclopedia Da’ irat al-ma‘aref, Butrus al-Bustani (d.1883) includes an entry on thawra, with the French word “Révolution” underneath. The entry starts with a telling sentence: “Revolution in political language is what the Arabs express as fitna.” The “master” (al-mu‘allem, as Bustani was known for his vast erudition) goes on to explain then that thawra is a major upheaval (inqilab) against the state regime, nazam al-dawla, sometimes winning and other times losing, and “generally shedding blood, tusfak al-dam ghaliban.” In a no less telling remark in this one-column entry, Bustani writes: “The most important revolution of late is the famous French revolution, which took place in 1789, and it is the one which is the reference point in absolute in history (wa hiya al-murada fil-tawarikh ‘ ind al-itlaq), so when it is said, the time of revolution, or the French revolution, it [1789] is the one meant.” Butrus al-Bustani, Da’ irat al-ma‘aref, Beirut:  Dar al-ma‘arif, n.d., reprint of Tehran edition, Matbu‘at-e Isma‘ilian 11 vols, Vol. 6 published in 1883, s.v. thawra, 337–38. 15

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for its polysemy through time. The memory of the “great fitna” in Muslim history between Sunnis and Shi‘is extends over the assassination of the three-out-of-the-four Caliphs who succeeded the Prophet at the helm (Caliphs ‘Umar, ‘Uthman and ‘Ali, killed respectively in 644, 656 and 661), the establishment of the Umayyad dynasty in 661, the “martyrdom” of Hussein in Karbala in 680, and the troubles that led eventually to the defining schism of Islam between the two great sects, gelling probably around the eighteenth century with the emergence of a specific legal system in the Shi‘i Ja‘fari school, and a unique “Twelver” theology around the halo of Imam ‘Ali and his eleven successors. Within Sunnism, a later instance of momentous dissent came in another memorable episode, the “great mihna” in the ninth century ce/third century ah.17 The mihna is the locus of a paradox that reveals a telling subtext. Mihna translates in modern language as “tragedy.” The story of the ninth-century mihna as told in the chronicles revolves over the arrest of leading jurist and theologian ibn Hanbal (d.855) by the Caliph of the time, al-Ma’mun (d.833). The controversy took its theological expression in the Caliph’s decree that all his subjects should believe in the “createdness of the Qur’an.” The jurists of the realm were instructed by al-Ma’mun to consider the Qur’an as being created. Ibn Hanbal read the instruction as a major polytheist-driven affront to the faith. God and the word of God, Caliph al-Ma’mun had decreed, were not the same thing. Ibn Hanbal demurred and found himself in jail.18 As a variation of fitna, the mihna elicits several levels of understanding. The theological and political dimensions of the dispute between the Caliph and ibn Hanbal establish the right to dissent, and the legitimacy of opposing the ruler because of his betrayal of law and/or justice. Time and again, jurists would dissent from the ruler’s action or lack thereof. Ibn Hanbal’s mihna resulted from the jurists’ revolt against the Caliph acting as a despot imposing a new orthodoxy that could not be accepted by religious parameters defined and defended by their scholarship. They simply could not tolerate the ruler’s diktat when it hurt their most intimate conviction. Eventually Caliph Ma’mun died, and his battle was lost. Ibn Hanbal survived jail and the mihna, and re-established the orthodoxy of the uncreated Qur’an. So we have a paradox in one of the greatest periods of trouble recorded in classical Islam: the Caliph is accused of undermining the law. The Caliph is unjust, hence the revolt against him. But standing up to the Caliph is the very essence of fitna, which is resistance to the ruler’s injustice. This is why the paradox of the fitna/mihna, as rebellion against the ruler, persists to date. The problem is universal, and has been formulated by Saint Thomas Aquinas in similar terms: Consequently there is no sedition in disturbing a government of this kind, unless indeed the tyrant’s rule be disturbed so inordinately, that his subjects suffer greater Al-mihna was translated in the late nineteenth century as “inquisition,” Walter Patton, Ahmed ibn Hanbal and the Mihna: A Biography of the Imam Including an Account of the Mohammedan inquisition Called the Mihna, 218–234 A.H., Leiden: Brill 1897. 18 In the sources, the opposition to the createdness of the sacred text stemmed from the risk of idolatry associated with the Christian canon of a separate “Word of God” in the shape of Christ, such separation risking the oneness of the Muslim belief. For sources and discussion, see IMEL, above note 11, 115–16. 17

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harm from the consequent disturbance than from the tyrant’s government. Indeed it is the tyrant rather that is guilty of sedition, since he encourages discord and sedition among his subjects, that he may lord over them more securely; for this is tyranny, being conducive to the private good of the ruler, and to the injury of the multitude.19 One level at which received political language gets shattered is in lexical polysemy. The absolutist ruler will always vindicate his rule as just, and he will argue that the revolt against him is an illegitimate usurpation of power. This is universal. Conversely, the dissenters, violent as well as nonviolent revolutionaries, will portray sedition as a just action against an illegitimate ruler. In the Shi‘i-Sunni long historical perspective, the polarization takes an intractable shape when the political dispute turns theological. Shi‘is consider Sunnis as usurpers of the rightful leadership of ‘Ali and his descendants. This constitutes for Shi‘is the original political sin committed by the other leaders of the Muslim community who ignored and fought ‘Ali and his descendants. The Sunnis, in contrast, revere the first caliphs who succeeded the Prophet as rashidun, just, mature, “rightly-guided” in the awkward English translation. In an extreme tradition that still carries for some Sunnis, Shi‘ism is the quintessence of fitna.20 For Shi‘is, in turn, Sunnis are usurpers of ‘Ali’s right to rule the state. As the controversy moved from politics to theology, with boundaries hardening into two discrete Muslim communities, the chasm between the two views has become theologically unbridgeable. The Sunni-Shi‘i break is Islam’s great divider. Theologically, the Sunnis have no particular devotion to the Twelve Imams as such. Politically, conflict and conviviality alternated, especially with the sharp four-century-long conflict between the Sunni Ottoman Empire and the Persian Safavid Empire, which was established in 1501 as an officially Shi‘i state, and its Qajar successor. This does not belittle the keen effort of the wiser leaders in both traditions to bridge the divide, a keenness that was made easier by the retreat of religion in the face of a secular and leftist agenda in the 1950s. A vivid rapprochement in the course of the twentieth century started, not surprisingly, in the Liberal/Nahda age. It is known as taqrib, literally rapprochement, with the Sunnis accepting Ja‘farism as a “fifth,” legitimate school of law (madhhab), alongside the four recognized schools of Sunni Islam. But the pendulum has swung back violently into distrust and confrontation since the Iranian revolution put Shi‘ism at the heart of the constitution of the country and its foreign policy.21 The Shi‘i-Sunni schism bears many more meanings than dissent within a law-and-order context. The theological divide it consecrates over time operates in majority-minority

Saint Thomas Aquinas, Summa Theologica, II, II, Question 42 (on sedition), in fine. The Summa is available on the Internet in Latin and English. 20 This is epitomized in the Qa‘eda-like groups, with a strongly articulate expression in a short treatise by Abu Mus‘ab al-Zarqawi, the leader of the sectarian, anti-Shi‘i 2004-5 insurgency in Iraq. For full text and discussion in English of this letter, which was sent to Ben Laden by Zarqawi and intercepted in February 2004, see my Iraq: Guide to Law and Policy, Austin: Wolters Kluwer 2009, 365–77, 390–92. Zarqawi was killed in Iraq on June 7, 2006. 21 See Mallat, The Middle East into the 21st Century, Reading: Garnet 1996, 127–72 (“Iran, Shi‘ism and the Arab Middle East.”) A  regular e-mail service on all matters Shi‘i (“Shiinews”), organized by Andrew Newman, provides a rich source of information, both cultural and political. 19

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constraints across the region, with a concomitant conundrum more carefully analyzed in this book’s constitutionalism part. In almost every state, and in the region as a whole, the Sunni-Shi‘i regional fracture overdetermines revolutions.22 The Shi‘i-Sunni fault line constitutes a spillover from the early political controversy that solidified theologically. The divide morphs into a sectarian marker that operates as a constitutional puzzle built on the majoritarian twist of modern democratic theory. For our narrower purposes here, the right to rebel has been alternatively vindicated and rejected in Sunnism and Shi‘ism alike. It is vindicated in general, abstract terms, as the right to rebel against the unjust ruler, but it is rejected in the same breath because it raises the spectrum of widespread death and anarchy. For who is to say that a ruler is unjust? A subtext of fitna is alluring in a deeper register. A  positive connotation comes from linguistic derivatives of the word, bestowed on the common first name for women, Faten, Fatina.23 Fitna, says the Qur’an, “is worse than killing.”24 Yet fitna is the great temptation, and faten is the one who seduces, who creates fitna. Faten has a positive connotation. Pleasure is far from forbidden in Muslim lore, which tends to be forgotten on account of the stern, bearded, and humorless contemporary extremists and their vaunted frowning on all body-related issues. This is obviously not true of the community at large. Ambiguity of fitna is perhaps best condensed by the most celebrated Arab novelist of the twentieth century, Nagib Mahfuz (d.2006), in the quote that opens the present chapter. With his great sense of humor, and unparalleled style, Mahfuz made fitna the stuff of a sexual conversation between a religious sheikh and his wife. As he comes home and enters the bedroom, his wife says that fitna is coming, and the sheikh brushes the word’s negative connotation away as he undoes his robe. Those who know religious leaders across the Middle East will find Mahfuz’s all-too-human Nietzschean depiction fit the subject matter far more accurately than the stern image overbearingly associated with them both in the East and the West. Fitna elicits an ambiguity also found in another word in the classical legal tradition: “bid‘a” (bad invention, heresy). The received, dominant version is as follows. Fitna is political sedition, always bad, bid‘a is legal heresy, always bad. Yet bid‘a also means innovation and invention, with both adjective and substantive badi‘ (meaning superb, plural bada’e‘) stemming from the three letter root /b/d/‘, and the verb abda‘a, to create and innovate.25 Badi‘ is a literary criticism genre in classical Arabic, established by Ibn al-Mu‘tazz in the tenth century.26 It is also associated as a literary genre with al-Hamadhani (d.1007), the The concept of “overdetermination” comes from Lacanian psychoanalysis. I  find it convenient for the description of the regional constraints on country developments, and the layer of sectarianism adding up, and often trumping, the revolutions moved by freedom and equality in the Middle East. See, e.g., ­chapter 10 of my March 2221, Lebanon’s Cedar Revolution: An Essay on Non-violence and Justice, Beirut: {Lir} 2007, at 77–88. 23 Most famous among whom is Faten Hamama, the celebrated Egyptian actress, and a forceful political figure in her own right, standing up repeatedly to authoritarian rule in Egypt. 24 Qur’an 2: 191, “al-fitna ashaddu min al-qatl.” 25 For all these terms, with often contradictory uses, a rich reference is the classic linguist ibn Manzur (d.1312). For the many uses of bid‘a and its derivatives, including the good (hasana) and bad (sayyi’a) types of bid‘a, see his dictionary, Lisan al-‘arab, Beirut: Sader 1956, 15 vols., Vol. 8, 6–8 under b/d/‘. 26 Ibn al-Mu‘tazz (d.908), Kitab al-badi‘ (The book of the new [style]), I. Kratchkovsky ed., London: Luzac 1932. 22

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writer of a famous set of humorous, elaborate, rhythmic, and rhyming novellas, who earned the sobriquet of Badi‘ al-Zaman, “the most elegant writer of the times.”27 In law, it is the choice title of the most remarkable legal treatise in Sunni Islam, Kasani’s (d.1191) Bada’e‘ al-sana’e‘ fi tartib al-shara’e‘, literally the superb creations (bada’e‘, plural of badi‘a) in the classification of laws.28 Kasani’s Bada’e‘ represents in my view the best crafted treatise on Islamic law in the classical age, in which he willingly departs from the structure of his predecessors in his treatment of the whole field of law: I collected in my book a great deal of law—fiqh, 29 organised and composed methodically for the experts in law and the people of wisdom, presenting clear evidence and strong examples couched in tight language and purposeful meaning. This is why I  called it The innovative craft in the organisation of laws, bada’e‘ al-sana’e‘ fi tartib al-shara’e‘, for it is a beautiful (badi‘) craft, an unusual organization and an unusual construction, so that the treatise so named be in harmony with the name and the image similar to the meaning.30 The ambiguity and polysemy of these key traditional words help us understand the deep sense of the right to resistance against oppression by the ruler, together with the fear of chaos and the growing heresy. This is not a vain concern, and human beings live the fear of insecurity arising from chaos that may result from their opposition to injustice. The topos is common, and is best expressed in philosopher and jurist Ghazali’s well-known phrase: “The tyranny of a sultan for a hundred years causes less damage than one year’s tyranny exercised by the subjects against one another.”31 The dilemma is palpable in classical writing. A telling passage by another giant of classical Islamic law, Shamseddin al-Sarakhsi, appears in his magnum opus al-Mabsut (late eleventh century). The passage shows a sensibility that many supporters of basic rights share in the twenty-first century. The context is a discussion of water rights. The legal question in The maqamat (short stories but literally session) of Badi‘ al-Zaman al-Hamadhani remain one of the chefs d’oeuvres of Arabic literature of the classical age. His novellas, as well as the other famous novellas in the same Maqamat genre by Hariri (d.1122), are full of rhetorical flourish, subtle humor, and priceless insights into daily life. 28 ‘Ala’ al-Din al-Kasani, Bada’e‘ al-sana’e‘ fi tartib al-shara’e‘, Beirut n.d., 7 vols. (Original Cairo: Matba‘at shirkat al-matbu‘at al-‘ilmiyya 1909). 29 Fiqh is law, as is shar‘, shari‘a, and qanun. Rather than shari‘a, fiqh represents the more accurate definition of the discipline of law in the classical age. For a more detailed discussion, see IMEL, above note 11, 40–61. 30 Kasani, Bada’e‘ al-sana’e‘, above note 28, Vol. 1, 3: “wa jama‘tu fi kitabi hadha jumalan min al-fiqh murattaba bil-tartib al-sina‘ i wal-ta‘ liq al-hukmi alladhi tartadih arbab al-sun‘a wa takhda‘ lah ahl al-hikma ma‘ irad al-dala’el al-jaliyya wal-nikat al-qawiyya bi-‘ ibarat muhkamat al-mabani mu’addiyat al-ma‘ani wa sammaytuhu bada’e‘ al-sana’e‘ fi tartib al-shara’e‘ idh hiya sun‘a badi‘a wa tartib ‘ajib wa tarsif gharib litakuna al-tasmiya muwafiqatan lil-musamma wal-sura mutabiqatan lil-ma‘na.” There is in this passage a striking Saussurian intuition of signifiant and signifié between the name (tasmiya) and the named (musamma) and the parallel Kasani draws with image, expression (sura) and meaning (ma‘na). 31 Ghazali (d.1111), Nasihat al-muluk (Counsel for kings), cited by Ann Lambton, State and Government in Medieval Islam, Oxford: Oxford University Press 1981, 124. Arabic: ‘wa fil-amthal jawru al-sultan mi’at ‘am wa la jawru al-ra‘ iyya ba‘ dihim ‘ala ba‘ d sanatan wahida’, in Abu Hamed al-Ghazali, Al-Tibr al mamsuk fi nasihat al-muluk, Ahmad Shamseddin ed., Beirut: Kutub ‘ilmiyya 1988, 62. 27

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the case at hand is whether a ruler in Khurasan (now North-Eastern Iran) can confiscate water rights from their long-standing owner and grant or transfer them to another person. Sarakhsi first asserts the original owner’s full entitlement to restitution: In the case of harm to the public, each individual can ask for the order’s rescission, for by ordering the transfer of property, the ruler would be voiding the individual’s right. The ruler has only authority to collect his rights from the public when he cedes these rights, and not the authority to nullify their rights altogether.32 Like any other person, Sarakhsi explains, “the ruler is governed by law, al-sultan ka-ghayrihi shar‘an.” In the same breath, the great Transoxanian Hanafi jurist advises caution in the criticism of the ruler: Abu Hanifa,33 God have mercy on him, used to advise his friends in this manner, for man should be attentive to his own interest, keep his tongue and respect the ruler even if in such an action the ruler is equal to others before the law, al-sultan ka-ghayrihi shar‘an. Didn’t the Prophet say: the hand is responsible for what it took until it gives it back? The granting of ownership to other than the right owner is void, and the good which is wrongfully appropriated must be returned to his owner if alive and to his heirs after his death.34 These dilemmas are palpable in the Middle East revolution. They will find another precedent in another great jurist from Syria, Ibn Abi al-Dam (d.1244), in his extensive manual on the art of judging. Discussing access to justice, he expressed, against the right to sue the ruler, the difficulties arising in practice: You should then know that the case of any plaintiff against an adult human being in a valid right, whether the defendant is a notable or whether he is a miserable man on the street, must be heard. His case will be heard against the powerful sultan even for a grain of gold. Abu Sa‘id al-Istakhri35 said: his case is [actually] not heard in the latter instance, because the custom belies it. Istakhri said: if a lowly person sues the king claiming Shamseddin al-Sarakhsi (d. ca 1097), Al-Mabsut, Beirut: Dar al-ma‘rifa, n.d., rpt of Cairo: Matba‘at al-sa‘ada 1906–1913, 30 vols, Vol. 23, 183: ‘Inna fima yadurr bihim [bil-‘amma] likulli wahidin minhum an yamna‘a min dhalik, fal-imam fil-iqta‘ yakun mubtilan haqqah wa lahu wilayat istifa’ haqq al-‘amma la wilayat al-ibtal.’ 33 Abu Hanifa (d.767) is the eponym of the Hanafi school, which is the widest-spread Sunni school of law. We do not have texts directly from Abu Hanifa, and his legacy has been articulated first by his students Abu Yusuf (d.798) and Muhammad al-Shaybani (d.805). 34 Id.: ‘Wa kana Abu Hanifa, rahimahu Allah, yusi ashabahu bi-dhalika fa-yanbaghi lil-mar’ an yakuna muqbilan ‘ala sha’nih hafizan li-lisanih muqiran li-sultanih thumma fi hadha al-fi‘ l al-sultan ka-ghayrihi shar‘an, qal al-nabi salla allah ‘alayh wa-sallam ‘ala al-yad ma akhadhat hatta tarudd, wa-tamlik mal ghayrih min ghayr al-malik yakunu laghwan fa-yajib raddu dhalika ‘ala sahibih in kana hayyan wa ‘ala warathatih ba‘ da mawtih.’ 35 Abu Sa‘id al-Istakhri (d.940) was a Shafi‘i jurist, also the author, like Ibn Abi al-Dam, of a book on judging (adab al-qada’), seemingly lost. 32

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that the king lent him money, or married him to his daughter, or rented his services to run his horses, the plaintiff’s case is not heard on the basis of the situation of the defendant. The Imam36 said: it is not proper to muddy the rules with such peripheral concerns.37 The rule and its practical application emerge strengthened from the wisdom of these ambiguous texts in jurists confronting executive power. From their ambiguity and genuine hesitation to oppose the powerful sultan irrespective of their right to do so derives a traditional platform on which to make dissent legitimate, and arguably necessary. There is something more that erupted in 2011. What makes 2011 different is the Hegelian-style superseding, Aufhebung, of time-honored ambiguous vocabulary by nonviolence: irhab, fitna, mihna, bid‘a, all are overtaken by the irruption of a challenge to dictatorships in a massive popular revolt bearing nonviolence for its banner. It is far more difficult to consider nonviolent dissent, when it turns into a massive street phenomenon, as the expression of “terrorism”, irhab, a descent into chaos, fitna, a tragic or demoniac ploy, mihna, or an innovative heresy, bid‘a. Modern and classical concepts honed by the dictatorial order to justify its brutality lose their edge as repressive tools when confronted by nonviolence, and so does all the linguistic apparatus of the rulers quelling dissent. The scarecrow of fitna, mihna, bid‘a, irhab, stopped making sense in the overwhelming street demonstrations that undermine despots with nonviolence. The dominant political language, classical and modern, is shaken to the ground in the reality decreed by the nonviolent ethos of the revolution. Reconstructing Nonviolent Culture in the Humanist Tr adition There is a deeper level than the fight over vocabulary. “Chaos,” “terrorism,” and “insecurity” will not cease to rear their head overnight in support of the established dictatorial order. The erasure of hundreds of years of violence-driven history requires a more sustained understanding of nonviolence than its expression on the street, however powerful in 2011. Building on the polysemy of individual words only scratches the surface. A deep and elaborate intellectual reconstruction is needed. Here the Imam is al-Shafi‘i (d. 820), the eponym of the Shafi‘i school of law, to which Ibn Abi al-Dam belongs. Following Henry Corbin, below note 76, I  commonly transliterate imam with a capital “I” in reference to the Twelve Imams of the Shi‘i tradition, but as we can see here, it is hard not to capitalize the “I” when Abu Hanifa or Shafi‘i are mentioned to differentiate them from the local leader of the prayer. 37 Ibn Abi-al-Dam (d.1244), Adab al-qada’ (art of judging), Beirut: Al-kutub al-‘ilmiyya 1987, 88: ‘Thumma i‘ lam annahu tusma‘ da‘wa kulli mudda‘ in ‘ala kulli insan mukallaf bi-haqq sahih, siwa’ kan al-mudda‘a ‘alyhi jalilan, aw haqiran, kal-suqi al-‘ammi idha idda‘a ‘alas-sultan al-qaher habbatan min dhahab, tusma‘ da‘wah. 36

Wa qal Abu Sa‘ id al-Istakhri: la tusma‘ da‘wah wal-hala hadhih, li-anna al-‘urf yukadhdhibuh. Qal al-Istakhri:  idha idda‘a safala ‘ala malik annahu aqradahu malan, aw ankahahu ibnatah, aw ista’ jarahu li-siyasat dawabbihi, la tusma‘ da‘wah, akhdhan min hal al-mudda‘a ‘alayh. Qal al-Imam:  wa la yasugh fil-din tashwish al-qawa‘ed bi-mithl hadhih al-wasawis.’ Wiswas, plural wasawis is obsession, nagging concern, idée noire.

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Such intellectual reconstruction is always a vast enterprise, which no individual can carry out single-handedly. As a collective endeavor, it has begun at a wider level in the literature and language of most strands of revolutionary discourse during the Nahda.38 But we must go beyond, into the much deeper cultural tradition, which I propose to call, for lack of a better

In the modern Middle East, the whole Nahda movement should be mentioned for the fight against colonialism and old, inadequate authoritarian practices by its local agents. This is not the place to survey an immense field of writers, activists, and literature, but I will briefly mention my preferred contemporary humanist figures, harbingers of sort for the Middle East nonviolent revolution, especially in legal/clerical circles. Among Shi‘i men of religion, a large Najaf constituency for Iraq rallied around Muhammad Baqer al-Sadr (d.1980), see generally my Renewal of Islamic Law, Cambridge: Cambridge University Press 1993, passim. In Iraq, the mantle is also being carried by M‘uhammad Bahr al-‘Ulum, the first president of the Iraqi Governing Council after Saddam’s fall, with whom I have worked closely over three decades, see an early profile of ‘Muhammad Bahr al-‘Ulum’ in Orient, 1993, vol. 3, 342–45. In Lebanon, the leading historical figure is Musa al-Sadr, who was kidnapped in Tripoli-Libya in 1978. On Sadr’s universalism, see, e.g., Ra’ed Sharafeddin, “‘alamiyyat al-imam musa al-sadr:  tariq al-yaqin fi zaman al-shakk,” read in English as “Shiism and universalism in Imam Musa Sadr’s philosophy,” Yale Middle East Center, March 5, 2013. (On Musa al-Sadr, see below note 39, and my discussion of the court case against Qaddafi, Part 3, Chapter 15). Other prominent Shi‘is from Lebanon were Muhammad Mahdi Shamseddin (d. 2001) and Muhammad Husayn Fadlallah (d. 2010), for both see, e.g., my Shi‘ i Thought from the South of Lebanon, Oxford: Centre for Lebanese Studies 1988, more recently Tyre scholar and mufti ‘Ali al-Amin and scholar Hani Fahs(d.2014). In Iran, among a large intellectual constituency of enlightened authors, the most famous are (noncleric) ‘Abdel Karim Sorush and cleric Mohsen Kadivar. In Sorush’s Qabz va bast-e teorik-e shari‘a (Constraint and expansion in the theory of Islamic law), Tehran: Serat 1369/1990, the main argument is to engage in an open, extended, and expansive view of the shari‘a, as life requires a sophisticated legal understanding that compels extensive interpretation. Kadivar expresses a germane concern in his book on law and politics (shari‘at va siasat, 2008. The main books of Kadivar are available in full on his website at http://kadivar. com/?cat=263.) A cleric unlike Sorush, Kadivar is an articulate former prisoner of opinion in Iran, and the author of a trilogy on Shi‘i thought: Nazariyyeha-ye dawlat dar fiqh-e shi‘a (Theories of government in Shi‘i law), 1997; Hukumat-e vela’ i, government by mandate, 1998; and Hukumat-e entesabi, government by appointment, 2002. The second volume is a strong criticism of Khumaini’s velayat-e faqih theory as a modern, weak contraption of Shi‘i theories of government. See Constance Arminjon Hachem, Chiisme et Etat, Paris: CNRS 2013. In Bahrain, the leading modern cleric was ‘Abdel Amir Jamri (d.2006), whose son Mansur, the editor of the main daily of the country, carries on in a “secular” and openly nonviolent mode, see Mansur al-Jamri, Mulahazat fil-fikr wal-siyasa: nahu ta’sil islami lil-manhaj al-ta‘addudi (Notes on Thought and Politics: Towards the Islamic Founding of a Pluralist Method), Manama: Wasat 2008. For Sunnis, intellectual leaders also range far and wide, from Moroccan philosopher Muhammad Arkun (d. 2010), to Syrian cleric Jawdat al-Sa‘id, who has expressly focused on nonviolence. In Egypt, they can be found among judges such as ‘Awad al-Murr (d. 2004), and some of his colleagues on the Supreme Constitutional Court of Egypt, who continue the tradition of ‘Abd al-Razzaq al-Sanhuri (d.1971). In Lebanon, scholars of Sunni humanist thought range from the likes of lawyer Subhi al-Mahmasani (d.1986) to the Lebanese cleric Subhi al-Saleh (assassinated by the Syrian regime in 1986) and academic Radwan al-Sayyed, author of numerous books, and founder and editor of a leading journal, al-Ijtihad, unfortunately discontinued. I have referenced some of the major works in “Islamic Law Research in the Twentieth-Century Middle East,” Asian Research Trends (Tokyo), vol. 8, 1998, 109–36, and the reader will find some of their input discussed in my IMEL, above note 11.

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word, humanism, insaniyya.39 Some pointers are useful departing points for our reflection, such as the polysemy of charged key terms like fitna and bid‘a. Jihad itself, like Faten and Badi‘, is a first name underlying the non-belligerent root of the word as “effort,” and is common to Arab Christians and Muslims alike.40 The word “Islam” is another canopy where the flowers of nonviolence are sown in a founding term full of derivatives for the root word peace, /s/l/m/. The Qur’an is replete with references to peace and to ease, yusr, when it comes to practicing religion.41 Embracing Islam is entering into ease and peace, and the universal derivative greeting salam/shalom is Middle Eastern. Yet ambiguity and polysemy cannot replace a fuller articulated philosophy of nonviolence, which is simply not available ready-made in classical Islam or in the cultural history of the Middle East. For such philosophy to accompany the Middle Eastern and other revolutions in the twenty-first century, the historical narrative requires reconstruction with a different emphasis, very much in the way the constitutional moment—as discussed in the next

A similar spirit among Muslim Middle Easterners living in the West animates such established leaders in the field as Khaled Abou El Fadl, see, e.g., his Rebellion and Violence in Islamic Law, Cambridge: Cambridge University Press 2001, which underlines the richness of the tradition in both accepting and rejecting rebellion against the despot; and Abdullahi An-Na‘im, a liberal reader and exponent of the Islamic law tradition, see, e.g., his Islam and the Secular State: Negotiating the Future of Shari‘a, Cambridge, MA: Harvard University Press 2008; and, for the new generation from Middle Eastern origin presently working in the West, the already rich works of Anver Emon, Asli Bali, Nemer Sultany, Haider Hammoudi, Ahmed Souiaia, and Lena Salaymeh, inter alia, promise further significant achievements. 39 I suggest here humanist, humanism, which has a strong Erasmian Renaissantist connotation, rather than “liberal,” “democratic,” which seem to me far less philosophical to my espousal of Gueroult’s “radical idealism” (see Chapter 1). The “insan” topos is recurrent for instance in the works of a respected figure of modern Islam, Musa al-Sadr (above note 38), see a well-known speech on the eve of the Lebanese civil war in 1975, read at the Capuchin Church in Beirut on February 18, 1975, and entitled “hifazan ‘alal-insan (to protect the human),” in Musa al-Sadr, Muhadarat wa abhath (lectures and research papers), Beirut: Markaz al-imam al-sadr lil-abhath wal-dirasat 1997, 165–75 (religions share one message, the protection of man). The concept of “al-insan al-kamel” (“the perfect or complete human”), in a strong anthropomorphism typical of classical Muslim mysticism, is associated with the philosophy of Muhyi al-Din Ibn ‘Arabi (d.1240), and is discussed in his vast theological book al-Futuhat al-makkiyya (“The Meccan Openings”), s.v. in the 14 volume edition at Cairo: Al-Hay’a al-misriyya al-‘amma lil-kitab 1985, for instance Vol. 3, § 14; Vol. 12, § 451; 455–57; Vol. 13, § 100. For an English translation of two chapters of the Futuhat with the relevant passages on al-insan al-kamel, by William Chittick, see http://www.ibnarabisociety.org/articlespdf/futuhat_317.pdf. 40 There is a large modern literature disputing the exact meaning of “jihad,” and a distinction between the greater jihad (al-jihad al-akbar), which is the battle of the soul against its demons, and the “little” jihad as war. The word has even found its way to the nonviolence literature, see Maria J.  Stephan, Civilian Jihad:  Nonviolent Struggle, Democratization and Governance in the Middle East, New  York:  Palgrave Macmillan 2009. In the introduction, at 1, Stephan ascribes the first mention of “civilian jihad” to Khalid Kishtainy in an article published in 2002. 41 Qur’anic quotes on ease, yusr, in Mallat, “Islam and the Constitutional Order,” in Michel Rosenfeld and Andras Sajo eds, Oxford Handbook of Comparative Constitutional Law, Oxford: Oxford University Press 2012, 1287–303, at n.44 and accompanying text. The topos of peace in the Qur’an is widely mentioned in the reformist, nonviolent tradition, see, e.g., the cases of Kawakibi and Hasan Bahr al-‘Ulum discussed below.

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Part—requires a reconstruction of legal language that meshes classical Middle Eastern law with the discourse of human rights in a shared universal meaning. There is nothing strange or novel in reconstructing history: Afro-American and black history, gender (women, feminist) history, workers’ history, all are reconstructed, collective, scholarly, and legitimate exercises.42 Imagined and invented communities of meaning are constantly reimagined and reinvented.43 I am just proposing to extend this reconstruction into the nonviolence of Middle Eastern history. Other cultures in the world need to rediscover their own traditions of nonviolence. The Kawakibi Template If we look more closely at the texts with the prism of nonviolence in mind, some iconic references appear in a new light. ‘Abd al-Rahman al-Kawakibi provides a worthy reward to the explorer of nonviolent intellectual antecedents. Kawakibi, who died in 1902, is a celebrated figure of the Nahda. Over a hundred years after their publication, Kawakibi’s two central books remain a staple reference for Arab and Islamic culture. The first book, Umm al-Qura, published in 1899, is a fictional depiction of a political congress where Muslims freely meet to discuss politics and government.44 The second book, Taba’e‘ al-istibdad (the patterns of despotism), which appeared just before his death, is more important for our present exercise.45

The reconstruction of a Marxist/social Arab-Islamic philosophy in the “materialist” mode was even done in the remarkable two-volume work of Hussein Mruwwe (assassinated in Beirut in 1987), Al-Naza‘at al-maddiyya fil-falsafa al-‘arabiyya al-islamiyya (The materialist trends in the Arab-Islamic philosophy), Beirut: Farabi 2 vols. 1978–1979. The chapter on the slave revolt, thawrat al-zunj (see above note 15) and on other revolts in the third century of Islam (ninth century ce) suggests that these revolts were characteristically class-based revolutions that forced the emergence of philosophy beyond traditional theology, see Mruwwe’s chapter entitled “muqaddimat hasima li-istiqlal al-falsafa, decisive prolegomena to the independence of philosophy” at Vol. 2, 11–30. For a more “humanist” reading of the slave revolt, see Ahmad Amin (below notes 82, 84–85 and accompanying text), Zuhr al-islam (Islam at noon), Beirut: Dar al-kitab al-‘arabi 1969, Vol. 1, 70–74. 43 See the classic study of Benedict Anderson on the emergence of European nations, Imagined Communities: Reflections on the Origin and Spread of Nationalism, London: Verso 1983, especially the three first chapters. 44 ‘Abd al-Rahman al-Kawakibi, Umm al-qura (Mecca), Cairo: n.p. 1899. Kawakibi’s complete works (al-a‘mal al-kamila) have been compiled and edited by Muhammad ‘Amara, Cairo: al-hay’a al-misriyya 1970. 45 ‘Abd al-Rahman al-Kawakibi, Taba’e‘ al-istibdad wa masare‘ al-isti‘ bad (characteristics of despotism and the killing effects of enslaving), original published in Cairo between 1900 and 1902 under the name al-rahhala k (Traveller K). [Hereinafter Kawakibi, Taba’e‘ al-istibdad.] The edition used here is by Jamal Tahhan ed., Damascus: al-Awa’el, 2003. It was presented to me by his descendant Salam al-Kawakibi, himself a long-time civil resistant in Aleppo. Al-Kawakibi is said to have had his coffee poisoned by agents of the Ottoman Sultan in his Cairo refuge. This seems apocryphal, as the more scholarly accounts in Arabic and in English do not mention the poison story. I am unaware of a translation of the Taba’e‘ in a European language despite the modest size of the book. This is partly because Kawakibi’s prose is convoluted and literary, and its translation more difficult than for other modern classics. But there are several translations in Persian, including an early one in 1907, Kitab taba’i‘ al-istibad, ‘Abd al-Husayn Qajar tr., Tehran: n.p. 1907. 42

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Kawakibi’s central legacy in this book is the courage of saying things as they are, in the midst of Ottoman dictatorship under the ruthless reign of Sultan ‘Abd al-Hamid.46 Having effectively shaken off Ottoman control since Muhammad ‘Ali took over Cairo at the turn of the nineteenth century, Egypt was the Middle Eastern hub of tolerated criticism in contrast with the absoluteness of late-century Ottoman rule. In large parts of the Levant controlled by Istanbul, the harshness of ‘Abd al-Hamid, who reigned over three long decades, contrasted with high expectations pinned on repeated Ottoman human rights declarations in the mid-nineteenth century, and on the major legal reforms known as the Tanzimat, including the passage of the first full Ottoman constitution in 1876.47 Frustration with Ottoman despotism was high both at the core48 and at the periphery,49 where it slowly fueled the rise of anti-Ottoman Arab nationalism.

‘Abd al-Hamid, who died in 1918, was deposed by the Young Turks’ revolution in 1909. Generally on this period, Bernard Lewis, The Emergence of Modern Turkey, New York: Oxford University Press 2002 (original edition 1961), 174–209. 47 The Tanzimat (lit. “regulations”) period started with the Ottoman sultan’s edict known as the Khatt-e sherif pronounced in the Palace Rose Garden, Gülkhane in Ottoman Turkish, on November 3, 1839 (hence also known as the Gülkhane Rescript or Edict), which considered for the first time all the subjects of the Empire to be equal regardless of their religion, and was reinforced in a second declaration in 1856, known as Khatt-e humayun (imperial edict). Legislative reform found its climax in the proclamation of the Constitution of 1876. The Constitution was suspended the following year, closing the Tanzimat period, and restored only in 1909 with the revolution of the Young Turks. For an early competent description of the list of reformist laws passed, see J.H. Kramers, “Tanzimat,” Encyclopaedia of Islam, First Edition (1913–1936), edited by M. Th. Houtsma, T.W. Arnold, R. Basset, and R. Hartmann. Brill Online 2013 (Or. Leiden: Brill 1916). See also R.H. Davison, Reform in the Ottoman Empire 1856–1876, Princeton: Princeton University Press 1963. 48 See, e.g., The Life of Midhat Pasha, one of the most prominent reformers in the Empire, by his son Ali Hayder, London: John Murray, 1903. Midhat died in 1884. 49 There were several courageous examples of open challenge to arbitrariness and corruption, e.g. a celebrated position taken in 1892 by Tamer al-Mallat against the corruption of Wasa Bacha, the Ottoman ruler (mutasarrif ) of Mount Lebanon. The two verses said by Tamer remain famous in Lebanon, 46

qalu wada wasa wa warawhu al-thara/fa-ajabtuhum wa ana al-‘alimu bidhatihi rinnu al-fulusa ‘ala bilati darihi/wa ana’ l-kafilu lakum bi-raddi hayatihi. (They said: Wasa Basha has passed away. I responded, for I knew/Make coins ring off the marble of his grave, I guarantee you he will come back to life.) For context, see Wajdi al-Mallat, Shibli  =  Chibli al-Mallat, sha‘er al-arz (Poet of the cedars), Beirut: Joseph Raidi 1999, “Introduction,”, 30 (in Arabic), 28 (French), 80 (English). To remove confusion because of the modern Arab tradition for sons to be named after fathers, and as a wink to future generations, I should state my family parti pris. To remove some of the confusion in library catalogs and scholarly references, I try to distinguish the older generation by adding ‘al-’ to the family name. It is not always consistent or possible. Here is a brief account of our first names traded down in Levantine descent tradition. I am the namesake of my grandfather Shibli al-Mallat, known as the “Poet of the Cedars” (1875–1961), who died the year after I was born. The proper English transliteration is Shibli, but Chibli comes from the French rendering, and the name appears also in various published records as Chebli, or Chébli. My granduncle, Tamer al-Mallat (ca 1855–1914), the author of the famous verses against Wasa Basha cited above, raised his brother Chibli, who was twenty years younger, after their father Youakim died when Chibli was still an infant. We have few surviving texts by Tamer, published in 1925 and long out of print, but

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Kawakibi was therefore one of many dissidents. His book is a testimony of courage and clarity. The title is catching, and the style enticing and rich. Some of Kawakibi’s explanations of despotism are classical, emphasizing the importance of science and the need to develop knowledge without impediment: “The despot hates science for its results, but also for what it is; for knowledge has a power over all power, and the despot will have to despise his own self every time he meets someone who is superior to him in knowledge.”50 Some are more surprising, such as his criticism of religious emphasis on ritualistic expressions,51 and the strong connection he makes between despotism and the poverty of the larger section of the population.52 Some are totally unexpected. His discussion of society as a mirror of the subordination of women and children inside the family is subtle and strong. He imputes to despotism the alienation of people turned into “captives” (asir, plural asra) by cultivating two basic instincts to keep them busy. One is food, by “turning their bodies into pipes between the kitchen and the toilet.”53 The other is sexual subordination. In a long passage, sexual subordination is decried as a privileged tool of despotism, specifically when girls are subdued into sexual objects, and more generally as “this animalistic drive in men [which] blinds captives and throws them into marriage and reproduction.”54 The strongest passage is where Kawakibi describes how violence is instilled at home since birth among the “captives,” from within the mother’s womb and through the child’s education into adulthood.55 The final chapter of Kawakibi is the most remarkable in our journey of rediscovery. Kawakibi speaks here as an active drafter of reforms with a set of specific measures to get rid my father recovered a notebook containing several poems by Tamer, including some that were unknown, and the book appeared in a facsimile edition in Beirut in 2009. I  also recovered original judgments by Tamer when he was the president of the court of Kisrawan in present-day Lebanon, and published them in a facsimile edition as Ahkam (judgments) in 1999. My father Wajdi al-Mallat (1919–2010) was a jurist and man of letters. He was president of the Beirut bar, a government minister, and he became the first president of the Lebanese Constitutional Council. He is the author of the book on his father’s poetry mentioned above, and of a collection of studies and articles, Positions/Mawaqef, Beirut: Nahar 2005. My granduncle Tamer’s name is carried by my first son Tamer (born 1990), who is already well published. My younger son, Wajdi, born in 1993, is named after my father. 50 Kawakibi, Taba’e‘ al-istibdad, above note 45, chapter on Al-istbidad wal-‘ ilm (despotism and knowledge), 85–93, at 87: ‘kama yabghad al-mustabidd al-‘ ilm li-nata’ ijih, yabghaduhu aydan li-dhatih, li-anna lil-‘ ilm sultanan aqwa min kulli sultan, fa-la budda lil-mustabidd min an yastahqir nafsah kullama waqa’at ‘aynuh ‘ala man huwa arqa minhu ‘ ilman.’ 51 Id., 155: ‘wal-istibdad rihun sarsar fihi i‘sar yajhal al-insan kulla sa‘a fi sha’n. Wa huwa mufsidun lil-din fi ahammi qismayh ay al-akhlaq, wa amma al-‘ ibadat minhu fa-la yamussuha li-annaha tula’ imuhu fil-akthar. Wa li-hadha tabqa al-adyan fil-umam al-ma’sura ‘ ibaratan ‘an ‘ ibadat mujarrada sarat ‘adat, fa-la tufidu fi tathir al-nufus shay’an.’ (Despotism is a violent wind in a tornado that ignores man every hour, and corrupts religion in one of its two most important components, morals. As for rituals, despotism does not touch them because they mostly serve its purposes well. This is why religions remain in the captive nations an abstract expression of rituals which have turned into habits, and do not help in purifying souls in any way.) 52 This is a leitmotif of the book, and is expressed in a full chapter on despotism and money (al-istibdad wal-mal), Taba’e‘ al-istibdad at 113–31, making of Kawakibi a common reference for later socialist advocates. 53 Id., 162: ‘bi-ja‘ lihim ajsamahum . . . anabib bayn al-matbakh wal-kanif ’. 54 Id.: ‘hadha al-sharah al-bahimi fil-bi‘al huwa ma ya‘mi al-usara’ wa yarmihim bil-tazawuj wal-tawalud.’ 55 Id. 165–66. This is a disturbing, way ahead of its time, analysis of the violence carried out on the child even before his birth, its continuation through his upbringing, and him reproducing it upon adulthood.

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of dictatorship. He proposes no fewer than twenty-five topics/questions set in short paragraphs, including the meaning of people and nation, equality as basis of social-political life, the defense of the rights of individuals against the government, the importance of an independent judiciary, and the centrality of the rule of law.56 These brief topics are formulated inside each short section with indicative questions, and the full panoply of the themes of the Middle East revolution a hundred years later can be found summarized in the chapter. The last question/topic is how to get rid of despotism. Kawakibi develops the answer on three bases: 1. The nation that does not feel in its totality or in its majority the pains of despotism does not deserve freedom. 2. Despotism cannot be resisted by force, it must be resisted by flexible and gradual means. 3. Before resisting despotism, what it gets replaced with needs to be ready.57 In our journey of nonviolence reconstruction, the second basis is the most alluring. As he lists the instances “where the people’s anger revolts against the despot,”58 Kawakibi’s rejection of violence is emphatic, and he repeats the second principle a few pages later: “Despotism must not be resisted with violence, al-istbidad la yanbaghi an yuqawam bil-‘unf.”59 Reading Kawakibi in the twenty-first century unveils an eloquent critic of despotism, more suprisingly a strong and self-conscious thinker of nonviolence. He, in fact, belonged in the Nahda to a widely based movement whose epitome came with the Egyptian revolution of 1919 around Saad Zaghlul (d.1927) and the Wafd party, a revolt that grew in parallel to India’s Gandhi-led long struggle against British domination between the two world wars. While more research is required into the zeitgeist of the worldwide anti-colonial struggle against European colonialism in terms of nonviolence, including world-famous movements coalescing at the time around the likes of Zaghlul and Gandhi, and being conscious of each other’s existence, an even more sustained search into the deeper cultural roots of the movement is necessary. In the next sections, I skim the surface of that research. Poet Philosophers A rich register in the journey of rediscovery appears in the great classical poet-philosophers. Here is the rueful tone on the propensity to make a weapon of whatever man can lay his

Id., 203–09:  for instance, question 1, the people is the nation (umma), mabhath ma hiya al-umma ay al-sha‘ b; question 4 equality of rights, mabhath al-tasawi fil-huquq. 57 Id. 210: ‘1- al umma allati la yash‘uru kulluha aw aktharuha bi-‘alam al-istibdad la tastahiqq al-hurriyya. 2- al-istibdad la yuqawam bil-shidda innam yuqawam bil-lin wal-tadarruj. 3- yajib qabla muqawamat al-istibdad, tahyi’at madha yustabdal bihi al-istbidad.’ 58 Id. 215, literal translation. The full sentence reads as follows:  “al-‘awamm la yathur ghadabuhum ‘alal-mustabidd ghaliban illa ‘aqiba ahwal makhsusa muhayyija fawriyya (The populace does not revolt generally against the despot except in specific provocative and circumscribed cases.)” For Kawakibi, the list of cases conducive to revolution includes a war lost by the despot, a general catastrophe such as famine, a direct attack on religion or honor, at 215–16. 59 Id. 215. 56

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hands on, in a verse by the most famous Arab poet of all time, Abu al-Tayyeb al-Mutannabi (d.965): On the tip of every time-grown reed/man puts his lethal crown of iron.60 The next verse, resolutely Erasmian in tone, is more explicit: The desires of souls are smaller a warrant than/to antagonise and exterminate each other.61 These two lines do not quite fit Mutanabbi’s fiery temper.62 They are much more in character for blind poet-philosopher Abu al-‘Ala’ al-Ma‘arri (d.1058), another formidable figure of classical Arabic culture. Ma‘arri has left us most famously a philosophical treatise prefiguring Dante’s Divine Comedy. In his celebrated Risalat al-ghufran (treatise on pardon), he engages in a discussion with mainly literary figures who have entered Paradise. As the most famous poets and literati are controversial for their naturally maverick and anti-conformist artistic expression, Ma‘arri’s underlying argument is that paradise is open to them even more than to the uncreative devout.63 The ghufran, the pardon advocated in the treatise, is a powerful concept from Ma‘arri’s legacy, which the modern age has translated as “tolerance.” The word has tellingly found its way to a garden dedicated in the center of Beirut to remind people of the vain violence of their long civil wars. Not a coincidence either, Ma‘arri’s statue in his native village in Northern Syria was one of the symbolic victims of the revolution turning violent. It was beheaded, most likely, by some extremist Islamic faction.64 Less known is Ma‘arri as the philosopher of nonviolence at a time where such a concept sounds anachronistic by any historical measure for society by and large. The principle of absolute nonviolence appears in powerful verses from Ma‘arri’s philosophical collection of poetry of his late life, al-luzumiyyat.65 Partly the result of rational doubt resulting from

“kullama anbata al-zamanu qanatan/rakkaba al-mar’u fil-qanati sinana,” Mutanabbi, Diwan (Nasif al-Yaziji ed.), Beirut: Sader 1964, 2 vols, Vol. 2, 347. My translation of this and the following classical verses, a notoriously approximative exercise because of the particular difficulty in rendering the original in a modern Western language, has been much improved by the advice of John Donohue. 61 Id.: “wa muradu al-nufusi asgharu min an/nata‘ada fihi wa an natafana.” 62 There are other instances in Mutanabbi’s Diwan where the superiority of the pen over the sword is apparent, see below note 66; but much of his poetry in praise of the various princes he “served” under is a glorification of their battles, especially those of Sayf al-Dawla (d.967), the ruler of Aleppo, whom Mutanabbi liked and respected. Mutanabbi had been warned that a local thug was seeking revenge for a relative who had been disparaged in one of Mutanabbi’s poems. He chose to engage in the battle where he and his son were killed, rather than turn his back and flee. 63 Abu al-’Ala’ al-Ma‘arri, Risalat al-ghufran (Fawzi ‘Atwi ed.), Beirut: al-sharika al-lubnaniyya, n.d. (ca 1968). For an engaging reading of the Risala as “forgetfulness of language” in a comparative literature context, see Daniel Heller-Roazen, Echolalias, New York: Zone Books 2008, 203–18 (“Poets in paradise”). 64 E.g., “Armed Men ‘Behead’ Poet’s Statue in Syria,” Naharnet, February 12, 2013, with the picture of the rusty, beheaded bust of Ma‘arri in his native town. 65 Various editions, I use here Abu al-‘Ala’ al-Ma‘arri, Luzum ma la yalzam, Al-luzumiyyat, Ibrahim al-A‘rabi ed. Beirut: Sader 1964, in 4 vols, hereinafter Luzumiyyat. 60

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man’s aggressive dispositions and hubris, which Ma‘arri shares with Mutanabbi and associates with human reason,66 nonviolence suffuses the poetry of the eleventh-century Syrian poet-philosopher. One poem in particular expresses the moral failure in the harm done to animals by man, and by extension the violence meted out on other human beings: Eat not, meanly, what leaps from waters/and seek not sustenance from tender game Take not the clear milk the ewe wants/for its lambs, not for unadulterated revellers Do not brusque birds, mindless/of entanglement, oppression is the most ugly evil Leave to the bee its honey early gleaned/from the fragrant blooms of the flowers Bees keep it not to provide for others/nor did they gather it for dew and gifts.67 With this Jain-like approach, which the poet in the next verse regrets not having practiced earlier in his life, a straight argument for absolute nonviolence follows: When you discover the truths of your religion/you lay bare the basest of scandals If you would be right guided, dye not your swords in blood/and grasp not the penchant to probe the wounds.68 Here we no longer see a passive approach rejecting harm.69 The poet is an open advocate of nonviolence, with Ma‘arri faulting monks for an abnegation that life does not call for, and for sitting back and contemplating life, instead of “marching Christ-like” toward the Good: I like those who have taken on priesthood/except for their harsh habits in eating For more tasteful than forced ascetics in the monk’s life/are people who actively march for the Good

Another famous verse of Mutanabbi, on the superiority of reason over animalistic force: ‘lawla al-‘uqulu lakana adna dayghamin/adna ila sharafin min al-insani (without reason [brain], the smallest lion would be more honorable than a human being); Diwan, above note 60, Vol. 1, 252. 67 Ma‘arri, Luzumiyyat, above note 65, i, 306–07:  66

fa-la ta’ kullana ma akhraja al-ma’u, zulman/wa la tabgha qutan min gharidi l-dhaba’ ihi; wa abyadu ummatin aradat sarihahu/li-atfaliha, dun al-ghawani as-sara’ ihi; wa la tafja‘anna al-tayra, wa hiya ghawafilu/bi-ma wada‘at, fal-zulmu sharru al-qaba’ ihi; wa da‘ darb al-nahli, alladhi bakkarat lahu/kawasibun min azhari nabtin fawa’ ihi’; fa-ma ahrazathu kay yakuna li-ghayriha, wa la jama‘athu lil-nada wal-mana’ ihi. (For Arab readers, gharid in the first verse is tender; abyad in the second verse is for milk). Id., 307:  ‘mata ma kashaftum ‘an haqa’ iqi dinikum/takashshaftum ‘an mukhzayati al-fada’ ihi; fa’ in tarshudu fa la tukhaddibu al-sayfa min damin/wa la talzumu al-amyala sayra al-jara’ ihi.’ 69 Ma‘arri’s lore as an active opponent to violence includes an episode where the poet, who resolved to withdraw into his home in Ma‘arrat al-Naman for a good part of his life and earned the sobriquet “prisoner of the two jails, rahin al-mahbasayn,” blindness and the home, came out from a forty-year seclusion on the request of the locals who were facing the onslaught of the local ruler of Aleppo, Salih ibn Mirdas, in 1026. The story is related variously, see, e.g., the popular modern study by “A’isha ‘Abd al-Rahman, a.k.a. Bint al-Shati,” al-Ma‘arri, Beirut: Dar al-kitab al-‘arabi 1972, chapter on rahin al-mahbasayn, 174–79. 68

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Jesus did not hold back his soul in monkhood/he marched in the land for discovery.70 Advocacy of nonviolence does not only surface in Ma‘arri’s humanist syncretism. There is a tradition to be also recovered in Jewish philosophy and law, in particular in and around Maimonides (Arabic ibn Maimun, d.1204), considered as a central “Arab philosopher” by no less an authority than Hegel,71 and as innovative a Middle Eastern legist as Kasani was in his Bada’e‘.72 Maimonides’s celebrated Guide to the Perplexed, which was written in Arabic, has been recently read as a nonviolent tractate of the classic Jewish tradition.73 Philosophy and Sufism Religious syncretism found also other ways into the Islamic tradition, Sufism in particular. This is true both in the Sunni and Shi‘i traditions. Sunni Sufism is better known, especially in the great figures of Hallaj (d.922) and Ibn ‘Arabi (d.1240).74 Sufi/mystical Shi‘ism has endured longer in philosophical works. Despite the association of the Iranian brand of political Islam with violence since 1979,75 the philosophical tradition of Shi‘ism includes a profound strand that inspired an alternative Iranian revolution in 1978–1979, one steeped

70

Ma‘arri, Luzumiyyat, above note 65, i, 307:  wa yu‘ jibuni da’ bu’ l-ladhina tarahhabu/siwa akluhum kaddi al-nufusi al-shaha’ ihi; wa atyabu minhum mat‘aman, fi hayatihi/su‘atu halalin bayna ghadin wa ra’ ihi; fa-ma habasa al-nafsa al-masihu ta‘abbudan/ wa lakin masha fil-ardi mishiata sa’ ihi.

Hegel, Vorlesungen über die Geschichte der Philosophie, ii, in Werke, Frankfort: Suhrkamp 4th ed. 2003, 20 vols, Vol. 19, 517–18. 72 For a discussion about the innovative and contemporaneous redrawing of legal categories in Maimonides’ Mishneh torah and Kasani’s Bada’e‘ al-sana’e‘, see IMEL, above note 11, 59. 73 Robert Eisen, The Peace and Violence of Judaism: From the Bible to Modern Zionism, New York: Oxford University Press 2011, at 117–18: “We can also draw on Maimonides’ political philosophy as it emerges in the Guide to demonstrate that he supported nonviolence. A central conception in this area of Maimonides’ thought is the notion that society must be constructed in a way that allows those who are intellectually gifted to pursue intellectual perfection, and this pursuit requires a peaceful society free from strife and violence. While Maimonides focused primarily on peaceful relationships between individuals and classes within a given society, his position would seem to have implications for relationships between societies as well.” The Guide (original Arabic dalalat al-ha’ irin), is a philosophical discussion on the nature of God with an emphasis on his spiritual attributes. It is part of a special intellectual Middle Eastern cross-religious debate in the classical age of Islam, and is expressed in the Mihna’s controversy over the incorporeity of God, nominalism and the created/uncreated nature of God’s word, see above note 15. 74 For Ibn ‘Arabi, above note 39. For Sunni Sufism and Hallaj in particular, the outstanding reference is Louis Massignon (d.1962)’s book tellingly entitled Passion d’al-Hosayn-Ibn-Mansour al-Hallaj: martyr mystique de l’Islam, exécuté a Bagdad le 26 Mars 922, Paris: Geuthner 1922, 2 vols, reprint in 4 vols. at Gallimard, 1975. 75 Despite his Sufi leanings, for instance, Khumaini describes himself as “a Huseini, not a Hasani.” Hanna Batatu, “Shi‘i organizations in Iraq: al-Da‘wah al-Islamiyah and al-Mujahidin,” in. Juan Cole and Nikki Keddie eds., Shi‘ ism and social protest, New Haven, CT: Yale University Press 1986, 192. See also the argument against considering nonviolent the Iranian revolution of 1978–1979 in some academic writings, above Chapter 3 note 45. The fascist-like clerical grip was completed within a year of the Iraqi invasion of Iran in September 1980. See generally Shaul Bakhash, The Reign of the Ayatollahs, New York: Basic Books 1985, 71

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in Suhrawardi’s (d.1191) ishraqi (literally “enlightening”) school. The school found its most noted contemporary world-class philosopher in Henry Corbin, and its most alluring Iranian revolutionary expression in ‘Ali Shari‘ati. Unfortunately both died just before the revolutionary earthquake hit Iran, Shari‘ati in 1977, and Corbin in 1978.76 Philosophical work, in Corbin’s rich legacy, and philosophical inspiration, in Shari‘ati’s less systematic writings, are rooted in the seventeenth-century philosophy of Shi‘i/Iranian Islam. This was a self-styled enlightened tradition that found its apogee in Al-asfar al-arba‘a (“the four journeys”), a nine-volume treatise of the spiritual ascent to truth by Sadreddin al-Shirazi, better known as Mulla Sadra (d.1650).77 The voyages of Shirazi are spiritual in the Cartesian sense.78 Instead of focusing on a universal doubt Descartes-style that is overcome by the cogito, however, they are articulated in part on an ascending dialectic that Shirazi calls “al-haraka al-jawhariyya, the essential movement.”79 The doctrine comes from a doubt (tashkik) cast on the outside world, which is solved by the movement that takes every human being through life, explains why the essence of the old man persists from the individual in his youth, and develops in ascending spiral through man’s intellectual voyages.80

144–49, 159–65, 217–36, for the rise in governmental-led violence, which peaked in 1981–1982. The Islamic government exercised again large-scale violence during the Green revolution in July 2009. 76 Henry Corbin’s masterpiece is En Islam iranien, Paris: Gallimard 1972, 4 vols. See Vol. ii on Suhrawardi and the ishraqi tradition. For ‘Ali Shari‘ati (d.1977), a prolific author of short treatises, the reading of the martyrdom of Imam Hussein in Karbala was used mostly as a metaphor of resistance, and so interpreted by those inspired by his writings in the Iranian revolution. Although Shari‘ati’s writings suggest nonviolence as part of sacrifice stepped in Shi‘i martyrdom, which in my view is antithetic to a philosophy of nonviolence, see above Chapter 3 notes 8–10 and note 47, a positive view of his contributions as nonviolent has been put forward by some of his readers and followers, see, e.g., Ali Shariati, Martyrdom (Shahadat), Tehran: The Abu Dharr Foundation 1972, cited in Sadrodin Mousavi Jashni and Narges Mousavi, “The Concept of Nonviolence in Islam and in Mahatma Gandhi’s Thought,” n.d., 6, available at http://cid. icro.ir/uploads/Sadrodin%20Mousavi_115911.pdf. For Shari‘ati in general, see Ali Rahnema, An Islamic Utopian: A Political Biography of Ali Shariati, London: I.B. Tauris, 1998, who makes a passing reference to the rejection of violence at 213; and the ‘Shari‘ati’ entry by Shahrough Akhavi, The Oxford Encyclopedia of the Modern Islamic World, New York: Oxford University Press, 4 vols, Vol. 4, 46–50. 77 Sadr al-Din al-Shirazi, Al-hikma al-muta‘aliya fil-asfar al-‘aqliyya al-arba‘a (transcendental wisdom in the four rational journeys), Qum: Mustafawi, 2nd ed. 1999, known as Al-asfar al-arba‘a, Qom: Mustafawi, 2nd ed. 1999, 9 vols. 78 Descartes and Mulla Sadra were contemporaries, but it is unlikely that they knew of each other, let alone had any familiarity with each other’s writings. The centrality of doubt (doute for Descartes, tashkik for Mulla Sadra) in their philosophies is intriguing. 79 Al-haraka al-jawhariryya is translated also as “substantial motion.” I understand it from some familiarity with the Asfar, esp. Vol. 3, and various critical studies on Mulla Sadra, as the intellectual and lived motion that underlines unity through the ages of a human being (e.g. at 80–85), less so perhaps for animals and plants (discussing Ibn Sina/Avicenna, at 91–93). Corbin translates haraka jawhariyya as “mouvement intra-substantiel,” and reads it as variations in the intensity of existence. Corbin, En Islam iranien, above note 76, Vol. 4, 78. 80 “wa kullu insan yash‘ar min dhatih amran wahidan bil-shakhs ghayra mutaghayyirin wa in kana bi-ma‘na al-ittisal wahidan ila inqida’ al-‘umr. (And each human being feels in his own one unchanging self, albeit in the meaning of continuity, one until the end of his life.)” Shirazi, Al-asfar al-arba‘a, above note 77, Vol. 3, 82–83.

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This tradition of Mulla Sadra, all in spirituality and self-fulfillment, was marginalized by the violent ethos of post-revolutionary clerical dictatorship in Iran. Mulla Sadra offers a very different view from the received version of violent Shi‘ism epitomized by the rulers of Iran thirty years after the Islamic revolution, itself shattered by the Green revolution of 2009 that persists in sundry forms of resistance, including in the use of the severely limited space of the ballot box under the Supreme Leader’s dictatorship. It would of course be wrong to derive from these texts evidence that Islam, or Arabs, or a particular author even, are repositories of a philosophy of nonviolence directly associated with the Middle East revolution. Any religion leaves wide open the possibility of violence, with textual support, and more gravely, with a history of bloodshedding that ranges from conquests and counter-conquests to the open advocacy and practice of violence in the style of Khumaini, Ben Laden, or their Christian, Jewish, Buddhist, or Hindu equivalents. What a cursory alternative reading of the tradition suggests is merely the potential for all religions, societies, and cultures to offer their members and adherents a solid legacy of nonviolence, and, conversely, to reconstruct the tradition’s appeal away from the lurid side of battles, conquest, and brute force. Writing Unviolent History Historiography of the Middle East is another important repository of a nonviolent reconstruction.81 In the twentieth century, perhaps the two most remarkable scholarly examples of a reading of history that does not focus on battles and conquest are Ahmad Amin’s multi-volume work on Islam’s “dawn,” “morning,” and “noon,” published between the late 1920s and the mid-1940s,82 and Albert Hourani’s more compact A History of the Arab Peoples, which appeared in 1991.83 Both Amin (d. 1954) and Hourani (d.1993) have also written the most remarkable book-length studies on the enlightened reformists of the twentieth century, respectively Zu‘ama’ al-islah and Arabic Thought in the Liberal Age.84 The tradition epitomized by Amin was rightly identified as the mainstay of a “liberal Egypt” in a comprehensive work on the legacy of Amin and Amin’s son Husain (b. 1932).85 Amin’s first volumes, entitled Dawn of Islam, provide a rich documentation of the Unviolent history is a concept I borrow from Timothy Garton Ash, who attributes it to Kenneth Boulding, see Timothy Garton Ash, “A Century of Civil Resistance: Some Lessons and Questions,” in Adam Roberts and Timothy Garton Ash eds., Civil Resistance and Power Politics, Oxford:  Oxford University Press 2009, 371. 82 Ahmad Amin, Fajr al-Islam, Duha al-Islam and Zuhr al-Islam (dawn, morning, and noon of Islam), 8 or 10 vols. Depending on editions, Cairo: I‘timad and various imprints, 1928–1942 (dates of the first editions vary; this is based on the Princeton and Worldcat online catalogs). Note Hamid Enayat’s criticism of Amin from a Shi‘i perspective, Modern Islamic Political Thought, Austin: University of Texas Press 1982, 43–45, though “[t]‌o be sure, on most issues Amin follows well-trodden paths.” 83 Albert Hourani, A History of the Arab Peoples, London: Faber 1991. 84 Ahmad Amin, Zu‘ama’ al-islah fil-‘asr al-hadith (Leaders of reform in the modern age), Cairo: al-Nahda al-misriyya 1948; Albert Hourani, Arabic Thought in the Liberal Age, original London: Oxford University Press 1962, rpt 1983. 85 Makoto Mizutani, Liberalism in 20th Century Egyptian Thought:  The Ideologies of Ahmad Amin and Husayn Ahmad Amin, London: I.B. Tauris 2014. 81

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cosmopolitan intellectual milieu in which Islam was born. The later volumes underline a rationalist spirit that marks the high intellectual moment of Islam and the Arab caliphate before the full onset of the Crusades.86 The history relayed by Hourani, who carries Amin’s interest in the nonpolitical and the non-événementiel, was “criticised for downplaying the violence, racism and misogyny of some Arab-Islamic societies.”87 The criticism is not totally unfounded. Hourani disliked history depicted through violence and battles.88 Even where reference is made in his masterpiece to conquerors and tyrannical rulers, he looked for a silver lining: “From time to time more violent movements would pass down the routes, as an army carried the power of another ruler or of a challenger to the existing power; and these too might bring them new ideas about how to live in society, and new ethnic elements to add to the population.”89 As alternative works of history, which turn over time into mainstream references, such encyclopedic efforts as Ahmad Amin’s and Albert Hourani’s are the refined intellectual expression of a humanist worldview that privileges nonviolence over violence in Middle Eastern/Islamic/Arab history. They also point to the dire need for the reinvention of Arab, Islamic, and Middle Eastern communities as repositories, loci, and harbingers of the philosophy of nonviolence: In other words, the Near and Middle East will benefit immensely if the Luthers of Najaf or Qom, the Calvins of all the emirate-cities and the Jean Hus of all places make their reform proposals heard, while the Voltaires of the Middle East are encouraged to crush the Wahhabi infamy and denounce all the Calas affairs of the times, whether their victims are aristocrats or peasants, women or reporters. In parallel, one should hope that the Erasmes, bearers of this folly which is free thinking, are numerous and heard on an axis of progress that needs to expand, from Alexandria the Great Library, Beirut the free press, and Bahrain-Qatar and other satellite basis, to other paths radiating from this axis. Others more attentive than me to Arab or Indian history will complete this list of new Ibn Khalduns who are advocates of Reform and Renaissance that a great traditional religion must necessarily go through to clear its scoria from past centuries and rediscover a youth well adapted to the century at hand.90

Adam Mez (d.1917), Die Renaissance des Islams (posthumously published in Heidelberg in 1922, rpt Hildesheim: G. Olms 1968), English translation by Salahuddin Khuda Bukhsh and D.S. Margoliouth as The Renaissance of Islam (original 1937, rpt Beirut: United Publishers 1973), remains a rich book in this vein. For a similar, recent reading of the classical humanist tradition, see María Rosa Menocal (d.2012), The Ornament of the World: How Muslims, Jews, and Christians Created a Culture of Tolerance in Medieval Spain, New York: Little Brown 2002. 87 Ian Pinder, “Book review: A History of the Arab Peoples by Albert Hourani,” The Guardian, February 1, 2013. 88 This I recall from a conversation with Hourani shortly after the publication of his book, in which he admitted his purposeful shunning of the violent episodes of Arab history, despite the criticism he expected on this score. 89 Hourani, A History of the Arab Peoples, above note 83, 128. 90 Robert Fossaert, Un sous-ensemble du système mondial: Le Proche et Moyen-Orient, Paris: April 2004 (published online at Classiques des Sciences Sociales, Chicoutimi University, Canada), 80. 86

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As if on Robert Fossaert’s 2004 cue, the espousal of nonviolence emerged from the heart of the Shi‘i religious establishment, in a book published that same year by a young Najaf scholar, Hasan Bahr al-‘Ulum (b. 1963).91 The title of the book could not be more expressive: Mujtama‘ al-la‘unf: dirasa fi waqe‘ al-umma al-islamiyya (Nonviolence society: a study in the reality of the Muslim nation).92 Hasan Bahr al-‘Ulum’s Nonviolence Society is divided into four main parts, dealing respectively with violence, terrorism, jihad, and peace. The book articulates an advocacy of nonviolence announced at the beginning: “I reviewed the historical evidence of the rooting of peace in the method of Islam, and its rejection of violence, by considering the role of the Prophet’s stay in Mecca for over thirteen years as testimony of the argument [which Bahr al-‘Ulum develops in the later section of the book] that ‘Muslim history rejects violence.’ ”93 This is bolstered by a detailed and occasionally repetitive insistence on nonviolence as the founding character of society and the hallmark of collective behavior in Islam. Here is a typical formulation: “Because human nature fights violent action, the resistance to violence has appeared in all kinds of ways, and the concept of nonviolence was born. Muslims were at the head of resistance to violence. What the Qur’anic verses express is the call for peace, tolerance, amnesty, dialogue, the rejection of fanaticism and narrow-mindedness. They provide the best advocacy of nonviolence by Islam.”94 The arguments of Nonviolence Society range far and wide. In the text of the Qur’an, in the sayings and life of the Prophet, in various historic instances, in history chronicles and legal books, several examples are adduced to the book’s argument that violence is systematically rejected in favor of compromise and a constant advocacy of nonviolence in Islamic thought and practice.95

Hasan is one of the most innovative jurists in the Najaf establishment since Muhammad Baqer as-Sadr (d.1980). He is a scion of the family of Muhammad Bahr al-‘Ulum (d.1797), the eighteenth century eponymous ancestor whose vast legal knowledge is at the origins of the “sea of science, bahr al-‘ulum” nickname, and his nineteenth century descendent with the same name (d.1908), author of Bulghat al-faqih, Tehran: 4 vols, 4th ed. Maktabat al-Sadeq 1984. Hasan Bahr al-‘Ulum has taken on the scholarly mantle of his uncle, Muhammad Bahr al-‘Ulum (b. 1927), see above note 38, who was the rallying figure of the opposition to Saddam Hussein and the first president of the Governing Council of Iraq in 2003, see above note 38. Hasan’s father ‘Izzaddine, also a religious scholar, was arrested by the regime in Najaf in 1991 and executed. 92 Hasan Bahr al-‘Ulum, Mujtama‘ alla‘unf: dirasa fi waqe‘ al-umma al-isamiyya (Nonviolence society: a study in the state of the Muslim nation), Kuwait: Marafie Foundation 2004. In addition to his book on nonviolence, Hasan Bahr al-‘Ulum has been active in the reshaping of classical fiqh into modern human rights, and is the author of books on pluralism, Al-Ta‘addudiyya al-diniyya fil-fikr al-islami (Religious pluralism in Islamic thought), Beirut: al-‘Arif lil-Matbu‘at 2011); civil society, Al-Mujtama‘ al-madani fil-fikr al-islami (Civil society in Islamic thought), Baghdad: Zayd 2008; and federalism, Al-Islam wal-fidiraliyya (Islam and federalism), Baghdad: Global Justice Project Iraq 2010. 93 Mujtama‘ alla‘unf, above note 91, 13–14. Section at 148–53. 94 Id., 42. 95 See, e.g., id., at 211–14 in the historical section: “Despotism and religion do not meet (al-istibdad wal-din la yaltaqiyan),” at 270–72 on the section of jihad: “Islam calls for the rejection of violence and terrorism (al-islam yad‘u ila nabdh al-‘unf wal-irhab),” at 317–21 in the chapter on peace in Islam:  “peace in the Qur’an (al-salam fil-Qur’an).” While some topoi (plural of topos, repeated place or focus of discussion) as self-defense and just war appear in a more traditional manner in the book, there is often a departure from the dominant notions even in traditional Muslim-liberal discourse, ranging from the rejection of all 91

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Unusually for a prominent contemporary Shi‘i leader, Bahr al-‘Ulum also included in his Nonviolence Society a bridge to nonviolence in the Sunni world. Despite the aggravated Shi‘i-Sunni fracture of the early twenty-first century, he notes the moment when the Egyptian Muslim Brotherhood formally abandoned violence as a mode of resistance, by referring to the former Brotherhood “Guide” Hasan Isma‘il al-Hudaibi’s (d.1973): “Perhaps the positions [of Hudaibi] constitute the best evidence on the commitment to a place away from violence and the exclusion of the other. Lawyer Hudaibi has written a book specifically devoted to answering the exclusivist tendency.”96 In that book, du‘at la qudat (preachers not judges), Hudaibi’s central argument is that when Islamists call for the spread of Islam, they cannot put themselves into a position of judges.97 The upshot is the rejection of physical violence or any other forms of censorship by self-appointed “judges.” As no one, in position of leadership or otherwise, can claim to be faultless in this perspective, the Islamic proselytizing call in society is freed from the responsibility of coercive decision that is associated with judging. A Cautionary Conclusion With all this effort at rediscovering a forgotten nonviolent culture, caution is warranted. Although the Muslim Brotherhood’s nonviolence advocacy during the long years in opposition has been practiced by the Brotherhood at various moments of modern Egyptian history, its record is patchy on this score. The ambivalent message continues well into the post-revolutionary years. It is one thing to argue for nonviolence when one is in opposition, another to avoid dictatorial practices when in power. The starry-eyed view of a benign, soft-speaking movement does not help, and many revolutions have been derailed in history from their early idealistic promise, including self-professing nonviolent Islamists. The danger that often lurks is one of despotic mimesis, which is evident in the line running in Egypt from Mubarak to Mursi to Sisi. The three Egyptian leaders share a belief in foreign conspiracy, the distortion of the language of human rights to impose some men’s will over others (and over women in particular), the descent into authoritarianism by a shallow understanding of democracy as absolute rule of the majority produced by elections, and the protection of their own thugs or “undisciplined” elements from arrest and trial as they

violence inside the family (at 46–48) to the acceptance of foreign military support against dictatorship (at 54). The book was written in 2002–2003, at the height of the widely held request from the Iraqi opposition and society, especially Kurds and Shi‘is, for Western military intervention to rid the country from Saddam Hussein’s rule. 96 Mujtama‘ alla‘unf, above note 91, 98. 97 Hasan al-Hudaibi, Du‘at la qudat (advocates not judges), Cairo: Dar al-Tiba‘a wal-nashr al-islamiyya, 1977 (also available on the Internet). See especially the section on the difference between the work of the judge and the work of the preacher, al-farq bayna ‘amal al-qadi wa ‘amal al-da‘ iya, and the “important consequences” that follow, namely that “there is no infallible leader after the infallible leader (i.e. the Prophet), fa-laysa ba‘ d al-ma‘sum ‘alayhi al-salat wal-salam ma‘sum.” Other than Prophet Muhammad, the argument goes, everyone, including Islamic leaders, make mistakes and can be questioned about their opinions and decisions.

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bludgeon their way against unarmed protesters. Nor is the descent into authoritarianism of those who were its victims before they came to power surprising.98 Although governmental abuse emanates from all sectors, there is a specificity to political Islam. The Shah of Iran faced a formidable revolution in 1978 three decades after the previous revolution led by Musaddeq had been defeated in the early 1950s. A main difference comes from the staying power of Khumaini’s militant and extreme version. In 1978–1979, Iran’s revolution was slowly taken over by Khumaini, and iterated into what can only be described as a religious dictatorship. This precedent looms large over the Middle East. From a human rights perspective, the response is simple. One treats those in power now, whether Islamists or not, with the exact same standards applied to dictators before the revolution deposed them. This is true across the Middle East, and is not restricted to self-professed Islamists. The behavior of the post-Mubarak army leaders, from Tantawi to Sisi in Egypt, and the year of authoritarian measures taken by Mursi before a popular revolution deposed him in the revolutionary days of late June–early July 2013,99 continue the despotic patterns decried by Kawakibi. The arrests of nonviolent activists multiplied under Supreme Council of the Armed Forces (SCAF) rule, and the same army leadership committed egregious massacres against the Muslim Brotherhood protestors and jailed all their leaders after the deposition of Mursi. In Tunisia, the assassination of two leaders who opposed the ruling Nahda Human Rights Watch and Amnesty International have extensively documented the challenge of impunity in Egypt, after soldiers were implicated in the killing and torture of primarily Christian protesters outside of the Maspero state television building in October 2011. See “Brutality Unpunished and Unchecked: Egypt’s Military Kill and Torture Protesters with Impunity,” Amnesty International, October 2012; “Egypt: Don’t Cover Up Military Killing of Copt Protesters,” Human Rights Watch, October 25, 2011. The mass killing of Muslim Brotherhood demonstrators in July 2013 is one shocking instance of wide governmental abuse led by General ‘Abdelfattah al-Sisi. The forced virginity tests and the generally systematic violence against women, including collective rape and daily harassment on the streets, are well known, see, e.g. “Egypt: Year after ‘Virginity Tests’, Women Victims of Army Violence Still Seek Justice,” Amnesty International, March 9, 2012; “Egypt: Take Concrete Actions to Stop Sexual Harassment, Assault,” Human Rights Watch, June 13, 2014. 99 In “Le renversement de Morsi,”, L’Orient-Le Jour (Beirut), August 1, 2013, I  made the point that Mursi was removed by an immense nonviolent popular tide rather than the much decried “coup,” very much in the way Mubarak was removed by the nonviolent revolution of January–February 2011. In both cases, the army simply “stole” the revolution, except that for the bad luck of Egypt, Mursi had become president in a relatively free election in the second case. Although many Egyptian democrats voted for him, rightly so considering the infamous candidacy of a former prime minister of Mubarak (see, e.g., my “The day After: A Constitutional Roadmap for Egypt,” Ahram online, June 25, 2012), they lived to regret his victory and massively mobilized to remove him from power. Throughout 2013, I  had, like many others, repeatedly warned Mursi of the grave consequences of his rapid drift toward authoritarianism, first in his constitutional Caligula-like declaration of November 22, 2012, “President Morsi: The Dubious Authority of a ‘Constitutional Declaration,’” Jurist, November 29, 2012; then for the rushing in of a sectarian constitution, “Reading the Draft Constitution of Egypt: Setbacks in Substance, Process, and Legitimacy,” Ahram online, December 2, 2012; followed by a line-by-line criticism of his second Constitutional Declaration of December 9, 2012, “Another Missed Opportunity:  Legal Comment and an Alternative Policy,” Ahram online, December 10, 2012; and, finally warning him of an impending military intervention if he did not embrace the appointment of a large, representative cabinet of the Nile revolution, “President Morsi’s Last Chance,” Ahram online, March 11, 2013. This last warning came four months before Mursi’s ultimate demise. 98

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offer worrying signs of the impunity that their killers enjoy.100 The deposed Yemeni president continued his strong-arm tactics unperturbed, while the lure of an self-perpetuating stay in power, appears evident in the trajectory of his successor. In Turkey, the Muslim-democratic experience that offered much hope in the 1990s through the first decade of the twenty-first century has been put in check by the increasing authoritarianism of Recep Tayyip Erdogan, and it is not clear that the message carried by his sometime ally-turned-opponent Islamic leader Fethullah Gülen, “a man of action more than ideas,”101 is rooted enough in a nonviolent course. What transpires from a serious academic study on the Gülen movement is that “the Islamic enlightenment” which the movement proudly expresses remains otherwise hazy in terms of its commitment to nonviolence.102 Mutatis mutandis, the Israeli scene remains shorn of leaders for whom nonviolence has a place in the way Palestinians are treated.103 This is also true on the Palestinian side, even if the early work of Mubarak Awad will bear fruit in due course.104 This is therefore a process that needs to be carefully monitored, including through the institutional prism of constitutionalism and elections understood in the proper human rights framework. In the ascending revolutionary phase, there is no denial that a large number of self-styled Islamist groups, including the Egyptian Muslim Brotherhood, and the Tunisian Nahda, have joined in a common language of nonviolence, the “silmiyya, silmiyya” motto adopted across the Middle East revolution, and the advocacy of the dawla madaniyya, the civil state, as opposed to both its military and religious nemeses. This is an important legacy of the revolution, but it is insufficient if not sustained in the constitutional and

Arrest eventually came in Tunisia, letting off much pent-up anger against the Islamist Nahda party in the country. The picture is uneven across the region. But general questions of the commitment to democracy by Islamists are constantly raised. In Tunisia, Rashed Ghannushi (Rached or Rachid Ghannouchi, as he generally writes it following French spelling), the founder and leader of the Nahda, is accused by his detractors of engaging in “double speak,” opportunistically catering to different audiences, with the intent of maximizing the party’s electoral gains and assuaging the anxieties of Western observers wary of the rise of Islamism. Ghannouchi has consistently denied that the Nahda employs any such duplicity. See “Rached Ghannouchi: The Interview,” Foreign Policy, December 5, 2011. Perhaps the more worrying aspect of Ghannouchi’s hesitation is the muted expression of his advocacy of human rights when it does not concern Sunni Islam. I had an occasion to witness this intolerance at a meeting in Tunisia of Right to Nonviolence, when Ghannouchi, who had committed to attend, stopped responding to enquiries when he found out that a Shi‘i scholar from Najaf was due to join the conference. 101 M. Hakan Yavuz, Toward an Islamic Enlightenment: The Gülen Movement, New York: Oxford University Press 2013, 34. 102 Id., esp. at 47–91 (“The contextual theology of Gülen”), where the closest concept to nonviolence in the language of Gülen may be “tolerance,” a tolerance acquired mostly after Gülen took refuge in the United States in 1999, see also Yavuz at 43–44: “This period of exile also marked the beginning of a ‘new Gülen,’ who would gradually shed his statist, nationalist, and conservative ideas to adopt a newer universal language of liberalism, human rights, democracy, interfaith dialogue, and tolerance.” Better late than never. 103 In contrast, for remarkable voices in Israel against the subordination of Palestinians, now more muted, see Deena Hurwitz ed., Walking the Red Line: Israelis in Search of Justice for Palestine, Philadelphia: New Society Publishers 1992. The younger Jewish voices around +972 Magazine offer in Israel a promising nucleus of change. 104 See, e.g., Mubarak Awad, “Nonviolent Resistance: A Strategy for the Occupied Territories,” Journal of Palestine Studies, vol. 13, 1984, 22–36. 100

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judicial moments, and, more deeply and introspectively, in a different reading of the classical tradition. At the outset of the revolution in 2011 was a common yearning for all groups to bring down the dictatorship nonviolently. Islamist movements were an integral part of the revolution, but they were not in the lead. To forget the importance of the self-professed liberal-secular groups, “the youth,” or even an agnostic or atheist left, is a grave oversight in reading the revolution and its aftermath. To forget that the revolution would not succeed in the first place without the massive, inchoate, and generally leaderless street movement mostly animated by the professional and “apolitical” middle class, misses the forest of the nonviolent revolution for the trees of Islamist groups. There is an apt reminder in this passage from a book on the intellectual origins of the Middle East nonviolent revolution: “The Arab Spring was most novel in that it produced no clear leaders. Not so much leaderless, it was leaderful. Many small groups coordinated the protests. Second, the Arab Spring was— at the start—avowedly nonviolent.”105 * * * Starting with the polysemy of words and ending with the caution against doublespeak, the reinvention of Middle Eastern intellectual thought and civilizational history is afoot. Its deeper terrain invests philosophy, law, poetry, and historiography. With hard work comes hope. The 2011 revolution offers in the reconstruction of its humanist culture, past and present, a tangible opportunity to usher in a philosophical understanding of nonviolence rooted in the Middle East’s uniquely deep culture. Its classical and modern literary references are many, and can be multiplied manifold. The revival of the nonviolent strand of culture is a long and complex intellectual adventure. It does not operate at the rapid rhythm of revolutionary events, and it requires a collective endeavor and a scholarship that will continue to compete with the so-far dominant association of Arab-Islamic literary record with violence and terrorism. This chapter is just a sample of an active search into a deep and colorful culture to revive its nonviolent expressions and, more broadly, its radical idealist humanism. The treasures found are worth the hard work. Nor can Middle Eastern culture and philosophy be artificially shorn from the wider intellectual world. The Enlightenment of Europe is part and parcel of Middle Eastern intellectual history. I now turn to Europe’s most alluring expression of nonviolence as the philosophers’ “perpetual peace.”

105

Elizabeth Thompson, Justice Interrupted: The Struggle for Constitutional Government in the Middle East, Cambridge, MA: Harvard University Press 2013, 311 (emphasis in original).

I do not like your cold justice; and from the eye of your judge always flicker to me the executioner and his cold steel. NIETZSCHE1

5 Nonviolence The Centr al Philosophical Par adox

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The centr al philosophical paradox is this:  nonviolence as the exclusive anima of a revolution cannot endure beyond. A nonviolent revolution is incapable of projecting its pristine, absolute essence into the society that emerges from its success. The philosophy of Gandhi and Christ that we have inherited faces an intellectual and practical dead end. There is no human society without law, and there is no law without violence. To address this paradox of nonviolence as nexus of historical change versus violence as part of law in any society, we turn to the “perpetual peace” genre of the eighteenth century, and its extension into the democratic peace school of the twenty-first century. The order of reasons into the philosophy of nonviolence requires this additional perspective. As decrees of reality come on the wing of history in the making to remind us that action forces thinking onto new paths, and as culture revives and gets rediscovered to accommodate popular action with the strata of collective memory, the philosophical instance proper is still missing. In the order of reasons, the nonviolent character of the Middle East revolution conjures up at the most abstract level of understanding the great philosophers’ explicit search for “perpetual peace.” Perpetual peace emerged in the Enlightenment as a discrete philosophical genre. It all began with a string of treaties signed at Utrecht in January 1713, and then across Western and Central Europe. They are collectively known as the Peace of Utrecht.2 The Peace of Utrecht stopped “the Spanish succession” wars, a series of European conflicts that started

“Ich mag eure kalte Gerechtigkeit nicht; und aus dem Auge eurer Richter blickt mir immer der Henker und sein kaltes Eisen.” Friedrich Nietzsche, So sprach Zarathustra (1888), I, ­chapter 21. 2 See generally Linda and Marsha Frey, Entry “Peace of Utrecht,” in Oxford Bibliographies online, www. oxfordbibliographies.com, updated September 2012. 1

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a decade earlier because of the dynastic claims of Philip V of Spain over France. Philip V was the grandson of French King Louis XIV, and his claim meant the extension of a wide Spanish-French landmass under the Bourbon dynasty in a clear threat to the rest of Europe. Utrecht put an end to the claim, and established the large Western European countries in the general boundaries that remain to date, including the oddity of Gibraltar as a British territory. Rather than the famous “Westphalian Order” emerging from the Treaty under that name and putting an end to the thirty-year wars of religion in Europe in 1648, the enduring system of nation-states rests more solidly on the foundations of the European peace that was conceived in Utrecht. Westphalia is best understood as the delimitation of religion and state in the context of the Catholic-Protestant wars that ripped Europe apart on the cleavage started by Martin Luther. Westphalia adjusted the state to its dominant religious constituency in the wake of the systematic killings and the displacement of religious minorities. Utrecht consecrated the authority of princes over the territory they controlled as “sovereigns,” irrespective of whether the subjects to be found in these territories were Catholic or Protestant. Utrecht, rather than Westphalia, founded the modern European nation-state. While confirming Westphalia’s territorial logic as opposed to the principle of personality defined religiously, Utrecht created the European nation-state as the unit where law is coextensive with the sovereign within boundaries that can no longer be changed. Its logic doomed, in the same breath, the staying power of empires. Utrecht ushered in two fundamental principles of the modern world-system: the rejection of war by conquest as principle, and the monopoly of domestic violence vesting in the nation-state. One of our main protagonists in this chapter, the Abbé de Saint-Pierre (d.1743), a negotiator at Utrecht, saw the new system clearly, and sought to perfect it. For him, the model arrangement adumbrated in Utrecht marks the end of sedition and civil war, and the improper interference of outside powers. He saw two principles at play: (1) the sovereign is free to impose his law onto any rebellion, and (2)  the foreign sovereign has no right to interfere in any of his neighbor’s internal matters. Writing in 1713, he expressively summarizes the world order to be: “Article II: European Society will not intervene in the Government of any State, if not to conserve its fundamental form, and to give a quick and sufficient support to Princes in the Monarchies, and to Magistrates in the Republics, against seditionists and rebels.” In the “clarification” he added to the Article, “the principal effect of the Union is to conserve all things still in the state in which it finds them.”3

Abbé de Saint Pierre, Projet pour rendre la paix perpétuelle en Europe, Utrecht: Schouten 1713–1716, 3 vols., Vol. 1, 290–91: “Article II. La Société Européenne ne se mêlera point du Gouvernment de chaque Etat, si ce n’est pour en conserver la forme fondamentale, & pour donner un prompt & suffisant secours aux Princes dans les Monarchies, & aux Magistrats dans les Républiques, contre les Séditieux & les Rébelles . . . “éclaircissement”: “Le principal effet de l’Union est de conserver toutes choses en repos en l’état qu’elle les trouve.” The Abbé de Saint-Pierre’s first book-length treatise was published at J. Le Pacifique in Cologne in 1712 as Mémoires pour rendre la paix perpétuelle en Europe. This original text, including a few handwritten lines, is available online at ftp://ftp.bnf.fr/010/N0105087_PDF_1_-1DM.pdf. I  refer to it here as “Projet 1712.” A second, more “mature” edition entitled Projet pour rendre la paix perpétuelle en Europe was published in two volumes in 1713 in Utrecht, at Antoine Schouten, with a third volume published in 1716, and is available at http://gallica.bnf.fr/ark:/12148/bpt6k105087z. This is the most elaborate edition extant, which I use

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It is therefore Utrecht rather than Westphalia that determined the nation-state that prevailed until the twenty-first century, and it may ironically be Jean-Jacques Rousseau who unwittingly established the founding myth of Westphalia on the occasion of his creative editing of the Abbé’s Project for Perpetual Peace: “The Treaty of Westphalia will perhaps be forever the basis of the political system amongst us.”4 Rousseau, who died in 1778, missed the mark on this score. Utrecht is a better anchor for the modern nation-state system than Westphalia. For the philosophy of nonviolence, the shift to Utrecht as the source of the modern world order has an added value. The Treaty of Utrecht adumbrates the conditions for subsequent peace in a high-quality discussion that spans the full eighteenth century and culminates in Immanuel Kant’s Treatise on Perpetual Peace.5 So “perpetual peace” became a genre of the Enlightenment.6 At its origins lay a visionary/ utopian and sometime diplomat, the Abbé de Saint-Pierre whose Projet de Paix Perpétuelle

mainly in this chapter as Projet 1713. An activist, Saint-Pierre then composed a string of “summaries, abrégés” of his Projet. A first Abrégé in 1729 was translated and prefaced in Malta: M. L’abbé de Saint-Pierre, The Projet for Perpetual Peace, Valletta: Midsea Books 2008. But I prefer a later edition, the Abrégé of 1738, which was translated into English by the Grotius Society in 1927 with a good introduction by Paul Collinet, “Introduction” (hereinafter Collinet, “Introduction”), in Selections from the Second Edition of the Abrégé de Projet Perpétuelle, by C.I. Castel de Saint-Pierre, Abbot of Tiron, 1738, H. Hale Bellot tr., London: Sweet and Maxwell 1927. 4 “[L]‌e Traité de Westphalie sera peut-être à jamais parmi nous la base du système politique.” Jean-Jacques Rousseau, “Ecrits sur l’Abbé de Saint-Pierre,” Oeuvres complètes, Paris:  Gallimard 1964, collection de la Pléiade, Vol. 3, 561–682, with annotations at 1540–74, at 1572. Rousseau was tasked by the family of the Abbé to put some order in the large written legacy. He never finished the work, but left us instead a series of reflections, some presenting a faithful summary of the Abbé’s views, some critical, with Rousseau presenting his own views. The first text, Extrait du Projet de Paix Perpétuelle de Monsieur l’abbé de Saint-Pierre, Geneva 1761, was published during Rousseau’s life. A second text, Jugement sur la Paix Perpétuelle, appeared posthumously in the first Oeuvres complètes collected by de Moultou and du Peyrou, Geneva 1782, Vol. 23, 62–82. All the relevant texts of Rousseau on the Abbé are cited here from the definitive edition of La Pléiade, 1964, Vol. 3, hereinafter Rousseau, “Ecrits sur l’Abbé de Saint-Pierre,” followed by the page. 5 Immanuel Kant, Zum ewigen Frieden: ein philosophischer Entwurf (For Perpetual Peace: A Philosophical Essay), Königsberg: Nicolovius 1795. I use the English translation by Ted Humphrey, Perpetual Peace and Other Essays, Indianapolis: Hackett 1983, 106–43, who references in the margin the corresponding page of Kant’s Gesammelte Schriften (Berlin and Leipzig: De Gruyter 1904–), 28 vols, Vol. 8, hereinafter TPP for Kant’s Treatise on Perpetual Peace, as it is generally known in the literature, with the page of the English edition and the corresponding page in the German text. Ewig is more accurately translated as eternal, or everlasting, even in the acceptation of eighteenth-century German, but the first English translator recognized it already then as a genre originating from the Abbé de Saint-Pierre eight decades earlier, and chose “perpetual” instead to match the original. This first English translation was printed in London by S. Couchman for Vernor and Hood in 1796 as Project for a Perpetual Peace: A Philosophical Essay (available with the original orthography as Immanuel Kant, Perpetual Peace, New York: Columbia University Press, 1939, earlier version in 1932). I was not able to ascertain the name of the first translator in English. The English rendering of ewig as “perpetual” stuck. It continues the Abbé de St Pierre and Rousseau’s titles. To be fair, the French “perpétuel” has a less grandiloquent connotation than ewig or even the English “perpetual,” and conveys a sense of regeneration and reproduction rather than ‘eternity’. 6 Precedents to the concept are not discussed here. They are generally traced back to Erasmus of Rotterdam’s many antiwar writings, especially Querela pacis (the complaint of peace), published in 1517 and Consultatio

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gets fleshed out in various books published from 1712 to 1747.7 Rousseau revived the fleeting fame of the Abbé in a critical edition of the Projet in 1761.8 The culmination of the genre came in 1795. One year after the French revolution’s dramatic peak of the Terreur in Thermidor de l’An II (July 1794), Kant published his own version of perpetual peace in the direct tracks of the Abbé and Rousseau.9 All three eighteenth-century luminaries have in common one objective: the end of organized political violence known as war. There is a clear geographic and philosophical progress from the Abbé de Saint Pierre to Kant. Geographically, the Abbé’s concept of peace

de bello turcico (Opinion on war against the Turks), written in 1530. Erasme’s two texts are conveniently published and discussed in the section on “Guerre et Paix” in a large selection of the works of Erasme, Paris:  Laffont 1992, respectively at 909–55 and 955–73. See also the useful retrospective, including the most relevant texts on “eternal peace” from the Renaissance to Kant, by Kurt von Raumer, Ewiger Friede- Friedensrufe und Friedenspläne seit der Renaissance, Freiburg: Karl Alber 1953. Sequels to Kant are legion, especially as they including institutionalization into the League of Nations, then in the United Nations Organization. A strong critical view of Kant’s TPP, which Aziz Rana alerted me to, is presented in James Tully, Public Philosophy in a New Key, Cambridge: Cambridge University Press 2008, (Kindle), Vol. 2, c­ hapter  1, “The Kantian Idea of Europe:  Critical and Cosmopolitan Perspectives,” especially “3. Rethinking cultures” and “4. Rethinking constitutions and federations.” I sympathize with these views, which see in Kant’s TPP a cover for imperialism, but I do not ultimately find them relevant to the paradox in the philosophy of nonviolence presented here, which is as true for European countries as it is for formerly colonized societies. Other aspects underlined by Tully, like the erasure of cultural difference, and an obsession with constitutions, are taken on board in the constitutional part, e.g. on the discussion of the scarf and in the section on sects and subordination, but, contrary to Tully’s reading, are not antithetical to the Kantian view of perpetual peace as a cosmopolitan vision of the world in which universalism ultimately trumps localism. 7 Above, note 3. The first reference to the Abbé’s manuscript dates from June 1711, in a letter from his patron, the Duchess of Orléans to her correspondent the Duchess of Hanover: “Marly, 28 June 1711. . . . you and I are among the brotherhood of peace-loving folk as much as the Abbé de Saint-Pierre, who is now my first almoner. He draws up project upon project for securing everlasting peace. He wants to write a whole book upon it. Here are his first sheets: but I doubt if he completes the work: people are already making fun of it.” Collinet, “Introduction,” 4 fn. b. A still useful bibliography on the Abbé appears in Collinet’s “Introduction” at 11–13. 8 Above note 4. 9 There is great humor in TPP’s opening lines, and much self-deprecation in Kant’s style in this and other writings, which get lost in the thicket of his formidable thought: “To Perpetual Peace: Whether this satirical inscription on a certain Dutch shopkeeper’s sign, on which a graveyard was painted, holds for men in general, or especially for heads of state who can never get enough of war, or perhaps only for philosophers who dream that sweet dream, is not for us to decide.” TPP, 107/343. The appropriation by the German philosopher of the shingle’s inscription on a tavern door continues an early humorous comment from Leibniz likening perpetual/eternal peace to the peace of the grave: “Madame, Duchess of Orleans, wrote, before the book had appeared, that fun was already being made of him. In 1715 Liebnitz [sic] confessed to Grimarest his private opinion of the Projet, which he thought utopian, in terms still worth attention to-day: ‘I have seen something of the plan of M. de Saint-Pierre for the maintenance of an everlasting peace in Europe. It reminds me of a motto on a grave, pax perpetua; for the dead fight not; but the living are of another temper, and the most powerful have little respect for courts.’ ” “Collinet, “Introduction,” Abrégé of 1738, above note 1, 7–8. Collinet adds in the note: ‘The humorous, if grim, comparison of the great scholar has become famous, but has suffered at the hands of those who have quoted it. In d’Alembert’s Eloge de Saint-Pierre before the Academy, the motto on a grave becomes the sign of a Dutch merchant, and in Kant, another protagonist of everlasting peace, the sign of an inn.”

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is limited to Europe, and a Christian Europe at that.10 By the time Kant writes, his scope of perpetual peace is universal. Philosophically, the Abbé does not care about the nature of the government in power, and his Projet goes to the enlightened despot in a traditional Mirror of the Princes genre, with the lofty objective to abandon war as policy. His lifelong undertaking is advice to Europe’s sovereigns on how to reach a perpetual state of peace in the continent. In contrast, Rousseau and Kant put a republican=democratic regime as the condition of peace at the heart of the question: How does one abolish war? For the Abbé, the Christian rulers of Europe should agree on a “permanent and perpetual Union between the Sovereigns” in a Congress sitting in a “Ville de Paix” where they regulate an understanding of their relations to prevent armed conflict within, and to form a front for a common defensive and offensive policy toward any other foreign threat.11 In addition to the commitment to peace by an express rejection of war among themselves,12 the Abbé Abbé de Saint-Pierre, Front page of Volume I of the 1713 edition of the Projet pour rendre la paix perpétuelle en Europe: “Mon dessein est de proposer des moyens de rendre la paix perpétuelle entre tous les Etats Chrétiens (My purpose is to propose the means for making peace perpetual amongst all Christian states).” See also Abrégé of 1738, 25: “And, finally, to render the grand alliance the surer by making it the more numerous and more powerful, the grand allies agree that all Christian Sovereigns shall be invited to enter it by the signature of this fundamental treaty.” To be fair to the Abbé, he did discuss the possibility of the agreement embracing all nations on earth, and not only Europe’s “Christian Sovereigns”, but he found the prospect too far-fetched: “Dans la second ébauche le Projet embrassait tous les Etats de la Terre, mes amis m’ont fait remarquer, que quand même dans la suite des siècles la plûpart des souverains d’Asie & d’Affrique demanderoient à être reçus dans l’Union [Européenne], cette vue paraissait si éloignée, & embarassée de tans de difficultez, qu’elle jettait sur tout le Projet un air, une apparence d’impossibilité qui révoltait tous les Lecteurs. (‘In its second draft, the Project embraced all countries on earth, and my friends pointed out to me that even if most sovereigns of Asia and Africa would demand in the course of centuries to be accepted in the [European] Union, this perspective appeared so distant and strewn with obstacles that it threw an appearance of impossibility on the whole project and would revolt all readers.’)” Projet 1713, I, xix, xx. He also argues that colonies beyond Europe would easily follow suit if his Project succeeded (id., xx–xxi). 11 Projet 1713, I, 284–85: “Articles Fondamentaux. Article 1. Les Souverains présens par leur Députez soussignez sont convenus des articles suivans. Il y aura dés ce jour à l’avenir une Société, une Union permanente & perpétuelle entre les Souverains soussignez, & s’il est possible entre tous les Souverains Chrétiens, dans le dessein de rendre la Paix inaltérable en Europe, & dans cette vûe l’Union fera, s’il est possible, avec les Souverains Mahometans ses voisins des Traitez de Ligue offensive & défensive, pour maintenir chacun en Paix dans les bornes de son Territoire, en prenant d ;eux, & leur donnant toutes les sûretez possibles réciproques. Les Souverains seront perpétuellement representés par leurs Députez dans un Congrez ou Sénat perpétuel dans une Ville libre.” (Fundamental articles. Article 1. Attending undersigned sovereigns, represented by their deputies, have agreed upon the following articles. There will be today and in the future a Society, a permanent & perpetual Union between undersigned Sovereigns & if possible between all Christian Sovereigns, with the aim of making Peace unalterable in Europe, & in this view the Union will sign offensive and defensive treaties with Mahometan Sovereigns, in order to maintain peace in each kingdom and within the borders of its territory, by taking & giving the appropriate and reciprocal securities. Sovereigns will perpetually be represented by their deputies in a perpetual Congress and Senate established in a free City.) See also Abrégé of 1738, 24: “First Article—There shall be henceforth between the Sovereigns of Europe . . . a perpetual alliance, 1) Mutually for all time to procure to themselves complete security from the great misfortunes of foreign war.” 12 Projet 1713, I, 326–27: “Nul Souverain ne prendra les armes & ne fera aucune hostilité que contre celui qui aura été déclaré ennemi de la Société Européenne . . . Le Souverain qui prendra les armes avant la déclaration de Guerre de l’Union, ou qui réfusera d’exécuter un Réglement de la Société, & qu’elle lui fera la Guerre.” 10

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wants that agreement institutionalized in a comprehensive and lasting “European Union” between the twenty or so existing powers he lists.13 The Union is a “co-active and coercive force”14 that can oblige them to respect their commitment, with degrees of mediation and arbitration ultimately featuring a judicial tribunal that enforces decisions under the commitment agreed in advance by the Union.15 An irenic system then, the argument came together three hundred years later in Jean Monnet’s vision of Europe, down to the description of the countries that are part of this European peace, and of the European Court of Justice as ultimate arbitrator of EU law. From Muscovy to the Iberian Peninsula, the member states of the Abbé’s vision uncannily cover the terrain of the current EU.16 Coining the term “European Union” three centuries before its realization, the Abbé may not have been pursuing a chimera as doggedly as he has been generally portrayed.17

(No Sovereign will take up arms & engage in any hostility unless against who has been declared an enemy of the European Society . . . The Sovereign who will take up arms before the declaration of war is made by the Union, or refuse to execute a Regulation of the Society, will be considered an enemy.) Also Abrégé of 1738, 27: “Third Fundamental Article. The grand Allies have renounced, and renounce for ever, for themselves and for their successors, resort to arms to terminate their differences present and future.” 13 The number is important, see details in note 16 below, because the Sovereigns abandon the right of conquest in perpetuity, and remain confined “for ever” within their territories. “Article IV. Chaque Souverain se contentera pour lui & et pour ses Successeurs du Territoire qu’il possède actuellement, ou qu’il doit posséder par le Traité ci-joint.” Projet 1713, I, 297. 14 Rousseau, “Ecrits sur l’Abbé de Saint-Pierre,” 574: “force coactive et coërcitive.” 15 Projet 1713, I, 326–27. Following the principle that no sovereign will take up arms against another, see above note 13, the method of resolving any future disagreement is described as follows: “ . . . mais s’il a quelque sujet de se plaindre de quelqu’un des Membres ou quelque demande à lui faire, il fera donner par son Député son Mémoire au Sénat dans la Ville de Paix, & le Sénat prendra soin de concilier les différens par ses Commissaires Médiateurs, ou s’ils ne peuvent être conciliez, le Sénat les jugera par Jugement Arbitral à la pluralité des voix pour la provision, & aux trois quarts pour la définitive. Ce Jugement ne se donnera qu’après que chaque Sénateur aura reçu sur ce fait les instructions & les ordres de son Maître, & qu’il les aura communiquez au Sénat.” See also Abrégé of 1738, 27: “Third Fundamental Article. The grand Allies . . . agree henceforth always to adopt the method of conciliation by mediation or, in the case this mediation should not be successful, they agree to abide by the judgment which shall be rendered by the Plenipotentiaries of the other Allies permanently assembled . . . ” The Abbé varies the method of “binding judgment” between the sovereigns assembled and a “permanent [system] of arbitration or Tribunal” established separately. See Abrégé of 1738, 26, 20 for tribunal. 16 The list of Union members varies between eighteen and twenty-four. It is twenty-four in 1712, Projet 1712, 321, full list at 334–35; eighteen in the Projet 1713, I, viii, and nineteen in the Abrégé of 1738, 54. They cover most of the map of Europe from England to Russia. This is long before the unification of Germany and Italy, which are represented in the European order of the Abbé by city states. He also stumbles over the issue of the Holy Roman Empire. Rousseau mentions nineteen countries, “Ecrits sur l’Abbé de Saint-Pierre,” 577. 17 Rousseau concludes one of his two main chapters on the Projet by describing it as “chimérique,” id., 589. Writing in 1927, Collinet mentions how skeptical the Abbé’s contemporaries were, but also notes the force of his ideas: “Perhaps the rest [of the skeptics] will soon recognize what I have always held, that the system of the Abbé de Saint-Pierre is more important, and even is more practicable, than has been supposed. In fact, as the experience of our time has proved, there is no other method of avoiding war and establishing peace in international affairs than that of transferring to conflicts between States the procedure which has served in the past to appease the conflicts between groups or between individual within the State.” Collinet, “Introduction,” 9. “European union” as a word suffuses the Abbé’s writings, as does “Ligue

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As he edits the Abbé’s work, Rousseau comes up with such a dissonant result that it occasionally gets hard to recognize where his exposition reinforces the Abbé’s, and where he contradicts it openly. At moments, he makes the Abbé’s long-winded prose sharper than the original: Now let us see how this great work, begun by fortune, can be completed by reason; and how the free and voluntary society which unites all the European States, taking on the force and the solidity of a true Body politic, can change itself into a real confederation. It is unquestionable that by giving to this association the perfection that it lacked, such an establishment will destroy its abuse, will extend its advantages, and will force all parties to cooperate for the common good, but for that this confederation must be so general that no considerable Power decline it; that it have a judicial Tribunal, which can establish laws and rule that must oblige all the members; that it have a compulsory and coercive force to constrain each State to submit to the common deliberations, either to act or to abstain; in sum, that it be firm and durable, so as to keep the Members from separating from it at their will as soon as they believe they see their particular interest contrary to the general interest. These are the certain signs from which one will recognize that the institution is wise, useful and unbreakable.18 At other moments, Rousseau undermines the very text he purports to edit. Rousseau has no faith in the monarchs whom his role model sought to bring together in the projected European league: “Now I ask whether there is in the world a single sovereign who, limited

fédérative” and other similar terms. “Europe” as commonalty, union, is a widely shared concept in the eighteenth century, with a real yearning for an end to war on the continent. See for an early example, William Penn, An Essay Towards the Present and Future Peace of Europe (1693), available e.g. at https://aulavirtual. uji.es/file.php/14485/4_an_essay_towards_the_present_day_and_future_peace_of_europe_ocr.pdf. Saint-Pierre was himself the heir to an intellectual tradition that he acknowledges in Sully and Henry IV, see Raumer, above note 6, 61–78. Lucien Febvre brilliantly shows how “Europe” as a concept died with the  nationalism born in the French revolution, see his L’Europe. Genèse d’une civilization, Paris:  Perrin 1999, 239. 18 I  use here the English translation of Rousseau in The Plan for Perpetual Peace, On the Government of Poland, and Other Writings on History and Politics, Dartmouth, NH: Dartmouth University Press 2005, 36, [Hereinafter Rousseau, Plan for Perpetual Peace, followed by the page], which corresponds to the French standard version of la Pléiade, above note 4. The original French reads as follows: “Voyons maintenant de quelle manière ce grand ouvrage, commencé par la fortune, peut être achevé par la raison; et comment la société libre et volontaire qui unit tous les États européens, prenant la force et la solidité d’un vrai Corps politique, peut se changer en une Confédération réelle. Il est indubitable qu’un pareil établissement, donnant à cette association la perfection qui lui manquait, en détruira l’abus, en étendra les avantages, et forcera toutes les parties à concourir au bien commun. Mais il faut pour cela que cette Confédération soit tellement générale, que nulle Puissance considérable ne s’y refuse; qu’elle ait un tribunal judiciaire qui puisse établir les lois et les règlements qui doivent obliger tous les membres; qu’elle ait une force coactive et coercitive pour contraindre chaque État de se soumettre aux délibérations communes, soit pour agir, soit pour s’abstenir; enfin, qu’elle soit ferme et durable, pour empêcher que les membres ne s’en détachent à leur volonté, sitôt qu’ils croiront voir leur intérêt particulier contraire à l’intérêt général. Voilà les signes certains auxquels on reconnaîtra que l’institution est sage, utile et inébranlable.” Rousseau, “Ecrits sur l’Abbé de Saint-Pierre,” 574.

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in this way forever in his dearest plans, would without indignation put up with the mere idea of seeing himself forced to be just, not only with Foreigners, but even with his own subjects.”19 War for monarchs, Rousseau contradicts the Abbé, is a necessary tool to exact obedience from their people, an existential license of power that they will not and cannot abandon: “The entire occupation of Kings, . . . relates to only two objects, extending their domination abroad and rendering it more absolute at home.”20 It is part of a ruler’s sovereignty to wage war. The sovereign will not abandon such a defining power of essence to his rule, and will certainly not give it up to a league of his peers: “As for the differences between Prince and Prince, one can hope to subject to a superior tribunal men who dare to boast that they hold their power by their sword alone, and who even refer to God only because he is in heaven? In their quarrels, will Sovereigns subject themselves to judicial paths that all the rigor of the Laws have never been able to force private individuals to accept in theirs?”21 The axiom epitomizes the realist school.22 The causes of war are many, no doubt, but the central

Rousseau, Plan for Perpetual Peace, 54. “Or je demande s’il y a dans le monde un seul souverain qui, borné ainsi pour jamais dans ses projets les plus chéris, supportât sans indignation la seule idée de se voir forcé d’être juste, non seulement avec les Etrangers, mais avec ses propres sujets.” “Ecrits sur l’Abbé de Saint-Pierre,” 593. 20 Rousseau, Plan for Perpetual Peace, 54. “Toute l’occupation des Rois . . . se rapporte à deux seuls objets, étendre leur domination au dehors et la rendre plus absolue au-dedans.” “ Ecrits sur l’Abbé de Saint-Pierre, ” 592. 21 Rousseau, Plan for Perpetual Peace, 55. “Quant aux différens entre Prince et Prince peut-on espérer . . . de soumettre à un Tribunal supérieur des hommes qui s’osent vanter de ne tenir leur pouvoir que de leur épée, et qui ne font mention de Dieu même que parce qu’il est au Ciel? Les Souverains se soumettront-ils dans leurs querelles à des voyes juridiques que toute la rigueur des Loix m’a jamais pû forcer les particuliers d’admettre dans les leurs?” “Ecrits sur l’Abbé de Saint-Pierre,” 593. 22 Rousseau’s depiction of war as a continuation of the monarch’s domestic policy is a powerful adumbration of Clausewitz’s most famous axiom in his 1831 treatise Vom Kriege (that war is a continuation of state politics by other means), citation below note 27, as well as a nod to Machiavelli’s Prince (1532). In deference to the “natural” political philosophy of Middle Eastern dictators, the story of Machiavelli’s reception by Muhammad ‘Ali, the despot who ruled Egypt at the beginning of the nineteenth century, is worth recounting for the stunning parallels to the psyche of current dictators: 19

Himself [Muhammad ‘Ali] a man of no education, who only learnt to read in his forties, he was not so responsive to the political ideas of modern Europe as were the sultans of his time. He had, it is true, some interest in books, but only for what they could teach him in the art of government. Books about Napoleon were translated and read to him, and he had Ibn Khaldun’s Muqaddima copied from North African manuscripts and translated into Turkish. He listened with less admiration to a translation of Machiavelli made at his command by his minister, Artin. Artin relates that he translated it for the pasha at the rate of ten pages a day: But on the fourth [day] he stopped me. “I have read”, he said, “all that you have given me of Machiavelli. I did not find much that was new in your first ten pages, but I hoped that it might improve; but the next ten pages were not better, and the last are mere commonplace. I see clearly that I have nothing to learn from Machiavelli. I know many more tricks than he knew. You need not translate any more of him.” Albert Hourani, Arabic Thought in the Liberal Age 1798–1939, Cambridge: Cambridge University Press rpt ed. 1983, 51–52. According to Matti Moosa (who gives the name of the translator as one Zakhur), that original translation is preserved as MS 435 in the Egyptian National Archives at Dar al-Kutub. Matti Moosa, Origins of Modern Arab Fiction, London: Lynne Rienner 2nd ed. 1997, 96. I confess my sympathy with Muhammad ‘Ali’s boredom with The Prince, which is echoed in Kant’s criticism of the “spirit of charlatanism” in the “widely known . . . political maxims . . . fac et excusa; si fecisti, nega; and divide et impera,” typical

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cause in this realist theory emanates from a sovereign for whom war is an absolute privilege that he cannot and will not surrender: “Also it is easy to understand that, on the one hand, war and conquests and, on the other, the progression of Despotism mutually reinforce each other.”23 There is for Rousseau no end to war in this context. Waging war as an emanation of sovereignty is coexistent with the sovereign’s despotic essence. Does that mean the Abbé was hopelessly wrong? For Rousseau, and for us as we seek to understand Middle Eastern and like-minded authoritarian rulers of our time, the Abbé missed or obscured the defining trait of the sovereign: his despotism. But the perpetual peace project was not altogether abandoned by the author of the Social Contract, which Rousseau envisaged to augment by an additional, international part that he never completed outside his writings on the Abbé. To remain coherent with his masterpiece, Rousseau elevates the terrain to an examination of social relations between the ruler and the people in which the absolute monarch is no longer the sovereign, acting of his own will to shape the destiny of the nation. Rousseau’s suggested condition for the success of the Abbé’s peace is for the people to be sovereign. This requires republics where the citizens have no particular interest in ending up on the slaughter field, and where the despot waging war does not have a place. A monarch will by definition use war to assert or reassert his sovereignty over his people. It is a tool he can never abandon because a monarch is despotic, not because the country is sovereign. Only by replacing a sovereign monarch by a sovereign people, Rousseau argues three decades before the fall of the Bastille, can the Abbé’s project survive. The Abbé did not care about the nature of the government in power, and his address calls on the monarch’s “reason.” In contrast, Rousseau and Kant in his wake, put a republican=democratic regime at the heart of international peace. Rousseau concludes prophetically: “One does not see federative Leagues established by any way other than by revolutions.”24 As he exposes the Abbé’s limitations, Rousseau also provides the bridge to Kant. The republican-democratic twist made by Rousseau in his edition of the Abbé’s iterations of the Projet in other writings, especially the Social Contract, is taken up by Kant in the wake of the French revolution. The French revolution inscribes the philosophes’ republican contract in Gueroult’s tangible “realities of history,” very much like the Middle East revolution inscribes nonviolence in the reality of twenty-first century revolutions. In Kant’s short treatise, the republican theory rings as powerfully today as it did in 1795. It is now widely known as the “democratic peace theory,” and dominates the discussion on war in the international realm.25 Rousseau and Kant elaborated the overall concept decisively, and it endures. War of the despotic prince. TPP 129–31/374–75. In the Middle East revolutionary context, this passage of Kant is extensively cited by the most articulate resistant to Syrian rule over Lebanon in the 1990s, Sélim Abou, Les Libertés, above Chapter 3, notes 39, 90–91. 23 Rousseau, Plan for Perpetual Peace, 54. “Il est facile de comprendre que d’un côté la guerre et ses conquêtes et de l’autre le progrès . . . du Despotisme s’entr’aident mutuellement.” “Ecrits sur l’Abbé de SaintPierre,” 593. 24 Rousseau, Plan for Perpetual Peace, 60. “On ne voit point de Ligues fédératives s’établir autrement que par des révolutions.” “Ecrits sur l’Abbé de Saint-Pierre,” 600. 25 In a research note prepared for the present work, Michael Pomeranz collected a set of references that underline the fault line between the realist school (balance of powers and deterrence as peace guarantors, represented in US academia in the works of John Mearsheimer) and the democratic theory school (democratic countries do not go to war against each other, represented in Bruce Russett’s works). Pomeranz, “Research

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is a legitimacy tool that authoritarianism revels in to shore up its domestic legitimacy; it is a mediocre though essential ploy adumbrated by Shakespeare’s Henry IV advising his son to “busy giddy minds with foreign quarrels,”26 and pursued in grand theory by Clausewitz’s definition of “war as nothing other than state politics continued by other means.”27 Kant’s Treatise for Perpetual Peace is divided in three parts, with preliminary short articles that set the stage, an appendix that disposes of the expected answer of the cynic who believes that morality is secondary to power, and a core of three Definitive Articles, of which the first two simply stipulate that: 1. “The civil constitution of every nation should be republican.”28 2. “The right of nations shall be based on a federation of free states.”29 In the First Definitive Article, Kant conditions peace on a state ruled by law as devised by the enlightened and rational citizen, and his “republican”30 qualification is a rough equivalent of our modern-age “democratic.”31 The republican constitution “accords with the

on Democratic Peace Theory and Cover” (November 8, 2011, on file with author). See their debate summarized in “Correspondence: Back to the Future, Part III: Realism and the Realities of European Security,” International Security, vol. 15, 1990/1991, 216–22. 26 King Henry IV, Part II (1600), Act iv, scene v. 27 “[D]‌er Krieg nichts ist als die Fortsgesetze Staatspolitik mit anderen Mitteln.” See Carl von Clausewitz, Vom Kriege (On war 1831), Frankfurt: Ullstein 1980, 8, 34, 674–77 for various formulations. 28 “First Definitive Article of Perpetual Peace,” TPP 112/349. 29 “Second Definitive Article of Perpetual Peace,” TPP 115/354. The Third Definitive Article, “Cosmopolitan Right Shall Be Limited to Conditions of Universal Hospitality,” is visionary in ways that are tangentially germane to our reflection. Kant argues for “the foreigner’s right to visit,” and to be treated like the national citizen upon exercising this right. He contrasts the immoral policy of colonialism, and describes it as “inhospitable conduct of civilized nations” under the guise of commerce, in “the entire litany of evils that can afflict the human race.” TPP 118–19/358. In this Definitive Article also, Kant suggests that “the world can be brought closer and closer to a cosmopolitan constitution.” 30 Kant distinguishes the form of sovereignty from the form of government in a confused manner. The “form of government ( forma regiminis) . . . concerns the way in which a nation, based on its constitution (the act of the general will whereby a group becomes a people), exercises its authority. In this regard, government is either republican or despotic. Republicanism is that political principle whereby executive power (the government) is separated from legislative power.” TPP 113–14/351–53. 31 In a tradition going back to Plato, democracy tends to be disliked by political philosophers. In Plato’s Republic (ca 380 bce, book 8), democracy is one step up from tyranny in a five-regime classification, by descending preference: aristocracy, timocracy, oligarchy, democracy, tyranny. In TPP, democracy is also disparaged by Kant: “Among the three forms of government,” which he describes as Autocracy, Aristocracy, and Democracy, “democracy, in the proper sense of the term, is necessarily a despotism, because it sets up an executive power in which all citizens make decisions about and, if need be, against one (who therefore does not agree); consequently, all, who are not quite all, decide, so that the general will contradicts both itself and freedom.” TPP 114/353. Tocqueville’s Democracy in America heralds a more positive understanding of democracy only in our anachronistic view of the book. Tocqueville’s admiration for the newly discovered American system in not as absolute as we tend to read in the book nowadays. As an aristocrat wary of the French revolution, Tocqueville is a critical observer of US “democracy,” which he dislikes even as he sees it as inevitable. Only

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principles of the freedom of the members of a society (as men), second, it accords with the principles of the dependence of everyone on a single, common legislation (as subjects), and third, it accords with the law of equality of them all (as citizens).” There follows that because war requires “the consent of the citizenry . . . , it is natural that they consider all its calamities before committing themselves to so risky a game.”32 The despot stands at the opposite end: “By contrast, under a nonrepublican constitution, where subjects are not citizens, the easiest thing in the world to do is to declare war. Here the ruler is not a fellow citizen, but the nation’s owner.”33 Once countries become republican, the despot’s need for war dissipates with his disappearance. Republican governments do not go to war with each other, and they share a league of like-minded governments that brings them together. This is the Second Definitive Article vesting the structure of world peace in a federation of free states: “From the throne of its moral legislative power, reason absolutely condemns war as a means of determining the right and makes seeking the state of peace a matter of unmitigated duty. But without a contract among nations peace can be neither inaugurated nor guaranteed. A league of a special sort must therefore be established, one that we can call a league of peace ( foedus pacificum) which will be distinguished from a treaty of peace (pactum pacis) because the latter seeks merely to stop one war, while the former seeks to end all wars forever.”34 The Abbé’s imprint is clear, but Rousseau and Kant do not find bringing the nations on a commonly agreed irenic charter sufficient. For Kant in particular, the institutionalized League of Nations premised on republicanism projects into the international sphere a jus cosmopoliticum that is still wanting, precisely because the domestic nature of the law within nations has not matured into a republican=democratic model across the world. The two Definitive Articles of the Treatise for Perpetual Peace have a corollary in the emergence, outside the boundaries of the nation-state, of a common vision of the world where the citizen shares right beyond his own, republican-democratic nation. The third Definitive Article states that “Cosmopolitan right shall be limited to conditions of universal hospitality.”35 For Kant, Every just constitution, as far as the persons who accept it are concerned, includes the three following sub-principles: 1. one conforming to the civil rights of men in a nation (ius civitatis); 2. one conforming to the rights of nations in relation to one another; 3. one conforming to the rights of world citizenship, so far as men and nations stand in mutually influential relations as citizens of a universal nation of men (ius cosmopoliticum). These are not arbitrary divisions, but ones that are necessary in relationship to the idea of international peace.36 way a posteriori does democracy in Democracy in America acquire its dominantly positive connotation. See also for my use of Tocqueville in the present book, s.v. Alexis de Tocqueville. 32 TPP113/351. 33 TPP 112–13/350–02. 34 TPP 116–17/356. 35 TPP 115/354. 36 TPP 112/350, fn.

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The “rights of world citizenship” sound like a proclamation drafted by Amnesty International. Kant’s Idea of international peace is contingent on the fulfilment of these rights. The civil rights of men in a republic, the rights of nations toward each other among republics, morph into “the rights of world citizenship.” Kant’s syllogism can be put in the following terms: underwritten by republics abiding by the rule of law and democratic norms, peace inside countries projects in the international sphere a league of republics that never go to war with each other because they adhere to the external version of the domestic state of peace created by the rule of law and democratic norms. Nonviolent interaction between citizens of a republican state becomes the same as nonviolent interaction between republican states. Jus civitatis joins jus cosmopoliticum. Cosmopolitan law, as the projection of the republic’s domestic peace, supplements, supersedes, and completes the imperfect “law of nations,” what we call today international law, under Kant’s “constitution of the rights of nations.” This is where Robert Cover, a prominent American jurist who died prematurely in 1986, becomes relevant. Emmanuel Kant’s TPP and Robert Cover’s “Violence and the Word” (1986)37 are unlikely bedfellows. The choice of juxtaposing an established classical philosopher with a relatively obscure modern jurist on the world stage is informed by my search for a philosophy of unadulterated, “absolute” nonviolence, decreed by the reality of the Middle East revolution of 2011. Cover’s seminal article is elliptic, and does not discuss the international projection of violence. Cover is only interested in tearing down a mistruth, namely that law and those who uphold it do not resort to violence in order to lay social disputes to rest. “Violence and the Word” is blunt. Let us not kid ourselves, Cover says, with our clean conscience of self-absorbed jurists in a republic where we allegedly provide peace as the ultimate product of the rule of law. The ultimate symbol and guardian of our republic is the judge. But the judge’s daily task is “to deal pain and death.”38 We begin, then, not with what the judges say, but with what they do. The judges deal pain and death. That is not all that they do. Perhaps that is not what they usually do. But they do deal death, and pain. From John Winthrop through Warren Burger they have sat atop a pyramid of violence, dealing . . . 39 The greatest illustration of judicial violence in daily life lies in the criminal process. The judge’s power to deal pain and death rings loud from the courtroom prisoner’s shackles all the way to the death penalty. The judge’s violence also lurks in rules of contempt and related coercive measures in civil trials. Even losers in private litigation know that they need to enforce the judge’s

Robert Cover, “Violence and the Word,” Yale Law Journal, 95, 1986, 1601–29. (Hereinafter Cover, “Violence and the Word.”) The main articles of Cover are also published in Martha Minow, Michael Ryan, and Austin Sarat eds., Narrative, Violence and the Law, Ann Arbor: University of Michigan Press 1993. 38 Id., 1609. 39 Id. John Winthrop (d.1649), a lawyer, was the first governor of Massachusetts. Warren Burger (d.1986) was the US Supreme Court chief justice when Cover wrote his article. 37

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decision because they will otherwise be coerced into abiding by it with fines and incarceration. That good citizens, and even apprehended criminals, will generally bow to that decision, derives in large part from their consent to the social contract which is called democracy, but it ultimately comes from their fear of the violence exercised by the state if they do not. Cover and Weber’s monopoly of violence in the state meet naturally,40 and form the shared premises of our collective thinking as citizens. We are not conscious enough that our domestic peace is based on violence.41 This is not only about the coercive dimension of the judiciary, which comes into place where nonviolence among citizens has failed in the criminal field. Coercion is everywhere in the exercise of power in the state. Social peace is the result of the citizens’ common fear of governmental violence, ultimately vesting in the judge dealing pain and death. There is more to the judiciary than just meting out physical punishment on the recalcitrant citizen. Coercion suffuses the whole system: “A political theory of democratic action explicitly recognizes that solving collective action problems requires lawgiving, and that lawgiving requires coercion—getting people to do what they would not otherwise do through the threat of sanction and the use of force. The work of democracy is to make that coercion somewhat more legitimate.”42 There is in fact more to coercion in republics than even meets the eye of Cover. “The need for coercion to solve collective action problems is . . . the primary reason for government. Coercion also helps human beings achieve justice together through government.”43 Governmental action under law is coercive by nature. You do not go through a red light; you pay taxes; you accept being searched at the entrance of a government building, with violence as a sword of Damocles over your head. One has often defined the State by a “monopoly of violence,” but this definition leads back to another definition which determines the State as a state ruled by law (Etat de Droit, Rechtsstaat). Overcoding the State is precisely the structural violence that defines the law, “police” violence and not the violence of war . . . This is very different Weber’s celebrated formula appears in a famous lecture on “politics as profession,” which was strongly impressed by the Spartakist revolution that followed the First World War: “Staat ist diejenige menschliche Gemeinschaft, welche innerhalb eines bestimmten Gebietes ( . . . ) das Monopol legitimer physischer Gewaltsamkeit für sich (mit Erfolg) beansprucht (The State is the one human community which, within a given territory, (successfully) claims for itself the monopoly of the legitimate use of physical force.)” Max Weber, Politik als Beruf (München und Leipzig: Duncker and Humblot 1919), Facsimile original available on Wikisource, at 4. For a genealogy of the famous insight of Weber’s formula, see James Whitman, “At the Origins of Law and the State: Monopolization of Violence, Mutilation of Bodies, or Fixing of Prices?” Chicago-Kent Law Review, vol. 71, 1996, 41–84, and in a French version, “Aux Origines du ‘Monopole de la Violence,’” in C. Colliot-Thélène and J.-F. Kervégan eds., De la Société à la sociologie, Lyon: ENS Éditions 2002, 71–91. 41 See Teemu Ruskola, citing Cover: “For example ( . . . ), an analysis of the queer rhetoric of international law remains vital for understanding the contemporary conflation of Islamophobia and homophobia that seeks to expel the terrorist outside the norms of law altogether. More broadly, and at the most general level, a queer analysis suggests that the homoerotic violation of non-Western states is a condition of possibility of fully realized (Western) sovereignty. Standing alone, the recognition that violence forms the foundation of sovereignty is not an original insight, although it is an important and oft-forgotten one,” “Raping Like a State”, UCLA Law Review, vol. 57, 2010, 1477–536, at 1478 (emphasis added). 42 Jane Mansbridge, “On the Importance of Getting Things Done,” PS: Political Science & Politics, vol. 45, 2012, 1–8, at 1. 43 Id., 5. 40

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from crime violence. This is also why, to the contrary of primitive violence, law or State violence seems to always presuppose itself, because it preexists its own use.44 In this perspective of violence inhering in all states, including states with republican=democratic governments, Kant’s theory becomes suddenly a paradox. By projecting the republican core value, peace, onto the international sphere, the law of nations becomes the natural foreign expression to what is in fact achieved by violence inside the republic. Projecting peace internationally on the basis of an inexistent domestic nonviolence is a contradiction in terms. Kant does not deny this, and his vision is far more perspicacious in his idealism than he gets credit for by realpolitik advocates. In this scheme of peace underwritten by a league of republics, international disputes can be resolved in the same way as internal disputes, in some conflict-solving mechanisms over agreed rules under some coercive body. Like the League of Nations and the UN, the Permanent Court of International Justice (PCIJ) and its successor the International Court of Justice (ICJ) are adumbrated in the Treaty for Perpetual Peace, as well as in Rousseau and the Abbé’s five-decade reflection and writings. The understanding of nations, like the understanding of citizens within them, is that coercion will apply if they do not abide in their disputes by the decision of the legal arbiter they have chosen to adjudicate the dispute. The reason the ICJ after the PCIJ was unable to establish world peace is because nations have chosen not to surrender that power to a third party to adjudicate, in the way their citizens have domestically. And that is because not all nations are republics. Once they are, peace turns perpetual, as in the shingle of the tavern that starts Kant’s iconic Treatise.45 We can state it differently. Kant’s peace has not become perpetual because countries have not all become “republican.” The power of Kant’s republican legal process, and its

Gilles Deleuze and Félix Guattari, Mille plateaux, Paris: Minuit 1980, 559: “On a souvent défini l’Etat par un ‘monopole de la violence’, mais cette définition renvoie à une autre, qui détermine l’Etat comme ‘état du Droit’ (Rechtsstaat). Le surcodage d’Etat, c’est précisément cette violence structurelle qui définit le droit, violence ‘policière’ et non guerrière . . . C’est très différent de la violence du crime. C’est pourquoi aussi, à l’ inverse de la violence primitive, la violence du droit ou d’Etat semble toujours se présupposer, puisqu’elle préexiste à son propre exercice” (emphasis in original). 45 See note 9 above on the shingle. Kant goes beyond his two predecessors in two ways. For him once a federation of republics is established, there will be no reason to go to war because (1) “Reason can provide related nations with no other means for emerging from the state of lawlessness, which consists solely of war, than that they give up their savage (lawless) freedom, just as individual persons do, and by accommodating themselves to the constraints of common law, establish a nation of peoples (civitas gentium) that (continually growing) will finally include all the people of the earth.” TPP, 117/357 (this is actually the blueprint of the 1948 Universal Declaration and its application by Amnesty International); and (2) Any emerging dispute can no longer turn into war, because the parties will have surrendered going to war to the arbittation of the conflict by a common international tribunal. Like we still do in the twenty-first century with the halting work of the ICJ and the ICC, Kant mentions under this same Second Definitive Article “judicial power” (TPP, 117/356). Like us over two hundred years later, he finds fault in the tribunals’ lack of effective teeth. In his case, the criticism is directed to the great publicists of his time, “Grotius, Pufendorf, Vatel . . . whose philosophically and diplomatically formulated codes do not and cannot have the slightest legal force (since nations do not stand under any common external constraint.)” TPP 116/355. 44

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acknowledgment in Cover through the iteration of the judge’s word in the latter sections of “Violence and the Word,”46 provide violence with a legitimacy we generally call democratic. A tyranny is easily distinguished from a republic. Republicanism is self-government by the people through freely elected representatives and a judiciary that ensures that remedies are available to the wrongly aggrieved citizen or group. There is no “hybrid system,” and the line between democracy and authoritarian rule is bright. Democracy takes place first and foremost at the ballot box for the choice of the chief executive in the country, in its elected representatives passing laws, and in a set of legislation and institutions protecting the nonviolent citizen. Cover’s condition of violence as the central component of the state does not evaporate; it only gets tempered by the iterative, deliberative sinews of democracy in its millions of daily manifestations coalescing around a national constitution as the enduring social framework of nonviolent conviviality. With the help of Robert Cover, and the challenge raised by the Middle East nonviolent revolution, we must now look at Kant’s blind spot more closely. One can subscribe to the distinction between a state where violence is legitimized by the democratic system (punishment by the government of those who violate the accepted social contract, with due regard to the basic rights of individuals and minorities), and violence that is wielded by a tyrant arbitrarily just to stay in power. The difference is tangible enough. But even in democracies=republics, violence remains active daily. In either case, violence upholds the domestic system. This pervasive role of violence domestically renders any international projection philosophically void ab initio. Projecting domestic peace internationally is flawed because the Republic has violence at its heart in the daily meting out by the judge of pain and death on the citizens. Domestic peace is violent. This is Cover’s emphatic lesson.47 In his republican enthusiasm to project domestic peace, Kant passes under silence its essentially violent reality. In the best of all ideal worlds, violence remains a staple of the domestic use of law, an integral part of the social order from which no one dissents, including Gandhi, Martin Luther King Jr., and the Middle East nonviolent revolutionaries.48 Even the Mahatma could not think otherwise: “Nevertheless I have conceded that even in a non-violent State a police force may be necessary . . . The police of my conception will, however, be of a wholly different pattern from the present-day force. . . . Its ranks will be composed of believers in Cover, above note 37, 1609–18, see esp. at 1616: “Deeds of violence are rarely suffered by the victim apart from a setting of domination.” 47 “The bonded character of legal interpretation”, Cover, “Violence and the Word,” at 1618, which correlates with context and with one other major contribution of Cover: the “jurispathic” nature of all modern legal systems. Judges as “jurispaths” ultimately kill all other possible interpretations of the law in the state. See Cover, “The Supreme Court, 1982 Term—Foreword: Nomos and Narrative,” Harvard Law Review, vol. 97, 1983, 4–68. 48 Arguably Christ dissents, in that his kingdom is not of this world, and he is uninterested in the laws of Caesar. Unlike Martin Luther King Jr. and Gandhi, whose argument is that criminal laws are fine if the system is democratic, Christ’s nonviolence is absolute on earth, either because criminal law should not exist on the basis that response to harm occasioned by your neighbor is not acceptable, or because he and his followers function totally outside a system that is meaningless to them. In the philosophy of nonviolence presented in this book, Christ’s position is untenable. Stretching absolute nonviolence into criminal law in a democracy is never possible. 46

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non-violence . . . In fact the policemen will be reformers. Their police work will be confined primarily to robbers and dacoits.”49 We plainly hear Gandhi the former criminal lawyer, who admits that however unarmed the bobby-policeman may be, violence needs to be exercised against “robbers and dacoits.” Nor is domestic justice possible without adhering to Rousseau and Kant’s principle of equality. In his famous letter from the Birmingham jail, injustice is denounced by Martin Luther King Jr. in its structural ties to racial discrimination pervading the US legal system of “separate but equal.” By contrast, incarceration of the criminally guilty is just in a republic, because the republic is by definition just and equal.50 Where does this lead us in the understanding of our Middle Eastern nonviolent revolution archetype, the latest attempt at perpetual peace in the human journey? The two central theses of the Kant-Cover paradox can be rephrased as follows: Kant: eternal peace among nations can be achieved when they all become democratic, as jus cosmopoliticum increasingly approximates jus civitatis. International legitimacy increasingly approximates domestic legitimacy. The agreed international referee is the best possible projection of the domestic judge. Cover: Domestic peace is violent. The domestic judge in the republic deals pain and death all the time, every single day. Thus the paradox. We are trying to build nonviolence in a world of states running on a domestic structure of violence. And yet we are confronted by the Middle Eastern revolutionaries’ absolute nonviolence domestically. The paradox gets a spatial solution, but this solution at best tempers it. The spatial solution has the whole world as its oyster. Spatially, coercion in the international sphere can be envisaged in various ways, and its main format two hundred years hence vests in the chosen arbitrator of peace and war, the Security Council. A compromise was found in 1945 in the veto of the P-5 state, irrespective of whether that state is democratic, and in limitations on the ICJ’s jurisdiction to those who submit to its writ. With the shortcomings of both the Security Council and the ICJ in creating a coercive international space for the rule of law, the International Criminal Court (ICC) emerged in 1998 as another remedy based on jus cosmopoliticum, which responds to atrocities by directing punishment away from nations ICJ-style and toward the retribution of individual actors for crimes against humanity and genocide. This is all Kant unrolling slowly in the international sphere. Another spatial qualification further tempers the paradox. In the absence of an international community that agrees on an international judge dealing violence to the recalcitrant nation or individual, there is no discernible “people” under jus cosmopoliticum because there is no discernible community for a unified world government.51 True, the UN Charter Gandhi, letter dated August 20, 1940, in Raghavan Iyer ed., The Moral and Political Writings of Mahatma Gandhi, Oxford: Oxford University Press 1986–1987, 3 volumes, ii, 436. 50 This is the central argument of the just versus unjust law in Martin Luther King Jr.’s “Letter from Birmingham jail.” (April 16, 1963). Digital text at http://mlk-kpp01.stanford.edu/index.php/encyclopedia/ encyclopedia/enc_letter_from_birmingham_jail_1963/. 51 This is the criticism portrayed in US Supreme Court justice Antonin Scalia’s rejection of international law as generally “undemocratic” (e.g., “Justice Antonin Scalia on Globalization and the Law,” lecture at 49

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simply lacks the cultural attachment of twenty-first century Americans or Germans to their constitution. But there has arisen a community of law that we call the international human rights movement, and its language is the language of human rights cosmopolitanism. Fuzzy as it remains because of its firm entrenchment in a civil society category as opposed to a state projecting power, its impact and intensity cannot be disregarded.52 This, again, is a variation of Kant gradually unfolding in the international sphere. So the paradox may therefore not be as severe as it seems. Spatially, constitutional rule in republics strewn all over the planet can still provide democratic peace among themselves. The exercise of violence is variously regulated, by the Security Council, by diplomacy, by the ICJ and other fora, including the increasing retribution and deterrence of universal jurisdiction and the ICC. This space is further protected by an enhanced system of accountability whose universal community motto is No to Impunity in the international sphere. This is the expression of the world human rights movement. Cover grows slowly into Kant. After the ICC, we are all Kantian. The conclusion would therefore be that the Kant-Cover paradox can be reconciled spatially, such reconciliation taking the form of a referee emanating from the league of republics whose decisions are binding on all parties to that league. Like violence in domestic jurisdictions, it shrinks and expands to the extent of the citizens’ consent to the cosmopolitan rule of the international judge. Still, this does not do away with the fundamental paradox. In a world formed exclusively of Kantian republics, it is inconceivable to have a planet shorn of violence, because the Kantian republic itself cannot be conceived without violence. And yet the Middle East revolution has decreed, to use Martial Gueroult’s word again, a reality of absolute nonviolence. We have witnessed, and continue to witness, absolutely nonviolent revolutions where not a single policeman, not a single soldier, not a single official dealing pain and death to people is harmed. Revolutions, even the most irenic ones, are a messy business. And yet they have been nonviolent repeatedly, massively. In Lebanon in 2005–2006, there was no death at all, by that I mean no death occasioned by revolutionaries in action. It happened again in Iran in 2009. Not a single policeman was killed. Absolute nonviolence was a historical reality

American Academy in Berlin, September 22, 2009, available at americanacademy.de) and foreign law as “dangerous dicta” in domestic jurisdiction (Lawrence v. Texas, 539 U.S. 558 (2003), ruling that criminalization of sodomy by states is unconstitutional, Scalia dissenting, at 598). It is more subtly explained by Paul Kahn’s distinction between justice and rule of law, and his emphasis on the absence of an international community in law similar to the domestic constituency in the United States and other democratic countries: “This, then, is my complaint about universal jurisdiction. It’s all justice and no legitimacy.” Kahn, “Universal Jurisdiction or the Rule of Law?,” in John Borneman ed., The Case of Ariel Sharon and the Fate of Universal Jurisdiction, Princeton Institute for International and Regional Studies, Princeton University 2004, 145. 52 On international civil society and the ICC, the most active group has been the Coalition for the International Criminal Court, based in New York (coalitionfortheicc.org). On the concept of international civil society and the ICC in general, see my Al-ri’asa al-lubnaniyya bayn al-ams wal-ghad (The Lebanese presidency between past and future), published in English as Presidential Choices, Beirut 1998, in fine. On other structures of internationalism in law, including innovative networks of judges, see Anne-Marie Slaughter, A New World Order, Princeton, NJ: Princeton University Press 2005.

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again, in Tunisia and Egypt, where nonviolence persisted since 2011, for months on end. Nonviolence is also the reality of the fight against dictatorship in Bahrain, Yemen, and most of the Arab world. In all these cases, one is hard put to find a handful of harmed agents of the state. We need therefore to take stock of this extraordinary reality of the absolute nonviolent principle of the Middle East revolution, which people demonstrated daily, and consciously, at a time when the dictators were using brute force to quell them.53 Considering the massive involvement of millions of people, rebuttal is on the onus of the deniers of the possibility of absolute nonviolence. The history we live confronts historians, philosophers, and political scientists with massive revolutionary action erupting across the region in 2011 with absolute nonviolence as the ultimate decree of reality. The year 2011 tells us that revolutions can be massive and remain utterly nonviolent through the removal of the dictator. It also tells us that nonviolence can be perceived and sustained clearly by thousands and millions of participants. Philosophy and action, idealism and practice, live together in harmony in the nonviolent revolution. So I am arguing here for a higher abstract level of reading the revolution, in a tight convergence between reality and rationality. In this reading of the absolute reality of nonviolence lies the solution to the Kant-Cover paradox. Under this view, the Kant-Cover paradox is solved during the revolution in ways that are unsustainable beyond the revolution. When the revolution succeeds, we are back to the reality of Cover’s judges daily meting out pain and death. During the revolution, there is no judge. There is the street where a judge has no place other than as another disgruntled citizen. Only the street is nonviolent, absolutely, flawlessly so. When the revolution succeeds, justice reclaims violence as a condition for the republic to live under the rule of law. The republic needs daily physical coercion for its judges to function. The successful revolution’s new government needs violence to be able to survive every day challenges from violent law breakers: to punish the excesses of some revolutionaries, those who break the law henceforth, and those in the old order responsible for massive violence. The new government in the post-dictator state needs judges immediately, and together with the judge his daily meting of pain and death. Only the revolution can be nonviolent, but only so long as it has not succeeded. In philosophical doctrine, the projection of coercive justice is very much part of the ethos of the nonviolent revolution. Post-revolutionary justice is therefore key, and its details require a far closer investigation that we later pursue in this book. At this stage of the analysis, however, it is sufficient to describe post-revolutionary justice as necessarily coercive. This is why only a comprehensive vision can salvage an absolute, flawless philosophy of the nonviolent revolution in a way that solves the Kant-Cover paradox. This revolutionary vision In Yemen, from the beginning of the revolution in February 2011 to the summer of 2014, when the Huthi rebellion turned to an open use of arms, the revolutionary street has refused to fire a single shot, and carried at its iconic symbol an Islamic female advocate of nonviolence, Tawakkul Karman. In the words of the UN envoy who brokered the removal of the dictator, Yemen’s number of weapons per capita is second only to the United States. Conversation with Jamal Benomar, April 26, 2013. Local lore has it that there are 68 million weapons privately held in the country, about two to three for each Yemeni. The extraordinary persistence of nonviolence in Bahrain is another illustration.

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knows that it is absolutely nonviolent, but it also knows that the post-dictatorship social contact it seeks to establish is perforce violent. We should take the philosophy of nonviolence a step further. The nonviolent revolution is absolutely nonviolent as it requests, through sustaining its nonviolence until the dictatorship’s brutality is ended, that the dictator’s fall also signals his submission to the judge dealing him pain in the form of a coercive trial. The postponed trial of the dictator is part and parcel of the nonviolent revolution. An absolute theory of nonviolent revolution can now be articulated as a whole. As philosophy, the nonviolent revolution, in its massive Middle Eastern reality, illustrates its absolute capacity over time to persist only in anticipation of a day where legitimate violence can rule the day in society. Nonviolence then becomes as rational as it is real on a reasonable timescale of its conscious unfolding as the historical passage from dictatorship to democracy. This, I submit, is the temporal, philosophical solution to the Kant-Cover paradox. The conclusion can be formulated in the following set of reshuffled perpetual peace’s “Definitive Articles,” philosophy of nonviolence-style: 1. Only the revolution can be absolutely, totally, relentlessly nonviolent; The state is always violent domestically. (Part I of this book) 2. When the revolution succeeds, its nonviolence cannot be sustained other than in its confinement to a democratic rule of law in which governmental violence is possible only under the active and impartial oversight of the judge as the point of convergence for its exercise in the democratic republic. (Part II) 3. The revolution consciously postpones the judge’s violence to an ulterior time when the revolutionaries come to power. Chanting for “the president to be tried” represents the most tangible application of the philosophy of nonviolence during the revolution. (Part III) In the order of reasons, the postponement of violence includes therefore as a matter of philosophical necessity the constitutional rule of law that distinguishes republic from monarchy and democracy from dictatorship in a new social contract. It also includes as a constitutive component the trial of the dictator before the impartial judge produced by the revolutionary promise of justice for the victims of the dictatorship’s violence. Nonviolence is the one nexus of the philosophy that runs through the continuum of revolution-constitution-justice. We must therefore see to it that the Kant-Cover paradox is solved, and if not solved, at least attenuated in the two other necessary moments of the philosophical continuum.

6 Conclusion R hythms of Non violence

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This first part has covered a set of three rhythms of nonviolence as philosophy of historical change. The first is a decree of reality imposed on the world by its so far most consistently violent region: the Middle East. The Middle East decreed in a set of long-standing and wide-scale civil resistance culminating in the 2011 revolutions, that nonviolence is effective in ending dictatorship. With varieties across countries, advances and setbacks, the revolutionary reality unleashed in 2011 underlined the vast philosophical power of nonviolence over violence in Egypt, Tunisia, and Yemen. It confirmed a contrario its superiority over violence in Syria’s revolution, which started to fail when it armed itself, and it secured the future of the revolution in Bahrain, the Gulf States, and the rest of the Middle East. The second rhythm is a deeper one historically, and moves along the slow timeline of culture/civilization. It underlines the reservoir of nonviolence in the Middle East, mostly through “a counter-literature” to the dominant Arabic-Islamic civilizational record for the most part of the last millennium. It also shows that the reservoir is being actively rediscovered in the light of the decrees of reality described in the first chapter. Without it, the first rhythm remains too thin a layer of change for the revolutionary spirit to endure. The third rhythm is more properly philosophical. It examines the legacy of the most powerful search for perpetual peace in the history of philosophy, and fuses it with a legacy that underlines the violence needed by law in democratic countries. The result is the fundamental reshuffle of perpetual peace in a philosophy of nonviolence. Based on decrees of reality made in the Middle East in the twenty-first century, and informed by a rediscovery of its humanist legacy, a philosophy of nonviolence can be absolute in a revolution against dictatorship, but its absoluteness cannot be sustained after the revolution succeeds.

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As we enter the constitutional part of this book’s “order of reasons,” the advocate of nonviolence as a mere revolutionary tool may well wonder about the point of the exercise. When it comes to constitutionalism as the second moment of the nonviolence nexus, the historian and the sociologist will understandably pause because of the seemingly artificial divide between the day the dictator has fallen, and the day after; and because of what sounds like a formalist exercise called a constitution. They would both have a point, and we will have plenty of occasions to join the “constitutional panacea” skeptics.1 Still, I  will defend the importance for nonviolence of constitutionalism and constitution-making when the dictator has fallen. This is a fact that decrees of reality bring home daily, as we watch the focus on constitutions in the Middle East among all the countries swept by the revolution. But the persistence of the constitutional search is not only empirical. Philosophically, the joint battle over constitutions is not merely symbolic, it is necessary. The fact that a democratic rule of law brings back the monopoly of violence by the state to the fore does not undermine the cohesion of a philosophical system animated by nonviolence. It just underlines the Kant-Cover paradox as one that can never be solved.

As I  was completing the book, Aziz Rana drew my attention to Mila Versteeg’s “Unpopular Constitutionalism”, Indiana Law Journal, vol. 89, 2013, 1133–90, where she underlines the chasm between the people’s vision of a constitution and the text foisted on them by “expertise.” Rana’s own work in progress debunks the “sacrality” of the US Constitution by showing how peripheral it was in the nineteenth and early twentieth century, compared to the American fetishization of constitutions and their legal interpreters in the past fifty years, a fetishization that has no doubt spread with the expansion of constitutional judges and judicial review in a world dominated by the United States since 1945.

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Toute Société dans laquelle la garantie des Droits n’est pas assurée, ni la séparation des Pouvoirs déterminée, n’a point de Constitution.1

Part t wo Constitutionalism i

“A Society in which the guarantee of Rights is not secured, and the separation of Powers determined, has no constitution.” Art.16, Déclaration des droits de l’homme et du citoyen (1789).

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7 Introduction

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Once the head of the dictatorship is deposed, the difficult work of building a democracy on the ruins of authoritarianism begins in earnest. Where the old political order ends and the new one begins lies the “constitutional moment”1—a paradigm-changing period of intense societal introspection induced by an acute political crisis, in which the public mobilizes to support a fundamental transformation in a society’s governing principles and legal norms. In the case of revolutionary upheaval, the transformation is premised on the yearning for an entirely new social contract, which the modern world calls a constitution. Working constitutions represent the strategic depth of nonviolence in the Middle East. They provide the institutionalized future for nonviolence qua democracy as a profound

Bruce Ackerman wrote a compelling three-volume history of US constitutionalism on the basis of the successive constitutional moments of American history since independence, starting with We the People, Vol.1, Foundations, Cambridge, MA: Harvard University Press 1991. Vol. 2 Transformations and Vol. 3 The Civil Rights Revolution, also at Harvard University Press, appeared respectively in 2000 and 2014. The first chapter of Foundations provides the method for the book as a succession of paradigmatic shifts in history conceived as “constitutional moments.” In a similar vein, the modern classic treatise by Laurence Tribe, Constitutional Law, Minneapolis, MN: Foundation Press 1st ed.1978, sees constitutional breaks through six historical models (and a prospective one), the most recent shared with Ackerman and most American constitutional scholars as “Model VI: The Model of Equal Protection.” This last constitutional moment started with the iconic decision of the US Supreme Court in Brown v.  Board of Education, 347 U.S. 483 (1954) (ending the “separate and equal” argument of Plessy v. Ferguson, 163 U.S. 537 (1896)). In Brown, The US Supreme Court unanimously decreed unconstitutional a state law allowing racial segregation in public schools, under a “strict scrutiny test.” Together with the nonviolent street movement led by Martin Luther King, Jr., the dismantlement of the formal legal discrimination in the United States represents the latest, ongoing process of confronting a troubling US history of racism, and is generally perceived as the nonviolent, unfinished legacy of Brown.

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separation marker between the old system and the revolution’s aftermath. The first constitutional moment always focuses on the emergence of a comprehensive text for conviviality under a new social contract. As the concert of draft constitutions, elections, and new governments marches its bands unevenly across the region, the central question shifts from the immediate goal of removing a dictator to dismantling the institutional infrastructure of the dictatorship itself and replacing it with the values that animate the nonviolent revolution. The core challenge facing transitioning countries in the Middle East is one of reconfiguring the social contract to fulfill the political and economic aspirations of citizens. After the removal of the dictator, the constitutional moment is the next, inevitable building block of the revolution. The fall of the symbolic figurehead of repression—whether a president, king, or ayatollah—may be a necessary condition for democracy. It is never sufficient. This is where the constitutional moment inexorably begins, to bridge the gap between revolutionary hope and the hard reality of constructing a more representative and responsive political system where conviviality rather than force animates the self-dispensation of political power and economic goods among the citizens. Moved by a historic upheaval, societies must always reconsider and reconstitute the social contract that binds them together. Violent and nonviolent revolutions share this moment. In the light of the Kant-Cover paradox underlining the absoluteness of nonviolence during the revolution, and the inevitable recovery of the monopoly of violence when the dictator is removed (Part I, Chapter 5), I will be particularly attentive in this Part to the constitutional moment arising from nonviolence bringing down the ancien régime. The constitutional process is always frustrating to abstract analysis. The road is peculiarly rocky post-dictatorship. Egypt is typical. One day, a three-decade sitting president is removed by massive nonviolent protesters converging on his palace. Two months later, a self-appointed committee of military officials announces a constitution that puts them in charge. A year-and-a-half later, a president is elected in generally fair and free elections, in an unprecedented occasion in Egypt’s history. Another year passes, and the same is removed by a renewed set of massive street protesters culminating in an eerie television show of leading Egyptian personalities introduced by a strong military man who announces the president’s destitution. Whether for Egypt or other countries seized by the 2011 revolution, one must be careful about the philosophy of history in reading events. Watching Napoleon parading on his horse in Iena, Hegel saw “the spirit of the world.”2 He mistook a petty dictator for philosophy incarnate. We must avoid the trap of such shortcuts. In the interplay between constitutionalism and nonviolence, both a precise understanding of events unfolding and a more abstract lens of analysis are needed. The lens is this part is informed by a yearning for a government of laws rather than a government of men to carry nonviolence into the daily life of the citizen. As I move to the next phase of nonviolence in the philosophy of history, Martial Gueroult’s “decrees of reality,” and my own action as a participant among millions, continue to heavily color my judgment.

“Diese Weltseele,” Letter from Hegel to Niethammer, October 13, 1806, German in Georg W.  F. Hegel, Briefe von und an Hegel: 1785 bis 1812, Hamburg: Felix Meiner 1969, 120.

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8 Caveat Against Secession

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An important caveat is that constitution-making is not necessarily the only route  available after the nonviolent revolution has succeeded in removing the dictator. A  constitution presupposes a sovereign state with well traced, accepted territorial boundaries, but not all political communities are so clearly demarcated. The Middle East is traversed by communities often defined by religion and sect. The arbitrariness of the nation-state, true everywhere, is especially acute in the Middle East, where international borders were drawn by European imperial powers, mostly by France and Great Britain after the First World War and the breakup of the Ottoman Empire.1 A hundred years later, as Western-backed authoritarian regimes have given way to democratic uprisings in the region, the artificiality of these externally imposed borders inevitably comes under heightened scrutiny. One could conceive the division into two or more de facto and de jure states.2 In the first category of countries dividing de facto, Somalia is the paradigmatic example of a failed For the two factors: the depth of sectarianism, and the arbitrariness of the nation-state in the Middle East, see generally my Introduction to Middle Eastern law (hereinafter IMEL), Oxford: Oxford University Press 2007, 132–33, and 171–79 respectively; for the bungled aftermath of the First World War, the most atmospheric work remains David Fromkin, A Peace to End All Peace: The Fall of the Ottoman Empire and the Creation of the Modern Middle East, New York: Henry Holt 1989. 2 James Ker-Lindsay, The Foreign Policy of Counter Secession:  Preventing the Recognition of Contested States, Oxford:  Oxford University Press 2012, 8. An early thorough study on secession as the other side of self-determination can be found in Lee Buchheit, Secession: The Legitimacy of Self-Determination, New Haven, CT: Yale University Press 1978. A strong argument against secession is made by Donald Horowitz, “The Cracked Foundations of the Right to Secede,” Journal of Democracy, vol. 14, 2003, 5–17 (showing how ethnic conflicts get exacerbated rather than solved by secession, and how public international law doctrine remains oblivious to this reality). 1

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Arab-African country collapsed into several largely autonomous states that are variously wrecked by violence and instability. Sudan’s split into two states, Sudan and South Sudan, represents a de jure secession legitimized by broad domestic and international condemnation of a discriminatory, repressive, warmongering North over several decades. On July 9, 2011, South Sudan was recognized as a new state, state number 196 in the United Nations. Advocacy of secession is not unique to the Horn of Africa. Similar grievances simmer in Iraq, Yemen, Saudi Arabia, and everywhere. Persecuted communities have an understandable demand for a separate state that protects them from the brutality of a dictator and the system of structural oppression that led to mass resistance in the first place. The question is not simply about the rightfulness of their collective grievances. In countries devastated by the persistent oppression of a dictatorial ruler, the question is whether secession leading to two or more successor independent entities is preferable to a working constitution in a state which remains united. Even if the wish of long-standing victims to sever all cords from a horrific central rule is understandable, secession is troubling. Secession marks a particularly dangerous drift for three reasons clearly at work in the former Soviet Union and in the Balkans since the 1990s, with a similar logic threatening the Middle East revolution: (a) secession is a recipe for ethnic cleansing on both sides of the divided state; (b) secession facilitates the perpetuation of the dictator at the center by deflecting change away from his removal, and encourages authoritarianism in the new state; (c) secession begets further secessions, elicits new border disputes, and exacerbates conflicts over previously shared natural resources. It did not take long for the formal South Sudanese secession in 2011 to develop all three characteristics of the formula above. (a) Civilians continued to be killed in both the North and South on account of being on the wrong side of the new border;3 (b) After secession, the Northern dictator was able to consolidate his iron-fist rule, unencumbered by the Southern resistance movement that constituted the living example of his failure and an active check on his domination;4 South Sudan was itself wrecked by dissension and a slide down the authoritarian path, which came to a head in a full-fledged civil war in 2013; and (c) Other regions inspired by the South, notably Darfur and Nuba, boosted their agitation for their own secessionist demand. This is further exacerbated by a battle over resources. In fragile states where secession movements are fueled by Since the secession of South Sudan in July 2011, tensions between the North and South have also led to further violence in the flashpoint border states of Kordofan and Abyei. In late 2013, Southern Sudan descended into civil war, with a systematic commitment of crimes against humanity by both the president Salva Kiir and the former vice president Riek Machar, see Amnesty International, Nowhere Safe:  Civilians under Attack in South Sudan, May 2014. 4 For continued protests in Sudan since January 2011, see Wikipedia entry, “Protests in Sudan (2011–present),” which provides a useful chronology of the persistent unrest. 3

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protracted repression and endemic civil wars, the fight between the truncated original territory and the carved-out state continues after secession over the distribution of scarce natural resources, water, oil and other raw materials, sea access, and every conceivably severable issue of power and money. The list of disputed commodities and privileges is virtually endless. Even the newly recognized borders remain contentious more often than not. This was the case in Eritrea with Ethiopia,5 and operated throughout 2011 in the border regions between the two new Sudans. Normal life in Jerusalem is repeatedly disrupted by a deep and intractable conflict between Israel and Palestine.6 In Iraq, the border city of Kirkuk remains a flashpoint for ethnic Kurdish and Arab claims long after the fall of Saddam Hussein.7 Secession inevitably gives rise to fierce and divisive competition over every inch of territory. The specter of secession looms over the whole of the Middle East, with a similar set of bloody scenarios. The list is almost as long as the countries undergoing the revolution. No state is safe from the risk of secession, which is bound to plague the Middle East so long as the rights of repressed groups are not respected collectively for the group as a whole, and individually for members of the group. The Middle East nation-states have not sufficiently “ethnolysed” their component minority groups, and this failure gives rise to polarization along sectarian lines and insular interest groups.8 Nor is “minority” always a matter of numbers. Like race and ethnicity, the concept of minority is a social and historical construct. Numerical majorities turn into political minorities when they are disproportionately excluded from the political and economic apparatus of the state. The political minority in Syria is Sunni under the Asads, even if it constitutes some 80 percent of the overall population. The same can be said of the Shi‘i and Kurdish communities under Saddam Hussein, which together account for over 80 percent of Iraq’s population. Revolutions make the line between minority and majority ever more blurred. It is the Shi‘i numerical majority in Iraq that is growing intolerant of Sunnis and Kurds after the collapse of the ancien régime, and a shift in Bahrain or Syria is bound to transform overnight previous minorities into ruling majorities. Meanwhile, the rise of Salafism and calls for the application of Islamic law in

From 1961 until independence in 1991, Eritreans fought a long war against Ethiopia. After a short lull, relations became tense again between the two countries, leading to a murderous border war in 1998–2000. A decision of the UN-established Eritrea-Ethiopia Boundary Commission, which was instituted after the war, gave the contested territory of Badme to Eritrea in its ruling of April 13, 2002, but Ethiopia did not cede the area. See, e.g., Jon Abbink, “Badme and the Ethiopian-Eritrean Border: The Challenge of Demarcation in the Post-war Period,” Africa: Rivista trimestrale di studi e documentazione, vol. 58, 2003, 219–31. 6 Bernard Wasserstein, Divided Jerusalem: The Struggle for the Holy City, New Haven, CT: Yale University Press 2002. 7 See Mallat, Iraq: Guide to Law and Policy, Boston: Kluwer 1999, ­chapter 5, section on “Oil in the Economy,” 217–99. (Part of the dispute over Kirkuk is over oil fields near the city, which represent 20 percent of Iraq’s oil reserves). 8 Concept of “ethnolyse” from Robert Fossaert: “Surely, at the cost of decades (or centuries) of alternating eruptions and lulls, the survivors of statal implosions—in Africa and elsewhere—will learn to live together. Present Europe is itself born of similarly savage ethnolyses, which are finally formative of Europe’s nations. But the fact does not authorize any indifference, for medieval age resurgence is insufferable with the media coverage that it elicits before the world.” Robert Fossaert, L’Avenir du socialisme, Paris: Stock 1996, 239. 5

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Egypt increase concern for the country’s various Christian and non-Sunni Muslim communities in ways that were more muted under the Mubarak rule. Minorities are human constructs, and variations on the interaction between majority and minority are as numerous as the countries in which they are found. Secession is never my preferred solution, whether in Sudan, Iraq, Yemen, or Israel-Palestine.9 I have called the failed states of the Middle East, many of them created by secession movements, the “Syad Barre syndrome,” after the former Somali dictator, who has since been forgotten by the world but not by the two Somali generations he ruined.10 Somalia devolved into the consummate failed state as the direct consequence of an increasingly dictatorial rule that lasted from 1969 to 1991. In a pattern replicated across the region, Somalia’s president was determined to remain in power at all costs. Every move he made, from his early embrace of “scientific socialism” to his open support to the United States against the Soviet Union in the 1980s, must be understood as a calculated maneuver to maintain absolute personal control over the country.11 Barre’s gross abuses of power, facilitated by the bureaucratic apparatus of the modern state and its parasitic exploitation of national resources, laid the groundwork for a vicious cycle of endless unrest and calls for secession—two sides of the same coin. This is no rocket-science politics, even when dressed up in theoretical sophisms described as Machiavellian.12 The abuse of power is easy, and does not require the grand sophistication In a string of studies stretching over two decades, I  have argued that a working constitution for Arabs and Jews in the whole of Israel-Palestine is better, more just, and more realistic than the secession of Palestine in the West Bank and Gaza, see e.g. c­ hapter 3, “For a different type of Arab-Israeli Peace,” The Middle East into the 21st Century, Reading:  Garnet 1996, 26–70; “Federalism in the Middle East and Europe,” Case Western Journal of International Law, vol. 35, 2003, 1–15; “En marge des révolutions du Moyen-Orient:  Israël-Palestine, préparer l’après-guerre,” Travaux et jours, vol. 87, 2013, 103–12; and my argument with Noam Chomsky in Presidential Talk, Beirut: al-Jadid 2008, 36–48. Although this is my preference, which the passage of time has brought from the margins to the center of discussions, I have also supported the emergence of a new state of Palestine if Palestinians and Israelis can agree to it with mechanisms that secure their common future, notably a growing freedom of movement for all Israelis and Palestinians, see my “Drafting a Joint Proposal for a U.N. Security Council Resolution on Israel-Palestine with Alan Dershowitz,” Harvard International Law Journal, published online January 13, 2012, 74–105. 10 See the argument developed e.g. in my “Démocratie au Moyen-Orient:  un parcours personnel, 2004,” in EU Commission, Dialogue between Peoples and Cultures:  Actors in the Dialogue, Brussels:  European Commission Publications 2005, 130–69, at 163: “A third dilemma is the Syad Barre syndrome. The Somali situation today is the result of a cruel ruler called Syad Barre hanging on to power in Somalia as society unraveled into civil war over a period of two decades prior to his collapse, the civil war being almost inevitable when the ruler remains so long in power. When he finally goes, Armageddon follows in the shape of chaos, so disjointed and weak has society become: this is a common phenomenon in Africa and the Middle East.” 11 See further Chapter 3 in this book, arguing that the converse call for removal of the dictator as the main enemy is characteristic of the objective that all the revolutions share since 2005. 12 A child understands these divide-and-rule tactics, and one can read a delightful depiction of the division of antique Germany in interminable little wars between feuding rivals set up and manipulated by a foreign party originating in “les guerres astérixiennes” in René Goscinny and Albert Uderzo, Astérix et les goths, Paris:  Hachette, 1963. Like Kant in his Treaty for Perpetual Peace, above ­chapter  5, and Egyptian ruler Muhammad ‘Ali, see n.22 in ­chapter 5, I have always found Machiavelli’s Prince (1513) disappointing. For a “remake” of The Prince that reads better than the original, Percy Kemp argues that the enemy of the modern prince is less his rivals than “events” that descend on him unexpectedly, Le Prince, Paris: Seuil, 2013. 9

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occasionally conferred on dictators as calculating, intelligent characters. They are crass, mediocre manipulators of opportunities, and create or benefit from crises just to stay in power. Barre was eventually ousted by a figure who equaled him in cruelty and ambition, Muhammad Aideed. Aideed’s repressive mismanagement of the country left behind a legacy of endemic instability that persists long after both he and his predecessor had vanished from the Somali scene. As a result of institutional collapse, it is difficult for Somalia to extricate itself from the spiral of perpetual violence, with large swathes of the country operating as de facto autonomous enclaves beyond state control, together with endless armed factionalism in the capital and recurrent foreign interventions, including two full-scale invasions less than a decade apart. Extrication from the cycle of violence is hard, but not impossible. The perceptive progress of chances at the turn of the second decade of the twenty-first century, iconically represented by the slow work over a new Somali constitution, show why one should never give up on a failed state. It also shows that the de jure consecration of de facto divisions in the style of the two Sudans is not the better route forward. Somalia is not the sole example, nor is it the first one, of a failed state. But its collapse largely inspired the terminology of state failure, and “failed state” became increasingly common in journalism and international affairs with reference to Somalia.13 Long before the term became current, Lebanon was a failed state in all but name.14 A decade before Somalia collapsed in the 1980s and became a paragon of a new political science literature on state failure, Lebanon fell prey to the brutish rule of various militias-cum-sects soon after the onset of its civil and regional wars in 1975. Only through a lucky realignment of its regional stars, when Saddam Hussein invaded Kuwait in the summer of 1990, was the country unintendedly saved from its worst secessionist demons. This was temporary, and came at a heavy price: the reinforcement of Syrian domination over the country, as Syrian rulers continued to play Lebanese factions against each other, and to assassinate their leaders or force them into exile or submission in order to ensure continued dominance. Before the term “failed state” was popularized by the cases of Somalia, Yugoslavia, and the various African-Middle Eastern countries that followed suit, Lebanon’s longtime de facto state failure exemplifies the endless spiral of fissiparous internecine wars, and their regional and international complications.15

The term “failed state” may have been made current by then US Secretary of State Madeleine Albright in “Yes, There Is a Reason to Be in Somalia,” The New York Times, August 10, 1993. 14 For the awkward construct of “Lebanonization” before “the failed state” concept appeared, see William Safire’s (d.2009) well-crafted column “On Language: Izationization,” The New York Times Magazine, April 21, 1991. 15 Thus the two faces of the Cedar revolution in 2005. Lebanon was a failed state for a period of fifteen years (1975–1990) of harrowing, fissiparous internecine and regional wars, which linger in memory to date in the country as a never-again experience. To shake off Syrian control and local thuggishness, Lebanon preceded the region on the best route out of state failure: a nonviolent revolution within a united country. The mistake of the Cedar revolution was its delayed focus on pushing out the dictator. In addition to seeking redress from this lethal mistake by forcing the process through my presidential campaign, I have argued in March 2221. Lebanon’s Cedar Revolution— An Essay on Justice and Non-violence, Beirut: [Lir] 2007, that another mistake of the Cedar revolution was its failure to imagine a constitutional revolution, though it did bring up the promise of accountability through the Special Tribunal for Lebanon, see below Part III, Chapter 15. 13

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What makes a state fail? The death of Syad Barre in political exile in 1995, while Somalia was torn asunder, suggests a model for predicting the trajectory of dictatorships in the region and beyond. Barre took over Somalia in 1969 in a military coup. He was one of many military putschists in the region, and a common trend is perceptible. Between 1968 and 1970, several military officers seized the reins of government in coups across the Middle East. They generally stayed in power for a full generation: the tandem Hasan al-Bakr and Saddam Hussein in Iraq in 1968, Mu‘ammar al-Qaddafi in Libya and Ja‘far al-Numeiry in the Sudan in 1969, Hafez al-Asad in Syria in 1970. In Egypt, until his assassination in 1981, Anwar al-Sadat replicated the pattern originally created by Jamal ‘Abd al-Naser in 1952, and Mubarak followed suit until the Nile revolution. In all these countries, with the exception of Sadat who was assassinated, the rulers succeeded in retaining power for thirty to forty years. What does this pattern tell us about the Middle East revolution and the challenges it faces? Like Somalia’s tragic fate, does the removal of a deeply entrenched dictator create a vacuum in the social fabric that can never truly be filled? It was the army bureaucracies installed by colonial powers and later inherited by Middle Eastern autocrats that provided the institutional foundations for an enduring repeat of military dictatorship in the region. Brutality starts with a military coup by impatient and frustrated young officers capable of mobilizing part of the population with charismatic rhetoric and a vague, idealistic promise of redistributive justice and anti-colonial nationalism. The coup may appear relatively benign at the outset, and is legitimized by widespread frustration with the former regime expressed by a significant segment of the population. Soon, the true, malignant nature of a dictatorship emerges when its leaders decide to stay on for life, generally adopting a legal framework that ushers in martial law, concentrates all powers in a junta with a strong man at the helm, and protects the economic privileges of the military establishment and an expansive role for military prosecutors and courts. The constitutional framework adopted by the military leadership is always a variation on the “Revolutionary Command Council” (RCC) model introduced by the 1952 Negib-Naser coup in Egypt.16 In turn, the junta-RCC is invariably taken over by one leader who eliminates his potential rivals by force, laying the groundwork for a one-man military rule that is constitutionally immunized from civilian oversight, and that grows into a nepotistic dynasty.17 The early model was started by the former Pahlavi Shah’s father in the 1920s. From an obscure and nondescript officer, he morphed into the “shahinshah, the Shah of Shahs.” His itinerary to absolute power was generally replicated by General Mustafa Kamal in Turkey. Mutatis

The template of that coup would be taken up time and again with its common theatrical/linguistic expressions:  Self-designated “free officers” launch a coup d’Etat they call “revolution”, typically with a Communiqué Number One, and the televised pictures of a junta of male officers frowning behind dark glasses, and solemnly announcing the saving of a faltering country through their enlightened services. Absolute power in their hands is accompanied by the suspension then replacement of the constitution. In the new constitution, endorsed by a hasty referendum, the military hold ultimate, full power through a Revolutionary Command Council. See IMEL, above n.3, 135. Also Steven Cook, Ruling but not governing: The military and political development in Egypt, Algeria and Turkey, Baltimore: Johns Hopkins university press 2007, 64, 69; Roger Owen, The Rise and fall of Arab presidents for life, Cambridge Mass: Harvard university press 2012 (Kindle). 17 On monarblics, see Chapter 2, in fine, and below Chapter 9. 16

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mutandis, Arab republics and monarchies became the two coins of the same boundless despotism. In the context of failed states, the state legal apparatus, already corroded by a long history of colonial mismanagement, is vulnerable to massive erosion under conditions of dictatorship.18 In the absence of rule of law, dictators resort to imposing order by sheer, unalloyed force. This intersection of lawlessness and dictatorship creates the optimal environment for secessionist movements. Although the parallel phenomena of authoritarianism and secession are structurally intertwined, the relationship between them has been under-explored by historians and political scientists. As civil society and state institutions are hallowed out by protracted mis-governance and predatory corruption, secession inevitably rears its threatening head. Following civil war and/or large-scale repression, secession constitutes the ultimate acknowledgment of constitutional failure. It simply means that people on a given territory known as a nation-state are unable to reach a peaceful coexistence because of their differences. Failed states and secessions are close cognates. Both are undesirable. The violent breakdown of social order and stability in failed states such as Somalia resembles scenes out of dystopian science fiction films Mad Max-style (1979). When successful, secessions reproduce a vicious spiral of cyclical disputes over the constitutional framework inside the two or more emerging state-like entities, compounded by the mistrust and animosity between rival political or sectarian groups that led to the increasingly profound divide in the first place. For the Middle East constitutional moment to succeed, its states must remain “one and indivisible,” in the words of the eighteenth-century French revolutionaries’ motto, for whom national unity was an existential necessity to ward off the threat of invasion by foreign powers and the division of revolutionary France into so many different entities. Post-colonial Africa learned this lesson early on, when independence leaders recognized that it was too late to correct territorial boundaries that had been irrationally drawn by some secondary colonial officer at an obscure desk in the chancery of a European capital.19 Young African governments saw the danger clearly. By allowing the state’s territory to be divided, they would open the door to a secessionist Pandora’s box. Faced with the danger of division from within, they stood up firmly against secession.20 Following the same wisdom, there is no

For a lucid expressions on how post-independence African leaders continued bad practices from the colonial era, Robert Fossaert, Le Monde au 21ème siècle, Paris: Fayard 1991, chapter on “l’Afrique hélas,” 123–33. 19 “Sykes-Picot” is the best example in collective Middle Eastern memory. Mark Sykes and François-Georges Picot were respectively British and French low-level foreign policy bureaucrats, who drew in 1916 a secret map of the Near East delineating French and British spheres of influence in case of victory for their countries in the world war. The map turned out very differently from the drawings. Fromkin, above note 3, shows persuasively how important events on the ground were in shaping the region, not least the Arab revolt, and the nationalist Turkish upheaval led by Mustafa Kemal. For a lingering concern with arbitrary Western division of the region in the wake of the Arab Spring, see, e.g., Walid Joumblatt, “Sombres présages au Moyen Orient,” Libération (Paris), May 29, 2013. 20 Following the continuity principle under public international law known as uti possidetis, the Organization of African Unity’s heads of states and government decision on Border Disputes among African States (1964) “[s]‌olemnly declare[d] that all Member States pledge themselves to respect the frontiers existing on their achievement of national independence.” Jeffrey Dunoff, Steven Ratner, and David Wippman, International law: Norms, Actors, Process, Boston: Wolters Kluwer 3d ed. 2010, 132. 18

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place for secession in the constitutional moment that is sweeping the Middle East so long as groups continue to respect nonviolence as the way they deal with each other. Secession means their failure in finding common ground to live together. Sometimes, as in Sudan, secession prevails after the perpetuation of the dictator’s wide-scale massacres such as the one he carried out in Darfur.21 Once a sub-entity of the state gets its independence and is recognized, it is hard, almost impossible, to put the pieces back together in the former state now amputated by the secession. Boundaries across the world being arbitrary, there is no compelling rational argument for why a community defines itself into a state, linguistically, religiously, or otherwise. This is paradoxically the reason why new boundaries would be equally arbitrary. If and when division into separate states happens, the emergence of the new state on the carcass of the relatively long-established one is an inevitable trigger for a protracted period of invidious violence, which then creates incentives for recurring interventions by neighboring countries.22 One cannot be guarded enough against the secessionist temptation. The tragic tripartite logic of secession makes it the wrong route for the constitutional moment, for it entails further secessions, a tyranny entrenched in the pre-secession capital with a likely tyrannical mirror in the new one, and the continued mistrust and fighting within and between the two or more new rump states. The demand for secession is considerably weakened in a successful nonviolent revolution. This is well established empirically in recent scholarship, which shows that there is a much better chance for nonviolent revolutions to deliver constitutionally stable states than violent ones.23 This is common sense, as is commonsensical the positive convergence into one mass popular movement to remove a dictator who has delivered misery and death across the population, including the “minority” groups who have been singled out for increased victimization through the long night of dictatorship. Nonviolence lays the ground for a better, more integrated constitutional state than a violent revolution where secessionist groups establish fighting militia that come fully armed into the constitutional moment.

See, e.g., Julie Flint and Alex de Waal, Darfur: Short History of a Long War, London: Zed Books, 2nd ed. 2008. 22 The often-cited counter-example of the Czech-Slovak secession is not convincing because it was premised on a process that leads to almost immediate membership of the two secessionist states in the European Union. This was also true in the Balkans, where ending the war required sustained EU support, including a military presence in Kosovo and Bosnia, to allow the seceding parts of Yugoslavia to slowly join the EU. In effect, secession was effected with a clear view of a self-imposed “constitutional” process leading to EU membership: “On the longer haul, the prospect of a collective joining of the European Union within 10 to 20 years will establish a new logic of cooperation between the peoples of the Balkans, reversing for the first time since 1991 the logic of separatism and exclusivism which led to ethnic cleansing.” Mallat, “Reviving International Law in the Balkans: ‘Plan Slavko Curuvija,’” The Daily Star, April 23, 1999. The problem in the Middle East and the non-European world is the absence of an EU to rally to after secession. 23 Erika Chenoweth and Maria Stephan, Why Civil Resistance Works:  The Strategic Logic of Nonviolent Conflict, New York: Columbia University Press 2011, 201–18. 21

9 Constitutional Ruins and the Unfathomable Politics of Transition

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Constitutional Ruins and the New Order The disadvantages of the secessionist route leave only one way forward to the institutionalization of the nonviolent revolution: revisiting the social contract across the full territory of the state. It is an illusion to think that constitutions are sufficient to create the magic world of democracy. Not only is it necessary to realize how complicated the process leading to a decent aggiornamento of the former constitution, or the adoption of a new one, can be. A lot of care and attention is also needed to hammer out details of electoral laws, of the organization, financing, and practice of political parties, within a general culture where local remnants of the ancien régime fight tooth and nail in most devious ways. This complex kaleidoscope varies from country to country, with everyone looking over the border to the latest development in the other countries that may serve their purposes. Still, constitutions—refurbished or totally rewritten—seek to capture peoples’ expectations in a text that expresses the spirit of the new regime getting constructed on the ruins of the old. Ruins are never neat. Constitutional revision and constitution-writing are complex exercises coming at an emotional time when political instability is at an all-time high— factors that make it extremely difficult for diverse interest groups to engage rationally and nonviolently on a future social contract. Despite the adverse circumstances under which constitution-writing unfolds, this exercise marks the first port of call for a successful revolution. Every revolutionary citizen, in fact every citizen, feels a natural interest in the constitution, and the debate over the reconstruction of the legal framework is a cathartic outlet for the revolutionary public after the removal of the former regime’s repressive controls on political expression. But even when the dictator 133

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has been unseated, the constitutional process does not occur in a vacuum. This process is shaped and distorted by competing nodes of influence, emanating from the revolutionary movement, the vestigial remnants of the former regime, and a once-marginalized opposition that now finds itself in the halls of power. With the profound reshuffling of the social contract previously dominated by one man, several constitutional prototypes and declarations end up worth less than the ink and paper on which they have been penned by the shifting powers unleashed by the revolution. Countless documents and proposals are produced in the aftermath of a popular revolution, but only one can endure.1 The process of drafting a new constitution is complicated by a pervasive attitude of hostility toward the preceding legal order, which was cynically manipulated by the former regime to suppress political opposition. In their last days, embattled dictators frequently resort to cosmetic gestures at constitutional “reform” in an effort to restore order and placate the revolutionaries, in what I described as the “spiral” downward.2 Prior to this rude awakening, Middle Eastern constitutions functioned not as social contracts or guarantors of citizens’ rights, but as tools of authoritarianism used to justify abuses of power by a dictatorial government. Any basic rights provision that remained is left to gather dust, while authoritarian regimes deploy their full arsenal of undemocratic legal mechanisms: the manipulation of elections and plebiscites, rubber-stamp legislatures, and an unaccountable security apparatus that maintains control through police brutality, invasive surveillance and domestic intrusions targeting any and all critics of the status quo. Bills of rights are emptied of their meaning. The most vital articles in the constitution—those dealing with rights, due process, and a balance of power between government institutions—go unenforced, making most of the text as good as nonexistent. Power is concentrated in one person, an absolute monarch, cleric, or president, each and every one of them seeing to it that his—always his—absoluteness is inherited by his male offspring. Parliaments, when they exist, are purely decorative. So is any tolerated opposition. Legislation is crafted at the beck and call of the leader’s whim. The judiciary is weak and ineffective in the protection of the citizen against the state. Heroic judges occasionally shake the system, but vested interests and the superior power of the executive easily neutralize their efforts.3

A  computation of texts in a scientific way is impossible. Full drafts compete with partial ones dealing sometimes with only one point, some as obscure as local feudal taxes of the French Cahiers de doléances in 1789, or as important as the choice of presidential or parliamentary system. In Iraq in 2005, where the constitution was the “foreigners’ gift” (Fouad Ajami, The Foreigners’ Gift: The Americans, the Arabs, and the Iraqis in Iraq, New York: Free Press 2006) and its making was largely boycotted by the Sunni population, Faleh Jabar counted 450,000 (!)  proposals made to the Drafting Committee, see his “The Constitution of Iraq: Religious and Ethnic Relations,” published by Minority Rights Group, London, December 2005, www.minorityrights.org/?lid=957. 2 Above Chapter 3 final section. 3 For an analysis of Middle Eastern “heroic” judges, including ‘Awad al-Murr (d.2004), the president of the Supreme Constitutional Court of Egypt, who stood up to Mubarak several times in celebrated decisions, and Wajdi Mallat (d.2010), the president of the Lebanese Constitutional Council who resigned in April 1997, earlier ‘Abd al-Razzaq al-Sanhuri (d.1971), then head of the Conseil d’Etat, see my Introduction to Middle Eastern Law, Oxford: Oxford University Press 2007, chs. 4–6, hereinafter IMEL. Despite his yearning for a John Marshall-status, Aharon Barak, the president of the Israeli Supreme Court until 2006, repeatedly missed the occasion to stand up to the stigma of occupation, notably in his undermining of the continuation 1

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In particular for those bills of rights’ sections in the constitution that are supposed to provide the citizen with judicial protection against the misuse of state power, formulation borrowed from the international body of modern human rights conventions is undermined in a dictatorship by a set of “emergency” provisions that are in fact institutionalized as the status quo, even during peacetime:  military and state security trials, extraconstitutional criminal and procedural laws aimed at advancing the vague objective of “national security and anti-terrorism,” and the criminalization of dissent with the severe punishment of any “insult to the state and its head,” which is the modern version of lèse-majesté. The upshot of these provisions is to furnish a legal basis for unconditional deference to the haphazard and arbitrary whims of rulers who operate according to one dominant principle: blocking all avenues through which citizens might shape their country’s government, including first and foremost the right to run for elected office.4 Middle Eastern regimes in the second part of the twentieth century gave rise to ever-more absolute monarchies, and when monarchies did not survive, yielded to equally oppressive forms of government—military dictatorship, one-party rule, dynastic authoritarianism, and mixtures thereof. This accumulation of ruins is compounded by the unprecedented expansion of religious extremism seen in the crimes against humanity committed on 9/11 by al-Qa‘eda and its sisters and the resulting Western obsession with “counterterrorism.” The poorly conceived Western reaction is characterized by a fetishization of national security and counterterrorism measures that have significantly encroached on citizens’ constitutional rights to privacy and expression. In the first decade of the twenty-first century, the repression of any form of dissent within Middle Eastern countries was intensified by restrictions on liberties in the name of combating terrorism, in a confused legal concept that ultimately consecrates power in the executive branch and provides a convenient tool that Middle Eastern rulers embrace wholeheartedly to refine their tools of repression. I have discussed the fetishization of terrorism and counterterrorism at some length in the first Part.

of Israel as a bulldozer state by a ruling that allowed the wall to remain (with modifications), at a time when the International Court of Justice was unequivocal in its need for it to be torn down and for compensation to be paid to the people who lost their property through its establishment. For two Barak-written decisions flying in the face of the International Court of Justice advisory opinion Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004, available on the ICJ site, www. icj-cij.org), see HCJ 2056/04, Beit Sourik Village Council v. The Government of Israel (2004), and HCJ 7957/04, Mara’abe v. The Prime Minister of Israel (2005), both available on the site of the Israeli Supreme Court, http://elyon1.court.gov.il/. For a criticism of Barak’s jurisprudence, see Nimer Sultany, “The Legacy of Justice Aharon Barak:  A  Critical Review,” Harvard International Law Journal online, vol. 48, 2007, 83–97 (posted April 30, 2007). Barak’s own views are summed up in Aharon Barak, “Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy,” Harvard Law Review, vol. 116, 2002, 16–162. My skepticism on the effectiveness of judicial resistance to the executive was belied in Pakistan in the case of Chief Justice Iftikhar Chaudhry, who spearheaded the removal of Pervez Musharraf; see Daud Munir, “Struggling for the Rule of Law—The Pakistani Lawyers’ Movement,” MERIP Reports, vol. 39, 2009, 37– 34; Note, “The Pakistani Lawyers’ Movement and the Popular Currency of Judicial Power,” Harvard Law Review, vol. 123, 2010, 1705–26. In 2013, Musharraf ’s trial started in Pakistan, another test of the slow and difficult passage to democracy in a country where security agencies act unchecked. 4 Hence the deafening absence of constitutional and administrative remedies, as opposed to civil and other remedies where the role of courts is more meaningful, see IMEL above note 3, ­chapter 7.

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There is a more subtle dimension to this common regional exercise in the ever-steadier entrenchment of Middle Eastern authoritarianism since the middle of the twentieth century. Constitutions do not solely function as an empty decorum, in the same way that the image of the dictator on every conceivable public place is not simply a cult of the personality.5 Invocation of constitutions expresses a ruler’s reaction of defiance to citizens knocking at the door of political participation. A constitution, like an election, always constitutes a special moment even in the life of dictatorships, which they use to reassert their power and, at the same time, are forced to consider because of pressure from the people. True, elections get rigged, with electoral laws tailored to present no threat to the despot, while constitutional clauses are construed to shield the ruler tightly from any participatory function by the denizen. Yet even poorly drafted texts, such as the 1992 Basic Laws of Saudi Arabia, are the result of an open or muted struggle within the ruling group and within the wider elite, as well as defiance against the disquiet among large sections of society, all pushing the man at the helm for some power-sharing.6 A “constitutional reform” is the response of the dictatorship to a wide variety of door knockers demanding the right to have some say in the ruler’s governance of their lives. The dictator stonewalls and manipulates. This explains why dormant constitutional articles are suddenly revived to allay the large social upheaval afoot. A constitutional amendment is the first stratagem of the challenged absolute president or king, who is all too keen to express his understanding of “the legitimate grievances of the people,” and to state his readiness to convene panels and commissions tasked with constitutional reform. This is all part of the constitutional ruins he leaves behind. One should add that those ruins are also formed by the institutional shape in which the opposition gets together. There are several variations. In a nonviolent revolution lacking obvious leadership as the hallmark of the movement across the Middle East, many try to take over the mantle of the oppositional leadership, individually or collectively. The effort is not necessarily negative, quite the contrary. Especially when the revolution appears as an immense, massive, and spontaneous set of marches in the street, there is need for a shadow government of sort. After all, the nonviolent revolution is premised, in our philosophy of nonviolence, on its three necessary moments:  the revolution itself, the constitutional moment, and judicial accountability for the dictator. For constitutionalism, the shape of organized opposition can weigh heavily both on the sense of people demonstrating that they are all represented, and for the effectiveness of the revolution in its rising phase, when cities are freed from dictatorship, but also deprived of government. It is important to see some shape of the alternative leadership to the dictator, not least by the revolutionaries themselves. A picture of aging, frowning, colorless white men in dull suits is not a good representation of the nonviolent revolution, or of constitutionalism to come. A nonviolent revolution is a festival of colors representing the rekindled enchantment of a frustrated and exploited population, with women at its forefront. Lisa Wedeen, Ambiguities of Domination:  Politics, Rhetoric, and Symbols in Contemporary Syria, Chicago: University of Chicago Press 1999, 61, on the dissemination of Hafez al-Asad’s image as a mechanism for intimidation and defiance. 6 For Saudi Arabia’s “ornamental constitutionalism,” see IMEL, above note 3, 160–64. For the frustrated draft law presented by Saddam Hussein just before the invasion of Iraq, see above Chapter 3, note 67 and accompanying text. 5

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Republic Meets Monarchy: The Middle East Monarblic As one thinks through the constitutional moment, some common principles to the Middle East revolution can be sketched.7 The dictators’ constitution operates as a marker of multiple power planes. It is not, as tempting shortcuts may suggest, an empty text. It is an empty democratic text, which is used for an array of measures filtered by the dictator’s careful selection and interpretation of constitutional clauses. With street demonstrations, we have seen how promises of constitutional reform embark the ruler and the people on a spiral where compromise gets ever more elusive. And when the dictator is removed, an amended or new constitution becomes the first point of popular focus, which is complicated by the heavy ruins left behind. The constitutional moment is defined by what it stands against in time, as the vestiges of the ancien régime are important. While constitutional reform is on the table everywhere in the Middle East revolution, a seemingly qualitative difference of the ancien régime’s constitutional ruins emerges. In Bahrain, Morocco, Jordan, Saudi Arabia, Oman, Kuwait, and all the monarchies and emirates in the Gulf, the constitutional system is openly dynastic, in contrast with the self-styled republics, Tunisia, Algeria, Mauritania, Egypt, Yemen, Libya, Syria, Somalia, Sudan, and Djibouti. The Islamic Republic of Iran, based on the allegedly Shi‘i theory of the rule of the jurist, velayat-e faqih, has its own idiosyncrasies, but it mirrors the template of the Arab republics by and large. By 2009, when the Green revolution broke out, the appropriately named “Supreme Leader” in Article 5 of the Iranian Constitution had become thoroughly insulated from any challenge to his dictatorial rule, by a firewall of absolute power built over thirty years, turning the once more complex system of checks and balances into a religious dictatorship for life.8 With the widespread fraud suspected in the presidential elections of 2005 and 2009,9 the Green revolution brought Iran very much into the Middle East revolutionary mood that began in Lebanon in 2005 and flourished across the region in 2011. The national setup of budding revolutions is naturally different in each country, but the distinction between monarchies and republics forms a discernible pattern that was borne out in 2011. The difference among monarchs, emirs, sultans, etc. and presidents for life with a dynastic bent—first applied by the Asad family in June 2000—carries tangible

See generally Roger Owen, The Rise and Fall of Arab Presidents for Life, Cambridge, MA: Harvard University Press 2012 (Kindle), especially c­ hapter 3, “the origins of the presidential security system,” and c­ hapter 8, “the politics of succession.” 8 On Iranian history after the death of Khumaini in 1989, Said Amir Arjomand, After Khomeini: Iran under His Successors, New York: Oxford University Press 2009. 9 Ladan Boroumand suggests that the 2005 elections were rigged in “Iran’s Peculiar Election: The Role of Ideology,” Journal of Democracy, vol. 16, 2005, 52–63. For a more nuanced analysis, see Gareth Smyth, Fundamentalists, Pragmatists, and the Rights of the Nation:  Iranian Politics and Nuclear Confrontation, Washington DC:  Century Foundation 2006, 5–6. In 2009, the widespread dissatisfaction with the perceived rigging led to the nonviolent Green revolution; on the elections and its flaws, see Daily Star law page, July 30, 2009, which includes my “Introduction:  Whither Iran? Keeping the Green Revolution Non-violent”; Gareth Smyth, “Saeed Hajjarian: The Brain of Reformists”; Mallat, “How to Confront the Allegations of Organized Fraud in the Iranian Elections?”; and “Excerpts from Presidential Candidate Mousavi’s Statement about Fraud in the Iranian Presidential Election.” 7

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consequences.10 Yet these differences should not obscure the larger picture of the profound authoritarianism of absolutist leaders with a crown. The year 2011 is just the beginning of the revolution for monarchies and republics alike. At first glance, revolutions in monarchies may countenance a vision of the future in which the head of state is not removed from power altogether. However entrenched the dictatorial president in a republic, the underlying republican premise is the non-dynastic transfer of power. This is obviously different in a monarchy. The republic/monarchy nuance is therefore likely to remain important for the constitutional moment. An absolute monarch can abdicate, of course, and if the abdication is total, a republic naturally follows. He could also abdicate in favor of a son or a brother. All these scenarios have occurred in the twentieth century in moments of crisis,11 but the promise of a “constitutional monarchy” in Bahrain may have emerged as a distinct element of the 2011 revolution by forcing an important nuance on revolutionary expectations. In openly dynastic countries, as opposed to the self-styled anti-dynastic republics, the Pearl revolution suggested that the monarchy could theoretically turn “constitutional.” Bahrain was the test case. Oman, Saudi Arabia, Jordan, Morocco, Kuwait, even the United Arab Emirates witnessed troubles unprecedented in their history as part of the Middle East nonviolent revolution. On the face of it, street demonstrations in monarchies and the writings and proclamations of dissidents fell short of calling for the departure of the monarch. They all focused at the beginning on the replacement of the prime minister/cabinet rather than on the king or emir. Yet I am sceptical about the depth of the divide between the republics and the monarchies of the Middle East, and the experience in Bahrain only reinforces the implacable logic of the downward spiral irrespective of differences in political systems between countries. When a serious plan for a constitutional monarchy, the only democratic form possible to keep royalty in place, was put on the table in Manama in March 2011, it fell through because the king, with the support of the other Gulf monarchs, could not tolerate the prospect of losing any power.12 In that respect, monarchs differ little from presidents for life. With

The Asad succession was particularly brazen as a new step in Orwellian constitutionalism. The first vice president (‘Abdal-Halim Khaddam, who fled Damascus in 2005) was to step in the president’s shoes under Article 88 of the Syrian constitution. The Article was ignored, while Article 83 was changed to bring down the age required for the president to be “34 years completed, mutimman al-rabi‘a wal-thalathin,” instead of the previous “40.” The new president was exactly 34 years old. The Asad succession “coup” built on a generally forgotten precedent that was set a year earlier when a murky palace intrigue during King Hussein’s last days led him to replace the long-appointed heir to the throne, his brother Hasan, with Hussein’s son ‘Abdallah. Note the references to the “original constitutional rule” in the letter of the Jordanian king dismissing his brother, “Letter to HRH Prince El Hassan,” January 25, 1999, at http://www.kinghussein.gov.jo/99-jan25.html. 11 In Iran, the first Shah Reza Pahlavi was forced by the allies during World War II to abdicate in favor of his son Muhammad in 1941; in Afghanistan, King Amanullah Khan handed over power to his brother Inayatullah Khan Seraj (who lasted only three days before surrendering his fleeting kingship to the leader of the rebellion, Habibullah Kalakani) in 1929; in Egypt, King Faruq abdicated in 1952 in favor of his son Fuad II, who did not last a year before the Free Officers took over and established a republic. In June 2013, the Emir of Qatar Hamad bin Khalifa al-Thani, who had overthrown his father in 1995, abdicated in favor of his son Tamim. 12 See on this episode, above Chapter  3 note 36. The proposed constitutional reform, put together with a team of students at Harvard Law School coordinated by Jason Gelbort, was published on April 12, 2011, as “Constitutional Options for Bahrain,” Virginia Journal of International Law, vol. 2, 2011, 1–16. 10

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Bahrain in the throes of its Pearl revolution well beyond 2011, the Middle East revolutionary challenge is far from over in the Gulf monarchies and elsewhere. The absolute monarch operates in fact very much like a dictatorial president, and one finds the same absolutism in executive, non-elected power exercised in both systems. To understand the dynamic of the Middle East revolution, the difference between monarchies and republics must be sought elsewhere, in the nature of the social base built by the monarchy over time. The example of Iraq in the Revolutionary Command Council (RCC) coup of 1968 is well documented by Hanna Batatu’s classic study,13 and offers a telling template for one tangible distinction between dictatorial monarchies and dictatorial republics. When the combination of the small section of the Iraqi army led by Ahmad Hasan al-Bakr joined forces with the Ba‘th party leaders to come to power in July 1968, the party consisted of only a few hundred members. Consequently, the amount of repression needed to survive the backlash after the surprise occasioned by the coup was inversely proportionate to the thin social basis of the putschists’ network. This case demonstrates how, in order to stay in power, a small group of conspirators, who mistrust each other by definition—for how can plots be forged other than in total secrecy?—are forced to rely on an increased show of brutality as the resistance to their governmental takeover naturally forms and develops. The thin layer of coup-established republics is not matched in the social structure of monarchies established over several decades, which have grown more subtle forms of co-optation in governance. Co-optation may be tribal, most conspicuously in Jordan.14 Other forms are economic, and flow from an increase in oil revenues until the money at the disposal of the monarch is no longer sufficient for the silencing of a growing royal family, let alone the expectations of a booming population. Saudi Arabia is a case in point.15 Some are political, when regular and generally free elections are organized as in Morocco and in Kuwait, which give a field of competition for the opposition, but never touch upon the authority of the ruler.16 Some are social, and involve intermarriage outside the royal

Hanna Batatu, The Old Social Classes and the Revolutionary Movements in Iraq, Princeton, NJ: Princeton University Press 1978 (rpt London: Saqi 2004), c­ hapter 55, at 1010 (in a population of circa 15 million people, 840 were “active members” of Ba‘th party when it first took power in 1963. They were still only 10,000 in 1968, when the Ba‘th took power the second time in 1968, see at 1078). 14 In Jordan, the received picture is one of a long-standing conflict between “native Jordanians” and “alien Palestinians” that erupted in September 1970 in the brief civil war pitting supporters of the monarchy and the followers of the Palestinian revolutionary movement (Yaser Arafat-led Fatah), and the Bedouins (badu) are considered as the faithful military reservoir of the Jordanian king. The “natives” come historically from Bedouin tribes from the countryside, as opposed to the more urbanized Palestinians, including those living in the poorer quarters and refugee camps in the capital. For a more nuanced view, and the massive nonviolent movement in Jordan since 2011, see Jacob Amis, “Hirak! Civil Resistance and the ‘Jordan Spring,’” in Adam Roberts, Timothy Garton Ash, and Michael Willis eds., Civil Resistance in the Arab Spring, Oxford: Oxford University Press, forthcoming 2015. 15 For an elaboration of the Saudi case, see Chibli Mallat and Edward Mortimer, “Chapter One:  The Background to Civil Resistance in the Middle East,” in Roberts, Garton Ash and Willis eds., id., at nn.31– 33 and accompanying text. 16 In Kuwait, where the revolt reached a new intensity in 2012–2013, a long-standing conflict revolves around the role of a (relatively) freely elected parliament versus an executive firmly dominated by the ruling Sabah family. The first Kuwait parliament dates back to 1938, see Jill Crystal, Oil and Politics in the Gulf: Rulers 13

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family, a trait that is as old as absolute power, and was embraced noisily in the republics.17 Often, co-optation is a combination of all these forms, and allows monarchies to lessen the need for outright brutality. Power is therefore more variegated than in the RCC republican model, but both tend to increasingly resemble each other over time. The gap between republics and monarchies, which was real in the late 1940s through the 1970s, has closed over the years by their confluence into the “monarblic model,” a difform invention of Middle Eastern politics in the late twentieth century. The concept of “monarblic” (Arabic jamlaka, from jumhuriyya + mamlaka; monarchy + republic) is a political science coinage—not a coincidence—from Saadeddin Ibrahim, one of the most remarkable Middle Eastern prisoners of opinion, standing up in his native Egypt against a republic effectively turning into a monarchy.18 Ultimately, the response of sundry Middle East absolute rulers is one. They will not give up power, in the same way that the central message of the revolution is one: the dictator must go. The debate on constitutional reform before the fall of the president-king is profoundly distorted, because it is premised on a dividing line of legitimacy that operates on a binary basis. The ruler is intent on retaining absolute power, the revolution is intent on ending his rule—king, president, or ayatollah, it does not matter. Variations on the absolute power of a single individual are simply that—variations—and embrace inner circles, family, a one-party system, the king’s court, and the corresponding courtiers of the president. Irrespective of the particular group upholding the system at the top and its hierarchical extensions all the way down to street control, core power lies firmly in the hands of one ruler, so that a separation of powers, even when it is formally enshrined

and Merchants in Kuwait and Qatar, Cambridge: Cambridge University Press, 1990, 51; and Kuwait’s larger public space owes itself to the continuation of the bargain struck then between the local ruling family and the notables, especially the merchants. For the ongoing crisis as skewed by oil revenues that give much more power to the emir, see Jane Kinnimont, “Kuwait’s Parliament: An Experiment in Semi-democracy,” London:  Chatham House Briefing Paper, August 2012. In Morocco, the king introduced amendments to the constitution in the wake of massive demonstrations in 2011. Without undermining his absolutist position (Arts. 41–59), including his right to dissolve parliament (Art. 96), the amendments introduced some potentially meaningful changes such as the appointment of the Prime Minister from the leading party in Parliament (Art. 47.1), and the right for the PM to dissolve parliament (Art. 104). The changes were approved by referendum on July 1, 2011. Arabic text of constitution in the Official Journal available at http://www.maroc.ma/ar/system/files/documents_page/BO_5964Bis_Ar.pdf. 17 An alluring mix of fiction and anthropological fieldwork on marriage for upper-class Syrians into the regime appears in Nancy Lindisfarne, Dancing in Damascus, Albany: State University of New York Press 2000. 18 I originally thought that Elias Khoury had coined the term, but my friend Saadeddin Ibrahim mentioned in conversation in Salzburg on June 26, 2011, that his use of the word “ jumlukiyya” in an article led him straight to prison on the night of its publication on June 30, 2000. See Saadeddin Ibrahim, “iqtirah bi-insha’ malakiyyat dusturiyya fil-jumhuriyyat al-‘arabiyya, ‘alal-umma an tudif mustalah ‘ jumlukiyya’ ila qamusiha al-siyasi” (Suggestion to establish constitutional monarchies in the Arab republics: the [Arab] world should add the concept of “ jumlukiyya” to its political lexicon), al-Majalla (Saudi weekly published in London), July 2–8, 2000, available at http://www.eicds.org/arabic/publicationsAR/saadarticles/03/nov-dec/gomlokeya.htm (last visited June 30, 2011). Khoury and others refer more readily to jamlaka rather than jumlukiyya. The plural of jamlaka, jamalika, sounds more derogatory in Arabic (with a pun on countries ruled by a camel, jamal), hence my preference of jamlaka over jumlukiyya.

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in all Middle Eastern constitutions, is simply a false statement.19 This makes the demand for a classic constitution, in its bare-bone sense of formal separation of powers and the protection of basic rights, so important for the revolution. The convergence between RCC-style governance and the absolute monarch’s rule means that notwithstanding a complex legacy, the Middle East revolution knows that any real change is ultimately premised on the end of the dictatorship, whether exercised by a monarch or a president. The Pearl revolution may have been the most spectacular anti-monarchy revolution. It was not the only one, and the rallying of all the monarchies in the Gulf to repress it brutally in Manama in March 2011, underlines the case of Bahrain as the veneer exception that confirms the rule. Despite (temporary) failures galore, in Bahrain and elsewhere, and the long stalemate in Syria, a watershed has occurred. By the end of 2011, Tunisia and Egypt, Yemen and Libya, constituted important models of live constitutional experimentation. Their dictators were gone. Where the ruler has not been deposed, constitutional reform is inconsequential and gets mired in the distrust of the population and the usual maneuvers of the presidential or royal court to prevent any meaningful change. Absent the departure of the dictator, president, general, king, emir, supreme religious leader, there can be no serious constitutional moment—a prerequisite for meaningful democratic transformation and renewal. But even in countries where the rulers have been deposed, the constitutional ruins that dictatorship leaves behind are enduring. The Unfathomable Politics of Tr ansition Constitutions and Elections Elections wreck revolutions. This lesson was learned the hard way in Lebanon when the massive coalition that gathered on March 14, 2005, to demand “Syria out” drifted away as its many leaders squabbled over parliamentary elections in base Byzantine politics. Elections in June 2005, just a couple of months away, contradictors had reasoned, would produce a revolutionary majority in a parliament that would then effect the desired changes. The exact opposite happened, heralding a model of structural dissension that would severely affect the 2011 revolutions. The dilemma is straightforward. For a new leadership to emerge, one needs national elections. In the absence of national elections, a revolution cannot produce a legitimate leadership. But national elections are by nature divisive. They scatter the large coalition that produced the nonviolent revolution in the first place. Another early constitutional problem post-dictatorship is whether elections, or a constitution, should come first.20 This is a circular problem. Elections require a framework to This is even exemplified by the Saudi Basic Law of 1992 (nazam al-hukm, governance law), which created an appointed “legislative” council (majlis al-shura), and formally states the separation of powers principle in Art. 44: “The powers in the state are composed of judicial power, executive power and legislative power.” There is no real legislative power for the majlis, and the king disposes of total legislative fiat in the country, see IMEL, above note 3, 160–62. 20 In Egypt in May–June 2011, this was the repeated headline on the front page of Egyptian dailies, with the central question about whether to carry out elections first, notably the election of the president, or complete 19

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understand who comes to power, and how, as well as basic guidelines for the power of those elected. Until replaced by a new constitution, the former constitution looks suspiciously unalluring. Together with the dictator, it tends to be jettisoned in its totality because of the people’s anger with the fallen regime. More gravely for the revolution, national elections pit the revolution’s constituencies against each other. Diverse, disorganized, and disparate groups inevitably hobble into the suddenly free public limelight. Infighting replaces common cause against the dictatorship, and a large number of symbols and practices of the old regime slip through the cracks, as put in evidence in Tunisia, Egypt, Libya, and Yemen even after the flight, arrest, death, and resignation of their respective dictators. Entrenched authoritarian practices take the shape of fulul, the Egyptian revolutionaries’ word for the “remainders” or “left-overs” of the ancien régime, or the so-called “deep state” of Turkish lore. Elections lead to conflicts and animosities undermining the democratic yearning that initially mobilized the massive majority of the population who confronted the dictator and forced him out. And yet, how can a replacement of the leadership happen without elections? A brief survey of the main political-constitutional events after 2011 in the four countries that shed their dictator is useful to find our bearings, even if none of them has yet matured into free and fair governance. In Egypt, Tunisia, Yemen, and Libya, the experience of “the day after” shows the variety of attempts to square the circle of elections versus constitutions. It reveals the limitation of a constitutional imagination that cannot conceive of a mechanism to choose a legitimate ruler other than through an election. Egypt tinkered with what remained of the previous constitution enough for elections to take place and produce a government, parliamentary then presidential. The idea was to keep the ancien régime’s constitution generally intact, and amend what was strictly necessary for it to function democratically, so that elections it previously constrained would be held freely this time. In the first phase of the Egyptian constitutional moment, a committee led by jurist Tareq al-Bishri was asked by the then obscure members of the military junta that ousted Mubarak (the Supreme Council of the Armed Forces, known more commonly by its English acronym, SCAF) to amend a dozen articles that were well-known in the country as the key constitutional manipulative tools in the hands of the president. The most important amendment concerned Article 76 on the conditions to present one’s candidacy to the presidential election. The Bishri amendments were made on February 26, 2011, and put to a referendum, which overwhelmingly approved them on March 20. 21 A seriously renovated constitution emerged. 22

the constitution (al-dustur awwalan) to give legitimacy and a framework to elections. The road turned out much bumpier than in either option. 21 For the texts of the Bishri amendments, and other original documents from the ME revolution, see the Middle East Constitutional Forum at RighttoNonviolence.org. The MECF and its accompanying timeline (Hereinafter Timeline, MECF) was originally devised by Tobias Peyerl and Joslyn Massengale. 22 Partly on account of common friends with Bishri, I was active with Right to Nonviolence colleagues and my students of the Middle Eastern law class at Harvard in accompanying the work of his committee. This took the shape of a study, in English and in Arabic, of the articles of the Egyptian Constitution that needed to be changed so as to remove its most egregious authoritarian features. Except for one unfortunate instance, the suggestions made in the study were closely mirrored in the Bishri amendments. See “Revising Egypt’s

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It did not last long. Despite the referendum, the Bishri amendments were soon overtaken by a fiat of the same SCAF committee, which decided ten days later to issue a unilateral “Constitutional Declaration” that took the exact opposite course by treating the confirmed amendments as if they did not exist. The “Constitutional Declaration” retained some fifty innocuous dispositions of the 1971 Constitution, and added a dozen articles that named SCAF as an official political entity in charge of the country—making matters worse as SCAF had no existence in the 1971 Constitution current until the Nile revolution. In the Constitutional Declaration issued on March 30, 2011, SCAF entrusted itself with control over all the legislative and executive reins of power until the election of a new parliament.23 With a slightly amended constitution and a totally new overhaul soon afterward, the continued use of repressive measures against Egypt’s revolutionaries transferred SCAF’s image from transient popular hero to Mubarak bis in a matter of a few months. 24 With the country troubled institutionally and practically by authoritarianism re-emergent, national parliamentary elections were held in November 2011. They produced a massive victory for the Muslim Brotherhood, and a small one to the more conservative Salafis, muddying the waters of the nonviolent revolution and creating a triangle of powers that fight over the rules as they go: the military (including the fulul and the deep state), the Islamists, and the more liberal groups. The triangle was made more complicated with decisions of the Egyptian courts invalidating this or that electoral process. The Egyptian Supreme Constitutional Court (SCC) declared the first parliamentary electoral law void on Constitution:  A  Contribution to the Constitutional Amendment Debate,” Harvard International Law Journal, published online February 22, 2011, 182–203; Arabic and English comparative chart of changes (original constitutional text, the Bishri committee amendments, and our proposals) at http://www.righttononviolence.org/wp-content/uploads/2011/03/20110308_egypt-constitutional-amendments-_ar2.pdf2. pdf. The “unfortunate instance” was the first amendment adopted by the Bishri committee, which conditioned presidential candidacy on not marrying a non-Egyptian. Not only was the detail not warranted in the required constitutional facelift, but it flew in the face of both a previous decision of the Supreme Constitutional Court and basic tenets of gender equality. As a consequence, the human rights organizations, in Egypt and worldwide, focused on the discriminatory clause. This poured cold water over the whole Bishri committee exercise, paving the way for the subsequent constitutional declaration of SCAF that rode roughshod over Bishri’s work. This is another instance of an unlucky alignment of the revolution with the constitutional stars. Without that unnecessary clause, the amendments may have carried through with universal assent, charting the way to an altogether different course of events in the country. 23 Text of SCAF’s March 30, 2011 Constitutional Declaration on Timeline, MECF, above note 21. http:// www.righttononviolence.org/mecf/30032011-new-constitutional-document-constitutional-declaration/. For a commentary on that constitutional declaration and self-designation by SCAF as the constitutional power-wielder, see Nathalie Bernard-Maugiron, “Egypt’s Path to Transition:  Democratic Challenges behind the Constitution Reform Process,” Middle East Law and Governance, vol. 3, 2011, 36–49; Karen Stilt, “The End of ‘One Hand’: The Egyptian Constitutional Declaration and the Rift between the ‘People’ and the Supreme Council of the Armed Forces,” Yearbook of Islamic and Middle Eastern Law, vol. 16, 2013, 43–52. Not even Mubarak had such power on paper as SCAF granted itself in this declaration. 24 The first time I was made aware of the extent of the military repression after Mubarak was deposed was at a meeting organized in Cairo by Amnesty International in June 2011. Prominent Egyptian human rights colleagues had to repeatedly miss sessions to attend some court hearing for the defense of yet another batch of prisoners of opinion jailed or tried by the military prosecutor. The figure of 13,000 arrests was put forward in the period between the fall of Mubarak and the meeting, several times the figure for prisoners of opinion jailed under the full rule of Mubarak.

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June 14, 2012. 25 Building on decisions against the authoritarianism of Mubarak, the SCC’s dismissal of the first post-revolutionary parliament had a dual deleterious effect: it created a void that reinforced SCAF’s authoritarianism in power, and it undermined the reputation and strength of the SCC. In the next months, a dazzling political saraband included the election of Muhammad Mursi as president on June 24, 2012, followed by his severe mismanagement and a crony-system of appointments across the country, while the constitutional process in an assembly appointed by a defunct parliament was suddenly undermined by a forced rush of the Muslim Brotherhood to finish the process in days. The “worst constitution in the history of Egypt” was the result of the bungling. 26 Passed on November 30, 2012, it was again approved by a rushed referendum held on December 15 and 22, 2013. It lasted Mursi’s life in power. The people mobilized massively against Mursi over the course of his first year at the helm, and huge demonstrations took place at the end of June 2013, leading to his forced demise in the revolutionary days of end June–early July 2013. The massive nonviolent unprising (tamarrud, revolt, also the name of the coordinating group against Mursi) culminated in the announcement by the leading members of Egypt’s civil society (minus of course the Brotherhood, but including the Salafist party al-Nur) of their support for the army, led by new strong man ‘Abdelfattah al-Sisi, to remove Mursi from power. A violent repression of the Muslim Brotherhood demonstrators followed, the head of the SCC was appointed interim president, and another constituent assembly cobbled up to replace the Mursi-imposed 2013 Constitution. Headed by a prominent figure of the ancien régime, it finalized the text on December 2, 2013, and the “Sisi” constitution entered into force by referendum conducted on January 14–15, 2014. With the failure of the Bishri experiment in the surgical excoriation of the ugliest side of the constitution, the Brotherhood and the military undermined in turn the revolutionary promise of peace and stability. Twice after massive nonviolent revolutionary journeys culminating in the removal of Mubarak in January–February 2011, and the removal of Mursi in June–July 2013, the army leadership, SCAF under Tantawi, then Sisi under the cover of the civil society “Tamarrud movement”, hijacked the revolution with a sinister 96 percent score in new presidential elections carried out on May 26 and 28, 2014. The initial revolutionary unity was severely shattered, and the RCC model of Naser put back in place, while resistance continues. The Tunisian experiment next door offered a less divisive course of revolutionary action.

The SCC has been more lax in publishing its decisions, an unfortunate expression of a retreat in its leadership since the presidency of ‘Awad al-Murr (d.2004) who was keen to see publication beyond the mandatory Official Journal (which is not online. . . . It could also have been easy for the court to use the SCC website, but its decisions, let alone its important decisions, end up in truncated excerpts in dailies.) For the decision of the SCC on June 14, 2012, dissolving Parliament, see Right to Nonviolence’s translation and commentary at “RN Publishes English Version of Egypt’s SCC Decision on Unconstitutionality of Parliament,” June 15, 2012. See also my criticism of the decision the following day, “Saving Egypt’s Supreme Constitutional Court from Itself,” Ahram online, June 15, 2012. 26 This description (al-dustur al-muqtarah al-aswa’ fi tarikh misr) appeared in a tweet of Hafez Abu Sa‘da (AbuSeada), a leading human rights lawyer in Egypt, on November 30, 2012. See my brief analysis in “Reading the Draft Constitution of Egypt: Setbacks in Substance, Process, and Legitimacy,” Ahram online, December 2, 2012. 25

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The constitutional trajectory followed in Tunis was two-pronged. The first step was to hold elections for a National Constituent Assembly (Al-majlis al-watani al-ta’sisi) in October 2011, which then named a government and a president as a temporary arrangement, and doubled up as a parliament. Tunisians took this route originally under the leadership of Bishri’s counterpart, jurist Ayadh Ben Achour (‘Ayyad ibn ‘Ashur), whose work ended with the reform committee he presided over when the parliament/constituent assembly was elected.27 The Tunisian experience was different from the Egyptian muddle-through thanks to the absence of a SCAF/Sisi-like intervention by the military, but it shared with Egypt the fractionalization of revolutionary unity through national elections. The resulting political landscape was less dysfunctional because the elections produced a more balanced representation in the assembly, leading in turn to the appointment of a “secular” president and a prime minister from the Islamist Nahda party. The continued “unity” of the revolution secured a fairly consensual constitution which was finalized and put into effect in early 2014. In Yemen, the scene was radically different because of the special role played by the United Nations. In an agreement reached by regional governments and the main political factions, a document known as “the Gulf Cooperation Council (GCC) principles” emerged on November 23, 2011. The massive demonstrations that had engulfed Yemen for weeks led to the main demand of the nonviolent revolution being met with the removal of the president. Under the GCC principles, three-decade dictator ‘Abdallah Saleh was forced to step down, but he insisted on immunity as part of the resignation package, and he kept his majority faction in parliament. The Yemeni vice president, ‘Abd Rabbuh Mansur Hadi, was appointed president in the process. The Yemeni constitutional moment was distinctly odd. The GCC-UN road map included the former vice president as the sole candidate for presidential

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‘Ayyad ibn ‘Ashur self-effaced, but remained critical of the constituent parliament’s tendency to overstep its limits. His blog recounts in detail the initial process and the various choices and difficulties encountered. See in particular the entry of October 28, 2012, http://yadhba.blogspot.com/2012/10/14-2011-16-2011.html, “Al-thawra al-tunisiyya fi tajalliyatiha al-dusturiyya, al-mabhath al-awwal, al-marhala al-intiqaliyya al-ula (14 janvier 2011–16 Décembre 2011, The Tunisian revolution in its constitutional expression, a first article, the first transitional period (14 January 2011–16 December 2011),” for a detailed discussion of the stages leading to the elections on October 23, 2011, of the National Constituent Assembly. The abuse of its role by the National Constituent Assembly is expressed on ‘Ashur’s blog entry on June 13, 2012: “The factor which increases the danger appears in this Constituent Assembly which turned itself into a dominant, legislative ‘parliament’, then freed from any control since it conferred unto itself some sort of permanence, for it is not bound by time or limited by a deadline in the text of the constituent law. This legal aspect betrays the promises which the aforementioned declaration on transitional process of 15 September 2011 committed to, and the obvious intent in being free from any constraint was apparent from the beginning when the Assembly refused to mention the length of its mandate under the constituent law. As for the political aspects that undermined the reputation of the assembly and its credibility, we can get into much disquisition. Wal‘amel alladhi yazid fil-amr khuturatan, yatamaththal fi anna hadha al-majlis al-mu’assis alladhi inqalaba ila ‘ barlaman’ muhaymen wa musharre‘, thumma mutaharrir min kull raqaba, asnada li-nafsih naw‘an min al-azaliyya, idh la yahudduhu zaman wa la tahsuruhu mudda, fi nass al-qanun al-ta’sisi. Fal-janeb al-qanuni akhalla bil-wu‘ud allati khattaha i‘ lan al-masar al-intiqali li-15 september 2011 sabeq al-dhikr, wa wuduh al-qasd kana makshufan min al-awwal ‘ indama rafada al-majlis tahdid al-mudda bi-muqtada al-qanun al-ta’sisi. Wa amma ‘an al-jawaneb al-siyasiyya allati nalat min sum‘at al-majlis wa misdaqiyyatihi, fa haddith.”

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“elections,” which were held in February 2012. Parliament remained unperturbed in membership, but was shorn of much power when a “National Dialogue” was started in March 2013 under UN auspices. In effect, the UN-GCC Special Envoy brokered and managed dissent, with a view to reaching a constitution and parliamentary then presidential elections following the National Dialogue work. That was the constitutional road map on paper, distinct from elsewhere because of the UN’s active contribution to the process of transition. Its greatest success for the first two years was to hold the country together with a low degree of political violence. Its greatest weakness was to leave the former dictator to continue operating inside Yemen with impunity, fueling intrigue and dissatisfaction with an incomplete revolution. As the constitutionl moment stalled, and Hadi entrenched in power while Saleh remained unpunished, both the Southern and Huthi rebellions developed. As a violent revolution, Libya suffered from a massive collapse of order when the supporters of Qaddafi were defeated militarily by insurgents on the ground with the heavy support of NATO, including in the final raids leading to Qaddafi’s flight and execution in October 2011. Profiting from high-level defections in the early weeks of the revolution, the opposition got together in a National Transitional Council (al-majlis al-watani al-intiqali) as early as April 2011. When the insurgency won in Summer–Fall 2011, the NTC prepared parliamentary elections, which were held on July 7, 2012. The NTC then dissolved and was replaced by the hastily elected General National Congress (GNC) (al-mu’tamar al-watani al-‘amm). The GNC in turn chose a government whose writ was considerably weakened by its lack of control over the country and the persisting lawlessness imposed by the militias. The Libyans chose a different process for constitution-making, and opted for the special election of a Constituent Assembly conducted in February 2014. But the unrest and the profound dissensions within the GNC and between de facto tribal and regional militarized groups made for a slow and halting process. Although all four revolutions that succeeded in bringing the dictator down were bumpy, the most difficult one to put on a least violent course of constitution-making was the one where the revolution was violent. Libya, not surprisingly, followed the most erratic and brutal course. The Missing Link: A Grand Revolutionary Coalition Here we have the four countries of the Middle East revolution that succeeded in ousting their dictator, each with its own post-revolutionary route. One guiding principle emerges: the need for the grand coalition that brought down the dictator to remain united long enough to allow a new constitution to be overwhelmingly accepted by the population. Where this was generally followed, as in Tunisia, the prospects of a durable constitution are enhanced. It was missed in Libya and Egypt where elections generated immediate dissent with “secular” dominance in the first case and the Muslim Brotherhood’s prevalence in the second. It remained uncertain in Yemen after the end of National Unity talks and the appointment of a constituent assembly. Rather than aim for a majoritarian parliament and government that would antagonize and exclude the losing factions in the elections, a national coalition preserves the revolutionary movement’s unifying spirit for a much longer time, and there is a myriad of moves that the revolution can agree on without great dissent, including local elections rather than national ones. A route that integrates the largest possible number of revolutionaries into a

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coalition secures in turn a revolutionary government representing exclusively the nonviolent philosophy of the street. None of the four countries followed it. Yemen saw a comprehensive national dialogue, but it included the former dictator acting as constant spoiler. Tunisia was lucky to see its first elections result in a relative balance between Islamists and secular groups sharing power. It  helped that the military factor was all but absent. There was better luck also because of the presence of an Islamic party that sees itself as “moderate” and a strong push back from more secular factions. The new Tunisian constitution was finally passed in 2014 by an overwhelming vote of the constituent assembly. Its most important trait was the emergence of as consensual a text as possible, the result of a large and sustained “grand national coalition” operating in government and in the constituent assembly.28 A thread emerges:  a “Grand Revolutionary Coalition” provides wide political and social stability to the country, free of the fulul, until a democratic process gets gradually normalized. 29 Without a properly calibrated judicial accountability for deposed dictators and other modes of accountability such as an adequate lustration law—which raises the additional question about who has the authority to pass it—this is hard to achieve. But let us suspend our consideration of post-dictatorship justice until the more detailed discussion about accountability for the members of the ancien régime in the next Part of this book. Let us further suspend our disbelief by considering that enough public shaming has been expressed, and sufficient accountability mechanisms put in place, that the army stays outside the political fray, and that the scoria of the ancien régime—the fulul—are on the run and are no longer in a position to undermine the revolutionary government by bringing back into power the dictator or one of his former aides.30 These are too many “disbelief suspensions.” An evident decree of reality is in order that bespeaks the time factor needed to get rid of the fulul in the shape of constitutional ruins. In a newly freed Tripoli, as elsewhere, it does take time to erase forty-two years of absolute

English and Arabic texts of the constitution on Timeline MECF, under Tunisia. The constitution was approved by the National/Constituent Assembly by 200 to 2 votes (and 4 abstentions) on January 26, 2014. I do not particularly like the style of the Tunisian Constitution, which has an inordinate amount of articles starting with “the State shall do, or not do . . . ,” and prefer, as developed in Chapter 11, a language that is more attentive to the Arab/Islamic legal tradition. A useful introduction in English can be found in Zaid al-Ali and Donia Ben Romdhane “Tunisia’s New Constitution: Progress and Challenges to Come,” posted on OpenDemocracy.net on February 16, 2014. 29 This approach was advocated by the leading dissident and former candidate for Egypt’s presidency, Ayman Nour. At a working dinner in Beirut on July 15, 2011, with Lebanese political leader Carlos Eddé, he explained to us his efforts to bring about an electoral coalition including the largest number of parties and factions that made the revolution, including the Muslim Brotherhood. Such a coalition would overwhelmingly win the elections, and produce a stable government that could oversee for the coming few years a slow and comprehensive processing of the Nile revolution. Although he failed in this attempt to keep revolutionary unity, not least because of the hubris of the Muslim Brotherhood, this would have been the far better course to take. The failure to sustain a wide revolutionary front was another unlucky alignment of the revolutionary stars. 30 As happened in Egypt when Ahmad Shafiq, a Mubarak-era figure who was appointed prime minister on January 31, 2011, and allowed to run for president in the elections of 2012 with the support of the ancien régime sophisticated electoral machine. “Suspension of disbelief ” requires no doubt a clearer consensual idea among the revolutionaries on what to do beyond the fall of the dictator. 28

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mayhem. The Libyan National Transitional Council remained a caretaker government until elections for an assembly got underway. This sounds reasonable enough, but the feeling that all revolutionary factions were not well represented heightened an atmosphere of lawlessness and violence already present in the very nature of the revolution. In Egypt, the first year was dominated by SCAF, the second year by the Muslim Brotherhood, the third year by the military in a variation on the SCAF/RCC model against which the revolution was made in the first place. The army leaders were never serious in relinquishing their economic or political power. In Yemen, the process led by the UN undermined the revolution by stifling its dynamic with the appointment of the vice president as president. The Yemeni process resulted in the National Dialogue, but the deposed dictator with the fulul he embodies was an important part of it, and its main spoiler. In Tunisia, the fulul remained in a less conspicuous form, mostly as an immovable bureaucracy continuing to operate very much in the Ben Ali mode without Ben Ali, and its power should not be underestimated. So what about institutionalzsing such a coalition through elections? Even in the best of cases, an electoral coalition of untainted revolutionaries is difficult to form as each faction vies for a large number of representatives heading the common list, so that they get elected in a constituent or parliamentary assembly. One could conceive however of a different purpose for an electoral coalition, one that is not primarily focused on the formation of a government. To be more precise, rather than forming a government, an electoral coalition’s main objective is the protection and eventual constitutional enshrinement of the spirit of nonviolence in the revolution and post-dictator practice: rejection of “the strong man/all powerful president-ra’ is,” protection of human rights, an end to the repression of nonviolent demonstrations and trials by unfair courts, an enhanced attention to bringing the dictator and his aides to trial, restarting the economy with less corruption, all to be eventually incorporated in a studied and carefully debated arrangement aiming to ensure a widely representative constitution. Such measures minimize the risk of counterrevolutionary mobilization succeeding, or the emergence of an excessively factionalized political process resulting from hastily convened elections. The process is then moved by a simple principle: to keep together the common vision of the street revolutionaries for as long as possible. Hurrying through national elections and/or a constitution breaks the revolutionary spirit and threatens its nonviolent philosophy. If this plan were to prevail after the dictator falls, governments in place would be essentially caretaker entities, with rotating members at their helm, simply required to secure the democratic space won by the revolution by keeping the grand revolutionary coalition intact for as long as possible. This is easier said than done, especially as the scramble for power in a country frustrated by decades of dictatorship is understandable. In addition, a revolution for the rule of law needs to be bolstered by working courts, which are not readily available.31 Constitutional ruins and judicial ruins go hand in hand. As a possible alternative that better belongs in a footnote, such democratic space could rely on existing trustworthy and less politicized institutions, especially the judiciary. But the judiciary is generally in shambles. In Egypt, the tradition of an independent judiciary was stronger than in a Qaddafi-run Libya where revolutionary committees adjudicated any dispute under the watchful eye of Big Brother, and where professional judges had been institutionally side-lined for decades. The quality of the judiciary in Egypt overall is far

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Politics and Nonviolence Design ideal constitutions as one will, there is no constitution free of politics. With all the lofty wording conceived in declarations, plans and projects, and academic conclaves, the better analysis is always forced into the political realm, which is mainly descriptive. Let us review our four “successful” revolutions briefly again from a political point of view. In a Tunisia considered as the best success story of 2011, the revolution was considerably  facilitated by sheer luck in the unusual stand of an army general who disappeared from the political scene as soon as he reportedly put Ben Ali on the plane.32 The Tunisian military stuck to its barracks, while the choice of a constituent assembly as the locus of institutional change lessened tensions between revolutionary groups. National parliamentary elections carried out in October 2011 yielded a seemingly acceptable spectrum of representatives, but the entrenchment of “secular” and “Islamist” factions kept the country brittle. The continuation of a unity government of sorts, with a president acting as a counterbalance to the Nahda, secured a constitution accepted by all. The dominant risk on the Jasmine revolution lies in extremes stealing the common ground of a working “grand coalition,” and in sudden unruly polarization in presidential and parliamentary elections. In Egypt, the triangle Military/Democrats/Islamists unraveled in late 2011, with the forces of the ancien régime regrouping for the counterrevolution around SCAF. Illustrating Mubarak’s authoritarian practices, SCAF continued the incarceration of revolutionary militants and the conduct of hundreds of military trials. It even managed to return a former symbol of the Mubarak era to power as prime minister.33 In the presidential election of May–June 2012, a combination of local and international pressure allowed the representative of the Muslim Brotherhood to win the elections’ second turn by a slight majority, but only after a ludicrous vetting process eliminated more senior candidates, including champions of anti-Mubarak opposition. In the few early golden days when the country rallied around him, Muhammad Mursi promised revolutionary unity, but he acted exactly opposite to what he promised. In June–July 2013, revolutionary days were back, this time to unseat the first elected president in the country’s history. Again the army hijacked a nonviolent revolution that had brought down a dictator—an apprentice dictator to be more precise—a second time in less than two years. While the Muslim Brotherhood entrenched, a massive repression ensued, putting in jeopardy the whole revolutionary ethos of the Nile revolution.

superior to the one left behind by Qaddafi in Libya, but serious question marks remain on Mubarak appointees at the top of the court system when he entrenched in his last decade in power. This all is a matter of context, and details need to be hammered out in the course of a much slower process of bringing the judiciary out of its checkered past. I have closely worked with leading judges in the Middle East through my academic career, in my strong belief that they need support against the executive, and that rule of law without decent and competent judges is pie in the sky. In revolutionary times, however, judges are straws in the wind. 32 See on General Rashid Ammar, above Chapter 3, notes 11, 34. 33 The staggering return of several figures closely associated with Mubarak includes Kamal Ganzuri, who served as Mubarak’s Prime Minister from 1996 to 1999, and was reappointed to his former position by SCAF in November 2011, and Amr Musa, the former foreign minister and long-serving appointee of Mubarak in the Arab League, who was designated by the military to head the reduced Constituent Assembly to complete the 2014 Constitution.

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Yemen is yet another story of political intrigues, which factors in a systematic drone policy relentlessly carried out by the US government against the nebulous Qa‘eda constituencies in the country, the involvement of the GCC and the United Nations allowing the dictator’s vice president, ‘Abd Rabbuh Mansur Hadi, a pale shadow of his obdurate boss, ‘Ali ‘Abdallah Saleh, to take over. This was engineered in a curious timeline that saw the “election” of a new president as the sole candidate following the resignation of Saleh, but the former dictator continued to exercise duress through his sons and relatives, and through repressive units they commanded in the army. No longer officially in power, and protected by an immunity he secured in writing, he made sure that Yemen’s revolution would not proceed alongside its philosophical path of nonviolence. The rebellion continued brewing on the outskirts, in the East amongst the Huthi tribes rediscovering themselves as Shi‘i, in the South amongst secessionists harking back to their days in power in the former republic of South Yemen. In its general traits, the story of Libya is one of raging battles over cities east and west of the capital, and a massive bombing campaign by NATO, which first saved Benghazi from being taken over by Qaddafi’s vengeful forces, and then proceeded to systematically weaken his troops until his sinister comeuppance near the sewers where he was hiding on October 20, 2011. The revolution was brutal in Libya, and the death of Qaddafi a stunning rerun of the episode depicted by Gustave Flaubert in Salammbô. Like Mathô the Libyan’s gory death, Qaddafi’s death adds an additional, signal failure of a revolution gone violent.34 To its credit, the Libyan oppositional coalition was remarkably efficient in rallying the world, and the country, behind a semblance of revolutionary unity lasting long enough to see the end of a dictator fighting to the death. Still, the insecure and brutal years that followed the demise of Qaddafi underscore the price paid for not taking a nonviolent route to change. Years later, militias were still roaming the streets, ensuring that whatever government would emerge is constantly threatened by young men in fatigues, and conjuring up the nostalgia for “a strong man” of the population at large. Where a difference can be significant in a conscious revolutionary choice, it lies in preserving (or restoring) the crucial importance of the nonviolent character of the revolution for its constitutional aftermath. The bloodier the revolution becomes, the more difficult the transition. Empirical studies confirm common sense that blood draws blood. This brings us back to the importance of nonviolence for the constitutional moment. How can the constitutional moment benefit from the nonviolent philosophy of the revolution? Here also, the empirical makes the theory gray. By and large, the post-revolutionary scene in Tunis remained shorn of violence, although remnants of the authoritarian state continued their kneejerk killing of demonstrators. Much later, the assassination of two prominent anti-Nahda leaders within a few months of each other brought down the government, in a sign that Tunisian society continues to abhor violence, while the main Islamist group sharing power acknowledges the dangers of extremists (including in its midst) wrecking the country in the name of some purer version of an Islamic state.35 In Egypt, the constitutional The visionary passage in Gustave Flaubert’s Salammbô (1862) describing the Qaddafi-like end of “Mathô le Libyen,” a dictator in Roman Carthage, can be found in the novel at ­chapter 15. 35 On the killing of Chokri Belaid, see Amnesty International’s press release on the same day, “Tunisia: Urgent Need for Investigation into Chokri Belaid’s Killing,” February 6, 2013. For the murder of Mohamed Brahmi, killed on July 7, 2013, Human Rights Watch, “Tunisia: Investigate Killing of Opposition Figure: Second 34

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process developed in starts and fits under the increasingly assertive coup of the military. Violence continued at the hands of SCAF throughout 2011, and was exerted by the military junta as self-appointed government, brazenly or through the encouragement and protection of thugs and police, sometimes prosecutors, in their continued harassment of human rights advocates, Copts, and women.36 By 2012 already, Egyptians had much to envy in their counterparts in Tunisia, so much so that the picture on the first anniversary of Mubarak’s deposition was that he was simply replaced by SCAF.37 Then SCAF started to relent, under renewed street pressure and world outrage. It faced a sudden choice between rigging the presidential elections, while a judicial rigamarole over the National Assembly continued, or to let go. SCAF let go momentarily. The Muslim Brotherhood president was allowed to win at the end of June 2012, and Muhammad Mursi enjoyed a brief summer of revolutionary unity. In large part because of his shortsightedness, this turned out to be a fleeting bright moment. In the fall of 2012, Mursi started his own authoritarian set of practices with a unilateral constitutional declaration. He followed it shortly thereafter with allowing a physical siege by his supporters of the Supreme Constitutional Court. He appointed hard-core supporters in a number of governorates. He also forced a poorly drafted constitution on the country despite the fact that a third of the members of the constituent assembly had resigned and only his supporters remained in it. In an extraordinary turn of events, more people rallied against him within a year than had happened against Mubarak, leading to his ouster in early July 2013. Similar to the immediate period after Mubarak’s deposition, the generals stepped in again to try taking the revolution over. They railroaded in another constitution with no participation of the Muslim Brotherhood, whose leaders languished in jail. By then, constitutional fatigue had set in, military rule was back, making little sense in putting any faith to the Sisi constitution.38 Up- and brink-manship politics defeated constitutionalism. Temporarily. * * * Let me end on a positive note, warranted by Tunisia and the continuing Middle East revolution. In sum, the creation of a large democratic space after ousting the dictator is contingent on keeping the largest possible number of nonviolent revolutionary forces together through the constitutional process, so that the constitution provides for a stable country under the rule of law in due course. This is when the nonviolent revolution will have really delivered. Time can be helpful in avoiding the rush, the process can be staggered into a transitional Assassination of Leftist Coalition Member,” July 25, 2013. The demonstrations that followed, and the resignation of the Nahda prime minister, went some way to redress the course in Tunisia, as did the news in early 2014 that the killers of the two secular, leftist figures had been arrested. 36 See, e.g., Human Rights Watch, “Egypt: Investigate Violence against Coptic Christians,” October 10, 2011, and several other reports, Chapter 12 of this book, notes 1–4, and Bibliography, for the systematic humiliation of various groups mainly by the military/police apparatus and the Islamists, which is another horrendous instance of the travails of the post-Mubarak regime. 37 For an authoritative list of the continuing human rights exaction, see the annual reports of Amnesty international, e.g. the entry on Egypt in the Amnesty International Report since 2010, www.amnesty.org/ en/region/egypt/report-2010. 38 Brief and precise article by Nathalie Bernard-Maugiron, “Les Frères musulmans et le droit, l’impossible bilan,” La Croix (Paris), September 13, 2013.

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charter before a final one is completed, and an electoral coalition of the revolutionary forces can ensure that the unity of purpose and forces that made the revolution in the first place last as long as possible. In this ideal construct, a loose sequence to safeguard the philosophy on nonviolence from the perspective of the search for the new social contract can be conceived as a “Grand national coalition” of the revolution taking over as the dictator falls, by forming (a) a coalition executive, flowing from the revolution, which operates essentially as a caretaker government ensuring respect for the basic revolutionary precepts; (b) “a grand electoral list” that secures a provisional parliament of the nonviolent revolution and a new government in as wide a ruling revolutionary coalition as possible; (c) a constitutional assembly or committee selected by the new government and confirmed by the elected parliament to write the constitution without rushing the process.

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Despite the complexities of transitions caught in-between the collective writing of a new social contract, revolutionary days galore, and the genie of citizen participation out of the bottle with a sense of entitlement and sometimes revenge, the constitutional imagination is not particularly creative. Adumbrated by Montesquieu in The Spirit of the Laws (1748), Rousseau in The Social Contract (1762), and the US founding fathers in and around The Federalist Papers (1787–1788), the eighteenth-century canon has remained the backbone of any constitution. While the Middle East elicits its own trying set of questions for the constitutional canon, constituents everywhere are hemmed in the established eighteenth-century template. In a world where economy and society are hard to disentangle, there are temptations to include the economic realm in the constitutional exercise beyond the special place for the budget in a few constitutional clauses. Topics marked for inclusion range from paying lip service to those marginalized economically;1 to the artificial inclusion of workers and peasants in “socialist” constitutions, a trait that remains obdurately on paper in a country such

This goes from socialist concepts around the proletariat as the exploited group at the vanguard of constitution-decision-making in socialist republics, to the reference to the “mustad‘afin,” a Qur’anic concept (Q: iv, 97) that suggests that the weak (da‘ if, from which derives mustad‘af, plural mustad‘afin) is actually thought or portrayed as weak, boxed in weakness, and therefore is not “naturally” weak. Mustad‘afin gets generally translated as “oppressed,” but the Arabic form is more subtle. The word appears in the Constitution of Iran in the Preamble and in two articles (Art. 3.16 and Art. 154), but the mention is mostly rhetorical. A germane albeit far more elaborate constitutional concept has been articulated by Owen Fiss for a group that is put in a status of subordination, generally by the majority, and for which the courts and other constitutional powers should offer adequate remedies. Owen Fiss, “Groups and the Equal Protection Clause,” Philosophy and Public Affairs, vol. 5, 1976, 107–77.

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as Egypt;2 to forms of corporatism that reek of the fascist state.3 These mentions are not defendable. Powers openly conferred by the constitution to a privileged group are unsustainable, be that group economic (property ownership in countless early constitutions, including the United States in 1787 and France in 1791, the proletariat, peasants, workers in the Soviet-style constitutions), racial (again in the United States in 1787, South Africa under apartheid), gendered (males in most constitutions until the mid-twentieth century), religious (Iran, Israel, Pakistan), or military as in Kemalist Turkey and a host of Middle Eastern and other authoritarian countries of the Revolutionary Command Council type. The constitutional imagination has proved incapable since the Enlightenment of going beyond the fiction of a neutral constitution that is a class interest-, economic considerations-free construct. A coherent constitution admits of a special status to none of these categories. The intellectual architects of liberal political philosophy, Montesquieu, Rousseau, Locke, and their declared followers in 1787 America and 1789 France, have yet to be superseded.4 Since their books underwrote the philosophical horizons of the American and French revolutionary constituents, all efforts have failed to conceive constitutionalism in a radically different way, that is, in a way where the ruling class is set apart as such. This includes the Egypt has a long tradition of corporatist clauses in its constitutions, which constrained the Supreme Constitutional Court by the 50  percent quotas expressly established in the Constitution of 1971 (Art. 87: “The law shall determine the constituencies into which the State shall be divided and the number of elected members of the People’s Assembly must be at least 350 persons, of whom at least one half shall be workers and peasants elected by direct secret public balloting.”) Both Mursi’s “Islamist constitution” of 2013 and Sisi/Musa’s 2014 constitution include this unworkable corporatist quota. The 50 percent “workers and peasants” quota remains for local councils at Arts. 17 and 180 respectively. While the Mursi Constitution of 2013 does not mention the quota in parliamentary elections, a signal progress, it keeps it for the Social and Economic Council (Art. 207). The Constitution of 2014 returned the quota system as principle in national parliamentary elections, “to be regulated by law,” but without specifying a number (Art. 243). 3 Following the tradition based on fascii as paramilitary organizations, the corporatist gamut runs wide:  property-owners, workers, peasants, the army, the clergy, churches . . . . Under Mussolini, Italy did not pass a new constitution, but the fascist doctrine formulated by the twisted imagination of the dictator included a strong vision of corporatism. See miscellaneous mentions of corporatism as a component trait in the fascist state, and note 8 in “the concept of a corporative state,” which is the title of the appendix to Benito Mussolini and Giovanni Gentile, The Doctrine of Fascism (1932), available in English at http://www. worldfuturefund.org/wffmaster/Reading/Germany/mussolini.htm#. Original Italian on the web, without the footnotes, La Dottrina del fascismo, at http://litgloss.buffalo.edu/mussolini/text.shtml. 4 I would argue in addition that this philosophical tradition includes Spinoza’s famous seventeenth-century Theologico-Political Treatise (first published anonymously in Latin in 1670), which lays the ground most firmly for the republican idea by rejecting tradition and theology as antithetical to reason, and by establishing republicanism as the foundation of the law. “As for the United States of the Netherlands, they have never, as we know, had a king, but only Counts, who never attained the full rights of dominion. The States of the Netherlands evidently acted as principals in the settlement made by them at the time of the Earl of Leicester’s mission:  they always reserved for themselves the authority to keep the Counts up to their duties, and the power to preserve this authority and the liberty of the citizens. They had ample means of vindicating their rights if their rulers should prove tyrannical, and could impose such restraints that nothing could be done without their consent and approval. Thus the rights of sovereign power have always been vested in the States, though the last Count endeavoured to usurp them. It is therefore little likely that the States should give them up, especially as they have just restored their original dominion, lately almost lost.” Chapter xviii of the R. Elwes English translation (1883), available at http://www.spinozacsack.net78.net/ Theologico-Political%20Treatise,%20Benedict%20de%20Spinoza.pdf. 2

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Islamic and the communist/fascist counter-models,5 despite expressed care for religious virtues in the former, and, in the latter, attention to the poor in the guise of corporatism or the communist vanguard. Setting a constitutionally defined group above all others—the leading party, the party of the working or racially superior classes in the USSR or Nazi Germany, the clerics in Islamic states—all betray the hallmark of an authoritarian state elevating some citizens above others as part of some ulterior superiority vested in them historically. These discriminatory constitutions have all failed to stretch the constitutional imagination beyond the Enlightenment writers’ abhorrence for a constitutionally privileged group. Nor should that rejection be surprising, for it would openly undermine the principle of equality, which is the most powerful contribution of the democratic-republican exercise in the first place. It helps to remember that Montesquieu’s tripartite division of powers was conceived by the Marquis de la Brède along a functionalist line. Functionalism is based on the premise of the law’s three spheres in life: its formation by the legislator as the expression of the general will of the people, its animation by the executive that applies it, and the control of the judiciary that ensures that fundamental disagreements over the constitution are subject to its independent review. The Middle East revolution is constrained by this prism. Montesquieu’s functionalist distinctions are now universally considered as a sine qua non to prevent one-person absolutism. Absolute sovereignty is defeated by Montesquieu’s functional division in three competing agents standing for a tripartite representation of the people as the ultimate sovereign. The three powers operate in the life of the law in different functional spheres, each sphere preventing the other one from encroachment, and therefore from domination. Although it may be alluring theoretically to deconstruct Montesquieu, as has been done convincingly by twentieth-century jurists and philosophers,6 questioning this scheme is not within the realm of the political imagination of the Middle East constituents—or any other constituent for that matter. Montesquieu’s fundamental separation of powers is here to stay, in the Middle East and elsewhere, as the central pillar of constitution-making. Short of lip-service to the welfare state in the constitutional text, nowadays a mere exercise in style, constituents face more traditional choices within the functional tripartite separation of powers. Montesquieu rules. The word “Islamo-fascism” is controversial, particularly in the United States, but I think its use is warranted; see on opposite sides of the US political spectrum Christopher Hitchens’s (d. 2011) and Norman Podhoretz’s criticism of the fascist use of religion, Hitchens, “Defending Islamofascism. It’s a Valid Term. Here’s Why,” Slate.com, October 22, 2007; Podhoretz, World War IV: The Long Struggle against Islamofascism, New York: Doubleday 2007. Clearly fascist practices by Jewish groups in Israel, Buddhist organizations in Burma, and Narendra Modi-like Hindu constituencies in India tend to elicit neither the same terminology, nor the same political investment to denounce them: one does not hear much of Hindu-, Buddhist-, or Judeo-fascism. On Modi’s active role in the 2002 pogrom against Muslims in the Indian State of Gujarat where he was chief minister, as well as the distorted use of Gandhi’s ahimsa (nonviolence) to justify the pogrom, see Parvis Ghassem-Fachandi, Pogrom in Gujarat: Hindu Nationalism and Anti-Muslim Violence in India, Princeton University Press 2012. 6 See the works of Charles Eisenmann (d.1980), Louis Althusser (d.1990), and Duncan Kennedy discussed in Mallat, “Droit comparé au 18ème siècle: Influences françaises sur la common law,” Revue historique de droit français et étranger, 3, 1994, 383–400. 5

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A Dull Exercise, LEJ(F)ARC . . .  A constitution is a dull document to write. Potentially. A telling anecdote comes from Iraq in the 1960s. An Iraqi politician, a lawyer by profession, was being harassed by colleagues to start working on a constitution in anticipation of political change. Eventually he got impatient. It takes a couple of hours to write a constitution, he quipped. Another telltale constitution-making story comes from more recent Iraqi constitutional lore. “Let’s do it, Kaka (Sir in Kurdish),” a Shi‘i member of parliament from a radical faction told his Kurdish colleague on the constitution-drafting committee in 2005, “one article from you, one from me, and we’re finished today.”7 By the following day, the draft constitution was completed. An introductory primer to constitutional law illustrates the dull intellectual nature of the process highlighted by these anecdotes. Constitution-writing has been a remarkably unimaginative activity since the oldest and most enduring constitution in existence. The US Constitution of 1787 has seven articles, following a lyrical preamble that derives of necessity from the constitutional moment. Most preambles are rhetorical. This leaves a set core of binding constitutional sections. Give or take one, all that is needed in a constitution are seven articles—or chapters, or sections; names vary. Take out one article, which would be the US Constitution’s Article 6, where debts, oaths, and the supremacy clause are dumped. They could easily be integrated elsewhere in the document. Add one article, and you get the bill of rights, which was passed four years later as “the ten amendments” and appended to the Constitution to appease anti-federalists who were demanding written guarantees for individual rights and the consecration of states’ autonomy.8 Bis repetita placent. To the anecdote of the 1960s, the name of whose protagonists I do not recall, I had the occasion in Baghdad to hear this story repeated in the adoption of the Constitution of 2005. It is recounted by Haider Ala Hamoudi: “What happened was the CDC [Constitution Drafting Committee], which had more or less a Shi‘i version of the draft, distributed it to the UN and others, and the Leadership Council began to make amendments that the United Iraqi Alliance (UIA) [the ‘Sistani list,’ which was the main bloc in Parliament and overwhelmingly Shi‘i] didn’t think were necessary. Generally the Shi‘a and the UIA ignored what the Leadership Council was doing, and didn’t think they had to listen to amendments made chiefly by Sunni and Shi‘i liberals, and by the Kurds. Hajem Al Hassani, Ghazi Yawer, Iyad Allawi were the main players. Abdul Aziz al-Hakim and Humam Hamoudi, who had played a central role in the Constitution submitted to the UN, barely attended, and two drafts emerged by the second week of August, one by the UIA, and one by the Leadership Council. In what the Shi‘a derisively call the ‘political kitchen’ (al-matbakh al-siyasi), everyone sat down and made one draft. The most memorable statement when this started was by the Sadrist representative, who told a Kurdish colleague, ‘okay Kaka [Sir in Kurdish], one article for you, and the next one for me, and we’ll get this done in an hour? Memorable because this was only a slight exaggeration of what ultimately transpired, for they met August 14 and were almost done by August 15 [2005].” See Mallat, Iraq: Guide to Law and Policy, above note 7, 32-33. This was confirmed to me by the Sadrist representative, Baha‘ al-A‘raji, in a conversation in Baghdad in 2009. In Yemen in 2013, the lively and impatient French ambassador was lamenting the slowness in the adoption of the constitution, which he rightly said could be put together in a day. A colleague on our UN team asked him equally rightly what it would be worth. In fact, despite the strong impulse of Charles de Gaulle and the clear leadership of Michel Debré leading the drafting committee in the summer of 1958, it took several months for the Constitution of the Fifth Republic to be adopted. 8 Note the Atlantic revolution’s time convergence: The US bill of rights was introduced by James Madison on March 4, 1789 (original text of twelve articles at http://consource.org/document/bill-of-rights-as-proposed/) 7

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Mnemo-technique illustrates the overall limits of constitution-drafting, in an acronym that I propose here as a template for democratic institutions anywhere in the modern world, LEJ(F)ARC. LEJ(F)ARC provides the seven constitutional basic items/articles/chapters that a constitution needs to cover: the Legislature, the Executive, the Judiciary, Federalism (or not, hence the parenthesis), Amendments, Ratification, and the Citizen’s basic rights. This is it. The constitutional drafters had it exactly right.9 Since the US Constitution, these seven constitutional chapters have represented the conceptual limits of modern democracy. (1) L:  Article I  of the US Constitution is about Legislative power, about who makes the laws. It sets up the composition and election of the two chambers of Congress and delineates its role as legislator. In the context of the Middle East, and read before the US House of Representatives on June 8 (text at http://www.usconstitution.net/first12. html). After a long process, it was reduced to ten articles and came into effect in December 1791. In reaction to the street uprising on “the night of the 4th of August” 1789, the adoption of the French declaration of human rights was accelerated. It directly benefited from the American example, although the style is different. No doubt the genius of Condorcet played a central role, and we shall meet Condorcet repeatedly in this book as a uniquely hands-on voice of reason in the constitutional turmoils of the late eighteenth century. Condorcet compels admiration as the writer of several extraordinary texts, including – a lucid vision of the immense influence of the American revolution in France, De l’Influence de la révolution d’Amérique sur l’Europe (1786); – a draft declaration of human rights in English and in French set in a bilingual edition, Declaration of rights, Déclaration des droits, London: n.p. 1789, available as Google book from the Bodleian library (http://books.google.com.lb/books/about/D%C3%A9claration_des_droits_by_Condorcet_ tr.html?id=HQwUAAAAQAAJ&redir_esc=y); – a treatise “On Giving Women the Right of Citizenship” (1790), available in Condorcet: Foundations of Social Choice and Political Theory, I. McLean and F. Hewitt trans. and eds., Aldershot, England and Brookfield, Vermont: Edward Elgar, 1994, 335–40. (Many of the original texts can be found digitally at Chicoutimi University, Classiques des Sciences Sociales, as well as in the full works of Condorcet, A. O’Connor, and F. Arago eds., Oeuvres complètes de Condorcet, 12 vols, repr. Stuttgart: Frommann 1968, orig. Paris: Didot 1847–1849, made available by HathiTrust at http://catalog.hathitrust.org/ Record/008621375.) Possibly following the advice of Condorcet in the Declaration of Rights pamphlet above, written to guide the Etat Généraux meeting on May 5, 1789 at Versailles, the need for a Declaration was discussed on August 1 in the National Assembly (http://www.assemblee-nationale. fr/histoire/sur%20la-declaration-des-droits-de-l-homme.asp), and a text of twenty-one articles was introduced before the Assembly on August 12, 1789, see Archives Parlementaires at http://gallica. bnf.fr/ark:/12148/bpt6k495230.image.f499.langFR, 431-2, seventeen of which were finally adopted on August 26. The first French constitution was adopted in September 1791. A Polish constitution, part also of the Atlantic revolution, was adopted in May 1791. The French and Polish texts introduced a constitutional monarchy system. On French constitutional developments in relation to the trial of Louis XVI, see Part III, Chapter 14 of this book. It would not be excessive to say that practically every single phrase of the 7000 or so words of the American constitution has been interpreted manifold times. The interpretation, in contrast to the design of a constitutional text, is rarely dull. My favorite book on the Constitution from a perspective defined primarily by the Supreme Court decisions is by Charles Fried, Saying What the Law Is: The Constitution in the Supreme Court, Cambridge, MA: Harvard University Press 2004. For a succinct historical overview treatise, which was revised into a fifth edition by Stanford Levinson, see Robert McCloskey (d.1969), The American Supreme Court, Chicago: University of Chicago Press 2010 (Original 1960). For more elaborate interpretations, see sv in the present book index Ackerman, Cover, Choper, Ely, Fiss, Kahn, Post, Tribe. All these works are

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as elsewhere, an important decision for any constituent actor is whether to have one or two chambers, and how to assign their different competence. Mono- and bi-cameralism is what all countries in the world need to decide on, and it ties in intimately with the adoption of federalism. L prevents power from being in the sole hands of the Executive. (2) E: Article II is on Executive power, about who applies the law on a day-to-day basis: the presidency in the U.S., the Federal Council in Switzerland, and/or the prime minister/chancellor and their cabinets in most other cases. L + E raises the choice between a presidential or parliamentary regime, both having advantages and disadvantages within a different electoral framework, and both ensuring democratic stability that the American and Westminster systems respectively illustrate.10 Both routes are possible. In the Middle East, post-Saddam Iraq has espoused parliamentarianism, with a presidential council that was designed to operate as a counterweight to the executive embodied in the prime minister and his cabinet. In Egypt, the haphazard and turbulent transitional period in 2011–2012, together with a questionable decision of the Supreme Constitutional Court dissolving the first freely elected parliament in Egypt’s history, made a heavy-handed presidentialism the default system.11 In Tunisia, the 2011 elections produced a French-style cohabitation between a president of the more secular persuasion and a prime minister from the main Islamist party. Democratic constitutionalism can accommodate both choices and leave it to the political process to sort out the model in due course. (3) J:  Article III organizes judicial power, which “says what the law is” in cases of intense disagreement between the citizens, deadlock in governmental agencies or branches acting against each other, or a grievance of the citizen against the government or one of its agencies. There is usually no contention that a judge is needed to arbitrate disputes between private citizens. A citizen suing government has been increasingly accepted, sometimes with special dispositions such as immunity of officials or “the state.” The tripartite equation L, E, J is a functional invention of Montesquieu’s Spirit of the Laws,12 which formed the philosophical and constitutional core of the generally designed for a reader trained in the basics of constitutionalism in American legal academia. On the US legal system in general for foreign-trained lawyers, see E. Allan Farnsworth (d.2005), An Introduction to the Legal System of the United States, New York: Oceana 1975, fourth edition updated by Steve Sheppard at Oxford University Press 2010. I am not aware of a more universal introduction to US constitutionalism for the educated non-US reader, but the literature is no doubt extensive. More generally on the US political-legal system in Arabic, see my Al-Dimuqratiyya fi amirka (Democracy in America), Beirut: Nahar 2001. 10 The argument for and against a presidential system is developed at length in Bruce Ackerman, “The New Separation of Powers,” Harvard Law Review, vol. 113, 2000, 633–729. In the context of Egypt after the revolution, Ackerman made the point early on about the need to abandon a US-style hard presidential regime, “To Save Egypt, Drop the Presidency,” New York Times, July 10, 2013. 11 For the SCC decision, see above Chapter 9 note 6 and accompanying text. 12 Montesquieu, De L’Esprit des lois, XI, 4: “Il n’y a point encore de liberté, si la puissance de juger n’est pas séparée de la puissance législative et de l’exécutrice.” Thomas Nugent’s almost contemporaneous translation

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Atlantic revolution.13 More sensitive is the role of the judge in arbitrating disputes between two branches of government because the political process is in principle capable of solving the dispute without the judiciary’s intervention.14 The most delicate area lies in the third role of the judiciary: resolving conflicts between the citizen and the government, when the latter infringes on the rights of the former. In American constitutionalism, judicial intervention in such cases is called in neutral terms “judicial review,” and performs a distinctly counter-majoritarian role, protecting individuals and minority groups against actions taken by popularly elected, majoritarian institutions. This so-called “counter-majoritarian power” is fundamental to constitutionalism. Constituents need to decide to what extent generally non-elected legal experts in robes, called judges, can vindicate a citizen or a group’s claim that a law passed by a majority of elected representatives is invalid because it is unconstitutional. So strange is the concept that American constitutionalists had to wait for a decade and a half for this power to be confirmed by Chief Justice John Marshall, and another five decades for a law passed by Congress to be deemed unconstitutional by the Supreme Court.15 The rest of the planet waited generally another century to give the judiciary the amazing power—come to think of it—to declare null and void a law adopted by a free elected duo of L + E representatives. (4) F:  Article IV of the US Constitution concerns federalism—the distribution of power between state and federal governments. There are real options here for the Middle East revolution. The choice is to adopt a unitary system where power in all (1750) reads: “Again, there is no liberty, if the judiciary power be not separated from the legislative and executive.” For a critical analysis of the eighteenth-century constitutional concept of separation of powers in France and England, see my “Droit comparé au 18ème siècle: Influences françaises sur la common law,” above note 6. 13 Both The Federalist Papers (No 47, by James Madison) and the French Declaration of the Rights of Man (Article 16) acknowledge their constitutional debt to Montesquieu’s scheme ad personam. 14 Argument developed by Jesse Choper, Judicial Review and the National Political Process:  A  Functional Reconsideration of the Role of the Supreme Court, Chicago: University of Chicago Press 1980, in ­chapter 5, “Constitutional conflicts between Congress and the President: A matter for the political process.” 15 In the famous decision that established constitutional review (called “judicial” review in US scholarship), Marbury v. Madison, 5 U.S. 137 (1803), the Supreme Court struck down as unconstitutional an act passed by Congress. The case is procedurally complicated. The newly elected president, Thomas Jefferson, through his secretary of state James Madison, the formal defendant, had refused to confirm the judgeship of Marbury, the petitioner, who was on the side of the outgoing president John Adams. The Court held that the provision of the Judiciary Act of 1789 that enabled Marbury to bring his claim to the Supreme Court was unconstitutional, and struck out his petition on this base. In effect, Chief Justice John Marshall sided with the new president, who belonged to the rival party, while establishing the right of the Supreme Court to strike down as unconstitutional a law passed by Congress. It was not until the infamous Dred Scott v. Sandford, 60 U.S.393 (1857) that the Court struck again a federal law, in part precipitating the Civil War. Note that in both cases, the Court sided in effect with the executive. In Dred Scott, supporting the views of president-elect James Buchanan, the Court held that Congress could not force the freeing of slaves, who had escaped from the South, by Northern states where slavery was banned, because the law passed in 1820 and known as the Missouri Compromise was unconstitutional. On the political philosophy of American constitutionalism that Marbury introduced in the sacralization of the Supreme Court’s last word, and the ideological community it established, see Paul Kahn, The Reign of Law: Marbury v. Madison and the Construction of America, New Haven, CT: Yale University Press 1997.

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three branches flows from the center, or one where people appoint their governors, legislators, and judges without the interference of the central government, within a circumscribed territory the US Constitution calls a “State.” Whatever the distribution of power, which became known as federalism—the word does not appear in the American constitution—, a country cannot hold together if three main areas are not the exclusive or quasi-exclusive terrain of central power: one currency, generally reflecting the economic system; one system of national defense; and one bureaucratic apparatus in exclusive charge of foreign affairs. All other areas tend to be dividable: taxes, commerce, education, crime-fighting, smoking . . .  F is the only constitutional chapter that could be dispensed with, hence the parenthesis added to my acronym. A  country can function with full centralization— France has done so for the better part of the last two centuries, and there exist forms of extensive decentralization well short of federalism, for example in Britain. I have argued that federalism represents a more advanced stage of democracy in the legacy of human constitutionalism.16 This is not chiefly because federalism allows people to choose their own “government” at a local level—city, state, region. A centralized system can accommodate this choice, and people elect mayors and governors from amidst their smaller communities in most democracies. Federalism is more harmonious a tool in keeping the country together because it allows the periphery to be more effective in the center. Federalism entails electing representatives constitutionally mandated to represent a given state or region in the capital and endows them with power in making laws on that basis. The power is real: a senator represents her state, a deputy represents the nation. This ties in with bicameralism under L, for there is no federalism without a Senate-like separate chamber. Sometimes, it is advantageous or inevitable for constitutions to define federalism vaguely, as was the case in Iraq in 2005, where ambiguities in the constitution allow notions of federalism to evolve over time. As the first country openly espousing federalism in the Middle East, the Iraqi experience is uncertain because of the continued systematic violence in the country, and the revived authoritarianism of entrenched prime ministers. Notwithstanding Iraq’s turmoils, the choice between a federal or a non-federal, more centralized system, confronts the Middle East revolution with different intensities, across an immense geographical stretch extending from Morocco, a typically centralized system under the so-called Makhzen, to Pakistan, a haltingly federal country. Constitutions in general, and federalism in particular, are always work in progress. As then Iraqi president Jalal Talibani emphatically mentioned in conversation in 2009, “federalism is meaningless without democracy.”17 See, e.g., Mallat, “Federalism in the Middle East and Europe,” Case Western Journal of International Law, vol. 35, 2003, 1–15, and Al-Dimuqratiyya fi amirka (Democracy in America), above note 9, ­chapter 12 (“Federal values for the world”), 107–14 and c­ hapter 1 (“A passing summer cloud: the presidential contest in Florida,” on federalism in Bush v. Gore, 531 U.S. 98 (2000)), 15–-20. 17 Until the Iraqi adoption of the Constitution of 2005, two countries in the Middle East had federal constitutions:  Pakistan and the United Arab Emirates, in addition to a wobbly text in the Sudan that did not resist the secessionist slope discussed at the beginning of this Part. With no established democracy in 16

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(5) A: The fifth Article of the US Constitution is about amendments and the revision process in general. Like the other six articles, A is indispensable. It brings up profound constitutional questions that can turn pressing soon after the constitution is adopted. A  rigid amendment process strengthens the constitution, but too rigid a process can destroy it. The more profound question is whether there is any sacredness in the constitution that should prevent each generation from rethinking it anew. This issue is not part of the Middle East revolution debate. Constitutions are written to endure.18 Still, a sense of human frailty in constitution-writing can be an incentive to extend the process of composition, make amendments less rigid, and consider phasing out the constitution-making process in ways discussed in the previous chapter. (6) R: Article VI is on ratification and the coming into life of the constitution, with possible sunset laws that become irrelevant and are forgotten as time passes. R is the least problematic chapter in the course of time, but it can be highly controversial in the process toward the original adoption of a constitution. Until then, the political factions barter furiously over it. Once passed, the debate subsides. A rule of thumb for the nonviolent revolution was reached earlier: the ratification process should be designed to mirror the principle of the largest possible representation of revolutionary society in making the constitution. If a referendum is chosen to confirm the work of the constituents, dual majorities, national and regional, help. Referenda, which I discuss further in this chapter in the section on Civil Society (CS), are not a good indicator of constitutional legitimacy, because they operate in a binary system where one votes for a yea or nay on a large, interwoven text, composed of at least seven LEJFARC chapters with many options within each.

any of these three countries, federalism is as hollow as was the federalism of the Soviet Union. Iraq made a break insofar as the democratic path started in 2004. Uneven and frustrating as it is in the face of constant violence and the original sin of foreign occupation, Iraqis did deliver a hardly bargained constitution, and real competitive elections, despite authoritarianism resurgence under Prime Minister Nuri al-Maliki. This frustrated the serious emergence of federalism, including when Maliki undermined the constitutional amendment process in 2009–2010 by trying to redirect it into a presidential system that he thought would favor him. The emergence of federalism in Iraq needs to be recounted on another occasion, but close work since 1991 with Jalal Talibani and other Iraqi colleagues in the oppositional leadership did produce, inter alia, Talibani’s conviction that federalism without democracy is meaningless, which he expressed in conversation at a weekend I spent as his guest in Suleimaniyya, May 15–16, 2009. 18 For a criticism on the entrenchment in time of the constitution in the American case, see Jed Rubenfeld, Freedom and Time: A Theory of Constitutional Self-Government, New Haven, CT: Yale University Press 2001. In the modern Middle Eastern revolutionary context, it may well be that the urge to write a new social contract ends in a worse constitution than the previous one. The Constitutions of Egypt of 2013 and 2014 are not as well written as the 1971 Constitution (minus the particular excess of the Sadat-Mubarak clauses on presidency for life). We also have the example of Yemen, where the Constitution of 1990 appears well crafted enough in some parts, especially the judiciary; Iraq offers yet another example of a constitution, known as the Transitional Administrative Law (TAL), which was provisional under its own terms, and self-destructed in one year for the sake of an incomplete Constitution of 2005. The Iraqi Constitution of 2005 that replaced TAL, and the Egyptian constitutions passed by both the Muslim Brotherhood in 2013 and by the Sisi regime in 2014, are overall much more poorly written than their predecessors.

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(7) C:  A  seventh essential chapter is the rights of the citizen. The American constituents opted for a separate list of Amendments for the first ten articles, which were added to the Constitution in 1790 as part of a compromise with those concerned with states’ rights. The French proclaimed their Déclaration des Droits de l’Homme et du Citoyen in 1789 two years before they passed their first constitution, and eventually included the Bill of Rights as preamble in their current constitution.19 In more recent constitutions adopted elsewhere in the world, the human rights list tends to appear prominently in the opening sections. LEJFARC. That is it. The constitutional imagination is dull, and I am not aware of any constitution in the world that includes less than these seven titles, or six, give or take one, federalism.  . . . Potentially So yes, constitution-writing is a bore considering the straitjacket of the political imagination since the late eighteenth century. The article, titles, or sections above can be circumscribed with relative precision in terms of history. The rights of the citizen found the constitution from below: their recorded history in the West is as old as the Magna Carta, in the East as a selective reading of Hammurabi, the Bible, and the Qur’an. Federalism is an American invention. Amendments and ratification are necessary mechanisms in all constitutions to get them started and changed. The organization of three first titles of the US Constitution, L, E, J, is owed to Montesquieu, who developed them under the framework of the separation of powers in The Spirit of the Laws. The law as the central piece in the tripartite puzzle was most abstractly put as the expression of the general will by Rousseau in The Social Contract in 1762, in a tradition that includes Locke as the first great philosopher of the collective contract in the foundation of political society. This was partly the continuation of a concept immemorial in time, but the genius of Rousseau is to have brought it down to earth from divine or customary legitimacy. Rousseau replaced king and custom as legislator by the law as an expression of the general will, which eventually turned into the will of the majority of the people. Majority is a stretch here, for Rousseau says that the law is “the expression of the general will,”20 not the expression of the majority. Nor does one find majority rule as an absolute

It took over a century and half for the French bill of rights to shed its rhetorical quality, first indirectly when the administrative court (Conseil d’Etat) started taking seriously the “principes généraux du droit” in the decision Syndicat général des ingénieurs-conseils (Conseil d’Etat (C.E.), June 26, 1959). This coincided with the period when the 1789 Declaration became formally integrated in the Constitution of the Fifth Republic in 1958, after living mostly as a free-floating non-binding text referred to rhetorically in some of the fourteen preceding constitutions of France since 1791. Even after 1958, it is not until the first decade of the twenty-first century that the Constitutional Council was timidly allowed to open up its doors to a citizen advocating the clauses of a Declaration proclaimed in 1789. 20 The formula, which is included verbatim in Article 6 of the Déclaration des droits de l’ homme et du citoyen, is generally attributed to Rousseau, Du Contrat social (manuscrit de Genève), livre ii, chap. 4: “[L]‌a loi est un Acte public et solennel de la volonté générale” (first version of the Social Contract, known as the Geneva ms, ca 1760), and in the chapter “De la loi” (book II, chapter vi) of the final published version (1762). Reference 19

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principle in the Federalist Papers. It was the French Convention member, philosopher, and polymath Condorcet (d.1794) who may have been the first political philosopher to articulate in 1785 the nexus between votes cast and decision-making by majority, and mathematically at that.21 “Majority rule” looks like a mechanical afterthought in the Atlantic revolution. In 1793, Kant wrote in his short treatise on Theory and Practice: “Since unanimity cannot be expected of an entire people, the only attainable outcome that one can foresee is to obtain a majority of the vote.”22 Rule by the majority of the universal adult vote is a different matter, and is a latecomer to constitutionalism.23 Indeed, there are too many hiccups in the face of democratic majoritarianism in early constitutional texts to associate the general will of the people with the one person/one vote principle: no concept of voter as in franchise, enfranchisement, disenfranchisement, slave as three-fifths of a person, no concept of an equal vote of all adult males, with always wealthand property-dependent voting rights, let alone gender—the earliest women were allowed to vote was in the late nineteenth century24—alien and other exceptions, in short too many

to both texts is from Rousseau, Oeuvres complètes, Paris: La Pléiade Gallimard 1964, vol. 3. The Geneva ms quote is at 325, the Social Contract quote at 378–80. See also Chapter 14 note 14 of this book. 21 Condorcet computed the method that ensures a candidate would win by majority rule in all pairings against the other candidates, Essai sur l’application de l’analyse à la probabilité des décisions rendues à la pluralité des voix, Paris: Imprimerie royale 1785, available at http://gallica.bnf.fr/ark:/12148/bpt6k417181. Excerpts of the Condorcet text appear in English in Iain McLean and Arnold B. Urken eds., Classics of Social Choice, Ann Arbor: University of Michigan Press 1995, 91–112. This useful compilation includes an intriguing remark about Ramon Lull, a cosmopolitan twelfth-century writer on votes and decision-making, at 23: “Much remains tantalizingly unknown. Llull was deeply learned in Arab thought, and he no doubt got some of his mathematical ideas from this source. Llull’s Arabic writer he is known to have read was the logician al-Ghazzali (Bonner 1985, 20). Should we look to the Arab world for the origins of social choice as well as algebra?” “Bonner 1985” refers to Anthony Bonner ed., Doctor Illuminatus. A Ramon Llull Reader, Princeton, NJ: Princeton University Press 1985. The “Arabic writer” is Ghazali (d.1111), one of the great polymath figures of classical Muslim thought. Generally on Ghazali, see sv Ghazali in the index, and Frank Griffel, Al-Ghazali’s Philosophical Theology, Oxford: Oxford University Press 2009, but I am not aware of any writings by him (or other classical thinkers) about social choice/electoral mechanisms, despite the association of the emergence of both algebra (Arabic al-jabr) and algorithms in the Middle East in Muhammad ibn Musa al-Khawarizmi (d.850)’s time, with the word “algorithm” a Westernization of the Persian Khawarizmi’s very name. Any such finding as prompted by Bonner would be a major discovery in the history of political thought. 22 Kant, “Theory and Practice” (1793), in Humphreys trans., Perpetual Peace and Other Essays, cited in ­chapter 3, 77/296. See also John Rawls, A Theory of Justice, Cambridge, MA; Harvard University Press 1971 revised ed. 1999, § 54, 313–18, on “The status of majority rule,” which he sees, like Kant, as “a quasi-procedural device” of a secondary nature, not entitling therefore a majoritarian decision “made outside the permitted limits” of basic moral/constitutional principles. 23 By the very same Kant, on the previous page of “Theory and Practice,” id. at 76/295: “Any person who has the right to vote on this legislation is called a citizen (citoyen, i.e. citizen of the nation, not citizen of a town, bourgeois). The only quality necessary for being a citizen, other than the natural one (that he is neither a child nor a woman), is that he be his own master (sui iuris), consequently that he have some property to support himself.” Emphasis in original. Note also the “natural” exclusion of women. 24 Yet again Condorcet figures as an articulate forerunner of gender equality in his Esquisse sur l’admission des femmes au droit de cité (1789), English tr. by Alice Drysdale Vickery ed., The First Essay on the Political Rights of Women, Letchworth, England : Garden City Press 1912. Many strong advocates of women as full

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constraints on the law as the expression of the general will for universal vote to be established as a natural component of the Atlantic revolution’s central constitutional tenets. This is no longer the case, and worldwide constitutional practice has smoothed out many initial uncertainties. For the Middle East revolution, the passage of time has fused democracy, republicanism, and majority rule into one. Strong judicial checks on legislative and executive power have been by and large accepted by modern constitutionalism the world over. The precise articulation of majoritarianism is less clear, and the mechanisms are varied; so varied indeed that the debate is worth engaging philosophically and constitutionally across renewed constitution-making in the region. Whether federalism should be part of the discussion, and how one designs the contours of judicial review, are two central questions that a well-thought constitution needs to address.25 I will throw an additional brick in the constitutional pot of dullness. Tocqueville, writing a half century after the emergence of the U.S. Constitution and its Atlantic sisters, did not like what he saw, namely democracy. Only retrospectively do we read the sheer brilliance of Democracy in America into a panegyric of a universal model rising on American shores. His chapter on the “three races” at the end of the first volume (1835) gives the reader the shivers on what majoritarianism democracy can do to people.26 This chapter, the most prophetic in

citizens emerged in the French revolution, including Condorcet’s wife Sophie (née de Grouchy, d.1822) and Olympe de Gouges. De Gouges edited the French declaration of 1789 to include the full equality of women, with the memorable statement that because women could “monter sur l’échafaud (walk up to the gallows),” they could as well “monter à la Tribune (walk up to the tribune of Parliament)” (Déclaration des droits de la femme et de la citoyenne, original text at ftp://ftp.bnf.fr/004/N0042613_PDF_1_-1DM.pdf. English translation as “Declaration of the rights of woman,” in D.G. Levy, H.B. Applewhite, and M.D. Johnson eds., Women in Revolutionary Paris, 1789–1795, Urbana: University of Illinois Press 1980, 87–96.). Olympe de Gouges’s Déclaration was printed probably in early October 1791, as the original pamphlet mentions that the king had accepted the first French Constitution, which was adopted in September 1791, and de Gouges’s proposal was presented to, and rejected by, the National Assembly at the end of October. De Gouges was a colorful French revolutionary activist who, inter alia, was a fervent abolitionist and offered to defend Louis XVI during his trial. Her courage in standing up to Robespierre led to her execution on November 3, 1793. She was another illustrious victim of the Terreur, as was Condorcet, who died in dire conditions a year later in a provincial jail. Condorcet and Gouges’s fully egalitarian texts were published several decades before John Stuart Mill’s classic address to the House of Commons in 1867, “On the Admission of Women to the Electoral Franchise,” original available at http://books.google.com/books?id=EZZTAAAAcAAJ&prints ec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false. 25 See Chapter 11. For a comparative primer to constitution-writing, see Michele Brandt, Jill Cottrell, Yash Ghai, and Anthony Regan, Constitution-Making and Reform, Interpeace report, n.p. 2011; more scholarly elaboration can be found in various articles collected in Michel Rosenfeld and Andras Sajo eds., Oxford Handbook of Comparative Constitutional Law, Oxford: Oxford University Press 2012. The debate remains lively, e.g. Tom Ginsburg ed., Comparative Constitutional Design, New York: Cambridge University Press 2012. 26 Alexis de Tocqueville, Democracy in America, 18th and last chapter of Volume 1 (1835), “The Present and Probably Future Condition of the Three Races That Inhabit the Territory of the United States: “[B]‌elow [‘the White MAN’] appear the Negro and the Indian. These two unhappy races have nothing in common, neither birth, nor features, nor language, nor habits. Their only resemblance lies in their misfortunes. Both of them occupy an equally inferior position in the country they inhabit; both suffer from tyranny; and if their wrongs are not the same, they originate from the same authors . . . If we reason from what passes in the world, we should almost say that the European is to the other races of mankind what man himself

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an extraordinary book, compels us to pause on the US founding text’s slave-forming propensity, not to mention the Indian natives’ extermination record of its majoritarian rule.27 An Alternative View: The Civil Society (CS) Prism The American experience with majoritarianism offers important lessons and cautionary tales for Middle Eastern constitutionalism. The upshot of this query—is majority decision a constitutional tenet?—is whether having a majority allows its leaders to lay down the law and implement it against the will of the losers. This has remained controversial in Western constitutionalism. Its most common illustration occurs when courts trump a law passed by a majority, on the basis that the law is unconstitutional. In revolutionary days, majoritarianism gets more disturbing because of the absence in the universal constitutional model of provisions for political parties in the constitution—a vital counterweight to domination by the most powerful faction of the day. The Atlantic revolution knew factions in the United States (ranging from Royalists to Anti-Federalists), “clubs” in France (Cordonniers, Feuillants, Jacobins), after the formal division between the three Etats (Aristocracy, Clergy and the “Tiers”), as well as “regions” (Montagne, Plaine, Gironde), and seating arrangements (Droite, Gauche). None of these categories was entrenched as a constitutional principle, and none is a matter of constitutional pride for the founding framers of the United States and France. Under their worldview, one simply does not inscribe “political parties” in a constitution, so vile and debasing their danger on the integrity of governance. Political factions lead to factionalism, an antidemocratic force in the minds of the framers. Suffice it to tolerate them, and to keep an eye out lest they destroy the system. The fear is real in the Federalist, and the French revolutionaries’ concern and anger are focused on these “ factions,” wreckers

is to the lower animals:  he makes them subservient to his use, and when he cannot subdue he destroys them. Oppression has, at one stroke, deprived the descendants of the Africans of almost all the privileges of humanity. . . . The Indians will perish in the same isolated condition in which they have lived, but the destiny of the Negroes is in some measure interwoven with that of the Europeans. These two races are fastened to each other without intermingling; and they are alike unable to separate entirely or to combine. The most formidable of all the ills that threaten the future of the Union arises from the presence of a black population upon its territory; and in contemplating the cause of the present embarrassments, or the future dangers of the United States, the observer is invariably led to this as a primary fact.” English at e.g. http:// xroads.virginia.edu/~Hyper/DETOC/1_ch18.htm. See also Pierre Rosanvallon, “The History of the Word ‘Democracy’ in France”, Journal of Democracy, Vol. 6, 1995, 140–154, at 140: “Indeed, it was not until 1848 that the word ‘democracy’ really became current in political discourse in France—long after the principle of popular sovereignty was formulated and recognized.” 27 Equally lucid on Tocqueville’s “third race” fifty years earlier is Thomas Jefferson (d.1826), a president who owned many slaves, see, e.g., on North American Indians his Notes on the State of Virginia (1782), “Query 11 ‘Aborigines’ A description of the Indians established in that state?”: “What would be the melancholy sequel of their history, may however be augured from the census of 1669; by which we discover that the tribes therein enumerated were, in the space of 62 years, reduced to about one-third of their former numbers. Spirituous liquors, the small-pox, war, and an abridgment of territory, to a people who lived principally on the spontaneous productions of nature, had committed terrible havoc among them, which generation, under the obstacles opposed to it among them, was not likely to make good.” e.g. at http://avalon.law.yale. edu/18th_century/jeffvir.asp.

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of revolutions and republican constitutions. As a result, “political parties” are only implicitly mentioned in a general freedom of association clause. When they are mentioned at all in later constitutions, they tend to be subsumed under the right of collective demonstration and petitioning.28 There is another lens through which to view the majoritarian principle cum party politics beyond the classical model of LEJ(F)ARC. A constitutional summa divisio has been drawn between those who rule and those who are ruled, the gouvernants and the gouvernés, in the typically French constitutional tradition of the law school classroom. The division is better rendered as a relationship between state and civil society, for rulers and ruled sound too much like masters and slaves. In an enriched variation on this division focusing on the role of the “ruled,” a constitutional alternative may be rising slowly from the socio-historical literature around the concept of “Civil Society” (concept rendered here in capital letters, CS). The most intelligent and learned understanding of a fashionable and elastic subject remains Robert Fossaert’s, who defines civil society contra the state within a larger historical-sociological system elucidated across the eight volumes of his Summa, La Société.29 In an elaborate tripartite system of political, economic, and cultural dimensions, Fossaert maps the “Formation Politique” of society in a model that State (S) and Civil Society (CS) define as an always intimate and always conflicting duo, and not simply as a relationship of dominance of rulers over ruled. Civil Society, Fossaert explains, does not exist without the State.30 They have to be considered as two sides of the same coin to make any sense, and they are always present concomitantly. When Civil Society grows, it enriches the State by pushing it in multiple directions to make room for its own impact and demands on people’s lives. From a constitutional perspective, Parliament is the typical terrain where state and civil society meet, its “interface.” Parliament as legislative authority elected by the people carries the stamp of a state organ, but parliamentarians provide at the same time a privileged forum for the expression of the interests of civil society on a daily basis, through lobbies, petitions, debates, the

For state-of-the art discussion and references, see Cindy Skach, “Political Parties,” in Michel Rosenfeld and Andras Sajo eds., Oxford Handbook of Comparative Constitutional Law, above note 25, 874–90 (suggesting more work needs to be done on the crucial relation between constitutions and political parties); see also Robert Pildes, “Elections,” in id., 528–44, at 537: “Well-functioning political party systems are central to the legitimacy of modern democracies, given the need for intermediary entities that can effectively mobilize and organize citizen participation (as well as organize the processes of governance). While older constitutions did not always reflect participation of this reality, modern constitutions do. Thus before 1950 the right to form political parties tended not to exist in written constitutions; since then, however, 60 percent of the constitutions in effect in 2000 guarantee such a right.” (footnotes omitted) 29 What I  call Robert Fossaert’s Summa consists of eight volumes published in Paris between 1977 and 1996: La Société, Tome 1—Une théorie générale; Tome 2—Les structures économiques, both in 1977; Tome 3— Les appareils, 1978; Tome 4; Les classes, 1980; Tome 5—Les États, 1981; Tome 6—Les structures idéologiques, 1983, all at Le Seuil. After the collapse of the Soviet Union in 1990–1991, the two last volumes appeared as Le monde au 21e siècle: une théorie des systèmes mondiaux, Paris: Fayard 1991, and L’avenir du socialisme, Paris: Stock 1996. For a brief presentation of Fossaert’s wide-ranging theory, see my “Introduction à la pensée de Robert Fossaert,” Travaux et jours, vol. 82, 2009, 97–112. 30 Fossaert’s elaboration of the concept of civil society appears mostly in the fifth tome of La Société, Les Etats, see previous note, at ­chapters 5–7, “Qu’est-ce que la Société Civile?,” 129–50; “Les formes de Société Civile,” 151–87, and “La Société Civile et l’Etat,” 188–226. 28

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introduction of laws, press coverage, issue-based campaigns, etc.31 In modern Middle Eastern constitutionalism, Iraq has included a specific article on civil society in its constitution: “The State shall seek to strengthen the role of civil society institutions, and to support, develop and preserve their independence in a way that is consistent with peaceful means to achieve their legitimate goals, and this shall be regulated by law.”32 The article is alluring but troubling, alluring because of the recognition of “Civil Society,” a novelty in comparative constitutionalism,33 troubling because the concept is not defined, in addition to the fact that “regulation by law” at the end of the article is the usual redundant qualifier that needs to be removed in all constitution-writing.34 For the Iraqi constituents, many of whom fought vividly for associations and political parties to operate unencumbered by dictatorship, it is mainly these associations and political parties that the article is meant to protect. Fossaert, id., “Les formes de Société Civile,” 174–80. Fossaert, L’avenir du socialisme, above note 29, at 259: “[T]‌out parlement, interface de la société civile et de l’Etat, est mobile comme le potentiel de luttes de classe qu’il reflète finalement.” 32 Art. 45.1, Iraqi Constitution of 2005. 33 See also Tunisia’s (2014), Afghanistan’s (2004), and South Africa’s (1997) constitutions, which provide an equally timid and rhetorical mention of civil society. In Tunisia, Art. 139 associates further participation of civil society with local authorities. In Afghanistan, the Preamble includes in section 8 the establishment by “we the people of Afghanistan” of the constitution “for the creation of a civil society free of oppression, atrocity, discrimination, and violence and based on the rule of law, social justice, protection of human rights, and dignity, and ensuring the fundamental rights and freedoms of the people.” Civil society in the South Africa Constitution is equally hazy. In section 31, entitled “Cultural, religious and linguistic communities,” “(1) Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community—(a) to enjoy their culture, practise their religion and use their language; and (b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.” This is just rhetorical as the following paragraph states that “(2) The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights,” which suggests that “civil society” is trumped by “the bill of rights.” Also rhetorical, or rather circular, is the brief mention, in section 193.6 entitled “Appointments of the Public Protector and other members of commissions,” of the need to give due regard to civil society: “The involvement of civil society in the recommendation process may be provided for as envisaged in section 59(1)(a).” The problem is that Paragraph 59(1)(a) does not define or even mention civil society. 34 This is the easy way of constitution-killing by the “shall be regulated by law” clause, see, e.g., in the context of the Iraqi Constitution my comment on Article 12 in Iraq: Guide to Law and Policy, Austin, TX: Wolters Kluwer 2009, 43. An exception is the reference to law as a mechanism that cannot be done away with, for instance that raising taxation can only be done by a law passed by Parliament, or as in the First Amendment of the US Constitution, that “no law shall abridge a freedom” of religion or expression. Otherwise the clause “shall be regulated by law” is a constitutional cop-out that: (1) is unnecessary because laws fill in tons of constitutional voids naturally, so there is no need to include the “shall be regulated by clause law”; (2) actually undermines the constitutional text, particularly in a Middle Eastern context where the use of law to trump the constitution is a dictator’s pastime; and (3), as I witnessed in working with the Constitutional Revision Committee in Iraq in 2009, a way to postpone a problem that the constituents are unable to agree on. The phrase is better avoided in a constitution. As an alternative example, instead of Article 45.1 of the Iraqi constitution, one could substitute the following article: “The government shall not impair the development of civil society in violation of the basic rights of the citizen and/or groups.” By it being rephrased in this more radical and precise manner, mention of civil society groups is a better prompt for the judiciary to protect them when the government unduly encroaches on their activities. 31

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In a narrow way, “civil society” is a fact that does not need recognition in a constitution. We have a civil society even in a dictatorship, except that it is mostly repressed. In a democracy civil society requires the protection by the State of the autonomy of political parties and of a large array of organizational activities, ranging from the family unit to multinational NGOs. The State is inevitably part of the two-part equation, and civil society makes sense only in the couple Civil Society/State.35 A bolder view of a constitution seen from the prism of civil society as the other face of the S/CS coin, to build on Robert Fossaert’s work, would be to write a constitution fully from the perspective of civil society. A constitutional exercise of this revolutionary sort may have the benefit of viewing the whole apparatus of the state and the exercise of the functions of government from the perspective of those it governs, rather than in a top-down format privileged by LEJFARC and the enduring Montesquieu model focusing on the separation of the rulers’ power. Such an exercise would for the first time trump the Montesquieu/LEJFARC model, and has not been yet attempted to my knowledge. A “civil society” constitution is not on the radar of constitution-making, in the Middle East and elsewhere, and I do not propose here to embark on such a project, which may be futile at this stage and requires, in any case, a highly collaborative structure to get off the ground. I propose instead to examine two central aspects of constitutionalism from the civil society prism, at both ends of the constitution-making process. One end is the role of civil society in writing the constitution, at a time when the concept is tokenized in political discourse with various platitudes, while an elite group of experts imbued with the LEJFARC canon accomplishes the exercise for society at large. The other end is the civil society that the constitution organizes. As a rare alternative perspective to constitution-making in the LEJFARC tradition, let me dwell on these CS-related topics so as to widen this chapter’s horizons. Civil Society Vetting the Constitution When we look at civil society participation in constitution-vetting, as opposed to constitution-making, a referendum appears the most obvious route to obtain the endorsement of the citizens, but referenda leave much to be desired as a post facto, blunt, and distorting approval mechanism. The citizen has an impoverished choice by the time the referendum comes, and she accepts or rejects a document in full, even if she is enthused or outraged by a given article or section. While the constitution cannot be severed—although one could imagine a separate vote for the bill of rights, or the amendment process, or federalism—a more difficult threshold of approval in the referendum is the norm to ensure a larger popular endorsement. A dual majority appropriately includes a qualified national

Fossaert uses the concept of Political Formation as a unifying concept for the Civil Society/State unit, see Les Etats, above note 30, at 225: “The FP [Political Formation, Formation Politique], is structured as follows: . . . an immense statal sun, a distant cloud of family-village dust, and in between, asteroids and planets of varying numbers and sizes, albeit always made into satellites by the State. Or, to say it less metaphorically: a State that envelopes and polarizes the multiple and uncoordinated organizations that are globally designated as CS [Civil Society, Société Civile].”

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majority in addition to the majority endorsement of a number of provinces/states. The problem is to find the right balance in the urgency of adopting a constitution, following the immense investment of time and expectations that it triggers, against the risks of its rejection in the national vote. Once the constitution gets rejected in any type of referendum, it is hard to re-inject energy and organize the apparatus needed to restart a constitutional process. Constituents are by then burnt out with fatigue and the rejection of the voters. There is no clear fallback position: if the constitution is rejected, does one go back to the pre-revolutionary text, and who will appoint the drafters again to avoid a repeat rejection? There must be better ways than referenda, perhaps through a more intense institutionalized use of civil society mediations. Tunisia provided a more successful example than Egypt. The Tunisians had the Parliament/Constituent Assembly approve the final constitutional draft by a two-third majority. The Egyptians railroaded their successive constitutions and constitutional amendments in meaningless referenda. In any case, buy-in through referenda is a post facto operation legitimizing a constitution. The process ante facto is more important, and I have discussed the importance of engineering the process in a constituent assembly that brings in the revolutionary factions together rather than in a model of government/opposition resulting from hard-edged elections. Let us now look more closely at the effective exercise of writing the constitutional clauses from a CS perspective. Civil Society Making the Constitution As the constitution is written, the importance of an inclusive and broad-based dialogue over the constitutional framework has been repeated enough. The degree of civil society buy-in is a political issue with obvious implications. A constitution that involves the largest and most intensive stakeholders, aka civil society or “the public,” has a better chance of being accepted and respected than one without such input. Beyond the intellectually trite but practically challenging modes of wide public participation, Fossaert’s civil society analysis has the advantage of rendering more precise what is obvious and general. It reminds us of the power and interests of competing groups in the creation of a constitution, and of the reality of their fierce competition. In a revolutionary situation, the “new” ruling group fluctuates considerably, and an additional difficulty arises from the construction of a social contract where lustration principles may keep the ancien régime fulul/scoria at bay in the constitutional process. In a successful, nonviolent revolution in particular, the public or CS must be confined temporarily in their participation to government by all citizens, (minus the leaders of the ancien régime), not an easy equation to put into practice.36 An acceptable lustration excludes aides to the fallen dictator from the midst of the constitution-making core. Regardless of lustration, the goal is to get as many citizens as possible participating in the constitution-making process. CS buy-in is in fact immensely challenging. Iceland, one of Europe’s most sparsely populated and richest countries, adopted what is said to be the world’s first “crowd-sourced constitution.” This process followed the major economic crisis that collapsed the banking system in 2008, and left Icelandic society so bewildered as 36

See Chapter 16 on lustration and other modes of accountability.

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to request major amendments to the governing Constitution of 1944. A  Constitutional Council of twenty-five experts was appointed to gather feedback through social media after drawing, by lottery, 950 citizens to actively participate in a National Forum preparing the amendment process to overhaul the constitution.37 It worked on issues very much along the lines of LEJFARC.38 An interesting experiment, it is hard to follow in larger societies. Nor was it convincing in Iceland itself, where the process appears to have tanked five years later. If the unity of the revolution is preserved, the process can be staggered with a view to keeping all revolutionary forces united for the longest possible time. As adumbrated above, this may be achieved by introducing essential amendments to the old constitution, then extending the constitutional process over a number of years. For the countries of the Middle East nonviolent revolution, a constitution may be so important as to require several moments for its ultimate cohering. In the American constitutional experience, six years separated the Articles of Confederation (1781) from the “final constitution” of 1787, an exercise that was not really final until three years later, when the Bill of Rights came into effect. By any standard, the US Constitution is a better route to a stable social contract than the waltz of some fifteen constitutions on the French side of the Atlantic revolution for most of the two subsequent centuries. I should also defend my allusion to the formation of a “group of constitutional experts” to write the constitution. There is an insurmountable difficulty for civil society buy-in. Every citizen is interested in a constitution, and every citizen has a good reason to be so interested. But the citizen has neither the time nor the expertise to invest her life in a process that is months—or years—long. The hand(s) that writes the constitution must have some constitutional expertise, for not every citizen is capable of converting the principles in which she believes into legal parlance that is the norm of modern constitutions. In modern history, the number of hands varies. Usually there is a committee, even when there is one central intellectual leader who gets the draft through (Hans Kelsen in 1920 Austria, Michel Debré in 1958 France). Expertise cannot be sacrificed at the altar of the ordinary citizen’s constitutional craft, for he simply does not have the needed skills. It is then a matter of luck, for constitutional experts are human beings, and quarrel no less than ordinary citizens over the basic social contract that is being drafted. Still, LEJFARC illustrates the constraining limitation of a largely set template that constitutional science cannot escape. It is unlikely that the expert, let alone the nonexpert citizen, See Bjarki Valtysson, “Democracy in Disguise:  The Use of Social Media in Reviewing the Icelandic Constitution,” Media, Culture & Society, vol. 36, 2014, 52–68, who is more critical of crowdsourcing constitution-making through new media than Hélène Landemore, “Inclusive Constitution-Making: The Icelandic Experiment,” Journal of Political Philosophy, online February 2014, 1–26. 38 The twenty-five-member Constitutional Council worked in three groups. “Group A worked on basic values, citizenship and national language, the structure of the Constitution, natural resources, environmental issues, human rights, and the state church. Group B worked on the foundation of the Icelandic Constitution; the roles, positions, and responsibilities of the President, Parliament, government, and ministers; the responsibilities of the executive; and the status of municipalities. Finally, Group C worked on public democratic participation, the independence of judicial courts, the supervision of judicial courts regarding other holders of state authority, parliamentary elections, the constituency system and MPs, international contracts, and foreign affairs.” Bjarki Valtysson, “Democracy in Disguise: The Use of Social Media in Reviewing the Icelandic Constitution,” above note 37, 55. 37

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will add a Eureka moment to a severely limiting calque adhered to across the universe for a good two hundred years.39 Even if she were to produce such an unusual spark as an outside contribution to the necessarily smaller group that writes the text, the citizen must be in a position to get it heard more effectively through the drafting hand. This practical dimension conjures up a more important problem, which is the record of the constitutional debate for future interpretation. In all cases, serious publicity and a well-organized track record are needed in the constitutional process. A website is not necessarily the best solution, unless a good editorial process is also included to keep out trolls who derail the discussion or inflate entries beyond the possibility for the public and the experts to absorb them. From the Cahiers de doléances in 1789 through the thousands of contributions in Iraq in 2005, to the cornucopia of draft constitutions, op-eds, and treatises since 2011 across the Middle East, the proper filter is needed, in good time, to prevent tons of ink being spilled with little or no impact on how the constitution turns out. In fact, old-style Travaux préparatoires and Federalist Papers journalism may provide better avenues for the citizen’s participation as the text progresses. Constitutional interpretation requires a rich and well-organized track record, rather than large websites improperly directed. A solid constitutional process needs to keep track of scholarship and debate, and to make them available in real time as the debates proceed. Rendering the process coherent, elegant, scholarly, and attentive to the citizen’s input is a work of art that blends healthy traces of constitutional science with claims by competing factions and street demonstrations of a typically fleeting nature. Beyond the drafting process ante facto that structures participation, and the post facto adoption of the constitution in a national vote, there is a fiction that prevails necessarily in the work of the drafters: they must appear blind to factional interests. The veil of ignorance is imperative to ensure the lasting power of any constitution, making the economic, cultural, and even political components impervious to constitution-writing.40 This is also consistent with the nonviolent philosophy of the revolution, which puts all the revolutionaries at the same level, regardless of the more precise economic or social causation that one or the other identifies with by marching in the street to end dictatorship. The drafters must appear to shield themselves from economic and cultural, even political considerations, in order to preserve the integrity and neutrality of the constitutional moment. This is the signal advantage of the committee of experts, informed by national representatives in the grand coalition government and assembly, which is meant to take into account proper representation and the legitimate interests of a disparate host of revolutionaries.

As Andrew Allen once pointed out to me, what is the structure adopted in George Lucas’s epic film series on Star Wars (1977–1985), when reference is made to the “Federation” or the “Republic” of an interstellar world? Even the science fiction imagination remains prisoner of LEJFARC. Nor is it useful now to present a critique of constitutionalism in Western democracies, for which see a compelling short argument by Juan Cole on the “10 Ways Arab Democracies Can Avoid American Mistakes,” Informed Comment blog at juancole.com, July 6, 2011. Juan Cole is the author of rich histories of the Middle East in the eighteenth century and of well-documented reflections on his blog on current events. His book, The New Arabs: How the Millennial Generation Is Changing the Middle East, New York: Simon and Schuster 2014, examines the Middle East revolution with the Atlantic revolution-generation view adopted in the present work, but it appeared too late to be properly integrated here. 40 Rawls, A Theory of Justice, above note 22, § 24, 118–23. 39

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Civil Society in the Constitution In fact, the central problem of CS/S lies outside the purview of constitution-making. It is up to political groups, known as parties when they mature, to organize for victory in a parliamentary or presidential election. Elections, and the electoral law in particular, are keystones in building a new political order on the ruins of authoritarianism when a revolution overthrows a deep-rooted dictatorial regime, especially when the dictator has long honed his mediocre skills to manipulate elections as a privileged way to maintain his grip on power. Elections, to return to an earlier conclusion, must not be allowed to wreck the nonviolent successful revolution. One can take the cue in the philosophy of nonviolence from the laws honed by Middle Eastern dictatorships. As with all dictatorships, these laws are replete with a distorted republicanism by devising sundry manipulations to keep the dictator in. The gamut of manipulative laws runs from playing around the nationality of the candidate (e.g., his “marriage to a foreigner” as bar to the presidency),41 to the grooming of their sons with the concomitant amendment “for once and one time only,”42 to the hemming in of political parties with a host of procedural devices. Shenanigans transform a constitutional bar to successive presidential mandates into a mockery, and when they are not sufficient, the constitution gets promptly amended to allow the favored heir to follow in the shoes of the dying or dead father.43 Authoritarian governments are past masters in using electoral and other constitutional mechanisms to ensure that their power remains undiminished, and to increase it further by formal legal means. Extending the tenure of presidents in power is the most common. The Chinese Communist Party has developed its own complex system in a musical chair fashion that keeps the grip tight among a number of carefully chosen contenders from within a small group in the Party. Post-Soviet “democratic” Russia added its own imaginative spin to ensure the continuity of a dictator in power through a scheme known after a chess move as “rovirovka.” Like the king and the rook castling on the chess board, it takes the shape of alternating presidency and prime ministership between two, and only two, political acolytes. What the Middle East and all democratic societies yearn for is serious alternation at the helm. This is the attraction of a classic two-party system, but the constitutional moment cannot rely on such an end result, which requires a long time and several electoral cycles to develop. In the absence of mature parties, a combination of healthy rotation at the top of new faces of civil society in power, together with a representation faithful to the largest possible strands of the revolution, and a meaningful functional separation-of-powers scheme, may be the best available dispositions to inscribe in the constitutional process.

As in the first amendment of the Bishri committee, see above Chapter 9, note 24. The “amendment for one time, and only one time (li-marratin wahida faqat)” is infamous in Lebanon for the multiple occasions of changing the constitution to allow the extension in power of a presidential postulant who is constitutionally forbidden from running for office again (the presidential term is expressly limited to six years under Article 49.2 of the 1926 Lebanese constitution). 43 As in the amendment of the court in Syria in 2000 to allow Bashar al-Asad to succeed his father despite the fact that he was not yet forty as required by the constitution; see above Chapter 8 note 10. 41

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“Serious alternation” ensures that those who are in do not prevent those who are out from getting in.44 It finds a powerful echo in a Qur’anic verse, “kay la yakuna duwalatan bayn al-aghniya’ minkum, so that the matter does not remain for the rich amongst you.”45 This is not a verse much used by Islamic writers, as it comes within a context of charity to the poor, but the principle that a constitution must be interpreted in a way that prevents the rich from staying in power to the detriment of everyone else might be sufficient; that is, if the spirit of the law is respected, for “the letter killeth” when the law is misused.46 The spirit of the constitutional text in defense of alternation in power allows the ruled to be rulers on an even keel. It can be bolstered by a number of written sub-principles. Some have found their way to constitutions: term limits for the president and for parliamentarians, fair electoral laws on districting, and the purposeful application of the “one person one vote” principle to prevent manipulated electoral constituencies.47 This is best done through the insistence on “one person one voice” (as opposed to “one man one vote”) to underline the need for women and other “minorities” to be represented “naturally” as half the society, and to allay the distortion of elections by money.48 The concept was mapped half a century ago in the Fissian “anti-subordination clause.”49 Anti-subordination may translate in layman terms as “this constitution ensures a free and fair alternation in power,” or, in an Islamic law-inspired formulation adapted the Qur’anic verse mentioned earlier, “Government must alternate amongst people, al amru duwalatan bayna al-nas,” to which more precise benefits from additional mechanisms can draw on the best lore of constitutional science. Although electoral and campaign finance statutes are usually better repositories for this type of detailed prescription to ensure that money does not distort democracy into a plutocracy, the constitution can include some articulate injunctions that keep the channels of power open to all, and secure a government that mirrors Civil Society in its natural composition. A government without women may simply be unconstitutional prima facie. Such innovative dispositions need to be drafted carefully enough to avoid unnecessary details. They should at the same time be precise enough to allow a meaningful role for the law “to protect the Borrowing the elegant formulation of John Hart Ely, Democracy and Distrust, Cambridge, MA: Harvard University Press 1980, 106:  “Courts must police inhibitions on expression and other political activity because we cannot trust elected officials to do so; ins have a way of wanting to make sure the outs stay out.” 45 Qur’an 59:7. 46 2 Corinthians 3:6, also an epigraph to Thomas Hardy’s pithy novel, Jude the Obscure (1895). 47 In an earlier tradition of the US Supreme Court, the formula “one man one vote” appears first in Reynolds v.  Sims, 377 U.S. 533 (1964) to prevent discriminatory apportionment by electoral laws (in the state of Alabama), and iterated to “one person one vote” with the increased attention to gender equality. Its effectiveness is undermined by the consistent rejection by the Supreme Court of political campaign finance reform. The rejection started in a specious and convoluted distinction between laws that regulate how much money an individual could give to a political candidate (capping contributions is constitutional) and laws that regulate the expenditures any campaign or campaigner chooses to disburse (capping expenditure is unconstitutional), Buckley v. Valeo, 424 U.S. 1 (1976). The Supreme Court’s refusal to regulate the deleterious effect of political money in the public arena culminated in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), where it considered a corporation to be a “person” that benefits from constitutional freedom of expression and can therefore spend money at will in political campaigns. 48 The “one person one voice” formula is by Laurence Tribe, Constitutional Choices, Cambridge, MA: Harvard University Press 1985, 193. 49 Reference above note 1. 44

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weak against the strong,”50 in Hammurabi’s immortal words, and help those who are out against the propensity to entrench by those who are in. * * * Arguably, there is nothing particularly Middle Eastern in this discussion. What then is special to the Middle East? Are the revolutionaries who design their new constitution in a constituent assembly or a committee of experts, or in a combination of both, writing mere applications of Montesquieu’s constitutional discovery of 1748? With all the LEJFARC constraints, I believe the Middle East revolution has more to offer, starting with the philosophy of nonviolence that made its irruption on the world-historical stage in 2011. When 2011 came upon us, there was no universally agreed common denominator in comparative constitutionalism on what to do with political parties or how to address “the tyranny of the majority.” This, translated constitutionally, is a problem of universal portent. How much should political parties be mentioned or regulated by the constitution? And how can a constitution accommodate factionalism by majoritarian vote? Now throw in religions and sects, and the universal problem becomes suddenly very Middle Eastern. Throw in religions and sects, and constitution-writing becomes a challenging exercise rather than the simple filling in the LEJFARC blanks. The scene then morphs into a worldwide constitutional challenge that burst on the full planetary scene in 2011. Here, the Middle East comes fully into its own as a headache to established world constitutionalism. Central to the challenge is the place of religion. More precisely central is the place of the religious sect.

“Prologue,” in English version and commentaries of the Hammurabi Codex by G.R. Driver and John Miles, The Babylonian Laws, 2 vols, Oxford: Oxford University Press 1952.

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When a religious movement invokes the law to impose the tenets of its religion on others, resulting social constraints may be imposed legally by the binding nature of a constitutional provision, a law passed by parliament, a government regulation, or the constitutional judge. It can also be the act of private actors, a school for instance, but such acts can usually be challenged before a court, making the state and its laws a central reference in most cases. In the contemporary Middle East, the long debate of law and religion is summarized in a constitutional shortcut: Article 2 of the Egyptian Constitution—“the principles of Islamic law are the main source for legislation.” The place of Islamic law in constitutional life is one of the two dominant concerns of Middle Eastern constitutionalism. The other is the sectarian mould within which law needs to be examined. The keyword here is “legal,” as in legally binding. As a matter of values and collective behavior, all societies struggle with the legal expression of religion. Constituents, politicians of all hues in government or parliament, judges interpreting the constitution: they all need to decide whether to regulate some ritual-legal religious practice, forbid it, or ignore it. The constituents, the constitutional judge, and all the politicians also face a personal identity problem. Whether he or she wants it or not, they operate as mouthpieces of their birth sect. The Rawlsian veil of ignorance is undermined by the millenarian setup of the Middle East.1 In the constitutional challenge facing the aftermath of nonviolent

John Rawls’s “veil of ignorance” in A Theory of Justice, Cambridge, MA:  Harvard University Press 1999 (original 1971) § 24, 118–23 suggests the fiction of coming to a constitution with a veil as the “original position.” This is an inevitable principle when it comes to writing a constitution, see above Chapter  10 note 40. The philosophical expression of the veil is Kant’s celebrated seventh “fundamental law” in the Critique of Practical Reason (1788):  “Act in such a manner that the maxim of your will can always at the same time hold  good as a principle of universal legislation.” (available at http://files.libertyfund.org/files/360/ Kant_0212_EBk_v7.0.pdf, I  have slightly varied on the translation). Original in Kritik der Praktischen

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revolution, these two themes from the deep past stubbornly undermine constitutionalism as known to the rest of the planet. For convenience, let us call the first “religious” and the second “sectarian.” The enduring difficulty is that the constitutional values carried in their religious expression are by nature exclusive of the religion—or religions—that other citizens, generally in the numerical minority, share among themselves. But religion is also a chief source of values. If the constitutional expression of the religion one is educated in and profoundly adheres to is Muslim, Christian, or Jewish, it is only normal that one likes to find in the constitutional bill of rights the expression of such deeply held values. The Biblical command “Thou shall not kill” is a religious value,2 which gets constitutionalized as the right to life. The value is the basis, the corresponding legal article is its expression in law. So long as all Middle Eastern religions share it, the no-kill value turned constitutional provision is not controversial—although it might become so upon fleshing out retribution in a criminal code. Details need to be hammered out to punish the killer, and controversy soon starts over the degree of retribution, the death penalty, or the personal and collective responsibility when state qua government, and society, punish the transgression of the killer. “Thou shalt not kill” is simple enough a universal religious principle. But religious references can be controversial and divisive from the outset, from the first word in a constitution starting with the Muslim basmala (the substantive of the Qur’anic line, “bismillah al-rahman al-rahim, in the name of God most merciful,” which opens the Qur’anic first chapter or fatiha, also the Muslim credo or profession of faith), to the Israeli declaration of independence’s emphasis on the country as the state of the Jews.3 That constitutional expression

Vernunft: § 7. Grundgesetz der reinen praktischen Vernunft: Handle so, daß die Maxime deines Willens jederzeit zugleich als Prinzip einer allgemeinen Gesetzgebung gelten könne.’ Yet I argue in my Introduction to Middle Eastern Law, Oxford: Oxford University Press 2007 (Hereinafter IMEL) that the fiction is unsustainable insofar as the person who comes to the constitution under a veil is no less indebted to a non-Kantian/ Rawlsian set of moral values defined by her religion or sect. IMEL, 174: “Powerful as the [Rawlsian] conclusion may be, it does not offer a decisive indictment if the religious belonging of the individual, which forms in much of the Middle East a defining bond to his and her community, is perceived in a different mould: one that includes a multiplicity of identities rather than the one national/constitutional bond which is premised on a Kantian vision which Rawls develops to its ultimate legal logic. Rather than considering any bond to the state other than the one ethical-constitutional to be negative because of irrationality or arbitrariness, the view is cumulative of a dual bond: one is Rawlsian, eminently individualistic and territorial, the other is communitarian, eminently personal and non-territorial.” The present chapter builds on this conclusion. 2 Exodus 20:1-17 and Deuteronomy 5:4-21. Calque in Qur’an 5:32, referring to the Bible (katabna ‘ala bani isra’ il annahu man qatala nafsan bi-ghayri nafsin aw fasadin fil-ard fa-ka’annama qatala an-nasa jami‘an) (“We [God] wrote to the Children of Israel that whoever kills a soul for a soul or for corruption [done] in the land—it is as if he had slain mankind entirely).” 3 The seemingly pressing controversy in the second decade of the twenty-first century on Israel as a Jewish state is therefore not particularly novel. The legal literature is large, and ranges from strong condemnation by legal philosopher Ronald Dworkin (d.2013), whose lecture is available on http://www.youtube. com/watch?v=AU9kUlY-xUY (discussion of Israel starts at minute 28, thanks to Nimer Sultany for the reference. Sultany is also the author of a comprehensive report on discrimination against Palestinians in Israel, Citizens without Citizenship, Haifa: Mada 2003), to the iterations of the conflict in such germane fields as gender equality before the courts, see, e.g., Patricia Woods, Judicial Power and National Politics, New York: State University of New York Press 2008. See also IMEL, above note 1, section on “Rule of law,

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of religion is epitomized, in the Middle East, in Egypt’s famous Article 2 of the 1971/1980 Constitution, about the necessary adherence of the legislator to Islamic law. I will propose some avenues out of the constitutional dead-end raised by the substance of religious law after clearing up what I consider “real and less real problems.” Where I have not been able to find a normative solution in thirty years of research and activism is in the obsessive sectarian theme of the Middle East. This is not simply the constitutional upshot of the legal expression of religion-bounded communities. The sectarian theme is a conundrum that operates irrespective of its religious substance. Its simple expression is encountered in everyday life by Coptic Egyptians, Wahhabi Saudis, Jewish Israelis, Maronite Lebanese . . . , all expressing their legal and constitutional faith in contradistinction with the other main world religious denominations in the area. In Bahrain or Lebanon, Syria or Iraq, and increasingly across the region and beyond, the same phenomenon occurs between Shi‘is and Sunnis. Anyone who starts a political conversation with leaders or citizens at large in these countries will invariably be submitted to a caveat of her interlocutor about being first and foremost Lebanese, Bahraini, Syrian, or Iraqi, which lapses in the same breath as the conversation proceeds by the interlocutor being Shi‘i or Sunni. In Israel, the very order of the apposition “Jewish Israeli” (as in “Italian American”) shocks, for Israelis who are Jewish use almost universally “Israeli Jews” as the expression of their identity. The emphasis on Jews is at the center of Israeli national identity, and the upshot is that the constitutional controversy in Israel pits Israeli Jews against Israeli Muslims and Christians, with Jewish a synecdoche for Israeli, and Arab or Palestinian a synecdoche for non-Jew. In Egypt, it is Copts and Muslims. This is the Middle Eastern challenge to world constitutionalism, which is further burdened by ethnic-national-linguistic divides.4 For nonreligious divides are also at work in the Middle East in different intensities. In the East mostly Kurds and Arabs are in conflict over a territory straddling four countries (Turkey, Iran, Syria, Iraq), in the West mostly Amazighs and Arabs living across five countries (Libya, Tunisia, Algeria, Morocco, and the Western Sahara) since recorded time. In the twenty-first century, however, sectarianism trumps nationalism and ethnicity. Sectarianism is the challenge of constitutional coexistence in the nation-state under the legacy of brutal, sect-cleansing history of colonially traced boundaries and of the four millennia of communities defined in predominantly religious-sectarian terms.5

rule by law: Jew and non-Jews in Israel/Palestine,” 217–21, and references. On basmala, see also below notes 36–37, and accompanying texts. 4 In a large Western literature, Arendt Lijphart coined the awkward word “consociationalism,” see IMEL, above note 1, at 175 n.89 and works cited. A critic of consociationalism, Donald Horowitz has published sobering analyses on the constitutional difficulties carried by such fragmented identitarian societies getting their representation expressed constitutionally, e.g. The Deadly Ethnic Riot, Berkeley:  University of California Press 2001. 5 In literary memory, the most expressive verses are by al-Ma‘arri (d.1058) on the sectarian atmosphere in Lattakieh, a city on the Syrian Mediterranean coast, in a calque that finds its roots in four thousand years of Middle Eastern written history: ‘fil-ladhiqiyyati dajjatun/ma bayna ahmada wal-masih/ hadha bi-naqusin yaduqq, wa dhaka bi-mi’ dhanatin yasih kullun yumajjidu (also yu‘azzimu, yu‘azzizu) dinahu/ya layta ruhi (also shi‘ri) ma al-shahih?

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Sacred Legal Tr adition: Of Islamic and Other Middle Eastern Laws The religious theme covers an immense spectrum ranging from invoking the community’s God at various turns of phrases, the prescribed day of rest during the week, or the wearing by individuals of different dress markers, including beards for men and scarves for women. This is Article 2 material when it becomes controversial. The sectarian theme is even more daunting, for one is constitutionally Christian, Coptic, Sunni, Jewish, Shi‘i, Baha’i, or Zoroastrian even if one does not care being so. Real and Less Real Problems: The Article 2 Template Let us look more closely at Article 2 of the Egyptian Constitution. It read as follows in 1971:  “Islam is the religion of the state, Arabic is the official language, and the principles of Islamic law are a main source of legislation.”6 In 1980, in a search for an Islamic legitimacy that is the common mantra of many Middle Eastern dictators, Egypt’s president Anwar al-Sadat modified Article 2. Instead of “a” source, Islamic law became “the” main source of legislation.7 The move from “a” to “the” meant a commitment to judge every single new piece of legislation by the principles of Islamic law. Egypt’s Supreme Constitutional Court (SCC) duly obliged, and developed a dual system. For all legislation passed before 1980, it considered Article 2 inoperative. As time passed, however, new legislation resurrected challenges by all types of litigants. The SCC did not shy away from considering those provisions that were (In Lathiqiyya (Lattakieh) is tumult between (the supporters) of Muhammad and those of Jesus. The one rings his church’s bells, the other shouts from his minaret; each glorifies his religion, o my soul (var. shi‘r poetry), who is right?)’ I could not find the verses in the collections of poetry of Ma‘arri, but they are well-known, see, e.g., Kamal al-Yaziji, Abu al-‘Ala’, Beirut: Lajnat al-ta’lif al-madrasi, 1964, 14; Taha Husayn, Tajdid dhikra Abu al-‘Ala’ (reviving the memory of Abu al-‘Ala’), Cairo: Dar al-ma‘aref 1963, 6th ed. (Original 1914), 118. The verses appear in a different version in early sources, see classical historian Yaqut (d.1229), Mu‘ jam al-buldan, Beirut: Sader, 1957, 5 vols, vol. 5, at 6 sv Lathiqiyya: wa qal al-Ma‘arri al-mulhid idh kanat allathiqiyya bi-yad al-rum biha qadin wa khatib wa jame‘ li‘ ibad al-muslimin idha adhdhanu daraba al-rum al-nawaqis kiyadan lahum fa-qal: fil-ladhiqiyyati fitnatun/ma bayna ahmada wal-masih hadha yu‘aliju dulbatan, wal-shaykhu min hanaqin yasih. (The atheist Ma‘arri, when Lattakieh was under Byzantine control with a judge, a Friday preacher and a mosque for Muslims when they prayed from the minaret, the (Christian) Byzantines would ring the bells to spite them, said: [here the verse on Lattakieh with a strong variation on the versions above.] In Lathiqiyya is a revolt (chaos, fitna), between Ahmad (another name for the Prophet Muhammad) and Christ, The one maneuvers his bell, and the sheikh yells prayers in anger.) 6 Arabic original: “Al-islam din al-dawla, wal-lugha al-‘arabiyya lughatuha al-rasmiyya, wa mabade’ al-shari‘a al-islamiyya masdar ra’ isi lil-tashri‘.” 7 From masdar ra’ isi to al-masdar al-ra’ isi:  “Al-islam din al-dawla, wal-lugha al-‘arabiyya lughatuha al-rasmiyya, wa mabade’ al-shari‘a al-islamiyya al-masdar al-ra’ isi lil-tashri‘." ” Another remarkable instance of the transformative power of “the” in the Middle East is the specious argument that the famous UN Security Council Resolution 242 (November 22, 1967) did not entail withdrawal from all territories Israel occupied in 1967, because “the” was not mentioned before “territories.”

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attacked in the course of a lawsuit for violating Islamic law. Over three decades, the legacy of the SCC built up into an impressive corpus.8 With the benefit of this relatively long stretch of time of “Islamic constitutionalism,” Article 2 has not led Egypt—as some of its critics feared—into a resurrection of antiquated and brutal legal practices. This important experiment allows us to now move forward on more solid grounds, but the cyclical obsession with Article 2 is bound to endure. Other courts across the region continue to experiment with their own version of Article 2.9 Two series of complications derive from the constitutional interpretation of Article 2. The first is acid tests, the second Middle Eastern aggiornamento. Acid Tests I call acid tests controversial matters of a priori mediocre value, yet great public salience, because they force themselves on the legal and constitutional field by capturing the political There is now a large literature on the subject, in English as well as in Arabic. I engaged with the field in an early paper, “Constitutional Law in the Middle East: The Emergence of Judicial Power,” SOAS Law Department Working Paper, February 1993 (newer version in Yearbook of Islamic and Middle Eastern Law, 1994, 85–108), and in close work with the leadership of the SCC, see, e.g., the contribution of the president of the SCC, ‘Awad al-Murr (d.2004) “The Supreme Constitutional Court of Egypt and the Protection of Human and Political Rights,” in Chibli Mallat ed., Islam and Public Law, London: Kluwer 1993, 229–60. The scholarship on the SCC has grown exponentially since. Of particular note are the books of Nathalie Bernard-Maugiron, La Politique à l’ épreuve du judiciaire: La justice constitutionnelle en Egypte, Bruxelles: Bruylant 2003; Clark Lombardi, State Law as Islamic Law in Modern Egypt, Leiden: Brill 2006; and Tamir Moustafa, The Struggle for Constitutional Power, Cambridge: Cambridge University Press 2007. All scholars acknowledge that the high moment of the SCC came under the presidency of ‘Awad al-Murr (1991–1998), see index sv Murr. ‘Awad al-Murr was particularly attentive to proper reporting, and I received a present from him in the form of his annotated version of Vol. 8 (decisions from 1 July 1996 to end June 1998, issued January 2000), with corrections in the margin probably meant for a new edition. He writes by hand in the index to vol.8, at 1683, in the margin to the entry ‘Islamic law, shari‘a islamiyya’: ‘Al-maslaha al-muhtamala fi tatbiq qanun al-mahkama al-dusturiyya hadduha an takun al-adrar allati yatwakhkha al-mudda‘ i fil-khusuma al-dusturiyya dahdaha rajihan wuqu‘uha (The expected interest in the application of the law of the constitutional court is limited by the need for the harm incurred by the plaintiff in the constitutional litigation to be likely to occur).” Murr is also the author of a large treatise on constitutional review, Al-Riqaba al-qada’ iyya ‘ala dusturiyyat al-qawanin fi malamihiha al-ra’ isiyya (Judicial control of the constitutionality of laws in its general traits), Alexandria: Centre René-Jean Dupuy pour le droit et le développement 2003. My friend and colleague, the long-time vice president of the SCC, Adel Sherif, is also the author of an early treatise on constitutional review in Egypt, Al-Qada’ al-dusturi fi masr (Constitutional adjudication in Egypt), Cairo: Sha‘b 1988. 9 Examples include notably Pakistan, the United Arab Emirates, and Yemen, more recently Iraq. See for Pakistan and the UAE, decisions discussed in IMEL, above note 1, at xxxi, xxxii, and the cross reference to the page for analysis. The Iraqi Federal Supreme Court discussed Islamic law for the first time in a substantive manner in a short decision on December 21, 2010, where it dismissed the request of the petitioner to consider contrary to Islamic law, and therefore unconstitutional, Article 77 in the Code of Civil Procedure. The article requires written evidence for cases over fifty dinars in value, which allegedly goes against the dominance of oral testimony as proof in Islamic law. In a few lines, the FSC rejected the petitioner’s argument, quoting the Qur’anic verse on the need to write down obligations to reject the petition. Text of decision on the FSC site at http://www.iraqja.iq/krarat/1/2010/60_fed_2010.pdf. See also Haider Hamoudi, “Ornamental Repugnancy: Identitarian Islam and the Iraqi Constitution,” University of St. Thomas Law Journal, vol 7, 2010, 691–713. 8

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debate with acrimony. In acid tests, the subject matter of a controversy appears trivial at first for the constitutional lawyer, even though it is a minefield for the judge who is drawn into deciding an apparently insignificant matter under immense social pressures for and against the eventual decision. The increasingly globalized context of constitutionalism, one of the most dynamic fields of law,10 does not help, and the salience of any given acid test gets highly elusive to the law when it goes transnational. As if the domestic problem raised were not trying enough, suddenly the issue gets transplanted into an alien culture, where the contest augments in acidity. Context is decisive: the difference between building a (Sunni) mosque in downtown Riyadh, a (Shi‘i) mosque in downtown Beirut, or any mosque in downtown Manhattan illustrate the transplant problem.11 This is not new to constitutionalism, both historically and comparatively. In America, abortion was a secondary issue before the conservative movement made it a central concern in the late 1960s. Despite an important register of supreme court decisions across Western Europe, abortion hardly rises to an issue of constitutional or legal centrality in most European or Middle Eastern countries. Similarly the burning of the flag, fraught with emotional and cultural baggage as it tends to be in the Vietnam—or Confederate—US context, is an acid test that inflames passions most extraordinarily in the United States. In Israel, where the battle over symbolism between Jewish and non-Jewish communities includes the Star of David flag, the issue has yet to rise to a social acid test.

Together with international criminal law, see Part III, comparative constitutional law understood as the comparison of judicial review on basic rights is maturing into an independent discipline with significant interaction between judges and scholars. Unlike the comparison of constitutions, which is time immemorial, and came of age in the Atlantic revolution, the focus of the discipline is on the way various constitutional courts review legislation (and sometimes executive decisions) for its conformity with the constitution. A pioneer of the genre was Mauro Cappelletti (d.2004), The Judicial Process in Comparative Perspective, Oxford: Clarendon Press 1989. For a hefty casebook on mainly Western courts, Vickie Jackson and Mark Tushnet, Comparative Constitutional Law, New York: Foundation Press 2nd ed. 2006 (1st edition 1999); for the state of the art mapping of the field, Michel Rosenfeld and Andras Sajo eds, Oxford Handbook of Comparative Constitutional Law, New York: Oxford University Press 2012. For an overview of the Middle East, see IMEL, above note 1, ­chapters 5 and 6, and my chapters “Islam and the Constitutional Order” in the Rosenfeld and Sajo handbook, at 1287–303 (translated into Japanese by Makoto Mizutani, 2011) and “Comparative Law and the Islamic (Middle Eastern) Legal Culture,” in Mathias Reimann and Reinhard Zimmermann eds., Oxford Handbook of Comparative Law, Oxford: Oxford University Press 2006, 609– 39, pb 2008 (Arabic tr., Beirut 2011). 11 The case of the Sunni mosque in Riyadh is not controversial (although one wonders if a Hanbali-led mosque is not exclusive of other Sunni school denominations, meaning that a Hanafi or Shafi‘i mosque may not as easily curry favor with whatever authority is in charge of delivering the building permit in Riyadh), but authorization to build a Shi‘i mosque in the capital is unthinkable for the current Saudi government. In Lebanon a Shi‘i mosque in downtown Beirut is inconceivable in practice, though not in law. In Manhattan, the project for building an Islamic community center (and a controversy whether or not it was a mosque) near Ground Zero was allowed to go forward by denying the petitioner legal standing, Brown v. New York City Landmarks Preserv. Commn. 2011 NY Slip Op 51273 - NY: Supreme Court 2011, decided July 7, 2011. A treatise by Subki (d.1355) on repairing churches illustrates the converse depth of the controversy in the Islamic legal tradition, Taqi al-Din al-Subki, “Mas’ala fi man‘ tarmim al-kana’es (The question of the prohibition of restoring churches),” Fatawa, Beirut: Ma‘rifa 2 vols. 2002, Vol. 2, 369–420. With a few exceptions, Subki argues the hard line preventing the building and repairing of churches and synagogues. 10

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When Scarf Turns into Veil Amid these telltale acid tests, I will dwell on just one issue that appears to me as the paragon of the trivial: the scarf. Forbidding a woman from wearing a piece of cloth on her head, or forcing her to wear one, both under cover of (constitutional) law, should be an easy issue to resolve: the state has no business doing either. As an acid test, however, passions pour in. Over only a short generation, the scarf has been invested with so many meanings that most other similarly controversial issues pale into insignificance by comparison. The legal meaning gets forced into a prominent constitutional issue by social, cultural, political, economic, even mythical, and—last though not least—gender connotations, which extricate the multilayered symbol from its trivial beginnings. Suddenly, the controversy over the scarf becomes one that defines society. Scarf turns into veil. The variety of the scarf ’s daily use in terms of workplace, age, function, shape, extent, even color, eludes legal philosophy. The courts first get drawn into a distinction based on age, and on the public/private space. Is the woman concerned an adult? Is she operating in public? In a heated worldwide debate, France provides an alluring record on the debate of dress as religious expression. The country combines a hard-edge secularism with several courts adjudicating scarf-related disputes. The decisions of its highest courts can be appealed to the European Court of Human Rights (ECtHR), and engage the wider European debate.12 In France, at the time of this writing, an adult woman can put a headscarf (French foulard or foulard islamique, Arabic “hijab”) on at a public university, but a teenager in a public school cannot do so. On the street, women are free to don the scarf irrespective of age, but the adult woman is fined for wearing the head-to-toe dress that fully covers the face (called in French “burka,” in Arabic niqab or burqu‘.) By the second decade of the twenty-first century, French society seems to have settled on a general tolerance of the scarf/veil/hijab on the woman’s head in public, with the exception of pre-university

In an increasingly large legal literature on the subject, I shall briefly consider in this chapter how the French Conseil d’Etat, Cour de Cassation, and Conseil Constitutionnel, the three top French courts in generally separate orders of jurisdiction, have all been involved in scarf-related controversies; as well as a selection of decisions from other courts. Like most European states, the French courts also need to defer to the decisions of the European Court of Human Rights (ECtHR), which sits in Strasbourg and operates across forty-seven states that are party to the European Convention on Human Rights (1950), and to which appeal can be lodged from final decisions in which a person whose rights under the Convention were allegedly violated in the country’s domestic courts. In addition, French and twenty-seven other European Union (EU) courts operate under a referral procedure to the European Court of Justice (ECJ, sitting in Luxemburg) for matters European. While economic rather than basic rights have tended to be litigated before the ECJ, this is slowly changing because of the rise of a specific EU Charter on Human Rights (2000), later incorporated in the Treaty of Lisbon (2009). The Lisbon Treaty seeks to prevent a clash between the two extraterritorial jurisdictions over basic rights (Art. 52.3) by deferring first generation human rights to the ECtHR (see, e.g., Jean-Claude Piris, The Lisbon Treaty, Cambridge: Cambridge University Press 2010, 146–66 at 165–66). Over time, however, both Charters and Courts may not coexist as smoothly as envisaged by the Lisbon drafters.

12

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public schools,13 as long as it leaves her face uncovered. The rejection of the niqab/burqu‘ full face cover in public was enshrined in a law passed in October 2010.14 These scarf categories are contrived in Arabic and generally Muslim culture. In the Levant, Egypt, North Africa, the full scarf was rare in the mid-twentieth century, and the line between hijab and niqab is a neologism. The full black scarf as a daily dress comes from dour Saudi Arabia, and specifically from Najd, from where it was imposed since the 1950s by Saudi rulers on the rest of the country, especially on the far more cosmopolitan Western Hijaz, where Mecca and Medina are located. Purdah, another form of dress seclusion for women, means nothing in the Arab, Persian, and Turkish Middle East. It is typically South Asian (Pakistan-India-Afghanistan) with its own variations over time, and its own acid test history. In more recent times, the investment in the scarf’s social meanings runs a much fuller gamut, such as whether one can see the women’s eyes, or whether some mask should be added for her to see and not be seen, how much hair appear from under the scarf, and such trivial details. In everyday use, the scarf may be a woman’s defense against male harassment in the street, an equalizer against gender bias; it may also be the expression of dissent when forbidden or forced. Women defy state and society by wearing it, for instance against brutal repression by government squads in Syria in the 1980s, conversely by donning it and showing some hair or using vivid colors against its brutal imposition in Iran at various times since the 1979 revolution. There is a surprising degree of diversity in the symbolism of the scarf in public and social life. Scarves may be imposed by husband, father, brother, as a tool of supremacy and control, but the scarf can also be re-appropriated by women as a symbol of resistance against the will of “liberal” husbands or fathers. The teenage girl’s scarf may be a conscious, sometimes brave marker of identity in a secular European city; an old woman’s scarf at prayer is a mark of devotion, and it is hardly restricted to Islam. The battleground of dress grows from fashion

Loi n° 2004-228 du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics. 14 The rejection of the full cover is decreed in Loi n° 2010-1192 du 11 octobre 2010 interdisant la dissimulation du visage dans l’espace public, which is based on a decision of the Conseil Constitutionnel on October 7, 2010. Seized by the presidents of the Assembly and the Senate, the Conseil gave deference to the law on the basis of security and public order, as well as on the more original argument that “§4, women covering their face, voluntarily or not, find themselves in the position of exclusion and inferiority manifestly incompatible with the constitutional principles of liberty and equality.” There was one apparent aspect of the law where the Conseil Constitutionnel seems to accept the full cover of the face, in mosques (§ 5). On July 1, 2014, the ECtHR confirmed the validity of the law as part of the “margin of appreciation” of the French legislator, and as a measure not disproportionate enough to violate the freedoms of expression and religion under the Convention. SAS v.  France, July 1, 2014, Press release, “French Ban on the Wearing in Public of Clothing Designed to Conceal One’s Face Does Not Breach the Convention,” at http://www.echr.coe.int/Pages/home.aspx?p=home. The additional twist in the decision is a reference to a value of social conviviality expressed as “living together.” This is a “new” value that is considered as a legitimate pursuit of the government. Ironically, the French Conseil d’Etat, which had authorized the prohibition of the headscarf in public schools in a series of decisions leading to the law of 2004, made in a report of March 2010 a firm recommendation against a full-fledged legal prohibition of the face-hiding burka as unnecessary and disproportionate, see Conseil d’Etat, “Étude relative aux possibilités juridiques d’interdiction du port du voile intégral,” March 30, 2010, e.g. at http://www.conseil-etat.fr/fr/rapports-etetudes/possibilites-juridiques-d-interdiction-du-port-du-voile-integral.html. 13

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to utmost intimacy. In most cases, it remains elusive to the law as it hides deeper meanings that may be ambiguous, contradictory, and vary from actor to actor, in space and time. Considering the acid test turned transnational maelstrom, what does one do with the scarf when writing a constitution? To make it simple: nothing. There is no room for the issue in any legal text, let alone a constitution. This is an easy enough principle. A  constitution does not typically historicize and contextualize dress. The constitution looks forward, and enunciates general rules that are eventually refined case-by-case. Mention of the scarf has not risen to constitution-incorporation status in any country of the Middle East revolution; it is still considered trivial. Ignoring those issues by the constitution-makers seems the wiser course to take, even if such acid tests hide far more complex social tensions. With their salience, the constitutional preoccupation with trivia turns into an existential confrontation that divides society profoundly—though arbitrarily for received constitutional wisdom. The first principle is therefore not to mention dress in the constitution, or in legislation. A second, mirroring principle is to put the scarf back in its place in the larger scheme of things, as judges and other social arbitrators find a compromise, whether stated or not, over the acid test imposed on them for adjudication. The scarf ’s infinite visages are law-boggling, and time can be a useful factor to remove the unnecessary sting in an issue where live and let live is the easy departing point. The second principle is to always let time assuage a sudden scarf crisis. The issue might still arise as controversy, when a school for instance decides to impose the scarf on girls, or forbids them from wearing it. In the absence of a specific constitutional provision, constitutional interpretation sets in when a court is faced in Egypt, the United States, or France with the enforcement or banning of the display of a religious symbol turned acid test, usually by an order or decree that is much more local, such as a school principal imposing or rejecting the scarf. The judges are then forced to engage in parsing and hairsplitting cases that suddenly carry the burden of millennial values. They find the whole world focused on them, in the shape of a veil worn by a woman or forced upon her. They, overall, manage even if they muddle through. So principle three: bring the acid test to multiple mediators, including if necessary the judge. A fourth principle is to be particularly attentive to the matter from a gender perspective. It is hard to resist mentioning this text from the Middle Assyrian Laws, apparently a police city regulation in the so-called Tablet A from what is now Syria, ca twelfth century bce:15 §40 Women, whether married or [widows] or [Assyrians] who go out into the (public) street [must not have] their heads [uncovered]. Ladies by birth . . . whether (it is) a veil (?) or robe or [mantle?], must be veiled; [they must not have] their heads [uncovered]. Whether . . . or . . . or . . . shall [not] be veiled [but], when they go in the (public) street [alone], they shall [surely] be veiled. A concubine (?), who goes with [her] mistress in the (public) streets, must be veiled. A hierodule, whom a husband has married, must be veiled in the (public) streets but one, whom a husband has not married, must have 15

The following text and translation are from G.R. Driver and J.C. Miles, The Assyrian Laws, Oxford: Oxford University Press 1935, rpt Aalen: Scientia 1975, 406–11. Some words are missing ( . . . ) or unclear (?). The text between brackets [ . . . ] is also the translators’.

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her head uncovered in a (public) street; shall not be veiled. A harlot shall not be veiled; her head must be uncovered. He who sees a veiled harlot shall arrest (?) her; he shall produce (free) men [as] witnesses (and) bring her to the entrance of the residency. Her jewellery shall not be taken (from her, but) the man who has arrested her shall take her clothing; she shall be beaten 50 stripes with rods, (and) pitch shall be poured on  her head. Or, if a man has seen a veiled harlot and has let her go (and) has not brought her to the entrance to the residency, that man shall be beaten 50 stripes with rods; the informer (?) against him shall take his clothing; his ears shall be pierced (and) a cord shall be passed through (them) and be tied behind him he shall do labour for the king for 1 full month. Slave-girls shall not be veiled, and he who sees a veiled slave-girl shall arrest her (and) bring her to the entrance of the residency; her ears shall be cut off, (and) the man who has arrested her shall take her clothes. If a man has seen a veiled slave-girl and has let her go (and) has not arrested her (and) brought her to the entrance of the residency, (and) charge (and) proof have been brought against him, he shall be beaten 50 stripes with rods; his ears shall be pierced (and) a cord shall be passed through (them) and be tied behind him; the informer (?) against him shall take his clothes; he shall labour for the king for 1 full month. §41 If a man will veil his concubine (?), he shall summon 5 (or) six of his neighbours to be present (and) veil her before them (and) shall speak, saying: ‘She (is) my wife; she (thus becomes) his wife. A concubine (?) who has not been veiled before the men (and) whose husband has not spoken, saying: ‘She (is) my wife, (is) not a wife but (still) a concubine (?). If a man has died (and) his veiled wife has no sons, the sons of concubines (?) (become his) sons; they shall take a share of his property. The significance of a woman’s veil in this text is partly upside down: in the public space, the prostitute is criminally punishable if she puts a veil on, and a concubine becomes a legitimate wife when she gets veiled. With variations on the status of women (free by birth/ ladies; concubine; prostitute; hierodule, a prostitute in service to the temple; slave-girl) this is as much a social stratification as an early example of subordination of women to men, and the commentators have noted the “command” nature of the text as opposed to the casuistic style common in Ancien Near East legal texts; hence the suggestion that it may be a police ordinance.16 From this twelfth-century bce regulation through to the latest humiliation of women by a government or some extreme Islamist group, subordinating the wife, sister, or daughter by imposing a veil upon her is a deep, persistent pattern. A woman may well answer, and many do, that she has decided for herself. But scarves are only for women. A beard rarely elicits passions in the same way scarves do. Beards have become symbols of Islamic “religiosity,” and the distinction is troublesome. People of a more secular inclination may react to bearded men as the political expression of a stranger, but the beard (so far, and it may be changing) is not a constitutional issue. No law cares whether a man grows a beard or not. On this basis, the apparent triviality of the scarf makes room

16

See, e.g., the French translator and commentator Guillaume Cardascia, Les Lois assyriennes, Paris: Cerf 1969, 202.

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for an argument over the control of a woman’s body. Like the supporters of abortion in the liberal West, in particular women, the foremost factor in wearing or not wearing a scarf is the business of a woman and her control over her body, essentially a matter of individual freedom denied to women by men. Governments in this argument must therefore act to support the woman’s decision not to wear the scarf, because governmental silence invariably reinforces a male society interfering in matters primarily for women to decide. This is one additional factor of attachment to the absolute autonomy of the individual, in this case the historically subordinated individual woman. So the upshot of gender subordination may be to leave it for women to decide how to dress themselves, and intervene when evidence shows that they are being forced to wear the veil, and more rarely, to remove it. The gender factor complicates the scene considerably by adding a possible “trump” card that changes the trivial into the fundamental on the basis of equality and the subordination of women by men. It underlines the importance of the woman’s autonomy over her body, and her dress as part of that control. The following selection of cases gives a sense of the wide spectrum of judicial views that comparative constitutional law provides in the second decade of the twenty-first century. In France, as we saw above, the Conseil d’Etat confirmed the right of public schools (not universities) to ban the scarf worn by female students, as being antithetic to egalitarian and secular values. It rejects the scarf because it expresses religion in a space where it is not legally allowed.17 Swiss courts followed suit, and the European Court of Human Rights confirmed the request made by a Swiss primary school to a Muslim female teacher to remove her scarf. The ECtHR held that Switzerland remained within “the margin of appreciation” allowed to state parties to the Convention. More specifically, [t]‌he Court accepts that it is very difficult to assess the impact that a powerful external symbol such as the wearing of a headscarf may have on the freedom of conscience and religion of very young children. The applicant’s pupils were aged between four and eight, an age at which children wonder about many things and are also more easily influenced than older pupils. In those circumstances, it cannot be denied outright that the wearing of a headscarf might have some kind of proselytising effect, seeing that it appears to be imposed on women by a precept which is laid down in the Koran and which, as the [Swiss] Federal Court noted, is hard to square with the principle of gender equality. It therefore appears difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-discrimination that all teachers in a democratic society must convey to their pupils.18

Conseil d’Etat, Decision of March 19, 2013, confirmed a string of decisions taken on the subject of the “foulard islamique” since 1992. Using well-honed language of the Conseil d’Etat, the summary judge of the Conseil held against a student in high school who was protesting her dismissal for wearing a scarf as an ostentatious expression of religion in a public institution, likeining it also to banning the wearing of a kippa or “a large crucifix” under the 2004 law cited above note 13. 18 Dahlab v. Switzerland [2001] ECtHR (No. 42393/98) (January 15, 2001). This did not prevent the court from allowing the display of a crucifix in the classroom of a public Italian school, Lautsi & Ors v Italy [2011] ECtHR (Grand Chamber) (No. 30814/06) (March 18, 2011). 17

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In Egypt, the Supreme Constitutional Court upheld the ban on the veil, full or partial, issued by the Ministry of Education in public schools, but the High Administrative Court held contrarily.19 The SCC was more circumspect in its upholding of the ban for the headscarf rather than the full niqab, and the constitution does not ascribe any constitutional role to the High Administrative Court. In Kuwait, in a rare decision, the Kuwaiti Court of Cassation ruled that the Ministry of Endowments could not issue a fatwa disqualifying a female from being a Member of Parliament, including an MP who did not wear the veil. The argument was principally in that case one of gender equality under the constitution, but the Court’s decision suggests that it might rule otherwise if a law does so rather than the Ministry, whose decision it considered ultra vires. In Turkey, the Constitutional Court (CC) in a number of decisions running from 1989 through 2008 enjoined women from wearing a scarf in public institutions, and ruled unconstitutional any disposition (law or administrative order) to the contrary. The Islamic government finally stacked the CC, so the issue went away faute de combattants, but the initial decisions were meanwhile confirmed as held within a proper margin of appreciation by the European Court of Human Rights (ECtHR). On a solemn occasion represented by a decision in the Grand Chamber, the ECtHR held that the Turkish Constitutional Court had properly upheld the secularism principle in the Turkish Constitution.20 The common law tradition has proved more tolerant. In England, the House of Lords accepted that a uniform dress code be implemented by a state-funded high school, but only because the woman who wanted to wear the full cover (in yet another fleeting variation called jilbab, a loose dress that does not hide the face) could go to a neighboring school that allowed it.21 In the United States, the scarf remains correctly a trivial issue, as its banning or imposition would confront well-established principles protecting freedom of expression, so much so that litigants do not take the trouble to go to court, despite the highly litigious character of American society.22 For these decisions (and references) in Egypt, Kuwait, and Turkey in the following paragraphs, see Jill Goldenziel, “Veiled Political Questions: Islamic Dress, Constitutionalism, and the Ascendance of Courts,” American Journal of Comparative Law, vol. 61, 2013, 1–50. 20 Leyla Şahin v Turkey [2005] ECtHR Grand Chamber (No. 44774/ 98) (10 November 2005). The court held against the plaintiff, a female medical school student who was barred from various educational activities because of the university authorities’ ban on the headscarf. In addition to “the margin of appreciation” left to Turkish authorities (§ 110), the ECtHR held that the constraint did not breach the freedom of religion clause of the European Convention on Human Rights: “§106. In democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on freedom to manifest one’s religion or belief in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected.” See for this “living together” argument ECtHR, SAS v.  France, above note 14. 21 R (Begum) v Governors of Denbigh High School [2006] UKHL 15. 22 For the controversy in the larger French debate from an American liberal perspective, which tends to find it overbearing, see Joan Wallach Scott, The Politics of the Veil, Princeton, NJ: Princeton University Press 2007. For a similarly sensible approach from a Muslim lawyer in the United States, Sumbul Ali-Karamali, The Muslim Next Door, Ashland, OR: White Cloud Press 2008, section entitled “That veil thing,” 129–39. For a French perspective that supports the 2004 Law, mainly on the argument of the political use of the “freedom to veil” by Islamic fundamentalism, see Karima Bennoune, “The Law of the Republic versus the ‘Law of 19

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Trivial, elusive, time- and gender-sensitive, all the arguments weigh on the balance of state neutrality. The constitution should be scarf-neutral, as should lower legislative and executive dispositions in all public space. School classes, parliamentary sessions, restaurants, buses, and cinema parlors, all are part of public space that should resist scarf regulation, for or against. Unless the woman, adult or child, is forced to wear or not wear the scarf, or for that matter, a fuller coverage, the state has no business interfering in one way or the other. As for appreciating what “forced” means, this is a complicated matter left to long-established principles of evidence under criminal law. For the police, the prosecutor, or the judge to assess whether a woman is forced, proof is no less complicated than in matters of sundry forms of violence against women. The issue is slightly more complex in a corporate milieu and the private workplace generally, more importantly the home.23 Even there, any dispositions should remain scarf-neutral as a departing point, and allow the composition of a social norm to develop without interference in the personal choice of a dress code by women. Just remember to replace “scarf ” or “veil” with trousers or a bow tie. How would a law, let alone the constitution, look if it prohibited the wearing by men of bow ties? When the law enters the courtroom fray, poorly armed against an elusive multilayered symbolism, it finds itself cornered into a binary system that gets further buffeted by sectarianism in religiously mixed countries. The point of departure for the answer is to laugh both militant supporters and opponents away into the trivia of the acid test as no business of the state.

the Brothers:’ A Story of France’s Law Banning Religious Symbols in Public Schools,” in Deena Hurwitz, Margaret Satterthwaite, and Doug Ford eds., Human Rights Advocacy Stories, New York: Foundation Press 2009, 155–90. 23 For a summary of the main decisions of the French and European courts with regard to various religious expressions in the private sector, see Service juridique CFDT, “Liberté religieuse en entreprise: état de la jurisprudence en France,” posted May 14, 2013, at http://www.cfdt.fr/portail/le-carnet-juridique/ liberte-religieuse-en-entreprise/liberte-religieuse-en-entreprise-etat-de-la-jurisprudence-enfrance-prod_145337, citing decisions holding that (1) merely wearing an outside religious sign (crucifix, veil) is insufficient to punish or dismiss an employee in a private enterprise; (2) prohibition by the management can be justified for security reasons; (3) prohibition without proving a tangible harm to the company is forbidden. Following this measured policy, a Chamber of the Court of Cassation reversed in Baby-loup (March 19, 2013, text of the decision at http://www.courdecassation.fr/jurisprudence_2/chambre_ sociale_576/536_19_25762.html), a decision of the Court of Appeal that had considered legal the dismissal of a veiled female employee working in a kindergarten run by a private association. The case was remanded to the Court of Appeal, which confirmed its original decision and sent it on again to the Court of Cassation for examination in full banc (Assemblée Plénière). On June 25, 2014, the Court of Cassation reversed its chamber’s earlier ruling, and considered legal the dismissal of the employee wearing the veil in a private kindergarten as a proportionate measure considering the smallness of the institution. (Decision reported in full at http://libertes.blog.lemonde.fr/2014/06/27/baby-loup-epilogue-et-decision-de-la-cour-de-cassation/, posted 27 June 2014). This decision is a reversal of the court’s more tolerant policy adopted in the private space until 2014, and erases much of the public/private space distinction that French courts had developed. Compare Israel in Jabareen, where the High Court of Justice ruled that a private Catholic school may prohibit a Muslim female student from wearing the veil, on account of the school’s relative autonomy from the state, see HCJ 4298/93 Jabareen v. Minister of Education [1994] IsrSC 48 (5) 199, discussed by Michael Karayanni in “Separate and Different: The Jurisdiction of the Palestinian-Arab Religious Communities in Israel,” presented at the Robbins workshop, University of Berkeley, February 21, 2014.

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The problem is that laughing the matter away is not always possible. Passions aroused individually and collectively require more trenchant answers than just letting civil society take care of the matter on its own with the full benefit of time. If it were possible, that option is preferable to throwing the issue into the constitutional arena with the heavy boots of the government getting into a prima facie personal choice. But passions do not always afford a boiling society or an angry group the luxury of time. Beyond Acid The category “acid test” itself can hardly be circumscribed, and both the constitutional and ordinary judge may be cornered into saying what the law is when confronted by citizens who suffer from its direct impact on them. Even when reference to the scarf is not on the agenda of constitution-making, which is so far the case because constitution-writers find it too trivial to be mentioned in the text, other issues are more “real,” for instance in limiting the freedom of expression or standing up for it in categories that belong to racial incitement or blasphemy in a global constitutional age.24 Trivializing the scarf is fine, but should the constitution-drafter not anticipate a position on a novel using religious eponyms disparagingly, a prophet’s caricature in a French magazine, the burning of a religion’s founding book by a religious man belonging to a different sect or faith, inserting a clause in the constitution of a state or locality banning all reference to the shari‘a, or building a house of worship in the midst of a predominantly “alien” neighborhood? All these non-scarf causes célèbres of recent lore took place in the West. Note that these cases do not carry in my analysis the qualification of the scarf ’s trivial acidity. They all created significant political turmoil, domestically and internationally, over the use of free speech in matters considered so hurtful to some Muslims that they led to wide rioting and, in some instances, the loss of life. The first case mentioned arose upon Salman Rushdie’s publication of The Satanic Verses in England, a novel that led to the “fatwa” of Khumaini considering that the insults to Prophet Muhammad in the book must be punished by death. The second case is the satirical French magazine Charlie Hebdo disparaging the Prophet in a caricature depicting him with a bomb in his turban. The third case is of a Christian preacher in Florida burning copies of the Qur’an in public. The fourth case is the passing by a number of states in the United States (often by a overwhelming majority) of a state constitutional amendment rejecting any reference to the shari‘a. The fifth case is the ban on the building of a “mosque” in downtown Manhattan. In all five cases, freedom of speech cum freedom of religion (as expression of speech) was generally upheld. Rushdie’s The Satanic Verses (1988) remained generally available to the public, and an English divisional court rejected the challenge made under the antiquated English law of blasphemy,25 but the author went into hiding for long years while riots in See for a summary of the dilemmas facing the American constitution’s freedom of speech on the occasion of a film posted by YouTube disparaging Prophet Muhammad, Robert Post, “Free Speech in the Age of YouTube,” Foreign Policy, September 17, 2012 (suggesting that government officials taking a political stance and civil society fighting back are in a better position to underline opprobrium and bad taste rather than the repressive arm of the state punishing anti-Muslim provocateurs, blasphemers, or zealots). 25 R v Chief Metropolitan Magistrate, ex parte Choudhury [1991] 1 QB 429. 24

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Pakistan led to the killing of demonstrators in front of the US embassy, and the Japanese translator of the book was assassinated in 1991. Charlie Hebdo remained on the public stands in Paris, and the French courts upheld the right to publish the caricature as an intrinsically derisory mode of expression with enhanced protection.26 The burning of the Qur’an in Florida did not lead to the preacher’s arrest or to an injunction against him, although he was heavily criticized by government officials in public; the ban on shari‘a references in state constitutions was struck down by US courts in the first instance,27 and on appeal,28 for excessive entanglement of the state of Oklahoma with religion, and the “mosque” near Ground Zero went ahead, again on similar grounds.29 The legal position in all these cases was in my view generally correct, but the examples in a global age will no doubt multiply, in continuing major tests for international human rights in search of the silver thread of freedom running in parallel across the Middle East. To conclude: as a general constitutional response, the principle in the constitution can hardly be other than freedom of and from religion, which includes the freedom to dress as one likes, freedom to speak and demonstrate peacefully in support of one’s ideas and actions, or against other citizens’ ideas and actions. As regards the scarf, the rule stated at the beginning remains valid: the government has no business forcing a woman to wear a veil, or preventing her from wearing one. I do not see how any such rule can be inscribed in a specific clause in the constitution. And yet, wishing away social controversies under a category of acid tests that the constitution should not mention will not always work. To use a psychoanalytic concept, forbidding a woman from wearing a scarf or forcing her to wear one by law, is a transfer in the acid test from the trivial to the vital. The social battle waged over dress, sexual comportments, religious days, rituals, and indeed the varieties of the veil— workplace/home, public/private, age (minor/adult), functionality, extent, even color—compels many more controversial meanings than a piece of cloth can fathom in legal philosophy, including whether the wearing or prohibition of the scarf is a shield or a sword.30 Nor can the analysis ignore the context of whether the controversy is taking place in a country with a majority of Muslims, or in Western, Asian, or African countries where there is no such majority. In both cases, I propose now to go beyond contextuality. The root problem, I would like to suggest, is the interplay of religious and constitutional law with far deeper an imprint than can be imagined at first. Maxime Rodinson (d.2004), one of the most perceptive scholars of the Middle East in the twentieth century, anticipated CA de Paris (Paris Court of Appeals), 11ème chambre, section A, “Des caricatures de Mahomet,” le 12 mars 2008, Légipresse n° 252. III. 107. 27 Awad v. Ziriax, 754 F. Supp. 2d 1298 (W.D. Okla. 2010). 28 Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012). 29 See above note 11 and case cited. 30 For the argument of the use of law as shield or sword, which is drawn from the law of contracts in English law, see my “Constitutions for the Twenty-First Century. Emerging Patterns—The EU, Iraq, Afghanistan,” in Peri Berman, Wolfhart Heinrichs, and Bernie Weiss eds., The Law Applied: Contextualizing the Islamic Shari‘a, London: I.B. Tauris 2008, 194–215. This is also available digitally at 1 Duke L. CICLOPs 41 (2009), at 57–62, where I refer to the distinction made by Lord Denning in Central London Property Trust Ltd. v. High Trees House Ltd. [1947] K.B. 130, on the validity of estoppel in a sale contract as a shield, but not as a sword. 26

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the depth of the controversy in 1989. His starting reaction is about how trivial the issue first appears. “The war of scarves has its ridiculous aspect: would one prohibit here or there Tyrolian pants or the Scottish kilt?” But then he considers the more serious dimension of the matter, by showing how the controversy is anchored in the legitimate fear of society sliding into “the communitarian pest”: Beyond all this [the ridicule, and also the racism], there are serious stakes, capital stakes which the French sense more or less confusedly and which render legitimate their worry of a few rags. It is the slide from the unitary state towards the state as federation of “communities”, the passage from the national community to its exploding into multiple autonomous formations, which are competitive, rival, and maybe, tomorrow, hostile.31 This slide into the sectarian is what I propose to examine more frontally, first in terms of constitutional language, then in terms of the sectarian/communitarian paradigm that governs the daily life of the Middle East. Aggiornamento: Style versus Substance in the Middle East Legal Tr adition I call aggiornamento the incorporation of the Middle East deep tradition in its contemporary legal style. The template of Article 2 is too lax not to generate conflicting readings. This is also true of the courts applying the template. In two famous decisions, the Egyptian SCC refers to the Travaux préparatoires to interpret the 1980 Amendment, and concludes that it was not the intent of the constitution drafters to erase laws in Egypt that are incompatible with Islamic law retroactively.32 Article 2 only works prospectively. One can find an altogether Maxime Rodinson, “De la peste communautaire,” Le Monde, December 1, 1989, reprinted in his Souvenirs d’un marginal, Paris: Fayard 2005, 393–98, cite at 393: “La guerre des foulards a son côté ridicule: proscrirait-on ici ou là la culotte tyrolienne et la jupe écossaise? Elle a son côté odieux: il est évident— et c’était inévitable—que quelque racisme se mêle chez beaucoup à la mobilisation laïque. Mais au-delà de tout cela, il y a un enjeu très sérieux, un enjeu capital que les Français ressentent plus ou moins confusément et qui rend légitime leur inquiétude devant quelques chiffons. C’est le glissement de l’Etat unitaire vers l’Etat fédéral de “communautés,” le passage de la communauté nationale à l’éclatement en formations multiples autonomes, compétitives, rivales et, peut-être, demain, hostiles.” 32 In the two judgments rendered in 1985 on the prohibition of interest (riba), the SCC avoided considering the issue in relation to late interest payment under the Egyptian Civil Code Arts. 226 and 227, on the basis that the Article operates prospectively only. The SCC refers extensively to the report of the committee that changed Article 2 of the constitution to state that Islamic law is the (rather than “a”) principal source of legislation, text above at note 5. The first judgment, SCC, Vol. 3, 209–28 (May 4, 1985) confirms the constitutional validity of Civil Code Art. 226 rate of interest for payment delay at 4 percent in civil cases and 5 percent in commercial cases, citing the Travaux préparatoires in Parliament at 221–23. The second judgment, SCC, Vol. 3, 274–86 (December 21, 1985) confirms the Civil Code Art. 227 rate of interest agreed between the parties for delayed payment with a maximum of 7 percent, and cites the same Travaux préparatoires at 284–85. 31

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different reading by a Pakistani court on the history of the repugnancy clause in the country’s successive constitutions.33 The Pakistani Federal Shariat Court concluded exactly opposite the Egyptian SCC: all statutes, all the way back to those introduced by British colonialism in the 1830s, should be re-examined for their conformity with Islamic law, and declared otherwise repugnant, therefore null and void.34 In both Egypt and Pakistan, the sweeping acceptance or rejection was eventually watered down, but the missing element for our purposes on the deeper debate behind the clause is more interesting. To better understand it, we must open up other avenues on the controversy. Let me start with the conclusion: to survive constitutionally as a rallying point for all citizens, Article 2 must also include all religious and national traditions in the country where religious minorities are active. In a regional mode, a scientific passage from Islamic to Middle Eastern Law is required. I will use two glosses from the history of Article 2 to illustrate the argument. The first gloss is rooted in the Egyptian Civil Code, and in the debate over its conformity with the Islamic legal tradition. ‘Abd al-Razzaq al-Sanhuri (d.1971), the iconic Egyptian jurist who presided over the monumental Civil Code of 1949, included in its first paragraph a general principle requesting the judge, in the absence of a clear disposition of the Code, to find an answer to the case before him using “custom, Islamic law principles, natural law, the principles of justice,” in that order (Art. 1, Egyptian Civil Code).35 The 1971 Egyptian constituents did the same by including Islamic law as one of the legal references of the constitutional system, in a hierarchy that did not make Islamic law exclusive. When in 1980 the reference to Islamic law rose in rank to the top, the problem became acute for the non-Muslim population of Egypt, whose own tradition, which is evidently not Islamic, was excluded. A second gloss came much later, when organized democratic opposition to Mubarak’s rule started in the Kefaya (Enough) movement in the early 2000s. A  symbolic question arose among the Egyptian vanguard of the Nile revolution, which brought together Egyptian democrats on the need to end the dynastic dictatorship in the country. Secular and Coptic members of Kefaya opposed the Muslim basmala at the outset of the joint text otherwise agreed. In the basmala (“bismillah al-rahman al-rahim, in the name of God most The constitutional formulation of the so-called “repugnancy clause” has varied in Pakistan. 1956 Constitution, Article 198: “(1) No law shall be enacted which is repugnant to the Injunctions of Islam as laid down in the Holy Quran and Sunnah, hereinafter referred to as Injunctions of Islam, and existing law shall be brought into conformity with such Injunctions.” 1962 Constitution, Article 6: “ . . . Principles of law-making 1.  Islam. No law should be repugnant to Islam.” 1973 Constitution, still current, Article 227: “All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, and no law shall be enacted which is repugnant to such Injunctions of Islam.” 34 In 1992, the Federal Shariat Court issued Mahmood-ur-Rahman Faisal v. Secretary, Ministry of Law, PLD 1992 FSC 1 (also published as a separate book, Federal Shariat Court Judgment on Interest (Riba), Lahore 1992, including the decision (1–188) and Appendices (1–159)). In Mahmood, the court held several dozen laws and ordinances, going back as far as 1839, to be unconstitutional because of their regulation of interest. The decision was “frozen” by the government for a decade. In 2002, the Shariat Appellate Bench of the Supreme Court reversed in United Bank Limited v. Farooq Brothers and Others, PLD 2002 SC 800. See the discussion of the two cases in IMEL, above note 1, 339–43. See also Shabbar Raza Rizvi, Constitutional Law of Pakistan: Text, Case Law and Analytical Commentary, Lahore: Vanguard 2nd ed. 2006, 1209. 35 “ fa idha lam yujad nass tashri‘ i yumkin tatbiquh, hakam al-qadi bi-muqtada al-’urf, fa idha lam yujad, fa bi-muqtada al-shari‘a al-islamiyya, fa idha lam tujad, fa bi-muqtada mabade’ al-qanun al-tabi‘ i wa qawa‘ed al-‘adala.” 33

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merciful,” which, to remind the Western reader, opens the Qur’anic first chapter), they argued, is an immediate symbolic exclusion of signatories who are not Muslim. Copts dug in their heels as full participants in Egypt’s future, their Muslim colleagues accepted their viewpoint, and the heading formula was simply removed, and replaced by the enduring slogan of the movement, la tamdid la tawrith (No extension, no descent).36 Opposition to including the basmala succeeded. The controversy carried through into the Constitutional Preamble. The basmala is back at the front of the Sisi Egyptian Constitution of 2014. In a signal irony it had been replaced in the draft text of the Muslim Brotherhood Constitution of 2013, which was “finalized” and released on Thursday, November 29, 2012, by the formula bismillah wa ‘awnih (In the name of God and with his help, without al-rahman al-rahim). The following day, on Friday, November 30, 2012, another version was released by the Brotherhood-dominated Constituent Assembly, where the basmala was back at the constitutional frontispiece: “bismillah al-rahman al-rahim wa ‘awnih, in the name of God most merciful and with his help.”37 In a fight over highly symbolic words, there are two paths for the equality of individuals and groups in referencing Islamic law in the constitution and beyond. One is to make Islamic law a point of reference, either exclusively or preferably with other sources, in an article or set of articles in the constitution. This is what we have in the Article 2 template of the Egyptian Constitution.38 Another is to ignore it altogether, a practice that was common in twentieth-century Arab constitutionalism and continues in Tunis after the Islamist Nahda coming to power and into the 2014 Constitution. All agreed in Tunis that there should be no mention of Islamic law as a constitution-mandating reference. This was the Kefaya route. It is the simplest approach. Just remove all divisive religious-legal references in the text, including Islamic law. Against referencing Islamic law or passing it under silence, I propose here a third method, hopefully innovative as well as scientific, that resolves the tension between classical law,

In Beirut in 2004 two founders of Kefaya, George Ishaq and Ahmad Sawi, recounted to me the dispute over the basmala as incipit for the original manifesto of the movement. There was an objection to a symbolism that rejected Egyptian Christians outright, and the formula was replaced in Kefaya’s founding document by la tamdid la tawrith, no extension (of the presidential mandate of Mubarak), no passing (the presidency on to Mubarak’s son Gamal.) See also Chapter 3 note 21 and accompanying text. The original document posted on www.harakamasria.org/node/803 is no longer there, but it can still be found on various sites and caches in 2014, e.g. https://wayback.archive-it.org/org-89/20120129044944/http://harakamasria.org/ node/803, without a date. One surviving cache, a snapshot of an original Facebook page, mentions that the birthdate of the movement was December 14, 2004 (http://webcache.googleusercontent.com/search ?q=cache:U11HHh6fyY8J:https://ar-ar.facebook.com/Kefaya.Movement/info+&cd=2&hl=en&ct=cln k&gl=us). Manal Shorbagy puts the public announcement of the birth of Kefaya in two phases between September and early November 2004, “The Egyptian Movement for Change—Kefaya: Redefining Politics in Egypt,” Public Culture, vol. 19, 2007, 175–96, at 185. I do not recall the exact moment of my conversation with Ishaq and Sawi in Beirut, but it must have been sometime in November–December 2004, as the movement was shaping up before going public, see above Chapter 3 note 22. 37 I have kept the three versions mentioned here on file, lest the websites that carry them disappear. For the waltz of constitutions in Egypt, see Chapter 9 notes 2–7 and accompanying texts. 38 Both the Egyptian Mursi/Muslim Brotherhood Islamist Constitutions of 2013, and the Sisi-Musa Constitution of 2014 kept the text of the original 1980 amendment to the Constitution of 1971, with the same numbering as Article 2. So the 1980 text above at note 5 has survived the revolution unaltered. 36

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fiqh, and its contemporary constitutional aggiornamento.39 This is a method that is generally inscribed in the debate over Islamic law and democracy, including the important theme of reconciling minimal international standards of the human rights movements with the legacy of Middle Eastern and local religious law.40 In terms of political philosophy, the proposed solution is rooted less in a concept of the political as purely secular, which translates into “leave your religion at home, here you are a religion-less citizen,” than in the active search for a richer set of identity references and cultural legacy, which I call Middle Eastern because they tend to be shared across the three monotheistic religions and their millions of adherents, and beyond. We must keep in mind that Islamic law came late to the Middle East, and that a formidable continuum of local traditions can be attested back to Babylonian and Zoroastrian times. Babylonian and other religions have long died, but Babylonian law has not. Then there are the evidently different legal traditions of other continuing religions, chiefly Christian and Jewish, the latter particularly important across the region until the Arab-Israeli conflict decimated its two-thousand-year-old Jewish community across the region, except of course in Israel. And there are national traditions that build on the positive forms of constitutionalism in the legacy of the West and its iteration over two hundred years of Middle Eastern constitutionalism. This legacy is evident in all constitution-making in the Middle East revolution under way. Not only is Middle Eastern law a formidable “legal family” as I  argued book-length elsewhere, but enriching examples provided by societies across the world can hardly be ignored. In the past, people always looked at other constitutional experiments for inspiration, ranging from the American and French constitutions in the eighteenth century, copycat models in more ways than one, to the attention given by various constitutions to international human rights conventions.41 Why should experiments elsewhere be excluded a priori? None of these traditions can be dispensed with in making good law in the region. So one can both reference Islamic law and not make it exclusive. Islamic law, Middle Eastern law, other religious laws (especially if the country has citizens who are not Muslim), national laws, and international standards, should all be considered seriously to inspire a constitution and to enrich later legislation. This corresponds to the reality of how twenty-first century constitutionalism and legislative drafting work best. This makes the emphasis different when we write a constitution. Silencing Islamic law altogether, as demanded by militant secularists, or drowning it in a series of other references, by sequencing it in the Egyptian and Libyan Civil Codes (Article 1),42 or juxtaposing

Fiqh, shari‘a, qanun, all mean law in Arabic. See discussion in IMEL, above note 1, 32–122. The scholarly discipline of Islamic law is known as fiqh, hence my preference to use it over other terms. Aggiornamento, Italian for putting up to date, refers to the national legislative and political efforts to modernize Italy upon unification in the last quarter of the nineteenth century. 40 It is common to use “best standards” for what is actually the inclusion of minimal standards accepted in a bill of rights. “Best” has a more ambitious feel, but is inaccurate. 41 South Africa’s constitution includes an open adoption of international law, at section 232:  “Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.” 42 Above note 35. Note that the Libyan Civil Code puts Islamic law principles first in the list of categories. 39

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it with international standards (Article 2, Iraqi Constitution of 2005),43 is less important than its effective use as an important part of the national and regional legacy of Middle Eastern law. In that perspective, every legal strand in the region is included, and it is then left to the legislators and the judges to make the effort needed to include the most appropriate and most enriching tradition in the laws they later pass or interpret as legislators, judges, lawyers, and citizens as litigants. This is the easy part. The more challenging question is how to effectively operate the constitutional aggiornamento of these laws, especially Islamic law, because of the formidable baggage that it brings to the Middle East over the past millennium and a half, beyond a general Article 2 template. It is facile to project Islamic law as the source for future legislation in the Article 2 model. But to take Islamic law seriously is to integrate it in the constitution we are making now. How does a constitution take Islamic law seriously as a prominent feature in the region’s constitutional landscape, and specifically in the bill of rights we prepare for our constitutions? In constitution-drafting, the way I propose going about it is profoundly different from the way of traditional constitutionalism in the Middle East. In the fundamental text to be adopted by the Middle East revolutionaries, the interminable debate over “the” and “a” for the Islamic principles or sources of legislation is sterile. If we are serious about Islamic law, we need to incorporate it across the constitutional text itself. Rather than worry about the general reference in the constitution to some set of rules left to apply at a later time, the immediate question for the Islamic legal tradition across the Middle East is how we can put it to work to obtain the best constitutional text we wish to adopt as a break with the authoritarian past. If we want to include the Islamic legal tradition in the constitution, why postpone the debate by way of Article 2 to later legislation? We might as well start with what Islamic law can offer to the constitution we are writing presently. The language of Islamic law, fiqh, provides a uniquely rich legacy of rights and duties to the legal corpus. A purposeful revival of this tradition would better address the problem by starting the discussion between the national tradition, including principally Islamic law, and various comparative and international law models for the enumeration of fundamental rights. Such wide-ranging incorporation will eventually be completed and refined by the constitutional courts, but one can start immediately with the very drafting of a constitution’s bill of rights. Let me clarify how we should not proceed. Some constitution-drafters follow an exercise developed in a number of “Islamic human rights documents,” where a common list of rights culled from various international and domestic declarations is dressed up with caveats stipulating compliance with Islamic law. This is easily done, but it has failed to capture the imagination of the very people it was addressed to, or to those observing these texts Article 2.1 of the Iraqi Constitution of 2005: “Islam is the official religion of the State and is a foundation source of legislation:

43

A. No law may be enacted that contradicts the established provisions of Islam. B. No law may be enacted that contradicts the principles of democracy. C. No law may be enacted that contradicts the rights and basic freedoms stipulated in this Constitution.”

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from outside the faith.44 For a more universal community of human rights defenders, caveats are rightly denounced as onerous conditions that separate a constitutional right from its meaning.45 Such texts and the considerable efforts that accompany them to devise Islamic reservations to universal rights written in the West are a dead end. The way advocated here is profoundly different. It goes from the vast legal corpus and adapts it in the same way the making of Middle Eastern civil codes in the past two hundred years has at various serious drafting occasions sought to update the Islamic legal corpus into a set of contractual and tort principles. This was not always successful, but it worked remarkably well at least on one, major occasion. The answer to why the Civil Code of the Ottoman Empire was never questioned over its Islamic authenticity and to why the Egyptian Civil Code continues to be questioned to date despite the repeated, and genuine efforts made by Sanhuri and his co-drafters to say that it was Islamic, is a matter of style, not one of substance.46 This is also true in constitution-drafting. To my knowledge, the work done in the Ottoman Majalla on civil law was never attempted for the constitution. The effort is more one of style commanding substance. Let me try to illustrate it in the bill of rights section of the constitution concerning freedom of religion. An Illustration: Freedom of Religion The clause on religious freedom in the Qur’an generally translates as “No compulsion in religion, la ikrah fil-din.”(Q. ii 256) The plain meaning is that religion is a choice that cannot be forced or compelled on anyone, and that each person may adopt a religion or reject it as she chooses. It is the individual’s decision to adhere to, and practice, the religion she prefers. There is no place in life for any compulsion, any duress, in matters of religion. Freedom of religion is total. The formulation is short, neat, precise. and absolute. Four words: “No compulsion in religion.” The equivalent expression of the principle in international and domestic bills of rights can be found in countless documents. Let us consider four examples from famous constitutional texts: The French Declaration of the Rights of Man of 1789 states in Article 10 that “no one shall be disturbed on account of his opinions, including his religious views, provided their

See an example of what he calls the “complementary approach” in Mashood Baderin, International Human Rights and Islamic Law, Oxford: Oxford University Press 2003, at 218–19. 45 Ann Elizabeth Mayer, Islam and Human Rights:  Tradition and Politics, Boulder, CO:  Westview Press 5th ed. 2013. Examples of such texts include various lists of rights in constitutions such as the one in Iran or the Cairo Declaration of Human Rights (1990), and, in a germane way for the rights of women, the caveats of Muslim authoritarian governments such as Iran and Saudi Arabia to CEDAW (Convention on the Elimination of Discrimination against Women, entered into force 1981). See various contributions in Anver Emon, Mark Ellis, and Benjamin Glahn eds., Islamic Law and International Human Rights Law, Oxford: Oxford University Press 2012, especially the articles and comments in part iv, 263–319, by Rana Kapur, “Un-veiling Equality: Disciplining the ‘Other’ Woman through Human Rights Discourse,” 266– 90; Ziba Mir-Husseini, “Women in Search of Common Grounds:  Between Islamic and International Human Rights Law,” 291–303, Sandra Day O’Connor, “Commentary: Women and Islamic Law,” 304–08, and Lynn Welchman, “Musawah, CEDAW, and Muslim Family Laws in the 21st Century,” 309–19. 46 Argument developed in IMEL, above note 1, ­chapter 8 on civil law, 244–99. 44

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manifestation does not disturb the public order established by law.”47 The formulation amalgamates freedom of opinion and freedom of religion, and is constrained by the exception of public order. The American text was adopted contemporaneously in the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” It reads as an injunction addressed to the legislature to keep away from religion when making a law. It does not allow for exceptions. The Universal Declaration of Human Rights (1949) is more specific. It states in Article 18 that “everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.” Finally in our selection, ­chapter  2, section 15 of the South African Constitution on “Freedom of religion, belief and opinion,” is far more prolix: Everyone has the right to freedom of conscience, religion, thought, belief and opinion. 1. Religious observances may be conducted at state or state-aided institutions, provided that a. those observances follow rules made by the appropriate public authorities; b. they are conducted on an equitable basis; and c. attendance at them is free and voluntary. 2. a. This section does not prevent legislation recognising i. marriages concluded under any tradition, or a system of religious, personal or family law; or ii. systems of personal and family law under any tradition, or adhered to by persons professing a particular religion. b. Recognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution. Examples can be multiplied. The point should be clear by now. None of these texts has a Middle Eastern or Islamic feel, but there is no particular reason to choose one of these formulations over the four-word Qur’anic injunction, la ikrah fil-din, no duress, no compulsion in religion. The style is different. The substance is the same. What constitutional rendering loses in terms of precision when the formulation is short, it gains in terms of mnemo-technic referencing, elegance, pith, and, as important, identity and culture. No duress in matters religious means no duress whatsoever, from the state, any other constitutional agent, another citizen, or the public at large. A robust interpretation of the phrase “No duress in religion” can cogently and forcefully convey the constitutional request that there is freedom “to change his religion or belief, and freedom, either alone or in community with others and in 47

“Nul ne doit être inquiété pour ses opinions, même religieuses, pourvu que leur manifestation ne trouble pas l’ordre public établi par la Loi.”

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public or private, to manifest his religion or belief in teaching, practice, worship and observance,” as formulated in Article 18 of the Universal Declaration of Human Rights, or indeed any other expression that the other documents convey. Taken alone, this verse as a constitutional article may sound too bare, and too contrived. As a matter of widely documented fact, long-standing medieval practices constrained the Qur’anic principle of absolute freedom of religion—“No duress means no duress”—with interpretations that range from forced collective conversion since the Islamic conquests, to the prevention of the ridda—one cannot opt out of Islam—to the punishment of those who are accused of rejecting, denying, or ignoring Islamic law in derivative principles, for instance by drinking wine, committing adultery, or not wearing a veil. Such readings may have been a dominant interpretation at some point in history, but they are interpretations that run contrary to the plain text of the Qur’an. If anything, the dominant legal tradition in the twentieth-century Middle East supports individuals being left free to practice their religion, change it, and honor the obligations they choose to be important in the faith with due consideration to others who do not share their belief. There is no sense in forcing the constitutional drafter of the twenty-first century to adopt a contrived, regressive interpretation of the plain Qur’anic text. This makes that particular method of constitution-drafting uniquely advantageous. To couch a universal human rights principle in a language that the Middle Eastern citizen is more familiar with, surely has a natural allure. Even more alluring perhaps is the work that would go, in proper constitution-making, in a renewed discovery and reading of the tradition that makes it universal. Rather than a mere translation of a Western bill of rights, even if dubbed “universal,” or a bill of rights full of caveats that empty it of any meaning, in the first case Islamic law considered an enemy of progress, in the second case an impoverished version of Islamic law transformed into the exclusive reference for progress, a bill of rights constructed on the wealth of Middle Eastern law, including Islamic fiqh, takes our minds beyond the lazy postponement of the Article 2 template. This is hard work, but worth the aspirations of the nonviolent revolution, and a potentially major contribution to the universalism of Islamic law, and of the other Middle Eastern legal traditions. The Middle East Challenge to World Constitutionalism Nor should one forget that the ultimate interpretation lies with the judge, in both the Middle Eastern and Western traditions. “Rules are finite, and cases infinite,” wrote the great eleventh- century jurist Shamseddin al-Sarakhsi.48 The judge is not a luxury in a constitution. Following Sarakhsi, let us examine first how to see that judges be best equipped to solve “cases infinite,” in general terms, then how we can address the more specific sectarian deadlock that is the key riddle of Middle Eastern constitutionalism.

Shamseddin al-Sarakhsi (d. ca 1097), “al-nusus ma‘ duda wal-hawadeth mamduda,” full citation in IMEL, above note 1, at 126.

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Constitutionalizing the Judiciary From a formal perspective defended in the previous chapter as LEJFARC, the Enlightenment remains king in constitution-making as a collection of equal citizens. It posits no privileged group, and no discrimination between citizens. Nothing can defeat the principle of equality. The departing point is that groups have no place in a constitution, whether they are religious, gender-based, or defined by short-stock build or blue eyes. Secularism, also known as the separation of church and state, emerges as the logical consequence of the principle of non-discrimination, of which religion is a sub-field. The interaction between state and religion, even in the West, is far more complicated, but the principle is secularism as the religious expression of citizens’ equality, and the exception a tainting of the state and its governmental apparatus and laws by religion. In contrast, the constitutional voice that comes loudest as a Middle Eastern challenge to the received scheme is religious. To repeat our point of departure in this chapter, the religious dissonance is expressed in two main forms. The first dissonance comes in the supra-constitutionality of Islamic law, or the forced reference to Islamic law as the source of legislation. I have discussed it under the Article 2 template, and suggested a way to overcome the dissonance through the referencing or incorporation of Middle Eastern legal traditions with a natural privileging of the Islamic corpus on its own merits of excellence, and the constructive incorporation of the legal tradition as a matter of style. We should now add some aspects of judicial review as citizen(s)’ protection, first in general terms, then in the particular sectarian field. On the general role of courts, global constitutionalism has much to say. Middle Eastern constitutional adjustments to the rise of the constitutional courts run a full gamut of possibilities, from the prohibition of the reference to the constitution by any judge, to the constitutional judge’s significant presence in political life. On one end of the spectrum, courts have no constitutional role whatsoever. In Qaddafi’s Libya, despite a formal Act passed in 1994,49 or in the constitution of Syria under the Ba‘th,50 any such reference was just ignored. In Kuwait, the constitutional court has traditionally shied away from getting involved in any controversial matter.51 This is generally also the case across the Gulf States. Even in countries where a semblance of democracy was respected, the old French- and Westminster-style constitutions that consider Parliament

“On 29 January 1994 Act 17/1423 was issued to amend some articles of the [previous Libyan law], including Article 23 which defines the jurisdiction of the [Supreme] court. Amended Article 23 extended the jurisdiction of the Supreme Court to the control ’or supervision’ of the constitutionality of legislation. This means that the Supreme Court is empowered again to declare legislation invalid on the ground that it is ‘unconstitutional.’ ” Mustafa El-Alem, “Libya,” in Eugene Cotran and Chibli Mallat eds, Yearbook of Islamic and Middle Eastern Law, vol. 1, 1994, 225–36, at 227. The court, of course, did nothing until Qaddafi was removed from power. 50 Al-mahkama al-dusturiyya al-‘ulya, the Supreme Constitutional Court, is regulated by Arts. 139–48 of the Syrian Constitution. Ignored for over forty years, it suddenly emerged in 2014 to give a patina of legitimacy to the renewal of the dictator in office. 51 Nathan Brown, The Rule of Law in the Arab World, Cambridge: Cambridge University Press 1997, 157–79. The decision to weigh in on the side of the challenged female MP (above note 19 and accompanying text) is the more exceptional considering its past record. 49

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sovereign and its laws immune from any form of review by a non-elected body remain the default principle. Typically, a specific clause in the Code of Civil Procedure prevents ordinary courts from referring to the Constitution.52 On the other end, there was, at least on paper, and in some instances in reality, a full-fledged constitutional review by courts, even on the lower level. This is the case of the United Arab Emirates, incidentally also leading to refreshing readings of classical Islamic law in some current cases, and in Yemen between 1990 and 1994.53 In unified Yemen, the Constitution of 1990 gave broad powers of constitutional review to the Supreme Court, and there are traces, before the collapse of the country into civil war in 1994, of a hesitant but real effort to make judicial independence a reality. It did not survive the war against the South, and the subsequent dictatorial entrenchment of the ruling monarblic. Two models of judicial review emerged, which I described elsewhere as the French constitutional council versus the US-style Supreme Court.54 In the first judicial review category stood Iran, where the Council of Guardians had, like in France, a short period during which legislation passed by Parliament was subject to constitutional review. Other countries stuck even more closely to the French Conseil Constitutionnel’s model, namely a small group of parliamentarians being able to challenge, but only during a short time, a law that was passed by Parliament and promulgated by the executive (king, president). This was adopted in former French colonies, most conspicuously Lebanon and the North African countries west of Libya. In the second category stood the Egyptian Supreme Constitutional Court. Unlike the US Supreme Court, it was a court of referral. Instead of the lower courts having a constitutional writ going onto appeal and then eventual review, as in the United States, the SCC would look into the constitutionality of a statute upon referral by a lower court on the occasion of a constitutional dispute affecting the aggrieved citizen as party. The lower court itself had no such power. There is, we saw, a large literature on constitutional courts in the world, with pros and cons for each country, all occasioning recurrent doubt for the fact that a group of unelected judges is capable of telling parliament and the executive, both elected by majority vote in universal suffrage, that parts of the statute or decision they have passed are unconstitutional. For critics of constitutional review, the least dangerous branch turns suddenly into the most powerful one, and substitutes its final, binding decision for the will of the people as expressed in legislation or in executive measures.

Lebanon New Code of Civil Procedure (Qanun usul al-muhakamat al-jadid), 1985, Art. 2: Courts may not declare void acts of the legislative power for incompatibility of normal laws with the constitution or with international covenants (la yajuz lil-mahakem an tu‘ lin butlan a‘mal al-sulta al-ishtira‘ iyya li-‘adam intibaq al-qawanin al-’adiyya ‘ala al-dustur aw al-mu‘ahadat al-dawliyya). In my practice, and that of several of my younger colleagues, reference to the constitution in pleadings has been increasingly common. Courts, especially the administrative Conseil d’Etat, have made reference to relevant constitutional articles, but it is only the constitutional court (al-majlis al-dusturi) that can formally void a particular law or parts thereof as unconstitutional. 53 See for references above note 9. 54 See generally IMEL, above note 1, ­chapter 5. 52

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One can hardly be original in a debate that spans the full course of two hundred years since the Atlantic revolution’s constitutional beginning, but I  will present a brief three-point advocacy in the context of the Middle East constitutional moment flung open in 2011, namely: (1) for courts in the judicial system to be unified in a hierarchy with one supreme court; (2) for all courts to have the power of constitutional review, and (3) for the judiciary to be exclusively attentive in the exercise of its constitutional power to the plea of the person, individually, or as part of a historically subordinated group, rather than adjudicate the disputes between politicians belonging to different branches of government. Let me discuss these three points in turn. (1) Judges have long suffered in the Middle East from the fragmentation of the rule of law among sundry courts. The reason to have a constitution in the first place is to delineate a higher order of law that is true for all citizens, applies uniformly to them, and gets recognized and accepted by their overwhelming majority. There may be additional constitutional pluralism at a lower level, with federated entities, agencies, and local powers issuing their own binding legal edicts, but the central idea is that the overarching rule of law is provided by the constitution and ultimately protected by the judiciary. Whatever happens below is permitted by the higher law and is consistent with it. Specialization is inevitable, for some judges are better than others in deciding on administrative matters, taxes, family disputes, criminal law, daily civil contracts, or commercial and banking transactions. This should not prevent one, single rule of law from prevailing, in which one supreme court clearly guarantees the same rule of law for all citizens, especially when the matter is characteristically constitutional. When the judiciary is fragmented, with no unifying court of last resort, this very principle of “rule of law” is undermined, and part of the common pattern of dictators in the region has been the multiplication of courts with no unifying power at the top. Special and military courts, with little or no right to appeal, are the privileged tools for legitimizing authoritarianism, but the rule of law is also rendered fragile by the division of jurisdiction between administrative courts, which exercise their competence in matters of public law, and the “civil” branch courts (oddly including in French fashion criminal courts), which exercise jurisdiction in matters of “private law.” In the same vein of a “one rule of law” in the country under one supreme constitutional text, there is no place for special courts, and no room for a wobbly rule of many jurisdictions competing with each other without a court of ultimate review making sure that important matters are unified under the banner of the constitution. (2) A  system in which all courts have the authority to rule on constitutional matters is a more controversial proposal. I find the constitutional council model inappropriate. A law passed by parliament that is undone by a court a few days after it is promulgated always leads to a constitutional crisis, especially as the law is

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generally the result of a protracted debate within parliament, and between parliament and the executive. More important, the deleterious effect of a law on the rights of a citizen or a victimized group may be revealed, in real life, months or even years after it was passed. Between the reality of the harm done to the citizen, and the soothing passage of time away from the political heat of recently adopted legislation, the redress sought through the court system is more likely to reinforce the power of the judge as an impartial arbitrator. Judges on Middle Eastern constitutional courts tend to shudder before the idea of 27 million citizens, as the head of the Iraqi Supreme Court mentioned once, lodging 27 million suits multiplied by several factors of many other perceived grievances.55 This makes the passage of the controversial case through lower courts and their iteration toward the Supreme Court an important process, which finds its best example in the US Supreme Court. When lower courts rush a decision, or issue one that is ridiculous (as they are bound to, occasionally), they get rapidly overruled. When the Supreme Court issues an outrageous decision, it usually pays a heavy price for its credibility in the public sphere. As for the proliferation of lawsuits with no rhyme or reason when constitutional law can be advocated before all the country’s courts, this danger is no less present for the dockets of courts generally. Presiding judges have the means to control their dockets. Judges are wily, and citizens astute. No judge is expected to tolerate the abusive and excessively litigious citizen, and the citizen knows in any case that a serious judicial process requires time and money if she wants to win her case. Courts have enough power to pace the rhythm of adjudication reasonably well, and if they cannot do it of their own accord, they can persuade the other branches of government to redirect resources in response to a dire need for the public to see their grievances addressed in a timely way. In any case, the overcrowding of dockets is a problem well beyond the presence or absence of a constitutional writ for the ordinary court. Enacting a constitutional writ for all courts does not answer other pressing questions. Who appoints the judges; what should the composition of the supreme court look like; what span of time is needed in a judge’s tenure to secure maximum impartiality? All these issues are usually included in a constitution. Here answers may vary considerably, but I would suggest that the balance of the discussion in the Middle East over a full century of modern judicial activity argues for a joint appointment between L and E of the Supreme Court’s ten or so judges, with due deference to an internal process of the Higher Judicial Committee when there is one. Life tenure for top constitutional judges is not a good idea, in the same way as the possibility of re-conduction beyond a ten-year limit is not a good idea for the president, the ministers, or parliamentarians. A ten, maximum fifteen years for a judge on the Supreme Court sounds like a reasonable ballpark figure. (3) The third principle is more complex, which states that the judiciary should be exclusively attentive in the exercise of its constitutional power to the plea of the individual, on his own, or as part of a historically subordinated group. Iraqi Chief Justice Midhat al-Mahmud in response to my presentation of this argument at a colloquium of the Max Planck Institute in Heidelberg on “The Future of the Iraqi Constitution— Controversies, Conflicts and Solutions,” Germany, October 2009.

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The main halo for a judge is her impartiality as arbiter. She arbitrates two types of conflicts:  one is intergovernmental, when there is dissension between the executive and the legislature (or between states in a federal system); the other is personal, when a citizen, or a group of citizens, consider their basic rights harmed by some governmental measure, be it a law passed by the legislature or a measure taken by the executive. The judge should be reluctant to intervene in intergovernmental disputes. This cannot be an absolute rule, but the principle is that the two other powers are capable of expressing their views publicly, and that the political process, over time, will make room for a compromise that is superior to any decision that a court could render in the dispute.56 When all fails, the ballot box could be consulted again to arbitrate the dispute turned national crisis. If the ballot box fails again to express a clear winner, then this is signal enough that the matter in dispute is so controversial that even more time should be given to the political process to sort it out between the two elected branches of government. In contrast, aggrieved citizens, or groups of citizens, do not have at their disposal any similar power to redress what they consider a violation of their constitutional right. When an individual citizen has a grievance, his voice does not generally carry very far. And when citizens within a group that has traditionally been victimized and marginalized seek redress through the ballot box, they simply do not have enough votes to implement their collective plea. Here is where the judge’s role is paramount. Judges are human beings :), and political human beings at that, so they hold views that tend to reflect the ruling group’s interests. But the judicial process has enough deliberative qualities to allow contending views to be heard, and to be channeled in a growing confidence of citizens and groups in the impartial judge. The theory is therefore simple, and follows from the analysis developed in the previous chapter:  the constitutional judge should keep out of the political process when L and E are at odds, but she must act when an individual—or a group of individuals described in a famous footnote of the US Supreme Court as “discrete and insular minorities”57—seeks redress against her marginalization by the majority. The most advanced reflection in the field describes the redress of the judge as necessary for aggrieved citizens as part of a “subordinated group.”58

See above Chapter  10 note 14 and accompanying text for the argument made by Jesse Choper, Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court, Chicago: University of Chicago Press 1980. I have long been indebted to Choper’s detailed book for these conclusions. 57 This is the celebrated “Footnote 4” in United States v. Carolene Products Co., 304 U.S. 144 (1938). The ten lines or so text of the footnote, by Justice Harlan Stone, at 152, is a constitutional gem and consists of two main arguments: courts must defend minorities because minorities by definition do not have the necessary vote to protect themselves; courts must keep the channels of representation in power open (see my discussion and use of John Hart Ely’s brilliant reading of the footnote in Democracy and Distrust, Cambridge, MA: Harvard University Press 1980 in the previous chapter). For translation and comment in French and in Arabic, see my “Fin-nazariyya al-dusturiyya al-amirkiyya al-mu‘asira: Robert Bork wa John Hart Ely” (On contemporary American constitutional theory: Robert Bork and John Hart Ely), Proche-Orient études juridiques, 1987, 9–26. French as “Un envers juridique de Robert Bork: John Hart Ely,” Proche-Orient études juridiques, 1987, 31–41. 58 Owen Fiss, “Groups and the Equal Protection Clause,” Philosophy and Public Affairs, vol. 5, 1976, 107–77, see also Chapter 10 note 31. 56

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When constitutions pursue in a new social contract the fight against the return of Middle East dictators, protection against police brutality does not require much convincing as a basic and actionable right for a citizen beaten up upon arrest or during an interrogation. “No more Khaled Saids.”59 But the citizen is also a party to a full social construct. As Bertolt Brecht encapsulated it, “the smallest social unit is not one person, but two.”60 The propensity of the majority to help keep itself “in,” and those who are out “out,” requires a judicial remedial route for those who are locked in a generation-long state of structural subordination. Sects, Subordination, Feder alism The most vexing constitutional challenge of a religious Middle East arises from the effects of a dominant religious sect on minorities also defined religiously: Muslims versus non-Muslims; Muslims vis-à-vis other Muslims belonging to a different sect, mostly Sunnis versus Shi‘is, but also Druze, ‘Alawis, Baha’is . . .  As part of the Atlantic revolution’s constitutional acquis, a Mideast citizen relates to the state directly. This is common to East and West. But he or she also relates to the state, whether that person wants it or not, as a member of a self-sufficient, mediating entity: the religious community, or sect, into which the person is born. Citizens are Christian, Muslim, Jewish, etc. whether they want it or not. The religious logic regularly falls prey to its own sectarian logic, which then focuses on the subset of a given religion. As Muslims, citizens quickly divide into Sunni or Shi‘i, a deep sociological, political, and constitutional fracture in the Middle East. As Christians, they are Coptic in Egypt, Maronite versus Orthodox in Lebanon. As Jews in Israel, they may belong to a reformist or conservative denomination, but more important they stand in a superior constitutional position over the non-Jewish citizen. The atheist, nonbeliever, nonreligiously denominated citizen does not exist in the eye of Middle Eastern constitutionalism. This fracture is sociologically and theologically unbridgeable. It may be a great source of diversity, but such mismanaged diversity is the nightmare of the Middle East, because there is no time-honed constitutional solution to communities and sects locked into demands that can simply not be accommodated. Some countries are luckier than others. In Tunisia almost all the population is linguistically Arab and religiously Sunni. But the current coherence of Tunisia is not a stable one historically, and its Jewish community all but disappeared in the course of two generations, facilitating constitutional stability prima facie, but

Khaled Sa‘id was a young man tortured to death by the police in Alexandria on June 6, 2010. His name brought together the first breach of the Mubarak system of no-demonstration on the street on police day, January 25, 2011, with a “We are all Khaled Saeed” call on Facebook by Wael Ghonim, one of the iconic young activists of the Nile revolution. A good Wikipedia entry is available under “Death of Khaled Mohamed Saeed.” On Ghonim (Wa’el Ghunaim), see Elizabeth Thompson, Justice Interrupted, Cambridge, MA: Harvard University Press 2013, 309–35, at 310 for the Facebook episode. 60 Bertolt Brecht, Kleines Organon für das Theater (A Short Organon for the Theatre, 1949, § 58), e.g. in Brecht, Gesammelte Werke, Frankfort: Suhrkamp 1967, Vol. 16, 688: “Denn die kleinste gesellschaftliche Einheit ist nicht der Mensch, sondern zwei Menschen.” 59

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vastly impoverishing the country in the process.61 Even in Tunisia, the logic of sectarianism remains pervasive, and gets transferred to the secular-religious divide, with the main political fracture taking the shape of a contest between Islamists and secularists. This may not be totally new to constitutionalism. The state/church separation continues to be a point of contention in other societies. The fracture is different in the Middle East because the religious community is an agency that is not necessarily a conscious political expression, for its constitutional status is not akin to the Evangelicals of the US Bible Belt, the Catholics in Ireland, the militant Orthodox churchgoer in Greece or Russia, or the Indian Bharatiya Janata Party (BJP) on its sectarian Hindu rise in the 1990s. In the Middle East, the citizen cannot escape the agency of her sectarian group in constitutional terms. So here vests the Middle Eastern challenge to world constitutionalism:  the sectarian system (Arabic ta’ ifi), also translated as communitarian, religious, communal. The sect is a constitutional agent. The Middle East is a world of communities/minorities sharing a space called the modern state, which is partly the arbitrary result of colonial powers drawing lines in the sand, a trait it shares with emancipated colonies across the European invention of the nation-state at Utrecht, and concomitantly of international law.62 The arbitrariness is not all European-made. Modern boundaries were also defined by the Middle East’s own long wars between premodern empires, notably the understudied four-century-long conflict between Shi‘i Iran—the historic Persia, and the Sunni Ottomans to its West; and to its East Sunni Afghanistan and Pakistan—and the India-centered Sunni Moghul empire. The fluctuating, warring lines of Shi‘ism and Sunnism were dictated primarily by religious sect turned political expression, leaving minorities stranded near the shifting boundaries and beyond, in an allegory best captured in the eerie atmosphere of Julien Gracq’s powerful novel Le Rivage des Syrtes (1963). A manuscript dating from 1743 in Najaf offers a powerful insight into the subtleties of sectarian markers between Sunnis and Shi‘is against all efforts by the conquering Shah to overcome the divide. However hard the ban of Sunni-Shi‘i markers of identity imposed by Nader Shah in an attempt to erase differences, hidden expressions obdurately persist among both communities in the face of the naïve ruler who wants to bring them together come what may.63 One cannot wish constitutional sectarianism away. In terms of nation-states, it is true that this religious divide is shared, in Braudel-like longue durée, with the Catholic-Protestant-Orthodox fractures in Europe, which explains I  was drawn early on to this reality by former prisoner of opinion and first director of the Amnesty International Beirut-based Middle East regional office, Kamel Labidi. See for a humanist approach, and photographs, Lucette Valensi and Abraham Udovitch, Juifs en terre d’Islam: les communautés de Djerba, Paris:  Archives contemporaines 1984; see also Michael Fischbach, Jewish Property Claims against Arab Countries, New York: Columbia University Press 2013, 90–91, for discussion of the Jewish exodus from Tunisia and the expropriation of Jewish assets. 62 The invention of international law as we know it by European scholars as a Foucault expression of power is argued in Anthony Anghie, Imperialism, Sovereignty and the Making of International Law, Cambridge: Cambridge University Press 2004. 63 ‘Abdallah al-Suwaydi (d.1761), An-Nafha al-miskiyya fil-rahla al-makkiyya (“The musk scent in the Meccan trip”), British Library Oriental Manuscript # 18518. The manuscript was completed in 1747, and is discussed in my "Religious Militancy in Contemporary Iraq: Muhammad Baqer as-Sadr and the Sunni-Shi‘a Paradigm,’ Third World Quarterly, vol. 10, 1988, 699–729, at 699–702. 61

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major current boundaries, remember Utrecht,64 at a time when the religious expression has been significantly muted constitutionally and sociologically across the Atlantic world. Sectarianism continue to be lived dramatically in the other historic divide of Western Christianity, in the Balkans, between Catholics and Orthodox. Serbia and Croatia are not conceivable as independent states without that key sectarian component. Nor is the Ottoman-old divide between Christianity and Islam absent from the long Balkan memory. Still, in the West, including across the length of the European Union, sectarianism is peripheral to the constitution. Even in the Balkans, an attenuated sectarianism interacts awkwardly with national and linguistic domination. But in the Middle East, sectarianism is at the center of the constitutional picture, projecting itself onto the world scene in sundry and sometimes unfathomable ways.65 So appears the dual Middle Eastern citizen: he is a national, a citizen, in the Western territorial sense, in a logic that drives bright and clear lines over a given territory. At the border of Saudi Arabia, Saudi Arabian law stops, and Kuwaiti, Iraqi, Jordanian, Omani, and Yemeni law start. Political community also stops at that border. Saudi nationals work out differences within their domestic political community differently from the Omanis and Yemenis on the other side of the border. Buffeted by the revolution of 2011 and its aftermath, the territorial nation-state of the Middle East remains a harsh and pervasive reality. At the same time, the citizen of Saudi Arabia is Sunni versus Shi‘i, sometimes even Sunni Hanbali versus Sunni Shafi‘i, the Israeli citizen is Jewish versus Muslim (or Palestinian, or Arab, or in another variation, Christian), the Lebanese citizen is Christian Maronite versus Christian Orthodox, or Sunni, or Druze . . .  All too often, the sect trumps the nation. The fig leaf of citizens’ equality within the territory of the nation-state, meaning the state that corresponds to the ethnolysed nation, does not hold in the Middle East. The communities qua sects are active, exclusive, brutal within and toward each other. When not at war, they are suspicious of each other. When not at war, they can also be kind and tolerant, and temper the excesses of their more radical fringes. So how can constitutionalism solve this dualism, especially when dualism allows sectarianism to dominate the constitutional scene at the expense of equal citizenship? I started this discussion by pointing out the potential role of the constitutional courts in the protection of subordinated groups. Because constitutional courts are a novelty in the region, there is little case law that can be built on where a subordinated group as such finds solace in judicial review. The dearth of case law in the matter does not necessarily mean that the horizons are shut to a corrective judicial role. Nonviolence after the Middle East

Utrecht rather than Westphalia, see above, first section of Chapter 5. Examples abound, immigration-demography being the most obvious in Europe, but the impact of internal Muslim sectarianism has gone global. Oil money and disbursement of subsidies tied to the two richest government patrons, Saudi Arabia and Iran respectively, operate worldwide. In other examples, Sunni-dominated countries in the Arab Gulf Arabia are wary of Shi‘i labor and tighten visas, and there is even sectarian contraband in the early 2000s in the semi-lawless “Tri-border” area between Argentina, Paraguay, and Brazil, with a heavy influx of Middle Eastern Shi‘is, see, e.g., the report of Rex Hudson, Terrorist and Organized Crime Groups in the Tri-border Area (TBA) of South America, Washington DC: Federal Research Division, Library of Congress, July 2003.

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revolution inscribes in its constitutional expectations the duty of courts to protect subordinated groups. The debate is bound to persist, and to build on both comparative constitutional law and the Middle East tradition, where a departing point is the Code of Hammurabi’s emphasis that law is first and foremost meant to “protect the weak from the strong.”66 This principle, which appears so general as to defy application in the real world, may not prove so elusive if the judge is entrusted with the protection of the “weaker individual” in constitutional matters, and in particular the individual who is part of a group that has been subordinated historically by the majority. This chiefly includes women and ethnic and sectarian groups. The particularity of women as “group” or as “minority” is an issue of worldwide difficulty. Women are a constructed minority, not a numerical one, in the Middle East or elsewhere, and they are generally protected constitutionality by the equality clause when it comes to voting. In theory therefore, women are capable of mustering enough votes to make their voices clear and decisive. The practice is very different. Rights of women in the Middle East pertain to the religious tradition’s most sensitive manifestations, and all three dominant monotheistic religions have historically considered women subaltern, subordinate to men, at best “separate but equal.” Although there is nothing Middle Eastern in this subordination, the alignment to the standards set by international law, the 1981 Convention on the Elimination of Discrimination against Women (CEDAW) especially, is one way of confronting de facto and de jure inequality. A thick understanding of equality is necessary to ensure women’s constitutional rights, and constitution-drafters must be innovative in this regard at the various levels where the terrain of gender equality plays out, chiefly representation in government, enhanced rights during and after marital life, and inheritance. The sectarian issue is more trying. In over two decades of thinking the issue through, I  cannot find an adequate constitutional answer. There are moments of national unity where the citizens leave their sect behind, and the Middle East nonviolent revolutions, at the peak of standing up to the dictator, created that magic. As if an inexorable social law, the magic soon recedes. The constitutional aftermath seems incapable of capturing the moment to make it last; but it is the historic duty of constitution-makers in the Middle East to at least make a serious attempt to solve the sectarian constitutional riddle. To express disappointment at solving the sectarian riddle does not mean that it can never be solved. Nor can constitutions wait for grand political theory to mature enough in order to provide the magic solution. Hic Rhodus, hic salta. Opening “New” Windows At the end of this constitutional journey, I will argue, once again, the benefits of action in philosophy.67 For the purposes of the discussion in this chapter, I use Iraq, where I had to confront the two central issues discussed in this chapter as the springboard for the Middle East post-2011.

“Prologue,” in English version and commentaries of the Hammurabi Codex by G.R. Driver and John Miles, The Babylonian Laws, 2 vols, Oxford: Oxford University Press 1952. 67 I had a number of occasions to weigh in on the sectarian debate in Middle Eastern countries, either as part of an advisory team, or in a less constrained way, as a constitutional jurist seeking to emulate the Federalist 66

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The first is the place of Islamic law in the system. The Iraqi constituents in 2004 and 2005 had agreed on an improved version of Article 2, which accepted both the principles of the shari‘a and the principles enshrined in the Constitution to represent the ultimate point of reference for the judge.68 I tried in the Constitutional Revision Committee discussions of 2009 to suggest a more enriching process where the CRC could rephrase several clauses in a more national style that included Islamic fiqh dispositions.69 Although the Committee as a whole was intrigued, the proposal did not get enough traction. My explanation for the caution toward the proposal, especially in the presence of a well-liked chairman, himself a man of religion, was the fear of Shi‘i-Sunni disagreements. If judges were to take Islamic law seriously, then Iraqi judges might descend in each case before them into a treacherous debate in which the Shi‘i legal interpretation would prevail over the Sunni one, or the opposite. This threatened a continuing constitutional civil war. Still, the experience is worth a try. Egyptian judges on the SCC under ‘Awad al-Murr have shown the way out of this conundrum. Like colleagues elsewhere in the world, judges will seek the better arguments in the complex juridical koine they belong to: Qur’an, hadith, qadi decisions, fiqh authors in the Middle East, with variations on other religious and more secular traditions, that is the Constitution itself, its Preparatory Works, Federalist Papers-like discussions when properly recorded, Supreme Court precedents, the better legal authors and decisions elsewhere in the world. The best and most learned arguments tend in the long run to prevail in the judicial marketplace of ideas. So the problem of Shi‘i and Sunni sources in Iraq is not insuperable, as judges will deliberate and write in a manner that involves a large array of sources, some of which belong to the fiqh, while others are sought elsewhere. That was only a relative failure in Iraq. The argument of the enriching contribution of Islamic and other national legal traditions, the generally amicable attitude to “best international practises” and to the international law thicket of treaties, is worth a larger collective effort across the constitutional moment in the region.70

Papers style. Iraq was the most interesting experience. With Haider Hamoudi, I participated on an almost daily basis during the spring and summer of 2009 in the Constitutional Review Committee (CRC) that worked on completing some fifty articles that had been left incomplete or too hazy in the constitution adopted in 2005. The CRC had done impressive work to circumscribe the outstanding problems since 2005, but the political deadlock prevented it from moving forward once it identified the seven areas of contention where a minimal consensus between the major parties could still not be found: personal status issues (Art. 41 of the Constitution); the status of the capital Baghdad (Art. 124), powers of the president and of the prime minister (Art. 72ff); oil and gas (Arts. 111 and 112; federal and state powers (Arts. 114 and 115); primacy of federal law and jurisdiction (Arts. 114 and 115); and powers of the Federal Council (Arts. 65). The 2008 text is entitled Muswadda awwaliyya- Al-taqrir al-niha’ i li-lajnat muraja‘at al-dustur (First draft—the final report of the Constitutional Revision Committee), July 7, 2008, on file with the author. 68 Text above at note 43. 69 See a few examples in my Iraq: Guide to Law and Policy, Austin, TX: Kluwer 2009, 47–8. 70 It can, of course, also get worse. For the worsening of the sectarian situation, Egypt post-2011 provides an example. With the rise of sharp religious intolerance in the year of Muhammad Mursi’s presidency, the Muslim Brotherhood included an article in the Constitution of 2013 that was obviously directed against Shi‘is, an insignificant minority in the country. Article 219, Egyptian Constitution of 2013:  “Mabade’ al-shari‘a al-islamiyya tashmul adillataha al-kulliyya wa qawa‘ idaha al-usuliyya wal-fiqhiyya wa-masadiraha al-mu‘tabara fi madhahib ahl al-sunna wal-jama‘a’ (the principles of Islamic law comprise its general

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The failure in devising a coherent constitutional way out of the sectarian conundrum in sharing power is more acute. The sectarian constitutional problem vests in the very issue of identity and citizenship. The Iraqi constitution does not mention that the prime minister (the most important position as head of the executive), the president (an honorary-plus position that has some teeth politically and legislatively) and the speaker (conceivably an important figure directing the legislative process) should be respectively Shi‘i, Kurdish, or Sunni. On the face of it, the Iraqi constitution is not sectarian. In reality, it is heavily so, and the pattern will not move easily from the practice established in 2005. The longer these positions are so assigned, the more sectarian constitutionalism gets entrenched Lebanon-style. Iraqis are highly aware of the risk, and cite Lebanon as the nightmare they do not want to find perpetuated in their constitutional system. They are right, and my colleagues and I  proposed in a preliminary study to the Iraqi Constitution Review Committee a number of options to lessen the risk. In broad outlines, two may have some usefulness for Iraq and the rest of the region in their post-revolutionary constitutional moments.71 The first is to encourage a political game of musical chairs where no position remains the privilege of any given sect or ethnic group. If the Iraqi president is Shi‘i, the prime minister Sunni, and the speaker Christian, where is the harm? Such configuration is a nonstarter in Iraq, because the Kurds will cry foul for being excluded from the top position (even if there are a few Christians living among the Kurds). More subtly, the Shi‘i community will not easily accept that the most important position is not “theirs.” One way out is to multiply important constitutional positions, with a wider balance that attenuates some of sectarianism’s provocative edge. In the early days after the removal of Saddam, Iraq actually presented an alluring constitutional model of government, where an Iraqi Governing Council of twenty or so members saw them alternate at the head of the Council every month. A woman (who was assassinated) even made it to that presidency. Similar in ways to the Swiss model, this arrangement is worth examining more closely, both for the oppositional front needed to get rid of dictators, and a governmental structure that would naturally include leaders of the “natural” components of society.72

rules and jurisprudential method as understood in the Sunni schools)”, see Mallat, “Reading the Draft Constitution of Egypt: Setbacks in Substance, Process, and Legitimacy,” Ahram online, December 2, 2012. The sudden inclusion of the article in late 2012 was accompanied by growing intolerance for Egyptian Shi‘is, considered to number no more than a few hundreds of thousands in the midst of some seventy million Sunnis. In June 2013, four Shi‘i Egyptians were killed in a village south of Cairo, see Amnesty International, “Egypt: President Morsi Must Send Clear Message against Attacks on Shi’a Muslims,” June 24, 2013. 71 See above note 67 and accompanying text. Haider Ali Hamoudi, who also attended the sessions of the CRC, has incorporated some of the discussions in Negotiating in Civil Conflicts— Constitutional Construction and Imperfect Bargaining in Iraq, Chicago: University of Chicago Press 2014, 2–6 and sv Constitutional Review Committee. 72 In a protracted revolution, including nonviolent ones such as Bahrain, the organization of the opposition in as united a front as possible parallels this constitutional structure-to-be. The wide representative dimension of the organization is needed not only politically, but also importantly legally as the “oppositional government” seeks recognition abroad and the population’s acceptance of its administration in the territories freed from the dictatorship. Early in the Syrian case, when the revolution was still dominantly nonviolent, I adumbrated the argument with colleagues at Right to Nonviolence in “A Strategy for Syria

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This multiplication of significant constitutional assignments without a particular sectarian or ethnic limitation on each is also enriched through a federal system. As the federal system is superior to a centralized one from a constitutional science perspective, even for countries where the population is homogenous, the federal route deserves to be probed further to address Middle East sectarianism. Federalism allows experimentation at the level of the state/region,73 an enticing way to enrich the national debate. One needs to dwell longer on this trait, which I repeat here in conclusion as we search for a way out of the sectarian deadlock. Federalism has a counterintuitive dimension that tends to be ignored even if it may be the most important benefit of the system. Although a federal system is conceived as a surrender of central authority to the region’s autonomy in a number of issues, this reading is incomplete, for it passes under silence a far more beneficial contribution: Federalism amplifies the voices of the region in the center, and presents a major factor of unity over time in the country. It is known that senators are powerful political agents in the US democracy, because they disproportionately represent their constituencies in the heart of the federal capital. Iraq’s Constitution of 2005 openly considers itself to be federal. But it still has no Senate, which would strengthen the regional voice at the center, and by doing so, make the country more solid. A Senate would also lessen the sectarian weight on constitutionalism by a dual mechanism: the first adds constitutional positions of importance (Senate majority and minority leadership) that make further room for the national musical chairs game; the second effect is less tangible, but no less significant. Through the inevitable debate and conflicts over federal laws, budgets etc., the dominance of the sectarian logic on the political and constitutional debate competes with the federal unitarian logic. In due course, sectarian distortions may be considerably attenuated and fade away. For constitutional design, federalism is one of the most promising routes for the philosophy of nonviolence in the Middle East to stave off the dual specter of sectarianism and secession. With the musical chairs fluidity, federalism, and the judge as the protector of minority rights, some institutional design can conceivably unhinge the stone-cast Middle Eastern sectarian deadlock. Not having been tested yet, it might fail to undo the straitjacket. But this is where revolutions open up opportunities that were simply inconceivable before. This is why they are called revolutions. Rethought federalism and separation of powers, a different calling for the judge, rotation of official positions, multiplication of mediations, the civil society lens, women’s “natural” representation in power: all these categories thought anew deserve to be investigated as the next constitutional frontiers of the philosophy of nonviolence in the Middle East and beyond.

under International Law: How to End the Asad Dictatorship while Restoring Nonviolence to the Syrian Revolution,” Harvard International Law Journal online, March 2012, 144-54. For the argument developed in international law see Danny Auron, “The Derecognition Approach: Government Illegality, Recognition, and Non-violent Regime Change,” George Washington International Law Review, vol. 54, 2013, 443–99. 73 The concept of “states as laboratories,” which stands for the proposition that states should be able to democratically innovate by tailoring policy solutions to their own unique, local challenges, originated in Justice Brandeis’s famous dissent: “To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).

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As societies move away from the day when the dictator fell, the dynamic unity of a massive, nonviolent revolution recedes before the scramble for power. The constitutional moment seems to erase the process by which the dictatorship was removed, be it violent or nonviolent. A working constitution is the privileged way to institutionalize this scramble away from violence, but the logic that the constitutional moment triggers responds to a very different set of problems. The central concern during the revolution is to rid the country from its dictator. After he falls, the central concern is how to organize the new government, an eminently fractious process of contending forces unleashed into freedom after decades of oppression. Here politics and constitutionalism are intimately intertwined, in a fluid equation where new forces seek to pull the rug of power on their side irrespective of any “veil of ignorance,” while the constitution operates as a normative goal that ensures, in due course, that society is ruled by law. The set of constitution-making problems covers a full gamut of issues summarized by the acronym “LEJFARC.” This is a constraining ensemble of constitutional categories. To these universal issues the Middle East adds its own idiosyncrasies, represented by the dual set of religious and sectarian challenges. In the order of reasons for the philosophy of nonviolence proposed in this book, the compelling search for constitutionalism as a new social contract does not set the Middle East radically apart from other societies. Post-dictatorship arrangements in Cuba, Burma, Russia, or China share the constraints of a core constitutional format that has endured since the Enlightenment in Europe, but each country or region will adapt its own cultural linguistic and institutional peculiarities as they best fit the LEJFARC template in its culture.

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Nor does a philosophy of nonviolence allow for a distinctive break between the constitutions that follow the fall of the dictatorship in a violent as opposed to a nonviolent revolution. In both cases there is a need for a new constitution, or for a full set of significant adjustments to the previous one, moving society to a social contract where politics is carried out without violence. Constitution-making cannot erase the contrast between the absolute nonviolence of society revolting and the necessary violence of state coercion to apply laws adopted freely in the wake of a deliberative democratic process. A constitution merely regulates the use of force by the government through the police and the judiciary in a way that, in principle, affects only “common” crimes. Constitutionalism poses questions that are similar for all societies that follow dictatorial rule, whether the change is nationally produced or imposed by a foreign power, as in Iraq, and whether the revolution was violent, as in Libya, or nonviolent, as in Tunisia. This view, however, is too simple. Nonviolence matters considerably in a comprehensive process where constitutionalism depends in the first place on its fulfilment of an explicit revolutionary message that shuns the use of any violence in the removal of the dictator. Empirically, and as a matter of evidence, a nonviolent revolution helps the constitutional process by preventing a revolutionary militia from continuing to wield its weapons in the face of the new constituents, and to skew any electoral process by putting its guns to disproportionately weigh on the table. Arms-wielding revolutionaries constitute a serious impediment that nonviolent revolutions simply do not have to contend with. There are no militias to start with when the revolution is nonviolent. There is more than meets the eye in the problem of armed men pushing their advantage on the electoral or constitutional table. In a philosophy of nonviolence, it is the same social and cultural worldview that presides over constitutionalism as the moment following the revolution, because constitutionalism is precisely the search for nonviolent conviviality at the next stage. The constitutional moment is the natural continuity of the nonviolent revolution. For the armed men of the violent revolution, a constitution represents a social and cultural discontinuity that renders them obsolete unless it gives them power. This translates in heightened unease with political violence subsequent to the nonviolent revolution, in marked contrast with a violent revolution. The reason a new political assassination appears far more intolerable after a nonviolent revolution is precisely because the revolution got rid of its dictator without even thinking about physically harming him or the cohort of his repressive agents. A whole system of repression comes crumbling down without a shot, rendering violence exercised by one revolutionary group against another both odd and intolerable after the dictator has been deposed. The contrast between Tunisia’s and Libya’s constitutional processes is telling. Tunisian reaction to the assassination of two political leaders in 2012–2013 led to a powerful nonviolent mobilization, whereas the assassination of scores of people in neighboring Libya continued unabated. This is also why Yemeni violence is more intense than in Tunisia. I argued in the first Part of this book, and will further examine in the next one, how justice in the form of judicial accountability constitutes an intrinsic part of the philosophy of nonviolence. In Yemen, a major vector of systemic violence—the dictator in power since 1978—remained beyond accountability, and he was allowed to openly push his disruptive agenda to prevent the country from going ahead in its constitutional moment. The process in the wake of a

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nonviolent revolution is necessarily more indignant toward such arm-twisting when the dictator is behind bars undergoing a public trial. With the philosophy of nonviolence in mind, one must then read the post-Mubarak era in Egypt through a very different lens than if violence had brought down the president-for-life. Through the ups and downs of the constitutional process, the original nonviolent mark of the Nile revolution resurfaces at various stages. Reversing nonviolence started when the military stepped in initially through the Supreme Council of the Armed Forces (SCAF), instead of allowing civilians to guide the transitional process. The nonviolent revolution continued against SCAF. When Mursi was elected, nonviolent revolutionaries sighed with relief and concern at one and the same time. The former prime minister of the old regime, who would not have even dared run for the presidency without the military hijack of the revolution, was defeated by Mursi. This was the relief. As the Mursi presidency unfolded, the nonviolent revolution was rightly concerned by the betrayal of the Muslim Brotherhood’s promise of revolutionary unity and their blatant drive toward absolutism. Both the Brotherhood’s commitment not to run for the presidency, and their commitment to a civil, madani, as opposed to a religious, dini, system were breached. The following year saw a concentration of powers in the hands of a president who behaved very much like Naser, Sadat, and Mubarak. Through the next phase of the constitutional moment, Egypt’s Supreme Constitutional Court judges were surrounded in their very building and physically threatened. The constitutional process was then railroaded into a Constituent Assembly that ended up with the Muslim Brotherhood exclusively writing the text, while the president pressed on regardless with a paltry referendum. In 2013, the people revolted again, nonviolently. The army went in, and again hijacked the massive nonviolent days of the revolution in June–July 2013 as soon as Mursi was deposed. Throughout the ups and downs of the Nile revolution, the nonviolent ethos dominated the public scene and forced the questions that only nonviolence could explain: How could the army shoot into the Maspero protestors?1 How could a freely elected president bully his way through unilateral constitutional declarations? Why were there still nonviolent protestors in prison in their thousands? How could women be so systematically humiliated?2 How could the army shoot into the squares where the Muslim Brotherhood had assembled?3 These questions would have been very different had the revolution been violent. Only nonviolent philosophy, repeatedly undermined by dictatorial practices from both army and Islamist leaders, can explain the philosophical thread continuing through

The Maspero killings took place on October 9, 2011, when young Copts demonstrating in Maspero place were attacked by the army. Some thirty young people were killed. For details on the Maspero massacre and a pattern of sectarian killings, see the report of Human Rights Watch, “Egypt: Don’t Cover Up Military Killing of Copt Protesters,” October 25, 2011. 2 See reports cited in Chapter 4 note 98. 3 The Rab’a al-Adawiya (Rab‘a al-‘adwiyya) Square killings took place in mid-August 2013. Major human rights organizations had warned against the impending repression, see Amnesty International’s warnings in “Egypt’s Decision to Disperse Sit-Ins Is a ‘Recipe for Disaster,’ ” July 31, 2013. For an early report of over 377 killings see Human Rights Watch, “Egypt: Security Forces Used Excessive Lethal Force. Worst Mass Killings in Country’s Modern History,” August 19, 2013. 1

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the revolutionary demands of justice for the nonviolent demonstrators and activists who had been shot, imprisoned, or tortured after Khaled Sa‘id and Ahmad Mahmud.4 The battle for the constitution continues along these fault lines: how not to reproduce dictatorship under any guise, religious, military, or corporatist. Like judicial accountability, which is the subject of the next Part of this book, the philosophy of nonviolence gets expressed in its own specific course running through its three core components: the revolution, constitution-making, and the accountability process. This continuity compels a world vision that goes far beyond a mere technique of nonviolence during the revolutionary phase. The philosophy of nonviolence is one in all three moments. It is absolute during the revolution. It is then expressed in a constitutional process that absorbs all parties to the nonviolent revolution, leaving violence by the state to cases not manifestly political. We now need to see how it operates in its third constitutive component: justice.

Ahmad Mahmud was a young journalist shot to death by a sniper on October 28, 2011, as he was covering the first large demonstration on the occasion of “police day,” which was itself convened in remembrance of the death in prison of Khaled Sa‘id, see on Sa’id Chapter 11 note 59.

4

The vital idea of the Revolution had burst in an incomparable light from 1789 to 1792: The idea of justice. Michelet1

Part thr ee Justice i

“L’idée vitale de la Révolution, elle avait éclaté dans une incomparable lumière, de 89 à 92: L’idée de justice.” Jules Michelet (d.1874), Le Procès de Louis XVI, Brussels: Complexe 1992 (Original ca 1850), 62.

1

13  Introduction The Or der of R easons R estated

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If nonviolence is the central philosophy of the Middle East revolution in world-historic terms, let me restate the thesis again in the light of the conclusions reached in our journey. The first moment of the irruption of nonviolence as the nexus of a philosophy of history came from the massive march of people across the Middle East in 2011, following the unsuccessful Cedar and Green nonviolent revolutions in Beirut and Tehran in 2005 and in 2009. Nonviolence in absolute is possible during the revolution, the new Middle Eastern reality decreed: in Lebanon in 2005–2006, in Iran in 2009, in Tunisia and Egypt in January–February 2011, in Bahrain since 2011, in Yemen since February 2011, and in Syria from March 2011 to the militarization of the revolution in the summer of 2011. Such characteristically nonviolent revolutions have also been in evidence in practically all other countries where massive popular resistance in the shape of widespread demonstrations took place, including Oman, Kuwait, Saudi Arabia, Morocco, Jordan, Algeria, and Sudan, as well as Turkey and Israel against a different background of authoritarianism. The upshot is clear. Not a single security agent, however brutal, needs to be killed or physically harmed by the revolution. Conversely, the security apparatus of the dictatorship thrives on violence, a premise without which the revolution cannot be nonviolent in the first place. Violence defines dictatorship, against which the Enlightenment and the Middle Eastern classical tradition allow, and sometimes encourage, the armed rise of the oppressed citizens against their tyrannical ruler. The right to take up arms against tyranny makes the choice to pursue nonviolence a paradigmatic change in the philosophy of history. Coming in the tracks of other such world-historic moments ending the Soviet system in Russia and Eastern Europe in

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1989–1990, mostly by nonviolent means, the Middle East revolution anchors nonviolence further at the heart of a novel philosophy. The revolution can be nonviolent so long as the dictator is in place. Absolute nonviolence is bound in time by the dictator’s survival in power. Once the dictator is removed, a constitutional moment starts, where legitimate coercion through a fair legal process becomes necessary within the monopoly of violence that the government qua state exercises. To uphold the rule of law, the state cannot function without “the monopoly of violence,” in Max Weber’s celebrated aphorism, or, in Robert Cover’s elegant phrase, without “judges dealing pain and death every day.” As the objective of the revolution is to replace the dictator’s arbitrary rule by a system of government ruled by law, the successful revolution is bound to redefine the social contract in terms of human rights and democratic constitutionalism against the defeated dictatorship. Until the revolution succeeds, that is until it captures the government, the revolution can be nonviolent, absolutely so. After that, the use of violence by the government is back as the norm, this time in a set of constraints we call democratic because they involve a tangible measure of choice by the people of their representatives and because the rule of law provides the citizen with basic rights, including the right to change the ruler at the helm in a way that makes a new revolution unnecessary in the first place. The paradox at its strongest is that the government, even a democratic government, is violent by legal monopoly, and that the revolution is and has been nonviolent in the absolute. That is, until the revolution captures it from the dictator. After that, it has no choice. It must convey violence through the rule of law represented metaphorically by a working constitution, and by the judge who ultimately protects social peace with the assistance of the government’s coercive force. This paradox, described in the Kant-Cover juxtaposition of a perpetual peace between participant countries that are violent domestically, is solved by a temporal conception of the revolution. If, in order to succeed, the nonviolent revolution has an inevitable objective, namely to capture the state and produce a government that is perforce violent, then even its absolute nonviolence needs to be qualified in time. The revolution can remain absolutely, pristinely, nonviolent, as it unfolds toward the deposition of the dictator. But the revolution cannot be permanent, as it inevitably seeks to anchor its success in a constitutional moment delivering a government of its own. Without such government, we have secession, anarchy, or jacquerie, all unsustainable disorders, and each commanding its own more-or-less severe dose of violence. The stated and clear objective of the new social contract in the nonviolent revolution includes the protection of the people’s basic rights, as well as their individual and collective right to remove the government in regular, free elections, or indeed in renewed peaceful marches. The successful revolution wants liberty and security for the citizen, which is never offered by dictatorship. This is why its constitutional moment is so important. In time, the successful revolution re-establishes judges who deal pain and death. But there is also a difference in nature: in a revolution, the arbitrary law of the dictatorial state is defied in its essence. Dictatorial law is an oxymoron, and the revolution exposes its transmogrifying arbitrariness. There is no law left to obey during the revolution, as there is no legitimacy in the dictator or any of his acts. Law in a dictatorship is a monster, Nietzsche’s Ungeheur. In the state post-dictatorship, the law recovers its legitimate monopoly over violence, expressed in the constitution and derivative legislation, and in a working judiciary. By nature, a nonviolent revolution is at one with the expectation of a democratic constitution.

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Taking over the government is the revolution’s main objective, first formulated in the negative:  the people want to bring down the despot. The nonviolent revolution knows perfectly well that violence will soon return in the state monopoly over it, consensually channeled in a procedure that is called democracy, good governance, free and fair elections, transparency and accountability, and an independent court system—all expressions of a system in which massive active consent is so dominant and effective as to make lawbreaking a punishable behavior by the agents of the government under the control of an impartial judiciary, aka the rule of law. Part and parcel of the philosophy of nonviolence is therefore the rule of law as the constitutional moment of the Middle East revolution, when society freed from the dictator focuses its energy on rewriting the social contract in a constitution, thereby institutionalizing nonviolence as a way for the citizens to compete for political power without shedding blood. The constitutional process is never linear, and the Middle East revolution is complicated by the many countries that are part of it, each with its own rhythm and idiosyncrasies, each looking over the borders to see how political trends, elections, and constitution-making are progressing and receding elsewhere, and each traversed by the world historic moment unleashed in 2011. Despite the diversity of the revolutions, the condition for nonviolent philosophy to succeed at that second stage of constitutionalism is to preserve the joint dynamic of the revolutionaries who brought the dictator down, at a time when elections are bound to create competition for power and divisions that weaken the unity achieved in the first stage of the nonviolent philosophy of history. That minimal standard of conviviality is what ties constitution-making to the nonviolent spirit that prevails in the revolution, and I have examined the proposition in some detail in the second Part of the book. A third constitutive moment for the philosophy of nonviolence is formed by accountability, especially judicial accountability for the members of the fallen regime who have the blood of nonviolent dissidents and unarmed protesters on their hand as the most recent expression of an enduring cruelty coextensive with dictatorship. A central issue, what to do with the ancien régime pillars, arises with palpable urgency when the dictator is massively challenged by the revolution. Blood shed by the dictator is a structural component of his system, and his shedding the blood of nonviolent revolutionaries who revolt against him tends to increase during the revolution’s last phases. The call for accountability rises markedly in response to the ruler’s intensified repression. In the nonviolent philosophy’s order of reasons, the question of the dictator’s criminal behavior and the need to deal with his regime’s bloody legacy are important well before the ruler comes tumbling down. As the revolution sets out to remove the dictator without shedding his blood or the blood of those who sustain his system of repression, its vocation gets enmeshed with the expectation to bring the ancien régime’s leading figures and torturers to trial. This makes for the slogan shouted across the Middle East revolution—“al-sha‘ b yurid isqat al-nazam, The people want to bring down the regime,” philosophically at one with the slogan “The people want to try the president—al-sha‘ b yurid muhakamat al-ra’ is.” This is the subject of this third Part of my proposed philosophy of nonviolence. Chronologically, there is some coherence in the succession of the three moments, revolution-constitutionalism-justice: nonviolent revolution leading to a constitutional process that develops while the accountability for the dictator and his aides gets fulfilled in trials and other processes that come to terms with the violent past. Chronology, however, is

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not always so tight. International indictments can take place during the revolution, accountability is made difficult by the flight or death of the rulers, the constitutional moment expands or contracts depending on the political flow of the revolutionary aftermath, and constitution-making dovetails with the trials of the dictators and their aides. In the order of reasons, the three moments make sense only as part of the one and same world-historic transformation examined as a whole in this book under the prism of nonviolence as philosophy of history. The coherence of the three moments is compelling to the extent the revolution fuses them in a common perception and action as one undivided philosophy. Nonviolence cannot rise to philosophical significance without a coherence that is more than a mindless jacquerie wanting the hated ruler and his corrupt system brought down so that some revolutionaries simply sit in his chair and divide the spoils. I examine in this Part the third constitutive moment of the philosophy of nonviolence. We need to consider this judicial moment carefully. Trial means process, procedure. It can always turn meaningless, as in Kafka’s celebrated novel, or particularly cruel, as all the trials of dissenters under the dictator. In addition to the pitfalls of Kafkaian and Stalinist trials, the logistics of the establishment of justice, which the dominant literature calls “transitional,” raises several questions for the Middle East revolution. They are not unique to the Middle East. Like constitutionalism, they raise universal as well as specifically regional and national difficulties. “Transitional justice” was discussed at length in the French revolution, and in all the revolutions where the king and germane dictators found themselves on trial since Louis XVI. The logistics are important, and one should dwell on the now-considerable experience of world revolutions, both violent and nonviolent, to distill the constitutive part of justice in a philosophy of nonviolence. Should the dictator be tried, when and where? Under which law, and by which judge? Would the revolution not lose by cornering him into the promise of a cell for the rest of his life? Should he be indicted before the revolution succeeds? Internationally? What are the consequences of an indictment? What punishment is appropriate? Is the death penalty consonant with a philosophy of nonviolence? Is the dictator to be tried alone? How far down the list of regime pillars and apparatchiks should accountability go? How does the successful revolution organize compensation for his victims? What about corruption and the assets siphoned off during the dictatorship? Are there other, alternative or better ways to deal with the bloody past, through truth and reconciliation commissions, lustration laws, restitution, and monetary compensation? Can we establish a hierarchy of compensation, a pyramid of accountability? In this third and final Part of the journey, answers are sought to these questions in the light of a universal record that also includes a generally unknown set of Middle Eastern precedents. The various facets of justice as an essential part of nonviolent philosophy are then discussed in a Coda with a brief examination of the role of the rest of the world in the search for justice.

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In the legal history extant, justice for the victim starts with Hammurabi and the record left in the cuneiform tablets in the Ancient Middle East. This impressive first code dates from some four thousand years ago, and consists of a moving prologue, 282 articles, and an epilogue.1 Along with “the protection of the weak,” which is inscribed in both the Prologue and the Epilogue as one of the law’s central objectives, the Code also includes more specific criminal dispositions. With some nuances and adaptations, the principle of the punishment of the murderer by the state appears to Hammurabi’s world as true then as it is now.2 The Codex Hammurabi, and before it the fragmentary Ur-namma and Eshnunna codes of the ancient Near East,3 provide a general grounding for the metaphor of justice, best expressed in the never-ending hyperbole associated with Martin Luther King Jr.’s vision

Standard English version and commentaries of the Codex Hammurabi (CH) by G.R. Driver and John Miles, The Babylonian Laws, 2 vols., Oxford: Oxford University Press 1952, 1955. The Code covers four main areas: criminal law, family law, civil, and commercial transactions. See Chibli Mallat, Introduction to Middle Eastern Law, Oxford: Oxford University Press 2007, 16–22 (for general description and context within the history of Middle Eastern law, and further references to main scholarship). 2 Main criminal dispositions: CH § 196, 200 (talion); §§ 22–24 (highway robbery, collective responsibility, responsibility of the “state”); § 126 (responsibility of neighborhood for loss). Pamela Barmash, Homicide in the Biblical World, Cambridge: Cambridge University Press 2005 argues that a great difference sets Biblical and cuneiform laws apart, but see contra Bruce Wells’s review of the book in Journal of Near Eastern Studies, vol. 69, 2010, 102–03. 3 CH ca 1750 bce; Eshnunna Code, ca 1800 bce, English translation and commentaries by Reuven Yaron, The Laws of Eshnunna, Jerusalem-Leiden: Brill 1969, 2nd rev. ed. 1988. The earliest legal “code” extant is the code of Urnamma (or Urnammu, ca 2100 bce), see, e.g., Claus Wilcke, “Der Kodex Urnamma (CU): Versuch einer Rekonstruktion,” in Z. Abusch ed., Riches Hidden in Secret Places: Ancient Near Eastern Studies in Memory of Thorkild Jacobson, Winona Lake: Eisenbrauns 2002, 291–333; Martha T. Roth, Law Collections 1

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of “the moral arc of the universe bending towards justice.”4 Yet there is a more immediate, deliberate effort for justice in the region in an articulate collective agenda announcing 2011. As a forerunner of a dominant trend in the historical register of judicial accountability, “Dictatorship is a crime against humanity” is a homegrown civil society formula with a specific Middle Eastern birthdate four thousand years after Hammurabi. The equation of dictatorship and crime against humanity came from some forty Middle Eastern Non-Governmental Organizations (NGOs) working throughout 2003 and 2004 to flag the need for democracy in a region manifestly lagging way behind the rest of the world. “Dictatorship is a crime against humanity” prominently appears in the final manifesto of the coalition, which was issued publicly on September 24, 2004, after several working meetings in Cairo, Beirut, and Rabat.5 Along with the “freedom imperative,” which focuses on the support of prisoners of opinion as the iconic carriers of the torch of nonviolent change, and the “democratic imperative,” as the free choice by people of their government and the prevention of rulers from overstaying their welcome by manipulating constitutions to remain in power, the civil society manifesto identified the “justice imperative” as the third constituent pillar of a different Middle East to come: Over a century ago, Kawakibi identified dictatorship as a crime against society. Dictatorship must now be declared a crime against humanity . . . [I]‌f Arab societies confront problems that are universal, we are also plagued by a unique intensity of regional violence in which the first victims are our relatives and friends . . . A priority is for those leaders who are guilty of crimes against humanity to be brought to justice, as is the case of the former ruler of Iraq; Ariel Sharon, Moammar al-Gadhafi and possibly now the ruler of Sudan belong to this unique category. This we call the justice imperative. . . . Accountability is, therefore, central.

from Mesopotamia and Asia Minor, Atlanta, GA:  SBL Writings from the Ancient World 1995 and later editions, provides a convenient transliteration and translation of each code, see “Laws of Urnamma,” 1–22; “Laws of Eshnunna,” 57–70, “Laws of Hammurabi,” 71–144. 4 Martin Luther King Jr.’s famous speech in Montgomery, Alabama, March 25, 1965, “Our God Is Marching On”: “How Long? Not Long, because the Arc of the Moral Universe Is Long, but It Bends toward Justice.” Full text at http://mlk-kpp01.stanford.edu/index.php/kingpapers/article/our_god_is_marching_on/. 5 “Three Middle Eastern Imperatives:  Freedom, Democracy and Justice—Statement by 40 Mena Civil Society Groups,” Daily Star, September 25, 2004, with the following contextual note by the newspaper editor: “Below is a version of a statement by 40 leading Middle Eastern and North African civil society groups who met in Beirut on Sept. 5. The text . . . was presented yesterday, Sept. 24, to foreign ministers from the G-8 and Arab countries meeting in New York. The proposals feed into the Forum for the Future that was set up at the G-8 summit in Sea Island, Georgia, last June. It begins by proposing ‘three imperatives’—freedom, democracy and justice—and ‘seven programs’—equality, rule of law, free expression and organization, inquisitive education, economic inclusion, transparency, creative artistic and literary expressions.” In Rabat in December 2004, another meeting of the group reiterated the three imperatives in the context of the “Forum for the Future.” Op-eds expressing the views in a more succinct manner were published in the Daily Star on December 9, 2004, in English, and in the Nahar on December 11, in Arabic.

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All prisoners of conscience must be released, former presidents turned into retired citizens in a respectful neighborhood, and leaders responsible for crimes against humanity put behind bars.6 The text of the NGOs’ Beirut-Rabat-New  York declaration equating dictatorship with crime against humanity makes reference to ‘Taba’e’ al-istibdad’ (the patterns of despotism) by Syrian author ‘Abd al-Rahman al-Kawakibi, whom we encountered as an express supporter of nonviolence in his formidable manifesto against dictatorship at the turn of the twentieth century.7 In Kawakibi’s world, there was no call featuring judicial accountability, although it was clear to him that the end of dictatorship would be best served “by establishing a government whose members have no past of despotism.”8 A century later, associating despotism with criminal consequences administered through a legal process is a qualitative breakthrough for the philosophy of nonviolence. Judicial accountability has risen in response to a region where crimes against humanity had become a way of life for rulers who commit them regularly domestically and internationally, against their own population or against foreigners, usually neighbors, and sometimes further afield. The formula equating dictatorship and crime against humanity materialized in unsuspected ways when it was agreed upon by leaders of civil society resistance in the Middle East. Encouraged by what I discuss extensively in the next chapter as the contribution of the region to universal justice—the indictment and (relative) victory of the victims of Sabra and Shatila in their case against Ariel Sharon, the arrest of Saddam Hussein and his trial, the tribulations and concerns of Qaddafi in the case against him before Lebanese courts, and generally in the Lockerbie case, the International Criminal Court’s indictments of Omar Bashir and the same Qaddafi, the call for justice for Hariri’s murder, and the establishment of the Special Tribunal for Lebanon—a judicial alternative appears increasingly compelling as it emerges slowly in the violent contemporary Middle East. With the fall of dictators in 2011, the question is how to go beyond the formula’s originally halting appeal and turn it into the expected norm for rulers in the region and beyond. In the construction of accountability for mass crime, the philosophical debate was richly framed and formulated in the French revolution, which anticipated, though hardly resolved, the role of judicial accountability in its wake. Because of its uniquely rich written legacy, the trial of Louis XVI is worth examining as a founding moment of the equation linking a dictator with his trial. The French revolution was anything but nonviolent, but the trial of

“Three Middle Eastern Imperatives:  Freedom, Democracy and Justice—Statement by 40 Mena Civil Society Groups,” above note 5. For the full text (drafted with Noha Mikkawi), and several similar initiatives through 2004, see also my “Démocratie au Moyen-Orient:  un parcours personnel, 2004,” in EU Commission, Dialogue between Peoples and Cultures:  Actors in the Dialogue, Brussels:  European Commission Publications 2005, 130–69. For that series of meeting of ME NGOs, significant credit goes to Shaha Aliriza, who put the groups together in a common, effective spirit, see “Woman at Center of World Bank Flap Stays in Background,” Washington Post, March 11, 2007. 7 See Chapter 4, section “the Kawakibi template.” 8 ‘Abd al-Rahman al-Kawakibi, Taba’e‘ al-istibdad wa masare‘ al-isti‘ bad (characteristics of despotism and the killing effects of enslaving), Jamal Tahhan ed., Damascus: al-Awa’el, 2003, at 215: ‘wa khayr ma tu’assas yakun bi-iqamat hukumat la ‘ahda li-rijaliha bil-istibdad.’ 6

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the deposed monarch ushered in a public discussion that remains relevant to date, not least for the qualification of “criminal against humanity” suddenly attaching to the king in one famous speech.9 In the wake of a universal debate started then, the concept of the king/president/ayatollah as a dictator against humanity developed unevenly over two hundred years, and is now firmly grounded in the pressing reality of the Middle East revolution’s decrees of reality. Nonviolence in the Middle East revolution is adding its own breakthrough mark to the eighteenth-century French precedent, a precedent that is uniquely alluring for its records and the rich questions it raises for us two centuries and a few decades later. Domestic Construction of Judicial Accountability: Reviving the Legacy of the French Revolution From a political philosophy perspective, the eighteenth-century Atlantic revolution’s “resistance to oppression” legitimized the right, and sometimes the duty, to bear arms against the tyrant. Philosophers had prepared the terrain of the legitimacy of the revolution, most prominently Voltaire and Rousseau justifying resistance and rebellion by the supremacy of reason and the doubt it casts over the legitimacy of the monarchy.10 With the growing tide of political/philosophical illegitimacy, the King of England in American colonies, and the King of France in the old dynastic French state, turned into the named enemies of the people. The two foremost world-historic moments of the Atlantic revolution inscribed the right to rise violently against the dictator in their most important declarations. The right to resist oppression appears both in the American Declaration of Independence and in the French Declaration of the Rights of Man.11

See below note 39 and accompanying text. Voltaire’s famous “Ecrasez l’infâme,” Rousseau’s republicanism, and the whole political philosophy of the Enlightenment flow philosophically from Descartes’s “universal doubt” in his Meditations (1641), which was first articulated in the political sphere, arguably, by Baruch Spinoza in his Theological-Political Treatise (1670), see, e.g., at chapter xvii: “Obedience does not consist so much in the outward act as in the mental state of the person obeying; so that he is most under the dominion of another who with his whole heart determines to obey another’s commands; and consequently the firmest dominion belongs to the sovereign who has most influence over the minds of his subjects; if those who are most feared possessed the firmest dominion, the firmest dominion would belong to the subjects of a tyrant, for they are always greatly feared by their ruler.” R.  Elwes English translation (1883) available e.g. at http://www.spinozacsack.net78.net/ TheologicoPolitical%20Treatise,%20Benedict%20de%20Spinoza.pdf. 11 US Declaration of Independence, July 4, 1776: “[W]‌henever any Form of Government becomes destructive of these ends (Life, Liberty and the pursuit of Happiness, the Consent of the Governed), it is the Right of the People to alter or to abolish it, and to institute new Government . . . [W]hen a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.” The US “natural and imprescriptible right to resist oppression” is mirrored in the French Déclaration des droits de l’homme et du citoyen, August 26, 1789: “Article 2. Le but de toute association politique est la conservation des droits naturels et imprescriptibles de l’Homme. Ces droits sont la liberté, la propriété, la sûreté, et la résistance à l’oppression.” (Emphasis added) 9

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The history of “resistance to oppression” has deeper roots, of course, and the ambivalent position encountered in the Islamic tradition underlines the universality of the concept in conjunction with the sanctity of established order.12 The Atlantic Enlightenment transformed the doctrine of armed resistance against tyranny into a national political program based on a philosophy of republicanism we nowadays call democracy. After the French revolution, replacing the divine right of kings with the self-rule of the people meant that the issue was no longer that a particular king is bad. All kings are bad. The alternative to a bad state of affairs, which is structural in a monarchy, was articulated by Rousseau in what became in the French Declaration of the Rights of Man “law as the expression of the people’s will.”13 In the Social Contract, and in his works on the Abbé de Saint-Pierre, Rousseau’s position is radical: “All legitimate government is republican.”14 Only the people make the law. With the onset of the French revolution and its projection in Europe, using violence to end the dictatorship had become a natural right inscribed in reality, and violent revolution an accepted form of political behavior against the ruler. The previous system of governance was unjust simply because the people did not rule themselves. The Atlantic revolution put in practice this considerable advance in political philosophy. The intrinsically bad king is where the logic of democratic theory concluded in the Enlightenment, which responded by an armed revolution that deposed him. The attachment of the French to their revolution since 1789, which endures to date as “a pillar of the French national character,”15 is premised on the rejection of monarchy as characteristically despotic, and on the republican revolution as a positive, historic moment for the French nation.16

See Part I, Chapter 4. Article 6 of the Déclaration des droits de l’homme, meaning that the law is the expression of the people, not a dictate of the monarch or a divine injunction. See reference to Rousseau in Chapter 10 note 20 and ccompanying text. Rousseau’s shift away from the monarchy finds its ultimate consequence in the execution of Louis XVI, and consecrates the legitimacy of the republic established by the revolution. This is the central argument of Michael Walzer, Regicide and Revolution, New York: Columbia University Press 2nd ed 1992, esp. at 69–89, which includes an English translation by Marian Rothstein of key speeches of the trial of Louis XVI at the Convention, at 93–214. Walzer is right about the fierce republican logic of the French revolution, but the point of departure of my argument about the trial of the dictator is different from Walzer’s, for whom nonviolence is not a relevant consideration. 14 “Tout gouvernement légitime est républicain.” Rousseau, Du contrat social, II:  vi, in Oeuvres complètes, above note 13, Vol. 3, 380. This is in the chapter “De la loi,” where the political philosophy of law is most clearly summarized. 15 “La mémoire positive de la Révolution que nous partageons avec les Américains mais qu’aucun autre people d’Europe ne possède (the positive memory of the revolution that we share with the Americans but that no other people of Europe has)” is one of four traits of being French according to Patrick Weil, Etre Français. Les quatre piliers de la nationalité, Paris: L’aube 2011, 11. The other three are the principle of equality; reading and speaking French; and “laïcité,” understood since 1905 as the matrix of freedom of conscience, the legal separation of church and state, and the free performance of religious rituals. 16 In the French Constitution of 1958, the Republican form of government is inscribed as eternal and unchangeable. Article 89: “La forme républicaine du Gouvernement ne peut faire l’objet d’une révision.” The French Conseil Constitutionnel considered that “decentralization” was not part of this limitation, but left the concept vague. Decision 2003-469 DC, March 26, 2003, at http://www.conseil-constitutionnel.fr/ conseil-constitutionnel/francais/les-decisions/acces-par-date/decisions-depuis-1959/2003/2003-469-dc/ decision-n-2003-469-dc-du-26-mars-2003.857.html. 12 13

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The logic carried out in the criminal trial of Louis XVI by the Convention quickly projected beyond France. Iconic Atlantic revolution figure Thomas Paine, who represented the rest of Europe in the very fact of his election in 1792 to the French Parliament as a “foreign citizen,” made this telling statement as the non-French deputy of revolutionary France: “France is now a republic. It has completed its revolution; but it cannot reap all the advantage so long as it is surrounded by despotic governments. Their armies and marines force it to keep up also troops and ships. It is therefore in its immediate interest that all the nations be as free as her, and that revolutions be universal. Since the trial of Louis xvi can serve to prove to the world the vileness of [royal] governments in general, and the necessity of revolutions, she must not allow such a precious occasion to slip by.”17 Aside from the European expansion of the revolution, which Paine naturally favored, and the subtext of the spread of democracy until the whole world is free, which corresponds to the universalism of the political philosophy of Rousseau and Kant all the way to the Middle Eastern revolution, Paine’s relevant point here is about the trial of the king as “a precious occasion” to show the “necessity of revolutions” elsewhere. This is not pie in the sky. The declaration that absolute monarchs and monarchies were immoral per se shifted the political paradigm of the Atlantic revolution into the dominant form that democracies live in the twenty-first century. While it started in colonized America, a strong tinge of self-determination in the colony’s revolt limited the universal appeal of the American revolution’s republican character—and, to be accurate, this appeal was weakened by distance and the “natural” superiority that Europeans felt toward their colonial cousins. For the revolutionaries who embraced the Boston revolt’s spark, the rule of King Georges was not necessarily intolerable in England, even though it was intolerable in the American colonies. In America, the message that kings were bad was initially more contextual than universal. Like the Cedar revolution with the Syrian regime, the American revolution was a revolt against foreign dominance. It marked the start of a successful decolonization battle that lasted for two centuries across the planet. The dual goal of ending foreign domination and establishing self-government undermined its clarity.

Letter from Thomas Payne [Paine] to the Convention and his opinion on the trial, read on November 20, 1792, in Le Pour et le Contre, Recueil complet des opinions prononcées à l’Assemblée Conventionnelle, Dans le Procès de Louis xvi, 7 volumes, Paris: Buisson, An I de la République [1792–1793]), Vol. 1, at 294: “La France est maintenant une république. Elle a terminé sa révolution; mais elle n’en peut recueillir tous les avantages aussi longtemps qu’elle est environnée de gouvernements despotiques. Leurs armées et leur marine l’obligent d’entretenir aussi des troupes et des vaisseaux. Il est donc de son intérêt immédiat que toutes les nations soient aussi libres qu’elle-même, que les révolutions sont universelles; et puisque le procès de Louis xvi peut servir à prouver au monde la scélératesse des gouvernements en général, et la nécessité des révolutions, elle ne doit pas laisser échapper une occasion aussi précieuse.” Le Pour et le Contre is a contemporaneous collection of the main declarations, opinions, and testimonies at the Convention, including various reports, votes, and the defense presented by the king and his lawyers (hereinafter Le Pour et le Contre, followed by the volume number, and the page, together with the original French.) There are other collections used by historians, especially the Moniteur Universel and the Archives Parlementaires, see, e.g., Albert Soboul, Le Procès de Louis xvi, Paris: Julliard Archives 1966, 254–55; but Le Pour et le Contre has the advantage of concentrating the raw discussions in one source, as well as being available in full on the Internet. Its seven extensive volumes provide a remarkable original source to appreciate the atmosphere in the Convention and the passionate and reasoned arguments for and against the trial and execution of the deposed king.

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In contrast, the republican experience in Paris emerged purer for lack of a colonial context. There was no colony, no occupation, no King George thousands of miles away. The French rose against a French king inside France. Louis was no absentee, distant ruler. His flight to Varennes in June 1791 started the countdown to his judicial comeuppance, with calls for a republican regime emerging decisively in 1792 as the counter-revolution was making headway domestically and regionally, and the Prussian and Austrian despots in particular were setting their troops in movement to invade France and restore the monarchy. The trial of Louis developed in a besieged and violent French revolution, so there are obvious differences with the nonviolent revolutions of the twenty-first century. But the trial conjured up a particular set of dilemmas and paradoxes, which continue to inform justice in the philosophy of nonviolence to date, including the justice of the Middle East revolution. From the trial of Louis to that of Mubarak, nations get gripped by history yearning for justice in the wake of momentous events. For the philosophy of nonviolence, it is worth spending some time with our French forebears, not least because many of the dilemmas in post-dictatorship justice were carefully recorded in the minutes of the trial of “citizen Louis Capet,” the deposed scion of a thousand years of kingship in France. The sophisticated argumentation during the three months of Louis’s trial has been preserved in full. The quality of the debates leading to his capital punishment makes it uncannily current. Many among the 749 members of the Convention made a substantial contribution to the passionate argument that mesmerized France during the king’s three-month-long trial. I use here a contemporaneous collection of the trial proceedings, Le Pour et le Contre, which include these elaborate interventions. The publishers of the collection printed the speeches and reports of the discussions at the Convention in record time, for they knew the value of their endeavor: “Our contemporaries, as well as posterity, will find everything here, will be able to read everything and opine on the whole.”18 In every French mind living it in 1792, “the trial of Louis XVI is a great monument for history.”19 Louis was tried in the fall of 1792 and early 1793 by the French parliament (La Convention Nationale),20 found guilty and sentenced to death by majority vote, and beheaded on January 21, 1793.21 His trial by the Convention moved inexorably through arrest, arraignment, indictment, defense, sentencing, rejection of stay, and execution. We are, in the Middle East revolution, still operating within that two-hundred-year-old paradigm, including the precise Editors’ Preface to the first volume of Le Pour et le Contre, Vol. 1, 6: “Nos contemporains et la postérité trouveront tout ici, pourront tout lire, et prononceront sur le tout.” 19 Philippeaux, Le Pour et le Contre, Vol. 4, 12: “Le procès de Louis xvi est un grand monument pour l’histoire.” 20 The self-naming iteration of the assemblies since the convening of the Etats-Généraux by the king in May 1789 is usefully recalled here: Etats Généraux on May 5, 1789, Assemblée Nationale on June 17, 1789, Assemblée Constituante on July 9, 1789, Assemblée Législative on October 1, 1791, Convention Nationale on September 20, 1792. It is the National Convention who tried Louis. 21 In addition to the original documents in Le Pour et le Contre, above note 17, I have consulted several books on the trial of Louis. The most remarkable are, in addition to Albert Soboul, cited above note 17, Jules Michelet, Le Procès de Louis xvi, Bruxelles: Complexe 1992, originally published as Vol. ix of his Histoire de la Révolution Française (1847–1853); David Jordan, The King’s Trial:  The French Revolution vs. Louis XVI, Berkeley: University of California Press 1979; and Michael Walzer, Regicide and Revolution, above note 13. Of note to the jurist is the legal perspective of Edmond Seligman, La Justice en France pendant la Révolution, 2 vols., Paris: Plon 1901, 1913. For the trial of Louis, see Seligman, Vol. 2 at 378–483. 18

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reasons we should try fallen despots, who should try them, and what punishment they deserve, including whether they should be put to death. All of these pressing questions, flung open again in 2011, hovered over Louis’s trial from its very beginning. That there would be a trial in the first place is remarkable in 1792, the only modern precedent being the brief trial of King Charles I of England in 1649 by a High Court of Justice established by the revolutionary parliament under Cromwell, for which we also have a reasonable track record, though a far less elaborate one than the debate extant in France, not least because Charles obdurately rejected the legitimacy of the court itself.22 Let us follow some of the extraordinarily rich documentation displayed over twelve weeks of intense public debate in the heart of the French revolution. In quick-paced phases, the trial proceeded on the three questions raised at the bar of the Convention: (1) whether there should be a trial in the first place; (2) if so, who will judge Louis; and (3) if found guilty, what should the sentence be?23 The one speech that stands best the passage of time was Condorcet’s. In his argument, he responds to the first question raised by the Convention that the king can be, and must be, tried like any other citizen. This proposition was overwhelmingly accepted by his peers. To the second question on who should try the king, he rejects the Convention as judge and jury (more precisely as prosecutor, judge, and jury), and proposes that a national election take place to designate a set of “commissioners and jurors” for the trial. On the third question, he For a useful digital record of the trial of Charles Stuart, see, e.g., Lawrence MacLachlan, “The Trial of Charles I  (1649):  Selected Links and Bibliography” at http://law2.umkc.edu/faculty/projects/ftrials/ charlesIlinks.html. During the trial of Louis XVI in 1792, a book circulated widely in Paris on the Histoire entiere et véritable du procez de Charles Stuard, roi d’Angleterre, Paris:  Chaudrillié, n.d. (Google book). The book was reprinted probably at the end of October 1792 as Seligman mentions an announcement in the Parisian press by its publisher on October 28 and 29; see his La Justice en France pendant la Révolution, above note 21, Vol. 2, 394. It is a reprint of “the J.G. edition” of 1650, and includes the trial main texts, which are translated in full. Charles repeatedly challenges the authority of the High Court established by the revolutionary Parliament to try him, while the court’s central argument is that he failed his duty as king by excessive and wanton spilling of English blood, and committed thereby high treason. The French trial differs considerably in tone, because Louis refrains from insisting that the Convention is illegitimate, and because of the extensive debate available. 23 One finds in the Oeuvres de Maximilien Robespierre, edited by Marc Bouloiseau et  al., Paris:  Presses Universitaires de France 1957, tome ix, at 227, the following helpful recapitulation of the phases of the trial: “In its meeting on 6 January 1793, the Convention dealt with questions it needed to resolve in order to complete the trial of the king. It reduced them to three: 1) Is Louis guilty of conspiracy against the liberty of the nation and of assault against the general security of the State?; 2) Will the judgment of the Convention against Louis Capet be submitted to the ratification of the people gathered in primary assemblies?; 3) What penalty will be inflicted on Louis? On January 15, with near unanimity, the Assembly answered the first question affirmatively. On the same day, in the course of another nominal vote, 424 deputies against 281 sided with Robespierre’s view and rejected the appeal to the people.” The third step was about the sentence. On the night of 17–18 January, by a majority of one (361 to 360), the Convention voted to put the King to death. Since a number of prominent deputies had voted for death but with a reprieve, sursis (adjournment of the execution contingent on various events, such as the end of the war, the withdrawal of foreign forces from the country, the expulsion of all the Bourbons, the ratification of a new constitution . . . ), a subsequent vote on the reprieve was taken on the night of 19–20 January. Reprieve was rejected by 380 votes against 310. Louis was guillotined on the Place de la Révolution (now place de la Concorde) on the morning of Monday 21 January 1793, at 10.22 am. 22

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stands against the death penalty. He was not followed by his peers on the two last issues. The Convention conducted the trial and voted by a simple majority to execute the king.24 Seen from the vantage point of the philosophy of nonviolence, Condorcet’s position is the right one throughout. The dictator must be judged for his crimes, an impartial tribunal must carry out the trial, and the severest penalty should be administered short of the death penalty. Let us now examine more closely the fascinating debating record left by the trial. The Convention was elected in late August 1792. It met for the first time on September 20 and its first act was to abolish the monarchy. In mid-October the full Convention asked its newly formed Legislative Committee to draft “the procedure to follow for the trial of Louis XVI.”25 Jean Mailhe was named rapporteur for the Committee at the end of October 1792. He set the stage for the Convention in a powerful report read on November 7. The first question, Mailhe started, is the most important one: Can we, should we, judge Louis? Yes, he answered. The trial will be combated by nations still governed by kings, and by a “small minority” opposed to “the majority of the French people, who is conscious of the full scope of its sovereignty.”26 Quoting Rousseau, Mailhe continued, the nation should not be ashamed to put a man above the law.27 Quite the opposite. There is no immunity (“inviolabilité”) conceivable, for what is the infamy, what is the assault that he [the King] did not commit against, or protect from, the bases of the social institution, against property and against individuals, Condorcet’s speech appears in Le Pour et le Contre, Vol. 2, 3–50. See previous note for details of the vote on the three issues. Also Condorcet mentions “crime envers le genre humain,” at 6, but in the context of granting immunity to Louis. According to Walzer, Regicide and Revolution, above note 13 at 139, the text of Condorcet was added to the records of the Convention on December 3, 1792, and not read at the bar of the Convention. 25 Some details might clarify the process. Popular distrust of the monarchy was exacerbated by an active foreign invasion and the notorious ultimatum of “the manifesto of Brunswick,” a Prussian general, at the end of July 1792, which got known in Paris on August 3. The manifesto (although doubts were later expressed by some historians on its authenticity) was outrageously condescending, and created a feverish atmosphere in Paris. The killings by forces supportive of the king of several hundred demonstrators marching on the Tuileries in August 10, 1792, led to Louis’s imprisonment in the Temple with his family. At the end of August 1792, a new Assembly was elected. It called itself the Convention. The Convention met for the first time on September 20, on the day of the victorious battle of Valmy against the Prussians. The following day, the Convention voted unanimously for the abolition of the monarchy. On October 16, the Legislation Committee just formed by the Convention was tasked with establishing “la procédure à suivre pour juger Louis xvi.” At the end of October 1792 the Committee asked Jean Mailhe to act as rapporteur. Mailhe presented his conclusions on November 7, 1792, at the roster of the Convention, and proposed the three steps that were eventually followed in the trial, described in note 23 above. 26 Mailhe, Le Pour et le Contre, Vol. 1, 102: “La première [question] est la plus simple de toutes: et cependant c’est celle qui demande la plus mûre discussion, non pas pour vous, non pas pour cette grande majorité du peuple français, qui a mesuré toute l’étendue de sa souveraineté, mais pour le petit nombre de ceux qui croient entrevoir dans la constitution l’impunité de Louis xvi, et qui attendent la solution de leurs doutes; mais pour les nations qui sont encore gouvernées par des rois, et que vous devez instruire; mais pour l’universalité du genre humain qui vous contemple, qui s’agite entre le besoin et la crainte de punir ses tyrans, et qui ne se déterminera peut-être que d’après l’opinion qu’il aura de votre justice.” 27 Id., 104:  “ . . . comme si elle avait eu honte, dit Jean-Jacques, de mettre un homme au-dessus de la loi.” (Emphasis in original.) 24

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when the French nation woke up for the first time in 89? . . . We could ask [Louis] if all the actions of his constitutional reign were not reduced to prove that he was capable of joining the blackest ingratitude to the other crimes of tyranny?28 The next logical step was to question the monarchy no longer for what Louis did between 1789 and his trial, but in absolute terms over the full length of his reign. But Mailhe eluded the slide into what happened before 1789, despite indications in his report that he was tempted to go down that route. Mailhe argued that Louis is responsible for crimes committed during his effectively constitutional reign (1789–1792), such as conniving with the enemy and therefore committing treason. These crimes are not new; they have always been there, and have always been condemned: “Is it after all in the new French code only that these laws can be found? Did they not exist in all times and in all countries? Are they not as ancient as society?”29 Mailhe was content to mention some precedents, notably in England, of kings who had been deposed and tried. This was also a time when the trial of Charles by Cromwell was widely discussed in French revolutionary society,30 including in the reprint of a well-documented book that recapped the main moments of the English trial a century and a half earlier.31 We can detect in Mailhe’s report some allusions to the dictatorial nature of all monarchies, but the precedents were read in a more limited vein. The young Republic’s parliamentarians adopted almost unanimously the proposition that the king had committed crimes since 1789, and that he should be brought to justice on that basis, evidenced mostly in the episode of the “Armoire de Fer.” This safe, hidden in the wall during the king’s stay in the Tuileries, was discovered at the beginning of the trial. It held correspondence between Louis XVI and other European monarchs showing their clear collusion against the revolution. This was tantamount to high treason, adding to Louis’s continuous maneuvers to derail the revolution and regain his lost power. The French revolution deputies could not accept that the multiple violations of the law by the king, from his threats to the meeting of the Tiers Etat in June 1789 through his dealings with foreign powers now Id., 124:  “nous pourrions lui demander si toutes les actions de son règne constitutionnel ne se sont pas réduites à prouver qu’il étoit incapable de joindre la plus noire ingratitude aux autres crimes de la tyrannie? quel est le forfait, quel est l’attentat qu’il n’ait pas commis ou protégé contre les bases de l’institution sociale, contre les propriétés et les personnes, lorsque la nation française se réveilla pour la première fois en 89?” Note that Mailhe refers here to the crimes during the period for which the trial was set up, when Louis was still recognized as “roi des Français” by the first revolutionary Constitution, passed in September 1791 following his flight to Varennes on June 20, 1791. 29 Id., 119: “[E]‌st-ce d’ailleurs dans le nouveau code français seulement que ces lois se retrouvent? n’existoient-elles pas de tous les temps et dans tous les pays? ne sont-elles pas aussi anciennes que les sociétés?” 30 References abound to the trial of Charles I in the speeches at the Convention, but several deputies expressed their dislike for the comparison. See, e.g., address of Philippeaux, Le Pour et le Contre, Vol. 4, 3–33, at 26–27: “[L]‌e tribunal qui condamna ce roi perfide [Charles], était une commission illégitime, formée par le tyran Cromwel; . . . la nation ne concourut point à ce jugement, comme le peuple français à celui de Louis xvi . . . Mais nous autres républicains, qui avons jugé la tyrannie avant de juger le tyran, notre situation est toute différente. (The tribunal that condemned this perfidious king [Charles] was an illegitimate commission, formed by the tyrant Cromwell; . . . the nation did not contribute at all in the judgment, like the French peuple to the trial of Louis XVI . . . For us republicans who have judged tyranny before the tyrant, the situation is very different).” 31 Histoire entiere et véritable du procez de Charles Stuard, above, note 22. 28

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blooming into full war, should be treated differently than if any citizen had committed them. The conventionalists could not express more sympathy for “Louis ci-devant Capet” than for the ordinary citizen committing such crimes. The evidence of Louis betraying the very revolutionaries who had trustingly kept him at the head of country, was the main argument in the majority of the speeches rejecting the king’s immunity. This was a quasi-unanimous reaction to a king who was doing everything he could to turn back the clock of history to absolute monarchy. Mailhe’s conclusion: “Louis XVI is jugeable. He can be judged for the crimes he committed as constitutional monarch.”32 Enter Louis Antoine de Saint-Just, who gave his first speech at the Convention on November 13, six days after the powerful conclusions of Mailhe reporting to the full assembly in the name of its Legislative Committee. Saint-Just was far more passionate, and far more universal in his logic. Going well beyond the argument of treason and other violations allegedly committed by the king after 1789, the youngest member of the Convention at age twenty-four, and the firebrand of the Robespierrist faction, made the point of the criminal nature of the monarchy itself: “A law is a relationship of justice: what relation is there between humanity and kings? . . . [Monarchy] is an eternal crime against which every man has the right to rise and arm himself.”33 All kings are criminals, and people have the right to oppose them by force. “I see no middle ground: this man must either reign or die,”34 for, in Saint-Just’s famous phrase, “one cannot reign innocently: the folly [in thinking one could] is all too evident. Every king is a rebel and a usurper.”35 Saint-Just gave another speech at the Convention on December 27. This was a far less memorable address, and it is not particularly remembered as one of Saint-Just’s rhetorical successes. In fact, the French revolution’s “death archangel” went back on the argument of universality that he had defended a few weeks earlier, joining Mailhe in focusing on the brief period of the constitutional monarchy. Louis had been inclement during his reign, he said. “The good and trusting people, because it is without ambition and without intrigue, would never have hated the prince, if the prince had respected its laws and had governed the people with probity.”36 The king could have been clement and fair after 1789; he could have dealt with the people according to the law; he could have governed innocently. Too bad for him: he could have, he did not. We are far from the powerful logic of the first speech. By then, the blood of Louis was beckoning, and Saint-Just was merely eager to accelerate the march to the guillotine. From the proposition that all kings are bad, he retreated into the much narrower argument that this particular king was bad.

Mailhe, Le Pour et le Contre, Vol. 1, 129: “Louis xvi est jugeable: il peut être jugé pour les crimes commis sur le trône constitutionnel.” (Emphasis added). 33 Saint-Just, first speech at the Convention, November 13, 1792, Le Pour et le Contre, Vol. 1, 184: “Une loi est un rapport de justice: quel rapport de justice y a-t-il donc entre l’humanité et les rois? . . . [La monarchie] est un crime éternel contre lequel tout homme a le droit de s’élever et de s’armer.” 34 Id., 182: “Pour moi, je ne vois point de milieu: cet homme doit régner ou mourir.” 35 Id., 185: “On ne peut point régner innocemment: la folie en est trop évidente. Tout roi est un rebelle et un usurpateur.” 36 Saint-Just, second speech at the Convention, December 27, 1792, Le Pour et le Contre, Vol. 5, 317–18: “Le peuple, bon et crédule, parce qu’il est sans ambition et sans intrigue, n’eût jamais haï le prince, si le prince eût respecté ses droits et l’eût gouverné avec probité.” 32

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In both appearances, Saint-Just was the passionate disciple of a much more implacable master, Maximilien Robespierre. Like Saint-Just, Robespierre contributed two speeches at the Convention, both published in Le Pour et le Contre. On December 3, when he was called upon to pronounce a first address on whether there should be a trial in the first place, Robespierre’s position set a framework that defined the parameters for his Jacobinist faction in a logic that creates the powerful question still upon us: Why should we try a ruler whom the people have deposed in a revolution? In answer to the first question before the Convention, whether Louis should be tried, Robespierre argued that the revolution has already spoken: “Louis was king, and the republic is established: the famous question that occupies you is decided by these words alone. Louis was overthrown because of his crimes; Louis denounced the French people as rebels; he called in, to castigate the people, the weapons of his tyrant brothers; victory and the people have decided that he alone was a rebel: therefore Louis cannot be judged; he is already condemned, or else the republic is not absolved. To propose a trial for Louis XVI, in whatever manner it may be conducted, is to return to royal and constitutional despotism; it is a counter-revolutionary idea, because it puts the revolution itself into question.”37 So here is the argument of Robespierre: the people have risen against the tyrant and brought him down in a massive, legitimate, historic revolution. What is the point of going back on this judgment, which has already been sealed in the blood of the revolutionaries? Worse: If the revolution needs to conduct a trial, what if Louis came out from it an innocent man? Indeed, if Louis can still be the subject of a trial, he could be absolved; he could be innocent: what am I saying! He is presumed to be innocent until he is convicted. But if Louis is absolved, if Louis can be presumed innocent, what becomes of the revolution? If Louis is innocent, all the defenders of freedom become slanderers.38 What can be done to prevent the revolution from being judged, when the revolution has already decided the verdict of history, if the trial of Louis is carried out? Robespierre concluded his steely speech with an equally icy logic: I propose that we decide immediately on the fate of Louis. As for his wife, you will send her back to the courts, together with all the persons accused of the same crimes. Her

First speech of Maximilien Robespierre, December 3, 1792, Le Pour et le Contre, Vol. 3, 383–84: “Louis fut roi, et la république est fondée: la question fameuse qui vous occupe est décidée par ces seuls mots. Louis a été détrôné par ses crimes; Louis dénonçait le peuple français comme rebelle; il a appelé, pour le châtier, les armes des tyrans ses confrères; la victoire et le peuple ont décidé que lui seul était rebelle: Louis ne peut donc être jugé; il est déjà condamné, ou la république n’est point absoute. Proposer de faire le procès à Louis xvi, de quelque manière que ce puisse être, c’est rétrograder vers le despotisme royal et constitutionnel; c’est une idée contre-révolutionnaire, car c’est mettre la révolution elle-même en litige.” 38 Id., 384: “En effet, si Louis peut être encore l’objet d’un procès, il peut être absous; il peut être innocent: que dis-je! il est présumé l’être jusqu’à ce qu’il soit jugé: mais si Louis est absous, si Louis peut être présumé innocent, que devient la révolution? Si Louis est innocent, tous les défenseurs de la liberté deviennent des calomniateurs.” 37

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son will be kept in the Temple, until peace and public liberty are on firmer ground. As for Louis, I demand that the national Convention declares him, from this moment on, a traitor to the French nation, and a criminal against humanity.39 Criminal against humanity: the word was out on the scene of history. In Robespierre’s cold analysis, the consequence was the immediate execution of the king. No trial. Louis, he concluded, should be declared by the Convention “a traitor to the French nation, a criminal against humanity.” He must be put immediately to death on the spot of his latest massive crime, carried out on August 10, 1792:40 I ask for these reasons that he be made a great example to the world, in the very place where, on August 10, the generous martyrs of freedom died, and that this memorable event be consecrated by a monument destined to nourish in the heart of peoples the sense of their rights and the horror of tyrants, and, in the soul of tyrants, the salutary terror of the people’s justice.41 Standing up by his views far more coherently than Saint-Just, Robespierre would repeat the argument in his second address to the Convention at the end of December: “The real judgment over a king is the spontaneous and universal movement of a people wearied by

Id., 401–02: “Je vous propose de statuer dès ce moment sur le sort de Louis. Quant à sa femme, vous la renverrez aux tribunaux, ainsi que toutes les personnes prévenues des mêmes attentats. Son fils sera gardé au Temple, jusqu’à ce que la paix et la liberté publique soient affermies. Quant à Louis, je demande que la Convention nationale le déclare dès ce moment traître à la nation française, criminel envers l’humanité.” 40 On the morning of August 10, 1792, about four hundred Parisian demonstrators were killed or injured by the Swiss guards, who had received orders from the king before he took refuge in the Assemblée Législative next door to resist the march on the Tuileries. In turn, some six hundred Swiss Guards were overwhelmed and massacred in cold blood. The circumstances are murky, but the large number of civilian dead clearly weighed on the swift condemnation of the king, and the quick developments that followed: his arrest and transfer to the Temple, new elections, a far more radical Convention, the abolition of the monarchy, all happening between August 10 and the end of September 1792. As correctly described by David Jordan, the August 10th insurgency was more important an event than the Fall of the Bastille. See, e.g., Jordan, The King’s Trial, above note 21, at 38 (counting the death of 600 Swiss Guards, 60 Marseillais and 324 Parisian attackers mainly from the popular neighborhoods). For the tension building up to the insurrection, see the classic book of Albert Mathiez, Le Dix août, Paris: Passion 1989 (Original Hachette 1934), who lists generally similar figures for the casualties, at 118–19. It is clear from Mathiez (at 89–96), and other accounts that the “insurrection” of August 10 was planned and intended by revolutionaries who were well-armed for the occasion, and who were organized by the “sections” of Paris under the leadership of Santerre, head of Section Quinze-Vingt, one of the most active amongst the forty-eight sections of Paris. This is further evidence that the French revolution was not conceived of once as nonviolent by its protagonists, from the Bastille through many revolutionary days such as August 10, the Terror, Thermidor, and Bonaparte’s putsch. 41 Robespierre, December 3, 1792, Le Pour et le Contre, Vol. 3, 402: “je demande qu’à ce titre il donne un grand exemple au monde, dans le lieu même où sont morts, le 10 août, les généreux martyrs de la liberté, et que cet événement mémorable soit consacré par un monument destiné à nourrir dans le coeur des peuples le sentiment de leurs droits et l’horreur des tyrans; et, dans l’âme des tyrans, la terreur salutaire de la justice du peuple.” 39

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tyranny, breaking the scepter in the hands of the tyrant who oppresses it; this is the surest, most equitable and purest of all judgments. I shall not repeat to you that Louis was already condemned before the decree in which you pronounced that he will be judged by you. I want to reason here only within the system that prevailed.”42 For the whole Jacobinist faction, the position was summed up in the conclusion of Robespierre le Jeune, Maximilien’s younger brother, who was also deputy at the Convention. This took the form of a resolution he proposed to his peers in the following terms: “The National Convention, having considered that Louis Capet, previously king of the French, has been already judged by the nation, the people’s deputies would betray their duties and hurt the people’s rights if they tried to revise the act of the people’s sovereignty; decrees that Louis Capet will be brought to the bar to denounce his main accomplices, hear his death sentence pronounced, and be taken on-the-spot to his execution.”43 One recoils in horror at the language, but it is coherent with the logic of a violent revolution. Killing the king or any member of the apparatus of repression that his dictatorship is structured around is no less legitimate than killing the next Swiss guard or soldier who has committed one or the other murder since the fall of the Bastille, in that case the massacre of August 10 at the Tuileries. This position cannot stand with the philosophy of nonviolence. Unwittingly, Robespierre and his camp underlined an enduring paradox. The trial is essential, for grounds that Saint-Just in his first speech, and Robespierre in his two interventions, inched toward, but ultimately missed because of the unquestioned violence of the French revolution. For if the dictator is “a criminal towards humanity,” then the dictator must know, before any revolution brings him down, that his destiny will be sealed in a criminal trial. This thesis is at the heart of justice in the nonviolent revolution. What novelty 2011 brings to history is a new imperative, now rooted in firm reality: the necessary judicial trial of the dictator. From the premise that dictatorship is a political crime against society, which was translated in the Atlantic revolution into the right, even the duty of society to rise up in arms against the tyrant, the argument is revived in the Middle East 230 years later in a universal form imposed by the philosophy of nonviolence. The dictator must be tried judicially, and not merely politically. And he must be tried preferably by his own society, but if not, wherever he is to be found hiding on earth: dictatorship is a crime against humanity. Something has radically changed. With a normal, violent revolution, the dictator and his aides may be killed during the uprising, or after the revolution brings them down; it does

Second speech by Robespierre, December 28, 1792, Le Pour et le Contre, Vol. 5, 75: “ [L]‌e véritable jugement d’un roi, c’est le mouvement spontané et universel d’un peuple fatigué de la tyrannie qui l’opprime: que c’est là le plus sûr, le plus équitable de tous les jugemens. Je ne vous répéterai pas que Louis était déjà condamné avant le décret par lequel vous avez prononcé qu’il seroit jugé par vous. Je ne veux raisonner ici que dans le système qui a prévalu. ” Robespierre goes on to argue against delaying the sentencing and execution in order to preserve “the safety” of the nation. 43 Speech of A.J.B. Robespierre (Robespierre le jeune), brother of Maximilien, Le Pour et le Contre, Vol. 3, 381: “La convention nationale considérant que Louis Capet, ci-devant roi des François, est jugé par la nation, que les mandataires du people trahiroient leurs devoirs et blesseroient les droits du people s’ils tentoient de reviser l’acte de sa souveraineté; décrète que Louis Capet sera traduit à la barre pour y déclarer ses premiers complices, y entendre prononcer son jugement de mort, et être conduit sur-le-champ au supplice.” 42

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not matter, and the trial is immaterial as the king is guilty by the mere fact of the revolution. That is the logic of Robespierre. It finds some coherence in that a violent revolution unseating the despot has already emitted a historical verdict on him that does not require his trial. The violent revolution obtaining from the right to rise up in arms against the despot could legitimately use these arms to kill him. In a nonviolent revolution, this is unsustainable because it is irrelevant. The nonviolent revolution seeks to unseat the despot, and it chooses consciously and explicitly to avoid killing him as it unfolds. The reason the dictator needs to be tried is part and parcel of the philosophy of nonviolence. It is based on the decrees of reality that the Middle East revolutionaries have not stopped producing in the first decades of the twenty-first century in the shape of nonviolence. Before the nonviolent revolution succeeds in bringing the regime down, the dictator cannot be tried, as he is obviously still in charge of his regime’s brutal and despotic system. He cannot be harmed either, because the revolution is nonviolent. Once the revolution succeeds, however, the republic is premised on constitutionalism and rule of law, and the trial becomes therefore essential to the republic’s establishment and durability. The trial is part and parcel of the nonviolent revolution, which expects it as much as it expects a proper constitution as part of the philosophy of historical change defined by nonviolence. In the norms of violent historical change prevailing before 2011 lay a central tension between the revolution and the trial of the dictator. In the French, more generally the Atlantic revolution and ever since, this was solved by the political march of events, and the victors set the terms when they succeeded. Against the divine right of kings, they opposed popular sovereignty. Against the inviolability of the king’s person, they opposed the principle of the equality of all before the law. The right to bear arms against absolutism included the right to execute the fallen monarch. This is the logic of a violent revolution. The Middle East nonviolent revolution offers a fundamental break from this archetype. It dampens the right to bear arms against dictatorship by putting nonviolence at the center of historical change. It decrees that political one-man rule for life is not only a crime against society, but also a crime against humanity, and that it has always been the case. It consecrates the victims’ right to see the dictator tried even if the accountability process is suspended until he has been removed from power by revolutionary nonviolence. One can read in the long speeches of the French parliamentarians their unease about condemning Louis without a previous designation of monarchy as a crime. Metaphorically, tyranny is condemned as evil. To end it is to mark a victory of good over evil. The metaphor suffuses the debates at the Convention. There is nothing judicial about this. The metaphor is as old as Zoroastrian doctrine and permeates all religions, and all philosophy of morals.44 44

For evil as a human concept dated in time, and passed on by Arabs, see seventeenth-century German philosopher Leibniz (d.1716), who writes a surprisingly long discussion of Zoroastrianism in his Theodicy (1710), see Essais de théodicée—Sur la bonté de Dieu, la liberté de l’ homme et l’origine du mal, Paris: Flammarion 1969, 48–49: “Quoique d’ailleurs il paraisse par les auteurs arabes, qui pourraient être mieux informés par les Grecs de quelques particularités de l’ancienne histoire orientale, que ce Zerdust ou Zoroastre, qu’ils font contemporain du grand Darius, n’a point considéré ces deux principes comme tout à fait primitifs ou indépendants, mais comme dépendants d’un même principe suprême”). English tr. By Farrer, Theodicy— Essays on the Goodness of God, the Freedom of Man and the Origin of Evil (available on the internet at Project Gutenberg), 71–72: “Yet elsewhere, according to the accounts of Arab authors, who in this might well be better informed than the Greeks, it appears from detailed records of ancient oriental history, that this

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The few who squarely opposed the trial dwelt on technicalities: 45 Louis is made immune by the law generally,46 by the French penal code of 1791,47 by the constitutional clause on “the inviolability and sacredness” of the king,48 by the rejection of retroactive condemnation,49 by mercy, pardon, and the argument to let bygones be bygones, alongside the divine legitimacy of kings.50 All these arguments could not stand before the political condemnation of the monarchy in a victorious revolution. More deeply however, the French revolutionaries were struggling to address the judicial treatment of the dictatorship, a treatment that was, until then, considered an exclusively moral-political construct. Engulfed by this contradiction, Robespierre and his supporters defend a logic where the revolution has already condemned evil politically, morally, and historically, but not judicially. They struggle to explain why the trial is necessary. This is where the paradox finds its paroxysm, and its solution, in the Middle East revolution. Unless a revolution calls for the dictator to be tried as part and parcel of its nonviolent philosophy, unless the very founding act of the revolution is that justice is already upon the dictator, unless the philosophy of the revolution is imbued with the conviction that dictatorship is a crime against humanity—a point expressly made by the Middle Eastern NGOs in their statement of 200451—then a huge leap from political to judicial condemnation is needed. The universal argument rather than a merely national one, is easier to make. Mailhe and many Convention members actually mention “the universality of human kind” that “is agitated between the need to, and the fear of, punishing its tyrants.”52 Robespierre Zerdust or Zoroaster, whom they make contemporary with the great Darius, did not look upon these two principles as completely primitive and independent, but as dependent upon one supreme and single principle.” http://www.gutenberg.org/files/17147/17147-h/17147-h.htm For an introduction and the texts of Zoroastrianism, see Mary Boyce, Textual Sources for the Study of Zoroastrianism, Manchester 1984; reprint Chicago, 1990. See also William W.  Malandra, “Zoroastrianism,” entry in Encyclopedia Iranica, 2005, online, http://www.iranicaonline.org/articles/zoroastrianism-i-historical-review. 45 These positions are summed up in the long pleadings for the king by three lawyers he chose, including the famous Tronchet, see “Défense de Louis,” read by Desèze on December 26, 1792, Le Pour et le Contre, Vol. 4, 273–390. The Défense was signed by Louis himself, and his three lawyers, Desèze, Lamoignon-Mallesherbes, and Tronchet. The defense was preceded by the “Acte énonciatif de charges,” the formal indicment issued by Lindet on December 10, 1792, Le Pour et le Contre, Vol. 4, 161–207. The Acte was then adopted by decree in the Convention to constitute the basis for the questioning of the accused, and was followed by the Interrogatoire of Louis on December 11, id., Vol. 4, 224–52. 46 Desèze, Le Pour et le Contre, Vol. 4, 282, “Le gouvernement monarchique exigeoit nécessairement l’inviolabilité de son chef.” 47 Id., 322. 48 Id., 286: “Je passe à l’article 2 [de la Constitution de 1791], et je lis, que la personne du roi est inviolable et sacrée.” 49 Id., 304: “Ainsi concluons de cette discussion, que là où il n’y a pas de loi que l’on puisse appliquer, il ne peut y avoir de jugement; et que là où il ne peut y avoir de jugement, il ne peut pas y avoir de condamnation prononcée.” 50 See Louis XVI’s moving testament, dated December 25, 1792, Le Pour et le Contre, Vol. 7, 407–14. 51 Above notes 6 and 7, and accompanying text. 52 Mailhe, Le Pour et le Contre, Vol. 1, 102: “La première [question: should the king be tried?] . . . est celle qui demande la plus mûre discussion, non pas pour vous [Conventionalists who represent the majority of the people and who are eager to try him] . . . ; mais pour l’universalité du genre humain qui vous contemple, qui s’agite entre le besoin et la crainte de punir ses tyrans, et qui ne se déterminera peut-être que d’après l’opinion qu’il aura de votre justice.”

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was more emphatic, wanting to formally declare Louis a “criminal towards humanity.” Paine saw it as a precedent, an example to all the kings of Europe. But for all the Conventionalists who decided to judge Louis, the argument was merely political and contextual because the king connived with the enemy. By failing to raise the issue of absolute kingship to the judicial level needed, the proper description of dictatorship as crime against humanity was drowned in the political humdrum of passionate conventionalists for and against the trial and execution of their former king conspiring with foreigners to betray the country. Louis XVI’s trial ultimately failed to project his rule as a crime against humanity, and to support it with the evidence required. This, in my view, is why the trial marked the last important moment of the French revolution. By failing to marshal the right argument for which the revolution marched against the dictator, the French revolutionaries collapsed in the bloodbath marked by the advent of an official policy of “terror”. Being violent, the French revolution ate its own children along with the deposed king. Not so the Middle East revolution. The call “the people want to try the president, al-sha‘ b yurid muhakamat al-ra’ is” is a request echoed all over the revolutions of the Middle East, and its philosophical underpinning is universally novel. If the world is satisfied that the dictator is always a criminal suspect awaiting his trial, then his destiny, like that of Louis XVI and all other dictators in history, raises an enduring question mark, as relevant in the twenty-first century Middle East as it is elsewhere. Unless the necessary trial is put in the simplest terms of its raison d’ être, namely that dictatorship is a crime against humanity; unless the dictatorship of presidents-for-life and absolute kings is seen for what it is, a structural, massive state machine geared to imprison, disappear, torture, and kill hundreds and thousands of people, a trial conducted by a revolution is no more than victors’ justice. This is what the proper reading of the debates of the French revolutionaries reveals. Robespierre unveiled the characteristic of a dictator as a “criminal against humanity,” but he and the Jacobinist faction hit the dead end of revolutionary violence. In contrast, trying the dictator is firmly inscribed in the legitimacy of his nonviolent deposition by the Middle East revolution. The statement equating dictatorship with a crime against humanity was expressly put on the world record by civil society in the 2004 Middle Eastern NGOs manifesto, well before its dictators were challenged massively on the streets. In a philosophy of nonviolence of which justice is an essential part, the trial of the dictator is a suspended but necessary component of the nonviolence continuum. Nonviolent philosophy anticipates the response to the dictator’s long list of crimes. The dictator must know, before the revolution even starts, that a trial is the proper conclusion of his career in crime. A dictator cannot rule innocently. From the Fog of “Law of the War Crime” to “Crimes against Humanity” To be fair to the genealogy of crimes against humanity, there is a more common narrative than their frustrated birth in the French revolution. Well before the fall of the Bastille, distinguished publicist Emerich de Vattel wrote in 1758 about those who, because of their waging war without motive other “than their ferocity, are Monsters which are not worthy

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of the name of men. They must be regarded as the Enemies of Human-kind.”53 This is perhaps where Robespierre found his characterization of Louis, but the overall failure of the trial and the constraints imposed by the violent nature of the French revolution prevented the logical association of dictatorial rule with a massive crime that calls for retribution. The term “crime against humanity” went dormant, and took a good century to reappear. Legal historians trace “crime against humanity trials” to the late nineteenth century in the characterization of piracy on the high seas, which was accompanied by an armed policy to stop it, and an effective set of trials to punish those arrested.54 The reference in Vattel to the enemy of mankind fits actually better in the war crime category. The generic concept of war crimes is much older than the label “crimes against humanity.” The medieval literature in Europe and in the classical Muslim world is rich with their legal and theological prohibitions during the conduct of war. This is most apparent in the condemnation of the deliberate killing of women and children, which is the common Christian/Muslim antecedent of “civilian population” and marks in the laws of war the general boundary between what is legal and what is criminal.55 The legal summa of Sarakhsi

Emer de Vattel, Le droit des gens, ou Principes de la loi naturelle, appliqués à la conduite et aux affaires des Nations et des Souverains (London, 1758). 2  vols. Facsimile edition at http://oll.libertyfund. org/?option=com_staticxt&staticfile=show.php%3Ftitle=1858&Itemid=27:  “Les peuples toûjours prêts à prendre les armes, dès qu’ils espérent y trouver quelque avantage, sont des injustes, des ravisseurs; mais ceux qui semblent se nourrir des fureurs de la Guerre, qui la portent de tous côtés sans raison ni prétextes, & même sans autre motif que leur férocité, sont des Monstres, indignes du nom d’hommes. Ils doivent être regardés comme les Ennemis du Genre-humain, de même que, dans la société civile, les Assassins et les Incendiaires de profession ne sont pas seulement coupables envers les victimes particulières de leur brigandage, mais encore envers l’Etat, dont ils sont déclarés ennemis. (The peoples who are always ready to take up arms, as soon as they hope to find some advantage, are unjust, thieves; but those who seem to nourish themselves with the fury of war, and who take it everywhere with no rhyme nor reason, and with no other motive than their ferocity, are Monsters which are not worthy of the name of men. They must be regarded as the Enemies of Human-kind, in the same way that in civil society, Murderers and professional Arsonists are not only guilty towards the particular victims of their thuggery, but also towards the State, of which they are the declared enemies.)” Livre iii, c­ hapter 3, para. 34. There is an equivalent tradition in the treatises of Islamic law jurists, who use several categories culled from Qur’anic verses, including baghi (transgression, aggression, Q. 49: 9–10), hiraba (waging illegitimate, brutal war, Q. 5: 33–34), and fasad/ifsad fil-ard (lit. corruption/corrupting earth, the terms appear over a dozen times, e.g. Q. 5: 33–34 for ifsad, Q. 2:11; 7:56; 18:94 for fasad), suggesting excessive or mass murder. See especially for the two first concepts Khaled Abou El Fadl, Rebellion and Violence in Islamic Law, Cambridge: Cambridge University Press 2001, 31–61. See also my discussion of fitna above, Chapter 4. 54 The resurgence of piracy off the coast of Somalia in the 1990s has triggered a lively discussion on the transformation of piracy in the nineteenth century into a crime against humanity and its revival in international trials, see, e.g., Daniel Heller-Roazen, The Enemy of All: Piracy and the Law of Nations, New  York:  Zone Books 2009; Eugene Kontorovich, “‘A Guantanamo on the Sea’:  The Difficulties of Prosecuting Pirates and Terrorists,” California Law Review, vol. 98, 2010, 243–76. For a treatment of Kenya’s trial of pirates arrested off Somalia, see Mateo Taussig-Rubbo, “Pirate Trials, the International Criminal Court and Mob Justice: Reflections on Postcolonial Sovereignty in Kenya,” Humanity, vol. 2, 2011, 51–74. 55 In a parallel to the canonical tradition of the Catholic church, Shamseddin al-Sarakhsi makes clear that the breach of the law of war by killing women and children entails strict liability. This appears in an enticing formula: “the mere prohibition of killing does not suffice to entail reparation as would be the case for 53

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(d. ca 1097), al-Mabsut, includes an alluring passage on the rejection of war other than in absolute self-defense. Even then, he argues, if the enemy kills a Muslim and there is a chance to avoid war by the enemy embracing Islam (which is one possible purpose for the war in the first place), then war should be withheld until the option is considered. This is “the story of the Prophet who sent Ma‘adh at the head of a platoon and said, do not fight them unless you call them to join the faith, and if they refuse to join, do not fight them until they start fighting you and if they fight you, do not fight them until they kill one of you, then show them the man they killed and ask them if there is a better way than that.”56 This in theory. The punishment of those who committed war crimes is harder to document. Before the modern age defined by the Atlantic revolution, there are no recorded instances in Islamic history, to my knowledge, of a trial for such egregious breaches despite their emphatic condemnation by theologians and lawyers. Even in better documented Western history, the emergence in recent scholarship of a pre-Atlantic revolution case of a crime tried “internationally” in 1474 suggests it as an exception that confirms the rule.57 There always was confusion between war crimes and atrocities writ large—massacres not committed during a formal war. Over its slow development over two centuries, culminating in the International Criminal Court and its sister tribunals in the 1990s, the legal prism by which mass crime was read alternated between the international and domestic spheres of justice. Proto-international criminal law was torn between wars and revolutions, and the inability to properly label mass crime that shocks human conscience other than as atrocities. Much confusion results from this complex ad hoc history.

women and children, wa mujarrad hurmat al-qatl la yakfi li-wujub al-daman kama fil-nisa’ wal-wildan.” Shamseddin al-Sarakhsi, Al-Mabsut, Beirut: Dar al-ma‘rifa, n.d., rpt of Cairo: Mat ̣ba‘at al-sa‘ada 1906–1913, 30 vols, Vol. 10 at 31. In other words, killing women and children in war is prima facie illegal. The topos of prohibiting the killing of women, children, and old men in war is common, see id., Vol. 10 at 7 and at 29; and Majid Khadduri, War and Peace in Islam, Baltimore: John Hopkins 1955, which remains a useful introduction to the topic. 56 “Ruwiya anna rasul allah salla allah ‘alayh wa sallam ba‘atha ma‘adhan fi sariyya wa qal la tuqatilhum hatta tad‘uhum fa-in abaw fala tuqatilhum hatta yabda’ukum, fa’ in bada’ukum fa-la tuqatilhum hatta yaqtulu minkum qatilan thumma aruhum hadha al-qatil wa qulu lahum hal ila khayri min hadha sabil?” Sarakhsi, Mabsut, Vol. 10, above note 55 at 31. The “invitation to Islam” as condition to war is a classical topos for jurist, see examples in Khadduri, War and Peace, above note 55 at 96–98, but the elaboration of Sarakhsi into a last resort, inevitable, self-defense argument constitutes an enticing example of the humanist side of the fiqh tradition. 57 On the “pre-history of international criminal law,” and the “international” trial of 1474, see Gregory S. Gordon, “The Trial of Peter Von Hagenbach: Reconciling History, Historiography, and International Criminal Law,” in Kevin Heller and Gerry Simpson eds., The Hidden Histories of War Crimes Trials, Oxford: Oxford University Press 2013, 13–49, “prehistory” mentioned at 15. Even this case is international in a loose sense, as the author shows, and the documentation of the trial is thin. I suspect further research into chronicles and archives will uncover occasional instances of emperors, sultans, or caliphs admonishing brutal generals, and field commanders executing soldiers who are particularly cruel on some battlefield. It is unlikely to be sufficiently documented with arguments of prosecution and defense before the nineteenth century. I suggest in the next chapter that an international commission followed by a trial took place the first time ever in the Middle East, after massacres in Damascus and Mount Lebanon in 1860. But the first recorded instance is always subject to a chance discovery.

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The interplay between domestic strife and international war was always blurred from the perspective of “the laws of war.” The confusion over what is domestic and what is international is now documented in no lesser an occasion than the condemnation by the French government of the icon of the American revolution and first US president, George Washington. This was the “Jumonville affair” in 1754. The facts, as often in such cases, are disputed. The twenty-two-year- old young officer in the Virginia militia was fighting with the English against the French incursions in the Ohio valley. In the first episode of what became the Seven Years’ War, fought by European powers in the colonies and on the continent, George Washington’s unit surrounded and killed some ten French soldiers and imprisoned another twenty-five. One of those killed was Jumonville, the commander of the French company. The young Washington officially reported that Jumonville was killed in battle, but the French disputed the account, and in one of those bizarre turns of fate, had Washington later admit that he presided over the “assassination” of Jumonville after he had surrendered.58 Starting with this episode, John Fabian Witt’s epic history of the American rise of the laws of war from late colonial times through the Civil War shows how hard it is to untie the knot of domestic and international violence. Domestic wars spill over more readily than not into international strife, and there is no useful reflection on war that ignores Clausewitz’s famous phrase on its anchoring in domestic policy. The Jumonville affair was a harbinger of that Gordian knot, and all subsequent wars fought by the young American Republic illustrate the difficulty for a country dominated by lawyers to draw a satisfactory line between domestic and international warfare. No instance is more telling than America’s Civil War. Its very alternative name as War of Secession, preferred by the Southerners, is evident testimony of the blurred line. From the perspective of the South’s secessionist states, the war was an international one by definition. For the side that won behind Lincoln, it was and remains a “civil war.” The battle over civil/international carries a particularly familiar ring in the ongoing revolution in the Middle East, from Bahrain to Syria. Amid the confusion between domestic and international, and the attempt to apply a different legal treatment in each case, it will not come as a surprise that international treaties codifying the laws of war emerged from the horror of killing fields in war theaters both from within and between increasingly industrialized nations. The “laws of war” as we know them originate in both. Humanitarian efforts carried out by and around Henry Dunant and the Red Cross resulted from the horror of European battlefields of the 1860s, particularly the Crimean War, but they were also inspired by American “domestic” developments best documented in the codification of the so-called Lieber Code, which was issued by US president Abraham Lincoln on April 24, 1863, in the midst of the devastating American civil war.59 John Fabian Witt, Lincoln’s Code: The Laws of War in American History, New York: Free Press 2012, 13–15. Article 44 of the Lieber Code gives a familiar example of a “law of war crime,” as it was then called: “All wanton violence committed against persons in the invaded country, all destruction of property not commanded by the authorized officer, all robbery, all pillage or sacking, even after taking a place by main force, all rape, wounding, maiming, or killing of such inhabitants, are prohibited under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offense. A soldier, officer or private, in the act of committing such violence, and disobeying a superior ordering him to abstain from it, may be lawfully

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Since the 1860s, arising from the horror of “total war” (Clausewitz) in the mass slaughter between Americans, and the advent of similar mass slaughter in Crimea and elsewhere, a shift took place toward legislating the conduct of war internationally. For the first time the principles of jus in bello were enshrined in a quasi-universal convention. The code word for that category until the emergence of the International Criminal Court (ICC) was “war crimes.” Over a century, from the Hague to the Geneva Conventions, treaties between the main belligerents in Europe and the West transformed a rich but spotty legacy intersecting domestic and international law and procedure, and wrote them into international law.60 Crimes against humanity were left on the wayside, good enough only for the petty pirates who undermined the freedom of oceanic trade. For a long while then, crimes condemned by the laws of war prevailed, with occasional but rare trials, while crimes against humanity remained dormant in the faded memory of the depiction of pirates and the one-time characterization of a king as a “criminal against humanity.” As war machines of the industrial period are particularly conducive to mass killing, atrocities committed in war led to privileging crimes committed in bello as “war crimes.” Court-martials and military commissions have tended to adjudicate these crimes domestically. In the American Civil War, about a thousand crimes committed in war were prosecuted, but most were directed at such “violations of the law of war” by the Confederation as enemy. Union soldiers’ condemnations were rare: “[T]‌he rarity of prosecutions against Union soldiers accused of violating the laws of war reflected the basic function of the military commission and the laws of war in the work of the judge advocates.”61 The bad habit of nations avoiding the prosecution of their soldiers and commanders has not abated, judging by the less than twenty or so prosecutions of such widely acknowledged crimes of war in the Abu Ghraib prisons, should one single out the United States on the warpath.62 This did not prevent “the law of war crime,” as it was known to Francis Lieber, the architect of the first comprehensive code, from slowly making its way into the international legal sphere, culminating in the Hague Conventions at the turn of the twentieth century. World War I exposed the ineffectiveness of the Hague Conventions by the monstrous technological device used in the trenches as air-carried poison gas. Neither gas, nor mass

killed on the spot by such superior.” Full text of the Lieber Code, which remains the template for the 21st century manuals used by the US military, at http://avalon.law.yale.edu/19th_century/lieber.asp. 60 The main Hague Conventions are those of 1899 and 1907. The four main Geneva Conventions date from 1949, and were followed by two Protocols in 1977. All texts can be found on the Yale Law School Avalon Project. A reference commentary of the 1949 Geneva Conventions is by Jean Pictet, Les Conventions de Genève du 12 août 1949:  Commentaire, Geneva:  Comité international de la croix-rouge, 1952–1959, also available in English. 61 Witt, Lincoln’s Code, cited above note 58 at 269. Witt’s book also shows that the codification of war excesses cannot be seen as merely humanitarian. “[T]‌he judge advocate corps treated the law of war not only as restraint but as an instrument for increasing the power of a nation at war.” Id. at 274. 62 See “The Shadow of Abu Ghraib” in my Iraq: Guide to Law and Policy, Austin, TX: Wolters Kluwer 2009, 190–200 and references cited, especially Laura A. Dickinson, “Abu Ghraib: The Battle over Institutional Culture and Respect for International Law,” in John E. Noyes, Laura A. Dickinson, and Mark W. Janis eds., International Law Stories, New York: Foundation Press 2007, 405–34; and Philippe Sands, Torture Team: Rumsfeld’s Memo and the Betrayal of American Values, New York: Palgrave 2008.

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killings in the war generally, were sanctioned in any form of judicial reckoning. In a staple reference to a court case that never happened, Kaiser Wilhelm II, the German emperor, figured in the Treaty of Versailles as the object of trials for “supreme offense against international morality and the sanctity of treaties.”63 In the event Holland, where he had taken refuge, refused to extradite him, and a paltry group of some seventeen Germans faced trial in Leipzig in 1922 as an ersatz fulfilment of Article 229 of the Versailles Treaty.64 This attempt also ended in a whimper, and the trials were quietly abandoned.65 The formal judicial birth of crime against humanity. It is only in the trials of Nuremberg and Tokyo that the concept of “crimes against humanity” re-emerged with a universal opprobrium against government officials whose wide-scale killings cannot remain unpunished. The category appears in the opening speech of Justice Robert Jackson, the chief American prosecutor at Nuremberg: “I therefore want to make clear to the American people that we have taken an important step forward in this instrument in fixing individual responsibility of war-mongering, among whatever peoples, as an international crime. We have taken another in recognizing an international accountability for persecutions, exterminations, and crimes against humanity when associated with attacks on the peace of the international order.”66 There is a risk for the trials to be perceived as victors’ justice, Jackson emphatically added:  “The danger, so far as the moral judgment of the world is concerned, which will beset these trials is that they come to be regarded as merely political trials in which the victor wreaks vengeance upon the vanquished. However unfortunate it may be, there seems no way of doing anything about the crimes against the peace and against humanity except that the victors judge the vanquished.”67

Part vii of the Versailles Treaty (June 1919)  is entitled “Penalties,” and includes four articles, Arts. 227 to 230. 64 Art. 229 states the following: “Persons guilty of criminal acts against the nationals of one of the Allied and Associated Powers will be brought before the military tribunals of that Power. Persons guilty of criminal acts against the nationals of more than one of the Allied and Associated Powers will be brought before military tribunals composed of members of the military tribunals of the Powers concerned. In every case the accused will be entitled to name his own counsel.” Of the seventeen former German soldiers facing trial, seven were acquitted. None of the accused was high-ranking, and in one major case, the Reichsgericht at Leipzig condemned the witness rather than the accused. Alan Kramer, “The First Wave of International War Crimes Trials: Istanbul and Leipzig,” European Review, vol. 14, 2006, 441–55, at 448. 65 The trial of the Kaiser after World War I petered out, as did the Leipzig trials. But the revisitation of justice in post-Ottoman Turkey may yield interesting clues, both as a successor to the 1860 trials lingering in Middle Eastern memory and as another failed moment for justice, especially in light of the Armenian massacres and obdurate Turkish opposition, across the board of the political spectrum for over a hundred years, to come seriously to terms with the Armenian genocide. See for a missed occasion of providing some justice to the victims Jennifer Balint, “The Ottoman State Special Military Tribunal for the Genocide of the Armenians: ‘Doing Government Business,’ ” in Kevin Heller and Gerry Simpson eds., The Hidden Histories of War Crimes Trials, above note 57 at 77–100. See also Chapter 15 note 31. 66 Statement by Justice Jackson on War Trials Agreement; August 12, 1945, United States Department of State Bulletin, Washington, DC: Government Printing Office, 1945, at Yale Avalon Project, http://avalon.law. yale.edu/imt/imt_jack02.asp. 67 Id. (Emphasis added.) 63

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Here again, the lead prosecutor in the post–World War II trials mentions crimes against humanity. With only German and Japanese leaders and warriors targeted by Nuremberg and Tokyo, he noted the problem of victors’ justice. More important, he inscribed the concept of “crimes against humanity” into the atrocities of World War II. This did not simplify the prevailing confusion, but it allowed for the subsequent emergence of a more encompassing condemnation and punishment of atrocities irrespective of whether they were domestic or international, and whether they were committed during formally declared war or in any form of domestic strife. Crimes against humanity slumbered back into oblivion until the fall of the Berlin Wall, and were revived by the collapse of the Soviet Union and the atrocities in Iraq and the Balkans in the early 1990s. I shall now consider their parallel formation in the Middle East since the little known ‘precedent’ of 1860.

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For the philosophy of nonviolence, the history of crimes against humanity uncovers recorded legal and judicial contributions from the Middle East that take us back as far as 1860. In more recent times, the region has an unfortunately rich track record enhanced by the brutality of self-anointed “warriors” and absolute dictators in the shape of kings and dynastic presidents-for-life. By the time the concept equating “dictatorship with crime against humanity” was adopted by civil society groups across the region in 2004, international criminal punishment was no longer a figment of political utopia expressed by local or international NGOs. By 2011, the call for justice had become the rule rather than the exception in the region. When the revolution broke out in Tunisia and Egypt, the prime minister of Israel and the dictator of Iraq, as well as the Caligula-style leader of Libya, had long been the object of criminal complaints filed in court by their victims, while the ruler of Sudan and his two key ministers had become named ICC indictees for crimes against humanity committed in Darfur. Judicial accountability was also the central request of the Cedar revolution of 2005, which succeeded in the establishment by the United Nations of a Special Tribunal for Lebanon (STL) in 2007.1

From the more engaged perspective argued in the Introduction as an essential part of a “radical idealist” philosophy of history, with truth not necessarily preceding action, I have taken active part in a number of legal cases against Middle Eastern rulers to bring them to account before domestic or international tribunals for large-scale atrocities. Some of the documentation below is part of a career-long effort. I was the initiator of the case in Belgium for the Sabra and Shatila victims in 2000–2001, and represented them with two Belgian colleagues, Luc Walleyn and Michael Verhaegen from 2001 to 2003. I was also the lawyer of the families of Imam Musa Sadr, journalist Abbas Badreddin, and cleric Muhammad Ya‘qub against Mu‘ammar al-Qaddafi since 2001, and continued to assist the process, although far less actively, after the death of Qaddafi. In 1996,

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By the second decade of the twenty-first century, a parallel telling phenomenon had taken root in an enhanced interest by scholars in the work of courts as an essential part of Middle Eastern law through the ages, and the seeping into popular literature of forgotten cases, some of which lingered in collective memory decades after the fact. Research into Middle East judicial reports yields a remarkable wealth of cases in the recorded history of humankind.2 Not a total coincidence as brutal rule is a conspicuous continuum of modern Middle Eastern history, we have in addition to daily judgments a rich record of cases dealing with atrocities committed in Lebanon and Syria as far back as 1860. Although research may push documentation of judicial trials for mass murders further back, the Middle East record appears in the lead for the earliest international adjudication of widespread killing of civilians. Damascus and Beirut 1860 A gripping novel by Rabi‘ Jaber on the Druzes of Belgrade3 takes its inspiration from massacres carried out in Mount Lebanon and in Damascus in 1860 on the occasion of a brutal sectarian war that forebodes the one that has plagued Lebanon since 1975, and Syria since 2012. The Druzes of Belgrade opens on two strong scenes: one is an old Druze sheikh who gives all his fortune to an Ottoman official in return for sparing at least one of his five sons marked for deportation and jail for taking part in the massacres. The other scene takes place at the port of Beirut where several dozen Druze convicts are lined up, in shackles, waiting to be taken to forced labor in the fortress of Belgrade, in still Ottoman-dominated Balkans. In the novel, none returns home. The fate of the deportees is less bleak in reality.4 Here, the I initiated Indict, an international NGO, launched in the British House of Commons, to document and bring to trial Saddam and his top aides. I  also participated in 2003 at a meeting in Amsterdam for the establishment of a tribunal to try Saddam, and was invited in 2005 to sit on the tribunal in Baghdad by the Iraqi government, but declined. I was also active in the establishment of the Special Tribunal for Lebanon in 2005–2007. In a much more minor mode, I have advocated the trial of Omar Bashir with Arab colleagues in 1998 and sat on the board of a Sri Lanka human rights international that seeks, inter alia, to bring the Sri Lankan president to trial. This experience partly surfaces in the relevant sections of this chapter. Of course, in all this work, I was part of a much larger group of lawyers, activists, and supporters, too many to mention here. The most rewarding dimension of this difficult work is the fortitude and dignity of the victims. My personal experience supplements in this chapter the available public record. 2 This is part of a collective work that historians started, and that I  have sought to put forward, from an academic lawyer’s perspective, in a continued effort to reshape the field of Middle Eastern law (including pre-Islamic and Islamic laws) focusing on justice as dispensed by the courts to individual plaintiffs and defendants across the ages. See generally my Introduction to Middle Eastern Law, Oxford: Oxford University Press 2007; more recently “Middle Eastern Law” (with Mara Revkin), Annual Review of Law and Social Science, vol. 9, 2013, 405–33, which features three unpublished case reports from courts in Mesopotamia ca 1700 bce, Jewish Cairo 1104 ce, and Ottoman Tripoli 1666 ce. 3 Rabi‘ Jaber, Druz belghrad (The Druzes of Belgrade), Beirut: Aadab, 2011. 4 There are several accounts on the massacres and ensuing trials in Damascus and Mount Lebanon in 1860. One contemporaneous book includes a useful appendix detailing important cases. Richard Edwards, La Syrie 1840–1862, Paris:  Amyot 1862; Other documents include Baron de Testa ed., Recueil des traités de la Porte Ottomane avec les Puissances Etrangères, Paris: Muzard 1884, Vol. 6, 35–406; Antoine Daou tr. and ed., Hawadeth 1860 fi lubnan wa dimashq, lajnat beirut al-dawliyya, al-mahader al-kamila 1860–1862 (The events of 1860 in Lebanon and Damascus—The Beirut International Commission, the full reports

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novel fictionalizes history. But the trials and harsh sentences meted out by tribunals sitting in judgment of mass killers in Damascus and in Lebanon were real, with convictions and effective death and prison sentences. The court sitting in Lebanon, in particular, constitutes a remarkable precedent for today’s international criminal courts. The region had been wrecked by massacres in civil and regional wars since the occupation in 1830 of large parts of Syria by the Egyptian ruler, Muhammad Ali, who appointed his son Ibrahim Pasha as governor of the conquered land. Egyptian rule ended in 1840 by the defeat of Muhammad Ali and the retreat of Egyptian troops as the Ottomans regained control over the region with the support of Great Britain, their main ally then. Between 1840 and 1860, a peasant revolution dovetailed with a succession of sectarian civil wars devastating present-day Lebanon and Syria, and culminating in 1860 in the killing of Christians and Druzes in Mount Lebanon, followed by the massacre of Christians in Damascus. The war ended in a new constitutional set-up in Lebanon known as the mutasarrifiyya, characterized by a strict sectarian division of power and the direct appointment by Istanbul of a Christian governor of Mount Lebanon, the mutasarrif. A banal incident in the village of Beit Meri that remains shrouded in uncertainty lit the fuse in 1859 between Christian Maronites and Muslim Druzes. In a conflict that soon extended to other sects, a low-level armed strife took place first in the early months of 1860 in the Lebanese Mountain. It intensified and spread south and east in the Spring, while the Ottoman troops remained either aloof, or effectively helped the Druze prevail. By the end of June 1860, when the massive killings finally abated, two main Christian cities in Lebanon, Zahleh in the Bekaa Valley and Deir al-Qamar in the Shuf in Mount Lebanon, had been occupied and ransacked. Deir al-Qamar, the most prosperous city of the Mountain, was the scene of the last major massacre of Christians. It took place between June 20 and 23, 1860. An estimated 1200 to 2200 inhabitants were killed in a city originally inhabited by some ten thousand people. By October 1860, the city counted only four hundred residents.5 The total figure of deaths in the Lebanon civil war is unknown, but a rough extrapolation suggests about ten thousand people killed on all sides, with the brunt of casualties suffered by the Maronites. The troubles then spread to Damascus, where the Christian quarters, notably Bab Tuma, were attacked, the inhabitants massacred, and the houses torched. Unlike Lebanon, this came suddenly and without escalating violence between the parties. The Christians of Damascus were targeted by Muslim mobs with participation, collusion, or neglect from the Ottoman troops and commanders in charge of the city. The atrocities started on July 6, 1860, and the massacre of civilians continued for eight days. The whole neighborhood of Bab Tuma was pillaged and destroyed, possibly with “some six thousand deaths.”6 A 15,000-strong contingent of Ottoman troops dispatched to the region under

1860–1862), Beirut: Mukhtarat 2 vols. 1996. For a comprehensive study, Leila Fawaz, An Occasion for War. Civil Conflict in Lebanon and Damascus in 1860, London: I.B. Tauris 1994. For helpful surveys in Lebanese and Syrian historical contexts, Antoine Sfeir, Genèse du Liban moderne 1711–1864, Paris: Riveneuve 2013, 267–396; Philip Khoury, Urban Notables and Arab Nationalism:  The Politics of Damascus, 1860–1920, Cambridge: Cambridge University Press 1983, 8–25. 5 Sfeir, Genèse du Liban moderne note 4 above, 291. Fawaz, An Occasion for War, above note 4, Zahleh 64–69, Deir al-Qamar 69–74. 6 Khoury, Urban Notables and Arab Nationalism, above note 4 at 28.

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the command of foreign minister Fuad Pasha arrived in Lebanon on July 17, 1860, after a working “peace treaty” was hammered out by the Ottoman governor of Beirut on July 6 in Mount Lebanon, the very day when the Damascus massacres started. France joined with an expedition of another six thousand troops under the leadership of Beaufort d’Hautpoul.7 The French corps expéditionnaire arrived in Beirut at the end of August 1860 and stayed in Lebanon until June 1861. The Ottoman Porte sought to prevent a prolonged foreign military presence by acting firmly against the perpetrators of the atrocities. Fuad Pasha moved decisively. The peace treaty between the Lebanese leaders of the communities at war, signed on July 6, established contradictory principles: one of amnesty, the other the “march of justice.”8 In Damascus, order was restored by Fuad Pasha upon his arrival at the end of July. After severe sentences were dealt by the military tribunal set up in Damascus, and dozens condemned to death and executed, Fuad Pasha turned to judicial accountability in Lebanon. Historians have reconstructed events precisely enough. The judicial story is less well studied.9 The massacres of Christians in regions under Ottoman rule in a turbulent mid-nineteenth century triggered an internationally negotiated solution that included criminal and civil retribution meted out by the Ottomans under the main European powers’ close supervision. Both in Damascus and in Beirut, severe punishment befell those who participated in the slaughter, commandeered them, or did nothing to prevent them. In Damascus, Turkish commanders who had allowed the massacres to take place and a significant number of local Muslim Damascenes were tried by an Ottoman ad hoc military tribunal. Those condemned to death were executed, and dozens others were sentenced to hard labor.10

For a retrospective reading as a “Responsibility to Protect” mission, see Yann Bouyrat, Devoir d’ intervenir? L’expédition ‘ humanitaire’ de la France au Liban, 1860, Paris:  Vendémiaire 2013, especially chapter on “Justice internationale et rivalité diplomatique,” 194–214. 8 “Traité de paix entre les Druzes et les Maronites, signé à Béïrout, le 6 juillet 1860 (17 zilhidjé 1276)”, in Testa ed., Recueil des traités de la Porte Ottomane avec les Puissances Etrangères, above note 4, 84–86. Amnesty is expressed in the French formula as “l’oubli de ce qui est arrivé,” at 85 (emphasis in original), for the Arabic mada ma mada (literally what happened happened), which remains a formula used to date. March to justice is expressed in the following page:  “[l]‌es soussignés suppliant S.E.  de prendre des mesures efficaces pour faire marcher la justice, en faisant exécuter toutes les choses suivant leur cours naturel, et rendant avec la plus grave impartialité la justice à chacun. ([T]he undersigned [leaders of the various communities] imploring H.E. [The Ottoman ruler] to take efficient measures for the march of justice, by having all things executed in their natural course, and rendering justice to each with the greatest impartiality.” Eventually justice prevailed over amnesty. 9 From a different archive, the probate judgments of eight Muslim Damascenes executed by the Ottomans have been analyzed by Abdel Karim Rafeq, “New Light on the 1860 Riots in Ottoman Damascus,” Die Welt des Islams, vol. 28, 1988, 412–30, where the focus is on the socioeconomic status of participants in the massacres but not on the criminal sentencing. 10 We will encounter in the chapter slightly different figures. For a first chart summary of sentences Testa ed., Recueil des traités de la Porte Ottomane avec les Puissances Etrangères, above note 4, 285: in the category of Damascene notables and Ottoman civil servants, six were condemned to death, three committed to life, two sentenced to fifteen years in jail, two to ten years, five to three years banishment, and one to prohibition of serving in the military. For lower-class participants in the massacres, 181 were condemned to death, and 7

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The legal tone was set by an order of the sultan instructing Fuad Pasha to restore the peace: “Those who dared spill human blood, you will endeavor, after an investigation, to punish on-the-spot, by observing the prescriptions of the criminal Code.”11 Arriving in Damascus from Beirut on July 29, Fuad Pasha made swift arrests. An Ottoman military court was set up immediately. It sentenced to death a significant number of those who participated in the massacres on the ground, then set its sights on the Damascene notables and the Ottoman civil servants. It tried in turn the three categories of participants: mobsters, the local notables, and the governor of Damascus at the time of the massacres, Ahmad Pasha and his top aides. On August 20, 1860, a telegram from Fuad to the Vizier ‘Ali Pasha in Constantinople mentions 167 executions.12 The 149 convicts who were sentenced to jail and hard labor, Fuad reports, “will be sent tomorrow with a strong escort to Beirut to be immediately shipped to Constantinople.”13 This was clearly informed by the order issued a few days earlier by the sultan across the Ottoman Empire for fear of sectarian killings spreading further: The Porte has just learnt with much regret that in Damascus Muslims have attacked Christians, who are the faithful subjects of the Sultan, and dared to commit atrocities like murder and plunder. Although the authors of these odious acts, which violate the law of the Prophet and the well-meaning and paternal feelings of His Imperial Majesty, must soon fall under the severe punishments of the law and the Code . . . ; the responsibility falls entirely on the Porte’s civil servants; they could in no way be able to exonerate themselves.14 149 to life. For a list of all those sentenced, with their full names and profession, see the Annex to Richard Edwards, La Syrie 1840–1862, above note 4, 393–99. Unlike for the trials in Mount Lebanon, we do not have published reports of the Damascus judgments, which were in any case summarily disposed of by the military tribunal. But see below notes 15–16 on Ahmed Pasha’s less hasty trial. 11 “Firman du Sultan Abdul-Mégid à Fuad-pacha, en date du 8 au 18 juillet 1860 (dernière décade de zilhidjé 1276),” in Testa ed., Recueil des traités de la Porte Ottomane avec les Puissances Etrangères, above note 4, 90–91, at 91: “Quant à ceux qui ont osé répandre le sang humain, tu t’appliqueras, après enquête, à les punir sur-le-champ, en observant les prescriptions du Canoun-Namé.” Canoun-Namé refers to the statutes introduced in the Ottoman Empire since the sixteenth century, with Canoun (Arabic qanun, after the Greek kanon) as opposed to fiqh, which refers to the treatises elaborating the law generally known as shari‘a. In this case, the reference is to the Ottoman criminal code of 1858, see below note 26. 12 Of whom 57 were hanged, and 110 belonging to the local police (“appartenant à la police locale”) shot. “Dépêche de Fuad-pasha à [Vizier] Aali-pacha, en date de Damas, le 20 Août 1860 (2 sâfer 1277).” Testa ed., Recueil des traités de la Porte Ottomane avec les Puissances Etrangères, above note 4, 103. The cable mentions that the trial of Ahmad Pasha (downgraded in title to Ahmad Agha) and other officials continued before the military tribunal (“conseil de guerre”). 13 Id.: “Demain, les coupables condamnés aux travaux forcés et à la détention seront, sous bonne escorte, dirigés sur Beïrouth pour être immédiatement embarqués pour Constantinople.” 14 “Instructions de la Sublime-Porte aux gouverneurs du Kurdistan, de Kharpout, de Mossoul, de Bagdad, de Marash, d’Adana, de Sivas, d’Angora, de Trébizonde, d’Erzeroum et au commandant en chef de l’armée d’Anatolie, en date de juillet 1860 (zilhidjé 1276),” in id., at 91–92: “La Porte vient d’apprendre avec beaucoup de regret qu’à Damas les musulmans ont attaqué les chrétiens, sujets fidèles du Sultan, et osé commettre des cruautés, comme le meurtre et le pillage . . .  Quoique les auteurs de ces actes odieux, contraires à la loi de Mahomet et aux sentiments bienveillants et paternels de S.M. Impériale, doivent tomber prochainement sous le coup des châtiments sévères de la loi

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The legal framework expressed here by the sultan was dual: under Islamic law, Christians had to be protected, and those responsible brought to justice both under the “divine law” and the criminal “Code.” More significant, the sultan established the principle of the responsibility for law and order applied squarely to his officials. The Ottoman civil servants could “in no way” escape retribution. This request did not remain rhetorical. The highest Ottoman official in Syria, Damascus governor Ahmed Pasha, was arrested, tried, sentenced, and executed. The particular saga of his tribulations is recounted by Leila Fawaz, who shows the dilemmas of Fuad Pasha, who knew Ahmed well as a close former colleague.15 Fuad was the ultimate decision-maker at the head of the military tribunal he set up in Damascus. Amid pressures by the European powers to see the Damascus governor executed, Ahmed was at first sent by Fuad to Istanbul, but the higher authorities wanted their special envoy to take full responsibility for the fate of a senior Ottoman personality. Ahmed was remanded to Fuad in Damascus to stand trial in September 1860. He was condemned to death on September 7, and shot by a firing squad. In the only official record available of a trial carried out behind closed doors, it is said that “he did not perform the duties for which the head of an army is responsible.”16 The closest argument nowadays would be his responsibility as superior in not preventing a massacre that he could or should have avoided. As governor of Damascus, he knew or should have known that massacres were taking place, and did little to prevent them. The record of the Beirut trials is much richer, and the effective set-up of retribution was more international, both in conception and in the active participation of European powers through specially designated representatives. Although the tribunal that sentenced those arrested remained Ottoman, principles and procedure for the trials were approved by the Commission Internationale de Beyrouth, which met fifty times from October 5, 1860, to May 23, 1862.17 The Commission’s very name underlines its international character. Composed of representatives of five powers (Britain, France, Russia, Prussia and Austria) and led by the Ottomans, its mission does not seem to have been defined formally, and the Ottoman government initially resisted its establishment. A note from the French foreign minister to the Commissioner he appointed suggests a wide scope, including for our purposes investigating the causes that led to the events, those responsible for them, and their punishment.18 In et du Code, . . . ; la responsabilité en retomberait entièrement sur les fonctionnaires de la Porte; ils ne pourraient, en aucune manière, s’en dégager.” 15 Fawaz, An Occasion for War, above note 4, 148–50. Showing how difficult it was for Fuad Pasha to try a high-level former colleague, Fawaz quotes a phrase attributed to him by an Ottoman chronicler: “While I never cut a chicken or shot a bird in my life, look what God made me do.” Id., at 265 fn 62. 16 ‘lam yu’addi al-mahamm al-mukallaf biha qa’ed jaysh’, Daou, Mahader, above note 4, Vol. 1, 167. 17 Now fully available in Arabic translation from the French archives, Daou tr. and ed., Hawadeth 1860 fi lubnan wa dimashq, above note 4. Testa’s Recueil des traités de la Porte Ottomane avec les Puissances Etrangères also includes the minutes (“protocoles”), held in French, but they are less complete than in the compilation of Daou. 18 “Instruction de M. Thouvenel [The French foreign minister] à M. Béclard, commissaire français en Syrie, en date du 16 août 1860 (28 Mouharrem 1277),” in Testa ed., Recueil des traités de la Porte Ottomane avec les Puissances Etrangères, above note 4, 102–03: “Votre premier soin, après vous être mis en rapport avec les commissaires d’Autriche, de Grande-Bretagne, de Prusse et de Russie, et avec celui du sultan, sera de rechercher, de concert avec eux, l’origine et les causes des événements, de déterminer la part de responsabilité des chefs de l’insurrection et des agents de l’administration, et de provoquer la punition des coupables.”

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effect, the Beirut International Commission (“Commission Internationale de Beyrouth”) set up with Fuad Pasha the “Extraordinary Tribunal” (“Tribunal extraordinaire”), which sat in both Beirut and Mukhtara in the Shuf Mountain, as well as the procedure to compensate the victims. The Commission effectively acted as an appellate review court (more accurately a board, as the commissioners were not professional judges). In charts and figures annexed to its minutes, we have the most precise tally of judicial sentences in three Annexes to the Commission’s session 14, held on December 15, 1860. The numbers are close to the other sources mentioned, but appear in the official records as the most definitive, also carrying the name of those sentenced. They provide, respectively, for Damascus: – “The summary of the case reports of those who committed crimes during the events which took place in Damascus,” with 180 names, all condemned to death; – “The list of the names of the persons who were sent to Istanbul, and incarcerated for life for participating in the events of Damascus,” with 163 names; and – “The summary of sentences of Ottoman officials and Damascus notables,” with nineteen names, among whom six officers who were executed, including Ahmed Pasha.19 For Lebanon, the Commission includes in Annex 3 to its 26th session, held on March 21, 1861, “the list of the names of the Druzes who have been condemned to exile and incarceration,” with 247 names sentenced between twelve years and a one-year of exile/jail.20 The Lebanon tribunals did not hesitate to find several high-ranking accused guilty, including the Ottoman officials who did not prevent the killings, and the leaders of the Druze “rebels.” In addition to those precise lists, the judgments of those sentenced by the tribunal survived in the form of official reports sent to both Fuad Pasha and the Commission to exercise their review.21 This extensive record of case reports, in French, survives with

Daou, Mahader, above note 4, Vol. 1, respectively at 123–45, “mujaz malaffat da‘awa alladhin iqtarafu jara’em khilal al-ahdath allati waqa‘at fi dimashq (summary of the case reports of those who committed crimes during the events which took place in Damascus),” at 147–63, “la’ ihat bi-asma’ al-ashkhas alladhin ursilu ilal-astana, wa ulqu fil-sijn mada al-hayat li-musharakatihim fi ahdath dimashq (list of the names of the persons who were sent to Istanbul, and incarcerated for life for participating in the events of Damascus)”; and at 165–69, “mujaz al-ahkam al-sadira bi-haqq al-ma’amir al-‘uthmaniyyin wa a‘yan dimashq (summary of sentences of Ottoman officials and Damascus notables).” 20 Daou, Mahader, above note 4, Vol. 1, 279–303, Annex 3 to 26th session, March 21, 1861, “la’ ihat bi-asma’ al-duruz al-mahkum ‘alayhim bil-nafi wal-sijn (list of the names of the Druzes condemned to exile or jail).” Note in this text the reference to the sentence being carried out by “the majority of voices,” suggesting the review by the five members of the Commission. 21 Summary of sentences in Testa ed., Recueil des traités de la Porte Ottomane avec les Puissances Etrangères, above note 4 at 285, with the following tally:  43 people were sentenced to death, 3 to life, 11 to jail for twelve years, 169 to temporary banishments (those who are the subject of Jaber’s novel, above note 3), 55 to a one-year banishment, and 2 to exclusion from civil service and a temporary detention. See also the Annexe to Richards, Edwards, La Syrie 1840–1862, above note 4, 399–402, which Edwards probably reproduces from a high-ranking source from within the Commission. 19

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an explanatory cover letter from the British Commissioner appointed by London to the British Ambassador to Constantinople.22 These case reports of the trials of Beirut provide a more detailed set of ratio decidendi arguments than those of Damascus, in particular for the judgment held against Khurshid (Hourshid) Pasha, the governor of Saida who had authority over Beirut and the Mountain. It provides an interesting contrast to the execution of Ahmed Pasha and his top aides, which we have to surmise in the absence of a full official report extant. In the case of the governor of Beirut, the report of the judgment first lists the charges: Khurshid Pasha was witness to these facts (the massacres) and had knowledge of them at the time when they occurred. But instead of marching against the Druzes to disperse them, apprehend their leaders, arrest and punish them, he let them free to act as they please . . . ; It was Khurshid Pasha’s first duty to adopt effective measures for the protection of various localities, especially Deir al-Qamar. He neglected these duties.23 These were the accusations as reported in the judgment available. In his defense, the governor argued that he did not have enough soldiers, and that his main focus was Beirut, where the troops were used to deter the warring parties from fighting in the city. This argument owed him a major reprieve: despite the insistence of some European commissioners, he was not sentenced to death like his Damascene counterpart: This justification of Khurshid Pasha was not considered sufficient to acquit him from the wrong committed in neglecting to stop the disorders at their beginning; but he does not appear to have tried to cause them, and it seems that he might have even tried, albeit imperfectly, to do his duty.24 “Lord Dufferin [the British diplomat appointed on the Beirut Commission] à Sir H. Bulwer [then British ambassador to the Ottoman Porte]”, dated December 30, 1860, in Edwards, La Syrie 1840–1862, above note 4, at 410–11. In this cover letter, Dufferin mentions that the sentences appended would be final after the Commission’s review. He notes the discrepancy between the condemnation to death of the Druzes and the sentence for life to the Turks, and underlines the Commissioners’ remonstrations made to Fuad Pasha about this prima facie miscarriage of justice. He seems however satisfied by the distinction made by Fuad between killing or commandeering, and passive observation accompanied by efforts to do something, even if insufficient. At the end of the letter, Dufferin suggests that the Commission will review the sentences within fifteen days. The sentences themselves appear to have been already signed by the Commissioners. While the procedure is murky, Fawaz does a thorough job following up on the “review” by the Commission and the effective implementation of the trials on the basis of the French and British archives, and she gives minute details in An Occasion for War, above note 4, 180–86. More people were actually punished than in the records produced by Edwards in his contemporaneous book, but the sentencing in Lebanon was more lenient than the one carried out in Damascus. 23 “Sentence concernant Hourshid-Pasha,” in Edwards, La Syrie 1840–1862, above note 4, 411: “Hourshid-Pasha fut témoin de ces faits et en eut connaissance au moment où ils arrivèrent. Mais, au lieu de marcher contre les Druzes, de les disperser et de s’emparer de leurs chefs, de les arrêter et de les punir, il les laissa libres d’agir comme bon leur semblait . . . ; et comme c’était le premier devoir d’adopter des mesures efficaces pour la protection des diverses localités et surtout de Deïr-el-Kamar, Hourshid-Pasha négligea ces devoirs.” 24 Id., 412: “Cette justification de Hourshid-Pacha n’a pas été considérée comme suffisante pour l’acquitter de la faute commise d’avoir négligé d’étouffer les désordres à leur début; mais il ne paraît pas avoir cherché à les causer, et il semblerait même qu’il a essayé, quoiqu’imparfaitement, de faire son devoir.” 22

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Instead of capital punishment, Khurshid Pasha and his immediate aides were condemned to a life sentence under the Ottoman Penal Code of 1858. Interestingly, no specific article of the Code appears in the transcripts of the governor and his aides, most probably because the “knew or should have known” clause had not yet been formally expressed in the now-familiar jurisprudence. But the tribunal could easily cite the appropriate articles in the Code in the cases against the main Druze leaders, fifteen of whom were present, and thirty-two condemned to death in absentia.25 They were all found guilty for either their active participation in the massacres, or, in the case of their leader, for ordering or commanding the killings. They were sentenced to death under the Ottoman Penal Code Articles 55 (taking up arms against the government), 56 (incitement to civil strife), and 57 (heavier guilt for the organizers for “command” responsability).26 These trials are remarkable for their days. Until we come to Nuremberg or even to the post-USSR world of international tribunals, there is no trace of anything like such detailed post-conflict justice for what we call crimes against humanity. By twenty-first century procedural standards, the legacy of the Beirut International Commission is further alluring as an alternative to a model where the passage from Commission (“fact-finding”) to Tribunal (“judging and sentencing”) may be long and hazardous. Since the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993, a regular feature before the establishment of a tribunal is for the UN Security Council to first set up a fact-finding international commission, which eventually recommends the establishment of a tribunal on the basis of the atrocities that its mission documents. We shall see later the legal complications that this delay causes, but this was avoided in 1860, for the Commission accompanied the work of the tribunal soon after its establishment was announced in July 1860, and acted as a review board for its sentences. The Ottoman/international trials in Lebanon are also remarkable for other reasons. It was hardly victors’ justice, as many Christians had been ethnically purged from Mount Lebanon, after being routed in the civil war. In Damascus, in contrast, there was no war between two identifiable parties. Scores were tried and punished for killing unarmed

25

Id., reports of the sentences at 415–22. The Ottoman Penal Code (28 zilhijeh 1274/August 7, 1858), translated from the French by C. G. Walpole, London: William Clowes and sons 1888, 24–25:

26

Chapter II. Offences against the Internal Security of the Ottoman Empire Art 55 Whosoever shall either directly or indirectly incite the subjects of the Ottoman Empire to take up arms against the Imperial Government shall be punished with death if the attempt has resulted in an overt act or if it has been partly put into execution. Art 56 Whosoever shall incite to civil war by causing the inhabitants of the Ottoman Empire to take up arms the one against the other or to cause any ravage massacre or pillage in one or more places shall be punished with death if the attempt has resulted in an overt act or if it has been partly put into execution. Art 57 Where one of the crimes mentioned in articles 55 and 56 has been committed or only attempted by a band of men the punishment of death shall be inflicted on those who have organised the riot or held some command amongst the rioters in the place where they are arrested. The other members of the band who are arrested in the place of the riotous gathering shall according to the degree of their guilt be punished with hard labour either for life or for from three to fifteen years. (Emphasis added.)

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Christians, and there is no trace of Druzes or Muslims killed in that “systematic and widespread attack against the civilian population,” as per the definition of crimes against humanity in the twenty-first century. In Mount Lebanon, of special note is the fact that the main Druze leaders surrendered immediately to the authority of the tribunal—only subalterns fled to find refuge with their co-religionaries in the far away Syrian hinterland. In Lebanon as opposed to Damascus, the trials appeared more lenient, in part because of the various patronage pulls of the five European powers, and because of Ottoman and British resistance to too drastic a treatment of their co-religionaries and/or historic allies in the Mountain. The Druze fighters were correctly perceived as parties to an escalating civil war. “Although the Druzes had won the civil war, the Christians had helped start it—in contrast to the situation in Damascus where the Christians had clearly been a defenceless minority, and their role had not been lost on the Ottomans. For that reason some tried to discourage the authorities from being too severe with the Druzes.”27 Still, several Druze convicts were sent into exile, to jail in Tripoli-Libya and to Crete.28 Most important, the head of the Druze community, Sa‘id Junblat, was condemned to death after a number of “facts” about his leadership of the rebellion had been “established.”29 The report of his judgment concludes: “In one word, he took a sustained part in all the events, large and small, in the Mountain. He was the moral organiser and the author of the insurrectionary combination.”30 Jumblat had been held in prison in Beirut since surrendering to Fuad Pasha in September 1860. His health deteriorated steadily, and he died in jail on May 11, 1861.31 There were no trials of Christians responsible for murder in Mount Lebanon. Justice failed on that score. Note, almost two centuries later, a late development in international criminal law when the European Union announced in 2014 the establishment of a special tribunal focusing on offenses committed by Kosovo’s ethnic Albanian fighters during the war of 1998. So far, only the Kosovan Serbs and the Serbs of Serbia had been subjected to judicial account.

Fawaz, An Occasion for War, above note 4 at 181. And not to Belgrade, as in Jaber’s novel, above note 3, although Leila Fawaz mentions that two Druze leaders who were sentenced to death saw their sentence commuted to confinement in the fortress of Belgrade, An Occasion for War, above note 4 at 186. 29 These specific accusations can be found in “Sentence concernant Saïd-Bey-Djomblât,” in Edwards, La Syrie 1840–1862, above note 4 at 415–16. The records of the Commission show the strong disagreement of the British commissioner, Dufferin, with the causality link between the “facts” adduced and the sentences, mostly because of his sense that the Druzes were acting as a threatened community. There is a confusion resulting from the date December 30, 1860, as terminus ad quem for the judgments (verdicts, “sentences”) reproduced in Edwards’s appendix, and the date of February 24, 1861, mentioned by Fawaz on the basis of a document she found in the Foreign Office archives, “Minutes on the Judgment Proposed to Be Passed on the Turkish Officials and Druze Chiefs by the Extraordinary Tribunal of Beirut,” Fawaz, An Occasion for War, above note 4 at 273 fn 83. One possible reconciliation is that the latter “judgment proposed” regards the Commission’s review in early 1861 of the initial judgments in first instance, which were decided in Fall 1860. More archival work in Istanbul and Damascus, maybe also in Beirut, will yield more clarity on the legal process if we discover the Ottoman version of fuller reports on the first instance decisions in Beirut, and the military tribunal in Damascus, which were probably rendered in Arabic and Ottoman Turkish. 30 Id. 31 Fawaz, An Occasion for War, above note 4 at 187–92. 27

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Separately and in addition, monetary compensation was paid to the victims.32 Most remarkable in the legacy of the international commission and the tribunals in Syria and Mount Lebanon was the peace that followed. In addition to the continued ignorance of this “pre-history” of trials in the scholarship of international criminal law, little attention is paid to the fact that the judgments and sentences carried out in Damascus and Beirut proved to be the ultimate episode in sectarian bloodshedding in both countries for a very long time. After the military courts and the Beirut International Commission wrapped up their work, peace endured until the collapse of the Ottoman rule in the wake of the First World War, almost seven decades later. This is a long stretch. How much this “long peace” owes to the tribunals is hard to establish, but historians and jurists will benefit from more work on that little-known prototype of international justice made in the Middle East.33 So far in legal scholarship, the jurists’ memory of the first international trial stops at Nuremberg. As the search for the “pre-history” of international criminal law intensifies, the 1860 trials in Damascus and Beirut have left enough of a paper trail for the reconstruction of a significant foundation for collective memory in the Middle East and beyond, and an alluring experiment with better success than many a contemporary trial, not least in Syria and Lebanon of the twenty-first century Middle East revolution. Ir aq, False Starts from 1987 to 2003 There was no Nuremberg in the Middle East after the First or Second World War, despite the stern requirements under Article 220 of the Sèvres Treaty (1920) to try those “responsible for the massacres committed during the continuance of the state of war on territory which formed part of the Turkish Empire on 1 August 1914.”34 The first instance of judicial For monetary compensation, Chapter 16 below, note 40. In The Long Peace. Ottoman Lebanon 1861–1920, London: I.B. Tauris 1993, Engin Akarli makes the point of the unique stability from 1861 to the onset of World War I but without enough attention to the trials following the massacres. 34 Article 230 of the Sèvres Treaty (abrogated by the Treaty of Lausanne in 1923) states: 32 33

The Turkish Government undertakes to hand over to the Allied Powers the persons whose surrender may be required by the latter as being responsible for the massacres committed during the continuance of the state of war on territory which formed part of the Turkish Empire on 1 August 1914. The Allied Powers reserve to themselves the right to designate the tribunal which shall try the persons so accused, and the Turkish Government undertakes to recognise such tribunal. In the event of the League of Nations having created in sufficient time a tribunal competent to deal with the said massacres, the Allied Powers reserve to themselves the right to bring the accused persons mentioned above before such tribunal, and the Turkish Government undertakes equally to recognise such tribunal. This mention, not acted upon other than in the failed trials mentioned in Chapter 14 note 65, follows a “common note” of May 1915 between then Allies France, Great Britain, and Russia, where the mention of the “new crimes of Turkey against humanity and civilization” is coupled with the intent to punish the perpetrators. Note the use in this phrase of “crime . . . against humanity.” See, e.g., Olivier de Frouville, Droit international pénal, Paris: Pedone 2012, 117–18.

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accountability materialized only after the occupation of Iraq by the US-led coalition in 2003, long after two major wars launched by Saddam Hussein in the Gulf. The first Gulf War started with Saddam’s sudden invasion of Iran on September 22, 1980. It lasted eight long years with its large share of atrocities. On August 2, 1990, a second Gulf War was also suddenly started when the Iraqi dictator invaded Kuwait and caused immense havoc until he was routed by a Western-led coalition in February 1991. Saddam’s wide-scale killings continued when most of Iraq rose against him in March–April. The rebellion was defeated brutally, as the Allies looked on from positions sometimes as close as ten miles from the site of the massacres. The Iraqi dictator survived in power until 2003, when the United States assembled a “coalition of the willing” to invade Baghdad. Along with a number of his top aides, Saddam Hussein was finally arrested in December 2003, tried by a specially established Iraqi court, sentenced to death, and executed at the end of December 2005. In a sadly competitive field, justice finally caught up with probably the worst tyrant on earth since World War II.35 Over three decades, the impunity of Saddam Hussein weighed heavily on the world. The first two wars started by Saddam, against Iran in 1980, and against Kuwait in 1990, have generally passed unnoticed from a legal perspective. International justice had not moved since Nuremberg, mostly because of the Cold War and the fierce realpolitik that dominated the planet until the fall of the Berlin Wall. Even Nuremberg was a sideshow of pure politics for the Soviet Union. One is hard put to imagine Stalin being interested in atrocities beyond those committed by his enemies whom he was intent on killing with or without due process. When the Wall came tumbling down in 1989, questions were immediately raised about officials in Eastern Europe who were responsible for the mistreatment of dissidents and for the killing of citizens who had fled the authoritarian system dominated by the USSR. The result is a mixed bag, mostly one where prosecutions were carried out haphazardly, if at all. With perestroika initiated by Michael Gorbachev and the willful and massively nonviolent movement that went generally unopposed in 1989 by the East European dictators, there was little appetite for international tribunals other than in the former Yugoslavia subsequent to the Balkan wars. Still, the general absence of domestic judicial accountability in the wake of the collapse of the Eastern bloc is puzzling, Rumania being the exception that confirmed the rule.36 In Settling Accounts, John Borneman provides a mid-1990s’ synthesis organized “Comparative massacrology is not helpful,” to repeat a sentence I heard at a lecture by the late Fred Halliday (d.2010), but it may be particularly jolting in some instances, such as in the 1992 remarks of the UN Special Rapporteur on Iraq and former Dutch foreign minister Max van der Stoel (d.2011): “I had to conclude that the violations of human rights which have occurred in Iraq are so grave and are of such a massive nature that since the Second World War few parallels can be found.” See, e.g., Congressional Human Rights Bulletin (Washington), May 1, 1992. 36 Ceausescu dealt with the revolution brutally, with subsequent revolutionary violence leading him and his wife to the gallows after a sham trial on Christmas Day 1989. There is a large, mostly descriptive literature on Eastern Europe post-USSR, but see for trials in the various countries John Borneman, Settling Accounts. Violence, Justice, and Accountability in Postsocialist Europe, Princeton, NJ: Princeton University Press 1997, esp. 139–66. A useful database was established in 2007 by the Transitional Justice Data Base Project, at https://sites.google.com/site/transitionaljusticedatabase/, and a theoretical introduction by its authors published; see Tricia Olsen, Leigh Payne, and Andrew Reiter, “Transitional Justice in the World, 1970– 2007: Insights from a New Dataset,” Journal of Peace Research, vol. 47, 2010, 803–09, but the organization 35

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into a typology of degrees of retributive justice, with trials at the center of the enquiry.37 The mixed bag raises questions that have remained controversial, especially considering the different course followed in Latin America after the collapse of the military dictators. Despite an early bleaker vision,38 a process of judicial accountability was more purposefully undertaken in Latin America.39 The jury is still out on both the East European and Latin American experiments with post-dictatorship justice.

of the database, and its updating, seems to fall short of the authors’ ambitions. A  more systematic collaborative effort is needed among judges, lawyers, and political scientists worldwide to think through the organization of such complex data more systematically (including those of international and domestic tribunals), and to provide files of prosecutions and trials (including a full text for the indictments and decisions rendered), as well as brief updates of what happened to the accused and those convicted and sentenced. A database of reparations would also be welcome, but this is even more difficult to set up. A Swiss data base called TRIAL (Track Impunity Always) is useful for tracking down basics on the main trials carried out in the world, http://www.trial-ch.org/. 37 In East Germany, where the top leadership in the main remained unaccountable (Eric Honecker escaped to Russia, was returned for trial and briefly jailed, but allowed to leave to Chile because of terminal cancer, where he died in 1994), the border guards were more vigorously prosecuted, see Borneman, Settling Accounts, above note 36 at 99–100. The other countries are divided into those with “some retributive justice” (Hungary, Poland, Czech Republic), “little retributive justice” (Romania, Russia), and “extensive retributive justice” (Bulgaria, Albania). In the main, there is a scant record of trials and convictions of the dictators of the former USSR and satellite states. Ceausescu is the exception. 38 Articulated by the legal advisor to political prisoners at the time of the dictatorship in Argentina, Jaime Malamud-Goti, Game without End, Norman: University of Oklahoma Press 1996. 39 Here is a brief Summer 2014 tally from various sources of the main modern dictators of Latin America subjected to trials, done with the extensive help of Jordin Albers: In Chile, Augusto Pinochet was tried repeatedly, first in England, then in Chile, but he never served a proper jail term other than a plush house arrest in England between 1998 and 2000. See for the decisions in England below notes 45–49 and accompanying text. In Argentina, former junta leader Jorge Videla was tried and convicted in 1985, and remained under house arrest until October 10, 2008, when he was sent to a military prison. In December 2010, then in 2012, he was twice sentenced to life for the death of thirty-one prisoners and for the systematic kidnapping of children after his coup. He died in jail on May 17, 2013. Several other members of the Junta have been tried and sentenced, including former president Reynaldo Bignone, who serves a life sentence for a wide array of crimes, including disappearances, killings and torture, and kidnapping of babies. The former Peruvian president Alberto Fujimori (who was elected to the presidency in generally fair elections) was extradited from Chile in 2008, where he had taken refuge in 2005. In 2009, Peru’s Supreme Court convicted him for two death squad massacres carried out in November 1991 and in July 1992, and for the kidnapping of a journalist and a businessman. He is still serving concurrent sentences in jail in Peru. In Haiti, an appeals court reversed a 2012 lower court decision and held on February 20, 2014, that former “president for life” Jean-Claude Duvalier could be charged with crimes against humanity and for abuses committed by the army and paramilitary under his rule. In Guatemala, former military ruler Efrain Rios Montt was convicted on May 10, 2013, of genocide and crimes against humanity by a court in Guatemala City. Three days later the conviction was overthrown by the country’s constitutional court on procedural grounds. Following the Salvadoran Civil War, El Salvador’s former president Alfredo Cristiani was tried in Spanish courts in 2008 for the massacre of six Jesuit scholars. Despite the fact that twenty

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When Saddam Hussein occupied Kuwait in August 1990, there was no precedent of international justice at work save for the distant Nuremberg and Tokyo trials. But legal questions started being asked about atrocities committed against civilian populations. Kuwait’s brutal occupation raised the dual issue of Saddam remaining in power after the war and the unpunished massacres he perpetrated against Kurds and Shi‘is in March–April 1991. Hussein remained unpunished after occupying and plundering the small Gulf state south of Basra, despite the fact that his army had been beaten to a pulp in Kuwait. He remained vindictive and “victorious” inside Iraq by perpetrating more massacres after a huge rebellion. Accountability was frustrated in the longest Security Council Resolution in history, also known as the “Ceasefire resolution,” UNSCR 687 (April 3, 1991).40 Four years earlier, however, a “responsibility clause” had featured in the Security Council Resolution ending the war started by Saddam against Iran (UN Security Council Resolution 598, July 20, 1987). We should recall that the Iran-Iraq eight-year war was the most humanly costly armed conflict in the Middle East since World War I. In September 1980, Saddam Hussein invaded Iran for fear of the spread of the Islamic revolution through Iraq’s Shi‘i population, and his troops succeeded in capturing some Iranian territory, especially the city of Khorramshahr. The Iraqi advance into Iranian territory was reversed in 1982. The increasingly murderous conflict developed into a stalemate. The protracted war eventually led to the use of chemical weapons by the Iraqi ruler against Iraqi civilians, most notoriously on April 16, 1988, against the Northern Iraqi Kurdish village of Halabja.41 Iraq and Iran had agreed on a UN ceasefire resolution a year before Halabja. The agreement was expressed in UNSCR 598. On the insistence of the Iranian side, Clause 6 was included in the unanimous resolution, “[r]‌equest[ing] the Secretary-General to explore, in Salvadorians were convicted of the crime, the court concluded that there was not sufficient evidence to convict Cristiani. In 2006, Uruguay’s former president Juan Bordaberry was arrested in connection with the assassination of two legislators. In 2010, he was convicted and sentenced to thirty years in prison for murder—the maximum time allowed under Uruguayan law. In 1992, Panama’s former military dictator Manuel Noriega Morena was tried in the United States on eight counts of drug trafficking, racketeering, and money laundering. While serving his sentence in the United States, he was found guilty in absentia in both Panama, in 1995, on charges of murder and human rights abuses, and France, in 1999, on charges of money laundering. In 2010, he was extradited to France for a new trial in which he was convicted and sentenced to jail for seven years. He was extradited to Panama in 2011, where he remains in prison. After leaving Bolivia in 1981, Luis Garcia Meza Tejada was tried and convicted in absentia for serious human rights violations committed during his dictatorship. He was extradited to Bolivia from Brazil in 1995, where he is serving his thirty-year prison sentence. See generally Naomi Roht-Arriaza, The Pinochet Effect: Transnational Justice in the Age of Human Rights, Philadelphia: University of Pennsylvania Press 2005. 40 I recall a last-ditch failed attempt to include a responsibility clause at the UNSC with then London political advisor at the US Embassy in London, Désirée Millikan, a few days before the adoption of UNSCR 687. This is another instance in the long Iraqi tragedy where history might have gone differently. Several other possibilities were systematically argued by Edward Mortimer in “Iraq: The Road Not Taken,” The New York Review of Books, May 16, 1991. 41 On Halabja and the wider Anfal campaign, Human Rights Watch, Genocide in Iraq: The Anfal Campaign against the Kurds, New York, July 1993.

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consultation with Iran and Iraq, the question of entrusting an impartial body with inquiring into responsibility for the conflict and to report to the Security Council as soon as possible.” Clause 6 went quickly dormant. Any attempt to move forward with the “impartial enquiry body” was frustrated by a chronological reading imposed by the Iraqi side. There would be no fulfillment of that clause, Saddam insisted, nor indeed of any other, before the return of all prisoners was completed under Clause 3 of the Resolution on the return of Prisoners of War (POWs).42 As the Iraqis could free their prisoners at will, they could also give effect to the responsibility clause at will. Saddam Hussein naturally chose to postpone it indefinitely. Clause 6, in his interpretation, could not be addressed before all previous clauses had been completely fulfilled.43 It still took another year for the war to end. Hit by long-range missiles, some probably carrying chemical weapons, and with the Halabja precedent fresh in the psyche of the Iranian leadership that had released the gory videos of the massacre, Khumaini “drank the poisoned chalice” and accepted the UN ceasefire resolution on the aggressor’s terms.44 When Iraq’s dictator, less than two years after the end of the Iran-Iraq war, marched his “fifth strongest army of the world” into tiny Kuwait, he was demonized overnight by the West and his former Arab allies. The self-appointed “protector of the Eastern Flank of the Arab world”45 suddenly lost all his former de facto and de jure allies, and a decent Secretary-General of the UN decided to activate the dormant responsibility clause of the previous war. Javier Perez de Cuellar revived and accelerated the process requested by UNSCR 598 under Clause 6. Finally, on December 9, 1991, months after the United States and its European and Arab allies had ejected Saddam militarily from Kuwait, the Commission that Perez de Cuellar appointed reached a significant finding: Saddam Hussein’s Iraq was responsible for the war.46

Clause 3 “[U]‌rges that prisoners of war be released and repatriated without delay after the cessation of active hostilities in accordance with the Third Geneva Convention of 12 August 1949.” 43 At the Carter Center in Atlanta ca November 1988, I  heard former president Jimmy Carter correctly denouncing the specious logic advanced by the Iraqi side. 44 For a contemporaneous introduction to the Iran-Iraq war, see Shahram Chubin and Charles Tripp, Iran and Iraq at War, London: I.B. Tauris 1988; Paul Balta, Iran-Irak. Une guerre de 5000 ans, Paris: Anthropos 1987. 45 This is the title of a notorious Saddam-supportive book published by Christine Moss Helms, Iraq: Eastern Flank of the Arab World, Washington DC:  Brookings 1991, which underlines the collusion of many scholars, willingly or not, with dictatorships, ranging from Helms at the Brookings Institute to LSE and Harvard colleagues in the case of Qaddafi. The collusion continues unabated in the case of Saudi Arabia and other oil-rentier dictatorships. 46 At the time of my work on the incrimination of Saddam Hussein with Indict, see below, then Deputy Assistant Secretary in charge of war crimes in the US State Department, Tom Warrick, shared with me the original document, but I could not find it in my records or online. The closest report I found is available on http://www.iranreview.org/content/Documents/Iran_Iraq_War_Legal_and_International_ Dimensions.htm, with the following relevant passages: “On December 9, 1991, just three weeks before the end of his tenure, the former UN Secretary-General Javier Perez de Cuellar, submitted one of the most important reports he had ever prepared to the UN Security Council. His competence for preparing that report was based on Paragraph 6 of Resolution 598 which was adopted by the Security Council on July 20, 1987. Paragraph 5 of his report clearly announced that the war between Iran and Iraq which had continued for several years had clearly started through breach of international law. He added that the breach of international law included responsibility for the beginning of the conflict which was the main subject of Paragraph 6 of Resolution 598. De Cuellar added that the principle of international law which prohibited 42

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But nothing tangible happened.47 It took a third war to unseat Saddam Hussein and to bring him to trial. The single dissenting prominent international official on record in 1991 was the German foreign minister, Hans Dietrich Genscher, who repeatedly called for the establishment of an international tribunal to try Saddam Hussein.48 The law of unintended consequences took over. “Although no action was taken with regard to Iraq, the idea [of an international tribunal] did not disappear into oblivion. A few months later, it was revived with regard to the former Yugoslavia.”49 The occasion was missed

use of force and disrespect for territorial integrity of a member state, which is subject to Paragraph 6, has been breached. During that war, he noted, there had been many cases of breach of different principles of international humanitarian law. Paragraph 6 of his report noted that Iraq’s response to his letter dated August 14, 1991 contained no essential information and, therefore, he relied on previous explanations provided by the Iraqi government. He said those explanations fell short of convincing the international community. De Cuellar mentioned the attack against Iran on September 22, 1980 as the most prominent event which showed a breach of international law as specified in Paragraph 5 of his report. He added that aggression against Iran could not be justified on the basis of any principle or rule of international law or ethics. In Paragraph 7, the former secretary-general of the United Nations acknowledged that even before the beginning of the war, Iraq had made encroachments upon Iran’s territory. He noted that such encroachment could not justify Iraq’s aggression of Iran which had led to protracted occupation of Iran’s territory by Iraq. The importance of the Security Council’s recognition of Saddam Hussein’s Iraq as aggressor in the war with Iran arose from the message that was embedded in that recognition for the whole world.” See also Mallat, “Obstacles to Democratization in Iraq: A reading of Post-revolutionary Iraqi History through the Gulf War,” in E. Goldberg, R. Kasaba, and J. Migdal eds., Rules and Rights in the Middle East: Democracy, Law and Society, Seattle: University of Washington Press 1993, 224–47, at 236 n.20 (how the misuse of international law rendered poor service to the people of Iraq under Saddam Hussein). 47 “Tangible” would have meant at least an indictment of Saddam Hussein by some neutral tribunal. There was no indictment and no trial, but a noticeable change took place in terms of the so-far blind adherence to a strict interpretation of Article 2.7 of the UN Charter stipulating the principle of nonintervention of foreign governments in matters domestic. As large-scale massacres were perpetrated again by governmental troops against the Shi‘is, especially in Basra and Najaf, and the vast majority of the Kurdish population of Iraq fled to the mountains of Iran and Turkey for fear of Saddam’s renewed use of chemical weapons, the UN Security Council rejected the absolute sovereignty interpretation of Article 2.7. On April 5, 1991, the first human rights Security Council resolution in the history of the Middle East, possibly in the world, responded to Saddam’s renewed massacres by “1. Condemn[ing] the repression of the Iraqi civilian population in many parts of Iraq, including most recently in Kurdish populated areas, the consequences of which threaten international peace and security in the region” and “2. Demand[ing] that Iraq, as a contribution to remove the threat to international peace and security in the region, immediately end this repression.” A principle separating in law state and government was born against a persistent tradition since Utrecht in 1713 (see above, Chapter 5). It would not bring the Kurds back to their homes, until “a safe haven” was eventually created, which included a no-fly zone that effectively meant a no-Saddam heavy weapons zone. The killing field was leveled, and Saddam’s forces kept beneath an imaginary parallel imposed internationally. 48 Statements of Genscher in The Path to the Hague/Le Chemin vers la Haye, New  York:  United Nations Publications 1995 (bilingual English-French), 9–11. 49 Id. at 11. Not a mere coincidence, on the day the ICTY was established by UNSCR 827 on May 25, 1993, the report of the oppositional Iraqi National Congress, Crimes against Humanity, was released in London with a demand for a similar tribunal for Iraq.

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for Iraq in 1991, but the ground was laid for the Yugoslav tribunal two years later, and for Rwanda in 1994. Since the second Gulf War, twelve international and mixed tribunals have been set up, all with their own ups and downs, and the Convention of Rome of 1998 saw the birth of the ICC to streamline the unruly field of international criminal law. It all started in Iraq, but the Iraqi victims of Saddam Hussein did not benefit from the seeds sown by their suffering. They did not give up. Another little-known story of their search for justice was Indict. Indict, an international NGO established in 1996 in London, brought together all Iraqi oppositional factions on a platform requesting judicial accountability for mass criminals in power in Baghdad. In August 1999, it scored a small victory by moving to arrest ‘Izzat Ibrahim al-Duri, a prominent Ba‘thist who flew to Vienna to seek medical treatment. When he had a whiff that local Austrian human rights NGOs, who had alerted Indict, were trying to have him arrested, Duri hurriedly fled Austria. He was so scared of the long-arm of justice that his specially chartered plane stopped only briefly in Amman before it went on to Baghdad. Strengthened by the Duri case, Indict continued to push for an international criminal tribunal while collecting files of various persons accused of war crimes and crimes against humanity in Iraq. It also sought to take advantage of the rising opportunities of criminal law in national jurisdictions. This route is best known as “universal jurisdiction.” The Duri precedent was important for the promise of universal jurisdiction, but the most famous illustration for its effectiveness was Pinochet’s trial in London upon his visit in 1998 for shopping and medical tests. The rich array of procedures used in the case of Pinochet shows the remarkable windows opened by the perseverance of victims, the accumulation of human rights treaties, and the care for global justice led by international human rights organizations. Pinochet was arrested in London on October 17, 1988, by a local bailiff on an extradition charge lodged in Spain by an investigative judge responding to the requests of Spanish victims of repression in Chile in the 1970s.50 The Pinochet saga in London went through a frenzied roller coaster ride that ended up with the freeing of the Chilean dictator and his return to Chile in March 2000 on a plane especially chartered for him. But his arrest and trial were real, and he faced a string of further criminal complaints in Chile, which he eventually warded off, including by making pleas of insanity. Pinochet died in his bed unrepentant in December 2006. For various procedural reasons, there were several Pinochet decisions in England. By a thin majority, a first decision of the highest court of the land, the House of Lords, held that Pinochet did not have immunity and should be tried or extradited to Spain (or to other countries, such as Belgium and France where similar extradition demands had taken place) for all the documented crimes perpetrated under his military rule.51

For lawyers of victims, the extradition process is a powerful tool to get at dictators outside their country. In general terms, rule-of-law countries will accept looking into a crime that their own system recognizes as such, and the extradition process for common criminals is well-honed, if complicated in practice. In international criminal law, an important chapter includes extradition processes, see, e.g., David Stewart, International Criminal Law in a Nutshell, St. Paul, MN:  West Academic Publishing 2014, ­chapter  9, “Extradition and related procedures,” 355–411. 51 R v. Bartle and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet, [1998] UKHL 41 (November 25, 1998)  (Lord Hoffman, Lord Nicholls of Birkenhead, and Lord Steyn in the majority 50

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Because of a trivial conflict of interest, the first Pinochet judgment was set aside by Pinochet  2.52 The Lords went back to the drawing board. The solid legal basis reached by Pinochet 1 was replaced by a more technical argument decided by the House of Lords sitting with different judges in a third Pinochet decision. Their decision on March 24, 1999 remains an important precedent worldwide for universal jurisdiction.53 Instead of a condemnation of mass crime underscored by as many killings as victims could prove as legitimately linked to the dictator, which was the argument in Pinochet 1, the House of Lords narrowed the case significantly in its new ruling by relying on the 1984 Convention against Torture, which had come into force in Britain in 1988.54 As a consequence, at least in Britain, a mind-bending paradox was forced on international criminal law: a former head of state or government official accused of torture abroad would be held responsible and tried, but the same would not apply if he was guilty of murder. In the logic of the case, a foreign official can kill, but he cannot torture. This is the law in Britain, and leaves much to be desired. Still, in the Pinochet cases, despite their roller coaster nature, “universal jurisdiction” was effectively born. It created an additional venue worldwide, which proved important for Duri in Vienna and for a number of other Middle East cases. Despots and torturers have grown scared of traveling to Europe for fear of arrest.

upholding the right of the victims to see a former head of state being extradited to stand trial, Lord Slynn of Hadley and Lord Lloyd of Berwick dissenting in the name of immunity under the Act of State doctrine.) This decision is referred to as Pinochet 1. All the House of Lords decisions can be consulted on bailii.org, with a “Pinochet” search. A clear introduction to the judicial saga in Britain can be read in Michael Byers, “The Law and Politics of the Pinochet Case,” Duke Journal of International and Comparative Law, vol. 10, 2000, 415–41. 52 In re Pinochet, [1999] UKHL 1 (January 15, 1999). This decision, taken unanimously by a new House of Lords’ panel of five judges, set aside Pinochet 1 because Lord Hoffman was deemed to have a conflict of interest as former director for the charitable trust of Amnesty International, which was heavily involved in the case in support of the victims. This decision to set aside Pinochet 1 is referred to as Pinochet 2. 53 R v. Bartle and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet; R v. Evans and Another and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet, [1999] UKHL 17 (March 24, 1999). This time the House of Lords’ panel consisted of seven judges: Lord Browne-Wilkinson, Lord Goff of Chieveley, Lord Hope of Craighead, Lord Hutton, Lord Saville of Newdigate, Lord Millett, and Lord Phillips of Worth Matravers, who variously opined on the issue of immunity and on the effect of the 1984 Torture Convention on acts of torture committed by Pinochet subsequent to its adoption. A majority of six judges rejected immunity and considered actionable crimes, acts of torture committed after The Torture Convention came into effect in Britain. Lord Goff considered immunity to trump all charges. This decision is referred to as Pinochet 3. 54 The International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 (aka as CAT, or Torture Convention). Two dates appear in the House of Lords’ decision on the application of CAT: September 29, 1988, the date on which section 134 of the Criminal Justice Act 1988 (which gave effect to the Torture Convention in Britain) came into effect; and December 8, 1988, as the date when Britain ratified the Convention. This is important insofar as the law applying in England will only consider acts of torture committed after one or the other date. The difference of less than three months makes it relatively secondary, but the confusion is indicative of the continued fluidity of international law even on such basic matters. In contrast with his colleagues, Lord Millett “would allow the appeal in respect of the charges relating to the offences in Spain and to torture and conspiracy to torture wherever and whenever carried out.”

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Sabr a and Shatila, Belgium 2001–200355 In theory, universal jurisdiction had been on the books since the Geneva Conventions.56 The Pinochet case revived it, and the 1998 Rome Convention on the ICC strengthened it considerably by considering its own system to be subsidiary to rendering justice against atrocities at a national level.57 A number of European countries started enhancing their domestic laws to respond to the Geneva Conventions’ dormant universal jurisdiction clause and to the mirror crimes identified by the ICC for atrocities committed abroad. Having adapted its laws to the spirit of the decade as early as 1993, Belgium in particular reinforced it significantly in the wake of the 1998 Rome ICC Convention. In 1999, the Belgian legislator incorporated into domestic law the four crimes listed by the Convention (war crimes, crimes against humanity, genocide, aggression), and plugged the various holes usually argued by high level officials who may be subject to trial under the new law, including immunity.58 As in all high-profile trials, Victims of Sabra and Shatila v. Ariel Sharon et al. was widely covered in the media, particularly in the Middle East and Europe, and rekindled a dormant interest among journalists and scholars, see, e.g., for the former Stefania Limiti, I fantasmi di Sharon, Rome: Sinnos 2002; for the latter John Borneman ed., The Case of Ariel Sharon and the Fate of Universal Jurisdiction, Princeton, NJ:  Princeton Institute for International and Regional Studies 2004 (including essays by John Borneman, Chibli Mallat, Luc Walleyn, Laurie King-Irani, Dan Rabinowitz, Sally Falk Moore, Paul W. Kahn, and Reed Brody). For the most comprehensive factual study of the massacres, see Bayan Nuwayhed al-Hout, Sabra wa Shatila: aylul 1982 (Sabra and Shatila: September 1982), Beirut: Institute for Palestinian Studies 2003 (English translation at London: Pluto 2004). The most detailed legal story can be found in Deena Hurwitz, “Universal Jurisdiction and the Dilemmas of International Criminal Justice:  The Sabra and Shatila Case in Belgium,” in Deena Hurwitz, Margaret Satterthwaite, and Doug Ford eds., Human Rights Advocacy Stories, New York: Foundation Press 2009, 267–314; See also Steven R. Ratner, “Belgium’s War Crimes Statute: A Postmortem,” American Journal of International Law, vol. 97, 2003, 888–97; Victor Kattan, “From Beirut to Brussels: Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres,” Yearbook of Islamic and Middle Eastern Law, Vol. 11, 2004– 2005, 33–82. “La plainte contre Ariel Sharon avec constitution de partie civile,” June 18, 2001, the initial lawyers’ brief for the victims, was a detailed and heavily documented work that caught wide international attention, and was translated into several languages, including Japanese. The original text was reprinted in Revue d’Etudes Palestiniennes, Vol. 81, 2001, 12–41. In English, “Complaint lodged by survivors against Israeli prime minister Ariel Sharon, Director General of the Defence ministry Amos Yaron and other Israelis and Lebanese responsible for the Sabra and Shatila massacre,” The Palestinian Yearbook of International Law, Vol. 12, 2002–2003, 219–58, within an extensive “Special Dossier—The Sabra and Chatila Case in Belgium,” id., at 183–289. 56 Article 146 of the Fourth Geneva Convention of 1949 specifically mentions the duty to “search, . . . try. . . . or hand over” suspects of war crimes for trial in another country:  “Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a ‘prima facie’ case.” See commentary of Jean Pictet, Les Conventions de Genève du 12 août 1949: Commentaire, Geneva: Comité international de la croix-rouge, 1952–1959, under Art. 146. 57 Art. 12, ICC Statute. 58 The Belgian law of 1999 (“Loi de 1993 telle que modifiée par la loi du 10 février 1999 relative à la répression des violations graves du droit international humanitaire”) introduced an amendment excluding all immunity (Art. 5.3). The other usual defenses, which all surfaced in the defense of Sharon, are amnesty, 55

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The amended Belgian law passed its first test with flying colors: four participants in the genocide carried out in Rwanda, a former Belgian colony, including two nuns, were tried in Brussels under the “universal jurisdiction” law. The trial was swift and effective, and included a significantly detailed investigation with dozens of witnesses; “the Butare four” were condemned to various jail sentences.59 Encouraged by this tangible precedent, several victims of atrocities across the globe sought to avail themselves of the universal jurisdiction law passed by Belgium. This also included Indict, which brought a case against Saddam Hussein in Brussels, mainly for atrocities carried out against the Kurds.60 But the law became famous worldwide because of a different set of victims, namely twenty-eight relatives of persons who had been killed or disappeared, during and in the immediate aftermath of massacres in the Palestinian camps of Sabra and Shatila in September 16–18, 1982. The range of dead was at least 700, as in the figures of the Israeli commission. It may have been as high as 3 to 3,500 victims, counting those who disappeared and never came back during the massacres and the days that followed.61 In the complaint of the victims, lodged in Brussels on June 18, 2001, the application of Belgium’s universal jurisdiction law was sought “against Ariel Sharon, Amos Yaron, and all Lebanese and Israeli officials whom the investigation would find responsible” in the Sabra and Shatila massacres.62 The action led to Sharon’s indictment (mise en accusation) by the Belgian prosecutor, and eventually to the vindication of the victims by the highest Belgian Court, the Court of Cassation, in a decision on February 12, 2003.63 At this pinnacle of statute of limitations, and double jeopardy/non bis in idem. They were all eventually rejected by the Court of Cassation. After the case was won on February 12, 2003, the law was changed several times, mostly to create a filter preventing a case from going forward if not approved by the Federal Prosecutor. For the effective repeal of the “universalism” of the law, see Michael Verhaeghe, “The Political Funeral Procession for the Belgian UJ Statute,” in Wolfgang Kaleck, Michael Ratner, Tobias Singelnstein, and Peter Weiss eds., International Prosecution of Human Rights Crimes, Berlin: Springer 2007, 139–47, and, for documents, the electronic site of the Brussels Free University, “Compétence universelle- Un dossier électronique du centre de droit international de l’Université Libre de Bruxelles,” at http://competenceuniverselle.wordpress.com/. 59 Cour d’Assises de l’Arrondissement Administratif de Bruxelles, June 8, 2001 (“The Butare four”), available at http://competenceuniverselle.files.wordpress.com/2011/07/arret-8-juin-2001.pdf. 60 By then, I was no longer involved with Indict, but I had kept in touch with its director, who informed me about the developments of the case in Belgium, carried out mostly on behalf of the Kurdish victims of Saddam Hussein. 61 As we repeatedly see in crimes against humanity, figures vary significantly, and the tally is extremely difficult. The case of Sabra and Shatila, Bayan Hout, Sabra wa Shatila, above note 55 at 617–95, provides the most impressive and minute work, with a list of names culled from a large range of sources, including oral history carried out in the Palestinian community for two decades. The upper figure is hers. 62 “La plainte contre Ariel Sharon avec constitution de partie civile,” above note 55, named Ariel Sharon and Amos Yaron specifically, as the evidence available in the public record was particularly strong against them. There is a great difficulty in complaints for crimes against humanity. If lodged against X, when the culprits are known, it weakens the case significantly. If lodged against a large number of individuals, the evidence is hard to bring together by victims who do not generally have the means that a state prosecutor naturally has at her disposition. As lawyers for the victims, we decided to limit the number of names to the two Israeli commanders who appeared the most involved (and the most unrepentant) in the public record, but to specify “all Lebanese and Israeli persons” whom the investigation would uncover. 63 Cour de Cassation, Feb. 12, 2003, Pasicrisie Belge 2003, Vol. 1, 307, 317–18 (Belg.), also available at http:// competenceuniverselle.files.wordpress.com/2011/07/cass12fevrier2003.pdf. In English, “Court of

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judicial decision-making, the competence of Belgium was confirmed, and the criminal investigation under the universal jurisdiction law was ordered to proceed. The immediate reaction of the Israeli government to the Court of Cassation judgment was to withdraw its ambassador from Belgium. Indeed, on June 10, 2003, the Chambre des Mises en Accusation confirmed the pursuit of the investigation against Yaron and others following the instructions of the Court of Cassation,64 Sharon remaining under immunity so long as he was prime minister. But justitia would not hold long before the adverse, aggressive political pressure from the US government. Under repeated American threats expressed by both the US Secretary of Defense and the Secretary of State, Belgian law was retroactively changed to stop the case. The first time, a legislative change expedited by parliament in June 2003 did not disturb the decision of the Supreme Court that the Sabra and Shatila investigation should continue and the trial carried to the end. The second time, in September 2003, the law was changed again under the renewed US threat of moving all government-related American business, including NATO, outside Belgium. This time the legislative amendments were made tighter. Even if it wanted to do so, the Belgian Supreme Court had no means to salvage its “final decision” of February 12. The investigation was effectively stopped. The moral and legal victory remained—the highest court in a Western country had ordered the trial of Yaron and others implicated, and of Sharon when he would no longer be prime minister. To the Middle Eastern victims of criminals against humanity, the Sabra and Shatila case was the first time that justice trumped force since the forgotten 1860 trials. When the case was lodged in Brussels, enthusiasm drowned the ambient skepticism as the Israeli government officials expressed fear and concern, and mobilized the whole apparatus of the Israeli state to protect Sharon.65 When he was indicted by the Belgian Prosecutor, his counsel raised in court the profound concern of their client. Sharon and Yaron’s arguments ran the expected gamut put forward by mass murderers in high political position: improper jurisdiction and non conveniens forum, statutes of limitations doubling as amnesiac amnesties, various state immunity defenses, and alleged political motivation of the plaintiffs.

Cassation of Belgium: H.S.A. et Al., v. S.A. et Al. (Decision related to the indictment of Ariel Sharon, Amos Yaron and others),” February 12, 2003, International Legal Materials, vol. 42, 2003, 596–605. The presiding judge was Marc Lahousse. 64 Available at http://competenceuniverselle.files.wordpress.com/2011/07/arret-10-juin-2003.pdf. 65 There were some difficult moments for us lawyers. As soon as the complaint was lodged, several colleagues descended on the suddenly freed camps to get powers of attorney from victims. Others in Belgium tried to sever original plaintiffs from us, with one success that did not trouble the case but weakened the access to Belgium granting visas to the plaintiffs in Lebanon to attend court proceedings in Brussels. Every single Middle East power tried to intervene, and I had to stave off all entreaties, including from the Iranian ambassador and then Lebanese prime minister Rafiq Hariri, to intervene in any conceivable way other than public support. To avoid financial complications and ensure transparency of the money needed to keep the trial going, produce witnesses, secure a competent website (indictsharon.net, established by Laurie King-Irani, no longer available unfortunately), and ensure a minimal support to the lawyers, an independent funding committee was designated for legal expenses and fund-raising. On a train visit from Brussels to Paris in late 2001, the luggage of my colleague Jaber Sulaiman was stolen, in all likelihood by some Israeli security agency. But the most dramatic moment was the assassination of Elie Hobeika on January 22, 2002; see below note 73.

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The final result did not come without pain. Although Sharon lost most of the argument at first instance when Belgium’s federal prosecutor sided with the victims, the Court of Appeals held on June 26, 2002, that the universal jurisdiction law was applicable only if the accused had been found on Belgian soil.66 The Court of Appeals’ dismissal of the case was based on an obscure article of a nineteenth-century statute, against a clear legislative history that established the effectiveness of the law “even if the accused was not on Belgian territory.”67 There was an additional twist for Belgium’s Supreme Court to consider. A decision of the International Court of Justice (ICJ) had been handed down meanwhile over a dispute between Congo and Belgium over the universal jurisdiction law, and the ICJ ruled that sitting heads of state, prime ministers, and foreign ministers could not be tried.68 The Belgian Court of Cassation had to take the ICJ conclusions into account, even though its final decision eventually referred to customary international law rather than to the ICJ case. No wonder that with the proliferation of courts, the non-lawyer gets confused. In the case of Sabra and Shatila, here is a brief explanation of the procedural story: (1) criminal complaint is lodged by the victims in Brussels with the investigative judge; (2) representation of Sharon and Yaron is done through Belgian lawyers to avoid condemnation in absentia; (3) the investigative judge suspends the investigation pending decision on competence; (4)  Court of Appeals rejects competence of Belgium; (5)  International Court of Justice holds that Belgium’s universal jurisdiction law cannot try presidents, prime ministers, and foreign ministers so long as they are in office; (6) Belgian Court of Cassation reverses the court of appeals in a “final decision” which asserts Belgian competence; it orders the investigation to proceed against Yaron and all others, and suspends it against Sharon so long as he is in high office; (7) investigation resumes; (8) universal jurisdiction law is changed retroactively by Belgian parliament; and (9) Court of Cassation terminates case retroactively. In terms of evidence, there were already a large number of documents and testimonies incriminating the accused, including “secret minutes” that my colleague Luc Walleyn received from an anonymous American source a few days after the beginning of the case. There had been ample evidence since the 1983 official Israeli Kahan commission concluded that Sharon was “personally responsible” for the massacres.69 New evidence uncovered by

Cour d’appel de Bruxelles, Chambre des mises en accusation, 26 Juin 2002, “Sharon & Yaron,” available at http://competenceuniverselle.files.wordpress.com/2011/07/arret-26-juin-2002-apercu.pdf. 67 Cour de Cassation, February 12, 2003, above note 62, reversing the decision of the Court of appeals of June 26, 2002. 68 International Court of Justice, “Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),” Feb. 14, 2002, (“Yerodia case,” summary and full dossier, including the judgment rendered available at http://www.icj-cij.org/). 69 The so-called Kahan Commission released its report on February 8, 1983. The report is widely available, including in English as The Complete Kahan Commission Report, Princeton, NJ: Karz Cohl 1983, also digitally at http://www.jewishvirtuallibrary.org/jsource/History/kahan.html. For the “personal responsibility” of Sharon, see “Conclusions.” Sharon’s supporters and most Western media, including Reuters, were persistently describing the responsibility as “indirect,” which also appears in the report of the Kahan commission. The term “indirect” lessens the magnitude of the responsibility to the nonexpert ear, but is in fact more devastating legally as “command responsibility.” Rarely does the person responsible for such crimes commit them “directly,” i.e. himself. Note that the Kahan Commission was not a criminal enquiry, but a fact-finding mission that issued “recommendations.” 66

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the case showed the large number of victims who had disappeared under the watch of the Israeli military. A leading British journalist discovered video reports from the time, showing young Palestinian male prisoners being taken on trucks under the watch of the Israeli army.70 Another seasoned British journalist traced Sharon’s active presence in Beirut in the Lebanese militia headquarters on the eve of the massacre, inciting them to avenge their deceased leader.71 The “personal” guilt of the self-styled “warrior” (plus his aides and the executioners) had in any case long been established in Israel.72 Except that at least seven hundred civilians had been killed in two days, and he was not in jail. When the Court of Cassation ruled in favor of the victims, the investigation went forward again, and Israel withdrew its ambassador from Belgium. The case probably created the most significant rift between Israel and Europe since the establishment of the state in 1948. More important, it produced a tangible example that nonviolent action was possible and effective rather than shooting soldiers or blowing up civilians.73 The case also brought alive to the heart of the Israeli military and political establishment the reality of international justice, and the fear of travel. It was not simply a bunch of desolate refugees who were taking center stage in the heart of Europe. International human rights organizations, especially Amnesty International, had supported the trial actively. The international human rights clinic at Yale Law School provided precious legal advice throughout.74 It was hard to get a higher moral recognition

Julie Flint, “Vanished Victims of Israelis Return to Accuse Sharon,” The Observer (London), November 25, 2011. The following day, Julie Flint’s report on the disappeared of Sabra and Shatila was shown on the UK Channel 4 evening news. 71 Robert Fisk, “Ariel Sharon . . . ”, The Independent (London), June 6, 2006: “I call up Eva Stern in New York. Her talent for going through archives convinces me she can find out what Sharon said before the Sabra and Chatila massacre. I give her the date that is going through my head: 15 September 1982. She comes back on the line the same night. ‘Turn your fax on,’ Eva says. ‘You’re going to want to read this.’ The paper starts to crinkle out of the machine. An AP report of 15 September 1982. ‘Defence Minister Ariel Sharon, in a statement, tied the killing [of the Phalangist leader Gemayel] to the PLO, saying: “It symbolises the terrorist murderousness of the PLO terrorist organisations and their supporters.” ’ ” 72 Warrior is the title of Sharon’s autobiography, New York: Touchstone 1989. 73 Even before Israel severed its diplomatic relations with Belgium, the tangible effects of the trial dawned on the world when Elie Hobeika, a former Lebanese militia leader who expressed his keenness to come to Belgium to testify at the trial was assassinated in Beirut on January 22, 2002. It took place on the day following our pleadings before the Court of Appeals where, in response to the argument of Sharon’s lawyer that the law could not apply to an accused who was not physically present in Belgium, we argued that former militia leader Elie Hobeika, who had long been associated with the massacres in the camps, had expressed time and again his readiness to attend the trial “to clear his name.” Despite the repeated expression of this readiness on the media, Belgian investigative judge Patrick Collignon did not call on him to come to Brussels. That aspect of a blatant obstruction of Belgian justice, as later in the case of Italy with Qaddafi’s abduction of Imam Sadr, never moved the respective prosecutors. 74 Deena Hurwitz, in particular, took the task at heart with the high professionalism of the clinic, of which she was then deputy director. Several leading colleagues at Yale Law School showed a keen support for the trial itself, which meant moral superiority throughout the case in the United States, where any critic of Israel tends to be accused of anti-Semitism, even though Sharon had long been the nemesis of leading Americans across the board, including prominent Jewish figures in the academia. I discovered that even one of the most articulate defenders of Israel in US legal academia, Alan Dershowitz, believed that the Kahan 70

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for poor Palestinian and Lebanese victims living in the squalor of refugee camps.75 Criminal law for mass murderers was showing some teeth, even in the Middle East.76 Baghdad 2005. The Trial of Saddam Hussein Victims anywhere in the world are uplifted by fellow victims getting justice, however distant. “Why not us?” is the universal sentiment of those who have suffered from total impunity for the perpetrators. Conversely concerned are criminals against humanity who pay close attention to the judicial fate of fellow dictators on the international scene. “It might happen to us” is the deafening unsaid worry of dictators and mass murderers, always political figures. One story in particular deserves to be told: the existential connection between criminals against humanity in the Middle East. It is best illustrated by the alliance of impunity and revenge between Saddam Hussein and Ariel Sharon, two otherwise fierce political foes by any standard. For little known is the fact that the invasion of Lebanon by Israel in 1982, of which the Minister of Defense at the time Ariel Sharon was the main architect, was deliberately triggered by Saddam Hussein. In the spring of 1982, the Iraqi army was facing a severe battering across the Iran-Iraq front, and the Iranians had moved in some border locations inside Iraqi territory. One condition only was demanded by the Iranian leadership to stop the war, the one akin in spirit to their request to end the war five long years later: the removal of Saddam Hussein from power. Arab leaders, including the king of Saudi Arabia and the Ba‘thist rival president in Damascus, were swayed in the Iranian direction.77 Following a pattern that would extend his rule for another quarter of a century, Saddam Hussein sought a diversion. Using the charged atmosphere prevailing in the Levant, he gave Ariel Sharon, who was itching to invade Lebanon and impose a Lebanese president to his liking in Beirut,

Commission was insufficient, and that Sharon should be tried, albeit in Israel. See Mallat, “Drafting a Joint Proposal for a U.N. Security Council Resolution on Israel-Palestine with Alan Dershowitz,” Harvard International Law Journal, published online January 13, 2012, 74–105, at 77–78. 75 Another tangible result came inadvertently. Since the return to complete Syrian domination of Lebanon in 1990, the camps had been effectively surrounded by a wall of fear. No one entered the camps, which were dominated by Syrian intelligence. When the case was lodged in Brussels and met with unprecedented enthusiasm in Europe and the Middle East, these prison-like walls disappeared overnight as dozens of journalists effectively broke the stranglehold to speak with the survivors. 76 Even Israel would no longer be easily shielded. In 2004, Sharon himself may have taken the cue that massive use of force to solve Israel’s Palestinian problem had reached its limits. He dismantled the large Israeli settlements. established in Gaza, and withdrew from the overcrowded strip. In 2005, he went into a deep coma, with the Sabra and Shatila massacre casting a heavy ghost over his legacy, and over the society that elected him as prime minister. 77 This started an obscure and still not well-documented period with bizarre alliances, including behind-the-scenes high-level discussions among the Arab leaders, Israel, Iran and the US government under Ronald Reagan, who allowed the infamous visit of former National Security Adviser Robert McFarlane to Tehran in 1986, with a cake in the form of a key—and the complications of the Contra Affair and McFarlane’s subsequent attempted suicide. From the perspective of the Iranian leadership in the midst of a harrowing war that they were unable to bring to an end without losing face (Khumaini “drinking the poisoned chalice”), the key was Saddam’s removal.

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the pretext to launch an invasion. For that purpose, Saddam organized an attempt to kill Shlomo Argov, the Israeli ambassador to London, on June 3, 1982, which triggered two days later the invasion of Lebanon. Israeli intelligence knew immediately that Saddam Hussein was behind it, and not the Palestinian leadership in Lebanon. The Shakespearean scene that took place on June 4, 1982, in Israel is told by authoritative Israeli journalists: Machanaimi78 hardly had a chance to shift his glance toward Begin when the prime minister blocked him with the retort that there was no need to elaborate on anything. “They’re all PLO”, he pronounced, putting an end to the subject. Eitan79 also belittled the importance of this detail. Before entering the conference room, he had been informed by one of his intelligence men that Abu Nidal’s men were evidently responsible for the assault. “Abu Nidal, Abu Shmidal”, he had sneered. “We have to strike at the PLO!”80 The war was on, purposefully triggered by the Iraqi dictator using a mythical Palestinian killer based in Baghdad to provide an obfuscating Palestinian cover for murders carried out across the region, at a time the name of the mastermind of the operation, an Iraqi intelligence officer working from the Iraqi embassy in London, was quickly known to both the Israeli security and to larger journalistic circles.81 The Israeli invasion of Lebanon started on June 5, and pushed overnight the Iran-Iraq front to the backburner of international concern. The invasion was gradually extended by Ariel Sharon all the way to Beirut. Three months later, on September 15, 1982, a day after the assassination by a member of a pro-Syria group in Beirut of Israel’s chief Lebanese ally, president-elect Bashir Gemayyel, Sharon had the two Palestinian slums tightly surrounded by the Israeli army, and ordered Lebanese Christian militias “to mop up” the camps on the morning of September 16, 1982, the day after he egged them on to exact revenge for their slain leader.82 As the massacres proceeded over three days and two nights, on September 16–18, Saddam Hussein got what he wanted Then prime minister’s advisor on the war against terrorism. Then chief of staff. 80 Ze’ev Schiff and Ehud Ya’ari, Israel’s Lebanon War, New York: Simon & Schuster 1984, 98. The authors go on to show that the Israelis found out four days later that Scotland Yard had arrested “three of the assailant’s colleagues and their interrogation revealed that the head of the assassination squad, Merwan Hassan al-Bana, the bearer of a Jordanian passport, was a second cousin of none other than Abu Nidal. The three detainees also disclosed that an envoy from Baghdad had brought them orders to carry out the assassination, and that they had received their weapons from the military attaché’s office of the Iraqi embassy in London.” Id. at 99. 81 The Iraqi intelligence officer was Nawwaf al-Rawsan (Nawaf al-Rosan in phonetical English as appears in various books and reports). 82 For the order to “mop up” the Palestinians camps: “Order number 6 was issued on the morning of 16.9.82. The first five orders said nothing about entering the refugee camps, and only in Order Number 6 were the following things stated (clause 2, document no. 6, exhibit 14): ‘The refugee camps are not to be entered. Mopping up the camps will be done by the Phalangists/Lebanese Army.’ ” Kahan Commission Report, above note 69 at 125. (The original Hebrew word, tihur, means purification, cleansing.) See for use of this order and other key documents in the criminal complaint against Sharon et al., original in French, “La plainte contre Ariel Sharon avec constitution de partie civile,” above note 55 at 14. For Sharon pushing Lebanese militia to exact revenge, see above note 72. 78

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from the invasion of Lebanon that he triggered. The Israeli war became the focus of the world instead of the Iran-Iraq war, and the removal of Saddam from power as a way to end the war was shelved sine die. The rising regional consensus to end his rule in Baghdad, and the war that he had started by invading Iran, receded until his next war. Even after he occupied Kuwait in August 1990, he escaped justice for another thirteen years. Two decades later, the same lead protagonists, Ariel Sharon and Saddam Hussein, were in command of their respective countries when the decision of the Belgian Court of Cassation to proceed with the investigation against those accused of the Sabra and Shatila massacres would make them help each other again. The decision of the Belgian Court of Cassation came down on February 12, 2003, in the midst of the fevered atmosphere preceding the invasion of Iraq by the US-led coalition. It created a precedent for other cases pending, including the one against Saddam Hussein brought by Indict. But Saddam would not let the decision taken in favor of the Palestinian victims stand, and the next few weeks saw a flurry of criminal complaints that used the Sabra and Shatila precedent, at Saddam’s instigation, against high American officials accused of crimes allegedly committed in the second Gulf War of 1990–1991. Every single criminal complaint was promptly rejected by the judges, but the American government, which had remained generally aloof through the Sharon proceedings in Belgium, unleashed its full diplomatic anger against the Belgian universal jurisdiction law. As we saw, both the US Secretary of Defense and the Secretary of State openly requested the law to be scrapped, and the pressure exerted against the Belgian government eventually led to its repeal, and to the retroactive cancellation of a final decision that had been rendered by the highest judicial instance in the country. The callous action of Saddam, who knew that his strategy would defeat the single unique success for Palestinian justice since 1948, did not save him. Within less than two months of the delivery of the Belgian Court of Cassation decision, he had become the most wanted man in Iraq. He was arrested in a “spider hole” north of Baghdad on December 13, 2003. One shudders at the way Saddam was hanged on December 30, 2006. The scene of the execution recorded by bad quality cell phone cameras would be repeated in the death of Qaddafi seven years later. But unlike Qaddafi, Saddam was tried, at great cost to the judges who dared question him and to the lawyers who dared defend him.83 One of the major failings in the trial was the episode for which Saddam was brought before the court in the first place. This was an incident in 1983 where the whole village of Dujail in the lower Euphrates had been “punished” for having been the scene of an attempt on the life of the former dictator. Some 150 inhabitants were rounded up, summarily tried, and executed. The order emanated from Saddam, and that was the strongest written proof that the prosecutors, under the active guidance of American experts, were able to use. Grave as Dujail was, it paled in comparison with other atrocities, most significantly what happened in Halabja within five minutes of the gas being dropped by air on the city’s unsuspecting For an overview of the questions raised by the trial, and further literature, see my Iraq: Guide to Law and Policy, Austin, TX: Wolters Kluwer 2009, 177–90; For a sympathetic reading of the proceedings, which I generally share, see Michael Scharf and Michael Newton, of Enemy of the State: The trial and Execution of Saddam Hussein, New  York:  St Martin’s Press 2008. For a systematic criticism of the trial by one of Hussein’s family lawyers, Abdul-Haq Al-Ani, see The Trial of Saddam Hussein, Atlanta, GA: Clarity Press 2008.

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inhabitants. Three to five thousand civilians had died in a few minutes. The Kurdish victims of Saddam Hussein’s policy of extermination were frustrated by the hurried manner in which the Dujail trial was completed and the sentence carried out. They did not have their day in court, at least not in the presence of Saddam.84 Saddam Hussein’s trial in Baghdad was a serious endeavor despite some major failings.85 He and his aides were judged properly. They were not summarily executed.86 The decision in the first instance, and the one on appeal in particular, are well reasoned, balanced, and convincing. Saddam’s defense was vigorous. Later trials avoided the poor public performance of the initial judges, one of whom had been so scared that he said out loud in open court that “Saddam was not a dictator.” With all the cruelty and despondency of the Sunni-Shi‘i conflict in Iraq, and the unpleasant scenes of the subsequent executions, the trial of the former Iraqi mass criminals proceeded in a generally fair manner. Regardless of the profound controversy over the invasion of Iraq in 2003, the Baghdad trials marked the tangible end of impunity for Middle East dictators, of whom Saddam Hussein was the foremost paragon. Justice for the victims of dictatorship had become a reality. Beirut 2004. Mu‘ammar al-Qaddafi Indicted Throughout the long trial of Lockerbie, the Libyan dictator in power since 1969 maneuvered to avoid any responsibility coming to his doorstep. The trial for the downing of a commercial airliner over the Scottish village in 1988 had been conducted after slow and painful progress in the United Nations, which allowed Qaddafi to keep his own criminal responsibility at bay. Only a low-level official, ‘Abdelbaset al-Megrahi, was eventually convicted by

‘Ali Hasan al-Majid, infamously nicknamed Toxic ‘Ali (‘Ali kimawi) because of his leading role in the Anfal campaign in 1987–1978 and the gassing of Kurdish civilians at Halabja, was subject to four trials from 2007 to 2009, sentenced to death, and executed on January 25, 2010. In the appellate, final decision in the case of Anfal, the court confirmed the first instance decision death sentence for genocide; see for an English translation in the Anfal case, http://law.case.edu/grotian-moment-blog/documents/Anfal_Cassation_Panel_ Opinion.pdf., which gives a detailed description of Majid’s role in the vast scale operations of killing and displacing Kurdish Iraqis in the hundreds of thousands. Other leading members of the Ba‘th government were tried and sentenced, but even Majid did not cut quite the figure of criminality that makes Saddam Hussein distinct. 85 Arguments and excerpts of the appeals decision in Mallat, Iraq: Guide to Law and Policy, above note 83 at 177–90. 86 The set-up of the tribunal itself was difficult. In a meeting organized by the United States Institute of Peace with Iraqi judges in Amsterdam in 2003 under the direction of lawyer Salem Chalabi, who would be the first manager of the tribunal, the main point of contention between the Iraqi judges and the American and international lawyers present, including Antonio Cassese, was the issue of the death penalty. I was actually surprised by the dedication of the US lawyers, some of whom were officials, to oppose the death penalty at the meeting, obviously not the position of their government. An international tribunal would not have been able to entertain it easily. One of the main problems with the ICC in Libya over the jurisdiction over the two surviving ICC indictees remains the death penalty. To be noted is the fact that the early statutes of the Iraqi tribunal included a clause allowing international advice or even the establishment of a mixed tribunal with Iraqi and foreign judges (with the word mustashar, the name used both for a judge and an advisor). 84

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a Scottish tribunal sitting in Lockerbie, and even Megrahi was freed after Qaddafi came in from the cold to receive foreign dignitaries in Tripoli and set his tent in major capitals of the world. This side of the story captured the news for months on end. The only tangible result, in addition to Megrahi’s shortened years in prison and a murky early release that heavily smelled of oil contracts, was the compensation paid to the Western families of the flight passengers and crew from the Libyan treasury. The Libyan people paid the bill. This was not so in a case that drew far less attention in the world, despite its higher significance for justice in the Middle East. In 1978, Musa al-Sadr, the religious leader of Lebanon’s Shi‘i community, was invited by the Libyan dictator to Tripoli. He arrived on August 25 with two companions, journalist ‘Abbas Badreddin and cleric Muhammad Ya‘qub. On August 31, 1978, they were last seen by fellow Lebanese guests of Qaddafi leaving their hotel in an official car around noon, on the way to meet with the Libyan dictator. They have never been heard from since. At the time, Sadr was the most prominent Shi‘i religious leader in the world, with far more fame than then obscure Iranian oppositional leader Ruhullah al-Khumaini.87 Sadr’s disappearance led to great commotion in Lebanon and the region, and several attempts by various dignitaries and heads of state failed to get any response from Qaddafi. The Libyan dictator adamantly stuck to the story peddled out by the Libyan authorities a week after their disappearance: Sadr and his companions had left Tripoli for Rome on Alitalia Flight 881 on the evening of August 31, 1978. The Imam’s passport and some of his belongings were discovered a few days later in a Rome hotel mixed up with the clothes of his colleagues, and the man who had checked in under his name had disappeared without leaving a trace. An extensive investigation was conducted in Rome and Tripoli two years later at the instigation of the Libyan government. Qaddafi’s attempt to force his version of the events backfired. The Italian investigative judge and the court found that the whole story was fabricated and categorically denied that the Imam and his companions were on the Alitalia flight or had ever set foot in Italy. But the court closed the case without drawing the natural consequence from the exposed Libyan charade that Qaddafi constructed to obstruct the course of justice. The Italian investigator, the prosecutor, and the court concluded that their Libyan colleagues had lied blatantly and systematically. But they stopped there. No mention was made of the criminal plot constructed by the Libyan leader to deceive the investigators. The elaborate machination of Qaddafi to railroad justice was ignored. As the crime had not been committed in Rome because the Imam had never landed there, the Italian court concluded, the case was simply closed.88 Several works on Musa Sadr were published over the years, including two early books in English after his kidnapping in Libya, Fouad Ajami, The Vanished Imam: Musa al Sadr and the Shia of Lebanon, Ithaca, NY:  Cornell University Press 1986; Peter Theroux, The Strange Disappearance of Imam Moussa Sadr, London: Weidenfeld and Nicholson 1987. Sadr was born in 1928, and grew up in Iran. He was a widely respected personality both in Iran and in Iraq, in addition to Lebanon, with strong family relations with various prominent leaders in both countries, including former Iranian president Muhammad Khatami (who married his niece), and Muhammad Baqer al-Sadr, the historic leader of the Iraqi Shi‘is who was executed by Saddam Hussein in April 1980. The extent of the respect he commanded in Iran can be found in Mahdi Farrakhian ed., Andishe-ye rabudeh shodeh (The thought that was stolen [with the disappearance of the Imam]), Tehran: Imam Moussa Sadr Cultural Research Institute 2006. See also above, Chapter 3. 88 Decision of the Prosecutor General (Procura Generale della Repubblica presso la Corte di Appello di Roma, Il sostituto Procuratore Generale Salvatore Vecchione), December 21, 1981, concluding that the 87

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The relatives of the abductees did not give up. Sadr was a charismatic Lebanese leader, and the country stood behind his family and the families of his two companions. This however was a time of continuous wars in Lebanon, which ended in 1990 in a general agreement to stop the fighting among the main factions. Until then, the case of Imam Sadr was drowned in the on-off travails of Lebanon. The efforts by the family of Sadr resumed in the late 1990s, less encumbered by constant wars in and over Lebanon as the situation stabilized in the country. Between 1978 and 2000, the political efforts to find out what happened to the Imam continued to hit the wall of silence erected by Qaddafi. But things had changed internationally, and by the end of the 1990s, new tools of international justice had emerged. They would prove far more effective than all the previous political efforts made by various Middle Eastern heads of state to query Qaddafi on the fate of his official guests. On May 22, 2001, a criminal complaint was lodged by the son of the Imam and the wives of Badreddin and Ya‘qub, as parties civiles, before the Lebanese investigative judge. Until then, the case was led by the state, and the prosecutors had only gone so far as to add to their investigation the conclusions of the Italian courts that the Imam had never left Libya, and issuing an open search for x, without even a mention of Qaddafi.89 When the families brought the criminal complaint to the court in 2001, an altogether new dynamism was set in train, building on the atmosphere of judicial accountability in the first arrests and trials of the ICTY, and on the Pinochet and Sharon cases. crime having not been committed in Italy, as the Imam and his two companions had never come to Italy, there was no jurisdiction in Italy (at 21); and requesting from the investigative judge that the case be “archived” (“Archivazione,” at 20). Confirmation by investigative judge Domenico Nostro a month later that the “penal action” be ceased, and archivation of the case be effected. (“Dichiara non doversi promuovere l‘azione penale in ordine alla scomparsa di Moussa El sadr, Mohamed Yacoub e Abbas Badreddine ed ordina trasmettersi gli atti all’archivio”), Tribunal di Roma, Ufficio istruzione, Jan. 28, 1982, 21. This followed an initial Italian investigation in 1978–1979 that had concluded that the three disappeared men had never entered Italy. (All decisions on file with author) In a bizarre development in 2004–2005, the Italian judiciary reopened the case on the request of the Italian secret services, DIGOS. Without adducing any new element to the file, investigative judge Simonette d’Allessandro suggested that the Imam and his companions may have disappeared in Italy after all. The conclusion is muffled. After she concludes that it was not clear (“Non sarebbe chiaro”) that the passengers “peacefully present on the plane” (pacificamente presenti sull’aereo’) had taken their lodging at the Hotel Holliday Inn (where they were supposed in the original Libyan story to have checked in) or whether they simulated their traces there (“o se si siano solo simulate le trace della loro presenza in loco”). “What was certain”, she concluded, “was that in the proceedings of the investigation which surfaced later no assured facts emerge to refer the disappearance of Moussa Sadr and his exit from Italian territory to persons who can be confidently identified.” Tribunale di Roma, Sezione del Giudice per le Indagini, Ufficio 8 Gip—dott. Ssa Simonetto d’Alessandro, November 7, 2005. (Decision on file with author, citations at pp. 4–5) That was another major scandal under the Silvio Berlusconi-led government, revising twenty-three years later a string of decisions that has been reached by the Italian courts on the basis of countless lies identified in the initial judgment. A 2014 memorandum of understanding reached by the new Libyan government and the Lebanese government squarely established that the Imam had been abducted in Libya. 89 Decision of the investigative judge Tarabay Rahme, November 18, 1986. (Issuing open and unbound investigation order “to find the perpetrators, incitors and pariticipants in the crimes committed,” ‘tawassulan li-ma‘rifat al-fa‘ ilin wal-muharridin wal-mutadakhkhlilin fil-jara’em’). See text in Mudhakkarat taharrin da’em (Decision to keep investigation open), Beirut: Markaz al-Imam Musa al-Sadr 2001, 132–41, conclusions at 141.

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The judicial route was different in the Sadr case. It was not possible for a small country such as Lebanon to summon the energy and clout needed to set a UN tribunal, as in the former Yugoslavia or Rwanda, over the case of a person who had disappeared two decades earlier. Pinochet had been finally let go, despite the House of Lords decision, by a callous Home Secretary using an obscure administrative clause to release the accused. It was hard to start an extradition process with no British victims. Italy had not dared incriminate Qaddafi despite the evidence of wide-scale obstruction of justice engineered in Rome. And three persons kidnapped that far back did not constitute “a crime against humanity,” let alone a war crime, for there was no war between Lebanon and Libya, so the course followed in Belgium in the case against Sharon could not be used either. The only judicial route available was in Beirut, and even there the case would prove extremely difficult because Lebanon was still recovering from its long traumatism as a failed state, and because the crime had taken place elsewhere. Qaddafi’s brutality was notorious, as was his international killing reach. Several Lebanese prosecutors and investigative judges resigned, out of fear, but in one significant instance, the case succeeded in dissuading Qaddafi from a planned visit to Lebanon for the Arab Summit in 2002. Although an arrest warrant had not been issued by the investigative judge, he at least agreed not to deny press rumors about the possibility of a Beirut arrest if Qaddafi showed up. Like Sharon in Belgium, the case scared Qaddafi enough to change his travel plans. It also triggered an important change in the Libyan leader’s behavior. The Arab Summit took place in Beirut, without Qaddafi, at the end of March 2002. On August 31, 2002, the dictator changed his story upside down. In an interview aired on Libyan television, he said in halting Libyan vernacular how great the Imam was, what a loss his disappearance had caused, and what a pity it was that he “disappeared here in Libya . . . we don’t know how.”90 This went against a quarter of a century of disparaging words against Sadr, and a systematic denial that the Imam and his companions had disappeared in Libya upon their visit. In two sentences, the whole Libyan “Imam’s departure to Rome on Alitalia Flight AZ 881” story was jettisoned. The families of the victims finally got tangible evidence from the mouth of the main culprit that the earlier official Libyan account of the Rome trip, and the maneuvers that accompanied it through the Italian investigation, were fabricated. Qaddafi’s tape and its transcription were duly submitted to the Lebanese investigative judge, together with a list of people who had openly lied to the Italian rogatory commission that investigated the case in 1978–1980. In 2004, the Lebanese Prosecutor-General was swayed, and issued a warrant to interrogate Qaddafi and a number of other accused on August 2, 2004.91 It was the closest to an indictment that had occurred. As with Sharon in Belgium, the prosecutor had been

The tape was included in the documents submitted by the family to the prosecutor (full plea on file with author). See also Amnesty International, International Report 2003—entry Libya: “In his annual speech on 1 September Colonel Mu‘ammar al-Gaddafi gave an official acknowledgement that Imam Musa al-Sadr, a prominent Iranian-born Shi’a cleric living in Lebanon, ‘disappeared in Libya’ during a visit in 1978.” To be fully accurate, Qaddafi mentioned the disappearance on Libyan television a day earlier. 91 Decision of Prosecutor General ‘Adnan Addum on August 2, 2004, issuing arrest warrants against Qaddafi and other Libyan officials, full text of the decision in Al-Haqiqa lan taghib (Truth will not remain hidden), Beirut: Beirut: Markaz al-Imam Musa al-Sadr 7th ed. 2009, 53–56. 90

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persuaded by the partie civile, the families of the victims. The state taking their side finally meant that the case was serious. In 2008, finally, the investigative judge issued his decision. The acte d’accusation took the form of a long opinion, at the center of which stood the evidence of the tape of August 31, 2002, and the lies of various Libyan officials, which had been uncovered by the Italian investigation.92 Throughout the decade of an extremely slow process, Qaddafi varied his reactions to the trial. Unlike Sharon, he did not appoint a lawyer to represent him, but he was worried. With the families of the victims, the game he followed was a combination of threats and offers of compensation. Threats took the form of an open letter threatening the lawyer for the families, delivered by fax.93 Assuagement, building on the Lockerbie settlement of 92

Decision of investigative judge Samih al-Hage 1/2008- majlis ‘adli, Aug. 21. 2008, ordering 1- To indict the defendant Mu‘ammar al-Qaddafi in accordance with Art. 569/218 of the Lebanese Criminal Code for conspiracy to abduct, and withhold the liberty of, each of Imam Sayyed Musa al-Sadr and Shaykh Muhammad Ya‘qub and journalist ‘Abbas Badreddin, for the crime perpetrated on 31/8/1978. 2- To indict (ittiham) each of the defendants: Al-Marghini Mas‘ud al-Tumi, Ahmad Muhammad al-Hattab, al-Hadi Ibrahim Mustafa al-Sawi, ‘Abd al-Rahman Muhammad Ghawila, Muhammad Khalifa ibn Sahnun, and ‘Isa Mas‘ud ‘Abdallah al-Mansuri, whose identities have been fully detailed above, in accordance with Article 569/213 of the Lebanese Criminal Code, for participating in the abduction of Imam Sadr and his two companions. 3- To indict the defendants:  Mu‘ammar al-Qaddafi, Al-Marghini Mas‘ud al-Tumi, Ahmad Muhammad al-Hattab, al-Hadi Ibrahim Mustafa al-Sawi, ‘Abd al-Rahman Muhammad Ghawila, Muhammad Khalifa ibn Sahnun, and ‘Isa Mas‘ud ‘Abdallah al-Mansuri, in accordance with Article 2 of Law 11/1/1958’, and to issue arrest warrants against them. Full text in Arabic published in Al-‘adala lan taghib (justice will not go away)”, Beirut: Markaz al-Imam Musa al-Sadr 2011, 53–88, conclusions at 87–88.

The text reads as follows:

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ila al-muhami Shibli Mallat laqad balaghana annaka tawakkalta fil-qadiyya allati rufi‘at didd al-akh al-qa’ed Mu‘ammar al-Qadhdhafi fi ma yusamma qadiyyat Musa al-Sadr. innana nuhadhdhiruka min maghabbat al-tawarrut fi hadhih al-qadiyya aw al-istimrar fi mutaba‘atiha idh la hadaf laha siwa tashwih sum‘at al-qa’ed wa sum‘at al-jamahiriyya. innana naktafi bi-hadha al-tahdhir wa ‘ala thiqa fi annaka sa-tatruk hadhih al-qadiyya niha’ iyyan wa-illa fa-innana lan natawana fi ‘amal kull ma min sha’nih an yub‘ idaka wa yub‘ id ayy muhami aakhar min al-ta‘amul ma‘ hadhih al-qadiyya. Wa qad u‘ dhir man undhir. Fida’ iyyu al-Qadhdhafi To lawyer Chibli Mallat, We have been informed that you agreed to be the attorney in the case brought against our brother leader Mu‘ammar al-Qaddafi in what is called the case of Musa al-Sadr. We are warning you not to get involved in this case or to pursue it further for it has no other objective than sullying the reputation of the leader and of the Jamahiriyya. There will be no further warning, as we are convinced that you will abandon the case completely, otherwise we will not hesitate to do whatever is needed to force you and any other lawyer out of it. You have been warned. [Signed] Qaddafi’s Fida’iyyin.” The word “fida’ i,” pl. “fida’ iyyun” was used commonly by the PLO to describe its kamikaze members, ready-to-die for the cause. The fax was received in my office on the morning of August 4, 2004, two days after the arrest warrant against Qaddafi by the Prosecutor General was issued.

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ten billion dollars, was conveyed by various indirect messages, including suggestions in the press that Qaddafi was ready to offer over a billion dollars to settle. The Sadr family stood firm. As the last act before the Lebanese Supreme Court (al-majlis al-’adli) was taking place just before the death of Qaddafi, the elder son of the Imam asked for the proverbial “one Lebanese pound” of compensation mandated by law. The death of Qaddafi before his final condemnation and sentencing set by the Lebanese Supreme Court for the following month brought a surprisingly negative twist to the case. The man who knew most about the fate of the Imam and his two companions was dead, and with him, the fullest possible account of their whereabouts, if one or more were still alive, or the circumstances of their death in custody. The killing of the dictator in the lurid conditions in which it took place, despite the hope and admonition of the families that he should be kept alive, prevented closure. The trial ground on with little tangible information provided by the new Libyan government. The Qaddafi trial carries unique significance in a context where a single set of relatives was capable of standing up obdurately against one of the most brutal dictators in the region—and the one who had been longest in power anywhere on the planet when he was deposed. It was not just standing up to Qaddafi. The family of Musa Sadr adamantly rejected blood money, and insisted on truth and judicial accountability in a campaign that took the case as far as Australia.94 Most symbolic perhaps was their unique, conspicuous resistance to Qaddafi coming in from the cold when he paraded in fully recovered world recognition at the United Nations in New York, and addressed the delegates of the world’s people in yet another long, dull, and hallucinatory admonition. The only dissent expressed came from the Imam’s supporters, who stood outside the world organization’s headquarters carrying a placard they had placed in the New York Times that day, with the facts of Qaddafi’s indictment in Lebanon. The heading addressed to the UN world meeting was simple:  “Arrest Qaddafi.”95 Qaddafi’s comeuppance happened less than two years later in the sewers west of Tripoli, during the dictator’s final attempt to escape the armed Libyan revolutionaries and their NATO backers. There was no trial. He was cursed, beaten to a pulp, and then shot. Beirut 2005, the Special Tribunal for Lebanon The course of judicial accountability was also actively sought when Lebanon’s former prime minister was blown up,96 together with twenty-one other innocent souls, on a sunny The importance of the case in Lebanon and the Middle East meant it was widely covered in the Lebanese and regional press, less so in the West; see for instance the parallel made in Egypt on the case against Sharon, Mahdi Mustafa, “Al-Sadr . . . yuzalzil ‘arsh al-Qadhdhafi (Sadr . . . makes the throne of Qaddafi vacillate)”, al-Ahram al-‘arabi (Cairo weekly), August 4, 2004, 15–19. The “campaign for truth and accountability” found its active way to New York, see below note 95, and as far as Australia, e.g. Natalie O’Brien, “Cracks in Case of the Missing Imam,” The Australian, September 4–5, 2004. 95 “Arrest Libyan Leader Mu‘ammar al-Qaddafi Today in New York,” New York Times, September 23, 2009, with a summary of the case and the translation of the investigative judge’s indictment. 96 For the STL as a central result of the Cedar revolution, see my March 2221. Lebanon’s Cedar Revolution— An essay on Justice and Non-violence, Beirut: [Lir] 2007, 97–116. For a more general historical assessment, see Nicholas Blanford, Killing Mr. Lebanon: The Assassination of Rafik Hariri and Its Impact on the Middle 94

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morning of Valentine’s Day 2005.97 “Truth” was the motto of the spontaneous demonstrations that followed, culminating a month later, with half of the country’s active population demonstrating, often with their families, in the heart of Beirut, on March 14, 2005. As in the precedents in Yugoslavia and Rwanda, a commission was set up by the Security Council, which concluded that there was a need for a UN Tribunal for Lebanon. A decade later, the Special Tribunal for Lebanon (STL) was manifestly ailing. In a 2013 report, the conclusions of an enlightened Lebanese NGO expressed the particularly pessimistic mood of the victims: “Since the STL’s indictment of the Hezbollah members, the court seems to have entered a slow, downward spiral in terms of its effectiveness. A change of prosecutors, budget woes and increasing criticism for its lack of progress have exacerbated the public’s already skeptical opinion of the court. Lebanese support for the trial has waned slowly but steadily, due in part to the failure of the ‘Beirut Spring’ to foment any tangible political change.”98 There had finally been indictments of four Hizbullah operatives,99 but the centrality of the tribunal in the history of Lebanon had eroded significantly over several years of bungling and the meager results shown. It could have been otherwise. On several occasions, starting before the assassination of Rafiq Hariri, opportunities for an effective policy of accountability against the Syrian rulers of Lebanon were missed. Lebanon’s culture of impunity was not new. A long lull had prevailed, against a poor choice of a blanket amnesty, when the Lebanese civil and regional wars drew to a temporary close in 1990. But the killings had stopped. Suddenly, four months before the assassination of Hariri, on October 1, 2004, another leading political figure was the target of a bomb that severely wounded him and an aide, and killed his driver. Instead of looking in the obvious direction that the target elicited in the shape of the “Syrian-Lebanese security order,”100 Lebanon’s General Prosecutor threatened to arrest the victim. Coming on the heels of a major constitutional-political crisis around the forced extension of the incumbent president’s mandate in the mode of the other Arab dictators, a massive crisis was festering domestically and internationally. Faint calls for an international enquiry went nowhere, but the stage was set. When Hariri was killed four months later, the idea of the tribunal was in the air.101

East, London: I.B. Tauris 2006; Michael Young, The Ghosts of Martyr Square, New  York:  Simon and Schuster 2010; On some legal aspects, albeit not critical enough toward the STL, see Amal Alamuddin, Nidal Nabil Jurdi, and David Tolbert eds., The Special Tribunal for Lebanon, Law and Practice, Oxford: Oxford University Press 2014. 97 The number of total dead comes variously in reports as twenty-two or twenty-three, perhaps because of the later death of Minister Basel Fuleihan who was in Hariri’s car and severely burnt. He died three months later without ever regaining conscience, on April 18, 2005. 98 Shia Watch (Beirut), “The ‘Assassination’ of the STL . . . Another Victory for Lebanon’s Culture of Impunity,” April 29, 2013. 99 Text of indictment and subsequent amendments available on the STL’s official site, http://www.stl-tsl. org/en/the-cases/stl-11-01. A fifth suspect was indicted a few months later. 100 This description started with the most courageous resistance to Syrian domination in the 1990s, Saint Joseph’s University rector Sélim Abou in a speech on March 19, 2001; see Mallat, March 2221, Lebanon’s Cedar Revolution, above note 96 at 71–72. 101 On October 1, when former Minister Hamadeh was targeted in a bomb attack where his aide was killed and he and his driver severely maimed, I happened to be meeting with colleagues at the UN, including

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Here also, the legal response was slow. What Lebanon needed then was the immediate establishment of a tribunal, but the arrangements for setting up the previous UN tribunals were hard to vary from. The absence of an international tribunal made the whole investigative exercise fraught with problems. As the Lebanese judicial system was incapable of rising up to the challenge of investigating and arresting criminals targeting a former minister and killing a former prime minister, who was in charge of arresting and trying the suspects? There were two initial investigators appointed by the UN over the course of 2005. The first, a former Irish head policeman by the name of Peter Fitzgerald, completed his mission quickly, underlining the yearning for justice in Lebanon, which moved hundreds of thousands of people to the street, and pointed to the evident responsibility of the Syrian-Lebanese security system: [T]‌he Mission’s view that the Lebanese security services and the Syrian Military Intelligence bear the primary responsibility for the lack of security, protection, and law and order in Lebanon. The Lebanese security services have demonstrated serious and systematic negligence in carrying out the duties usually performed by a professional national security apparatus. In doing so, they have severely failed to provide the citizens of Lebanon with an acceptable level of security and have therefore contributed to the propagation of a culture of intimidation and impunity. The Syrian Military Intelligence shares this responsibility to the extent of its involvement in running the security services in Lebanon.102 The second investigator, former German federal prosecutor Detlev Mehlis, moved quickly on the heels of his predecessor’s frank findings. He asked the Lebanese judicial authorities to arrest four Lebanese generals in the security services on evidence that later proved thin, if not fabricated by a false witness. The four suspected generals were arrested by the Lebanese authorities, but the arrests triggered a fundamental habeas corpus issue. As the investigation was international, and the local judiciary was deemed incapable of doing its job properly by the very fact of the UN judicial intervention, which judge could be legally entrusted to

Terje Roed-Larssen, then UN envoy for Lebanon, over the gathering crisis in Lebanon. This was a month after the UN passed UNSCR 1559, which made three demands:  free and fair presidential elections in Lebanon (this was the time when Syria’s Asad was forcing the extension of the tenure of its man in power), the need for Syrian troops to leave the country, and the need for Lebanese militia (i.e., Hizbullah) to disband. The lethal bomb directed at Hamadeh, I argued with Larssen, required an international investigation as the Lebanese judiciary was unable to conduct one effectively. The idea of the investigation was taken up four months later when Hariri was killed. When this started to materialize, my argument moved to accelerate the process by either setting up immediately an ad hoc UN tribunal, or deferring the crime against humanity that the murder of so many civilians constituted, to an existing tribunal such as the ICC. My main interlocutor at the time was Nicholas Rostow, the legal advisor to the US mission to the UN in New York. The attempt to move promptly to the ICC was complicated immediately by the wrong description of the Hariri assassination by the UNSC as “terrorism,” a crime not recognized by the ICC statutes. 102 Fitzgerald’s investigation, III. Concluding remarks and recommendations, para.60. at http://domino. un.org/unispal.nsf/0/79cd8aaa858fdd2d85256fd500536047?OpenDocument.

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determine the validity of the charge? There was no UN or international judge yet for habeas corpus. In the absence of an international tribunal, only the local judge could do so. But if the local judge could perform, there would have been no need for an international investigation in the first place. Events developed in fits and starts. The two first investigators had performed their duties actively. Assassinations continued against Lebanese opponents of the Syrian ruler, amid open resistance by the Syrian leader and his allies to the STL, a reluctance which further pointed the finger at them in the continuing pattern of killing their political opponents. In 2005–2006, the dynamic of the Cedar revolution was such that a new government was appointed whose prime minister was the former right-hand man of Hariri. His was a government dysfunctional in so many ways that he was unable to take decisive action. But the main problem was in the investigation itself. The third investigator, former Belgian investigative judge Serge Brammertz, who was appointed to the STL in early 2006, all but turned his back on the task assigned. For almost two years, Brammertz did not make a single tangible progress in the investigation. Meanwhile, assassinations continued, and no further arrests were made, while the four suspects were languishing in prison, without a chance for a habeas corpus, for there was no judge to examine their case. Eventually, the Security Council moved ahead without the Lebanese government’s approval of a tribunal. The STL was established formally in 2007, two years after the first murders, but did not open its doors until March 2009. The assassinations resumed, and the targets were always opponents of the Syrian regime. The names of the new victims were adding up, while the turnover in tribunal members, presidents, and prosecutors made the STL increasingly weak and dysfunctional. When it finally handed down the indictment of low-level Hizbullah members in January 2011,103 the clock for justice that was running in the heart of Beirut under a large picture of Hariri had long been disconnected. Throughout the slow and increasingly frustrating process, the victims and their families knew that the Syrian leadership was involved in the killings, together with their allies in Lebanon, especially Hizbullah. But Hizbullah was brought into the government, alliances were fleeting, and the Syrian leaders succeeded in ousting the son of Hariri, Saad, from the position of prime minister he had occupied upon the success of his campaign in the 2009 parliamentary elections. The Hariri-led government was replaced by an essentially pro-Syrian coalition. The STL looked like a thing of the past. But the luck of the Syrian dictator finally turned in his home turf. In mid-March 15, 2011, a month after a pro-Asad government was re-established in Beirut, the revolution broke out in Syria. This did not make the STL claw back its way into effectiveness. As the violence of the Syrian dictator against unarmed demonstrators grew in Syria, the Lebanese assassinations paled into insignificance before the growing register of crimes against humanity committed by the Syrian president inside his country. The STL remained totally unconcerned. Already by May 2008, Hizbullah had occupied West Beirut militarily, killing dozens in full impunity. The STL had nothing to say about another massacre of civilians.

Text of indictment and subsequent amendments available on the STL’s official site, http://www.stl-tsl. org/en/the-cases/stl-11-01. The Tribunal has also assembled decisions in a convenient STL Casebook 2011, Major Rulings Issued by the Special Tribunal for Lebanon, also available for download on its website.

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With the horror descending on the Syrian civil population in 2011, there was no longer a pressing need to find clues to complicated assassination arrangements in Lebanon back in 2005. Mass murder was taking place in broad daylight against nonviolent demonstrators across Syria. Starting in the place of Marja where a few dozen women clad in black, standing in silence for jailed or disappeared relatives, were beaten up and dragged by their hair in the street, and in the southern city of Deraa where children were tortured for writing graffiti inspired by the Egyptian revolution, the descent into the heart of darkness made the “butcher of Hama” in 1982, Hafez al-Asad, pale in comparison with the performance of his son. A generation after some twenty thousand people had been killed in Hama, Bashar extended the mass killings to the whole of the country simply because he would not agree to leave power. The STL, once the focus of hope for the Lebanese victims, was stamped out of relevance by the scale of the brutality in Syria. It did not even stir when Wisam al-Hasan, a high official within the Lebanese security forces who had uncovered to the STL the threads of the Hizbullah involvement in Hariri’s bomb, was brutally assassinated in Beirut in October 2012. This sad course was not pre-ordained. Ironically, justice in the case of Lebanon would have benefited significantly from a simple deferral to the ICC of the Hariri assassination on February 14, 2005. Indiscriminate bombings destined to harm as many people as possible, like the huge bomb used to kill Hariri, have been correctly labeled by Amnesty International as “crimes against humanity.”104 For reasons that go back to the US government’s choice to put the massacres of September 11 under the “terrorism” label, that option was precluded in the Hariri case.105 While a definition of terrorism continues to elude the international consensus, the UNSC can put any crime in that category without further ado.106 The consequences of the disjunction between the agreed definition of a crime and

Amnesty International may have provided the most consistent line on bombs exploding in civilian areas as crimes against humanity, from suicide bombs in Israel-Palestine in the early 2000s, through 9/11 and the recent atrocities in Syria and elsewhere. 105 In an irony of history, I insisted in September 2001 with then prime minister Hariri, that he should pull his weight with Arab governments at the Security Council to label 9/11 as a crime against humanity and not as terrorism. In 2005, the same erroneous category was used to apply to the bomb that killed him and two dozen civilians, and closed the door to a referral to the ICC. I also had the occasion to discuss this central point with former US Supreme Court justice Sandra Day O’Connor at a Salzburg seminar in September 2007, arguing that the label “crime against humanity” would serve justice in US courts much better not only because of the definition, but also because of the easier acceptance worldwide of the need to arrest those involved in 9/11 for a more precise, internationally accepted “crime against humanity” that does not carry with it the stigma of an ill-defined crime of “terrorism.” She was not convinced. 106 In the case of the STL, an additional quirk of history was the mention of terrorism in Article 314 of the Lebanese Criminal Code of 1943, which is translated by the STL as follows: “Terrorist acts are all acts intended to cause a state of terror and committed by means liable to create a public danger such as explosive devices, inflammable materials, toxic or corrosive products and infectious or microbial agents.” In The Prosecutor v. Ayyash et al., Appeals Chamber, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, Case No.:  STL-11-01/I, February 16, 2011 (“Applicable Law”), paras.47–148, the court under Antonio Cassese, then president of the STL, develops a learned argument for the recognition of a special “terrorism” niche in international criminal law despite the lack of a commonly agreed definition—mostly on the basis of the convergence of national laws across the world, and the agreement with few reservations to the International Convention for the Suppression of the Financing of Terrorism (1999), see paras. 88–89. But the court does not convincingly 104

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the courts capable of trying its perpetrators are significant. With the 9/11 massacre put in the “terrorism” category rather than the correct denomination as “crime against humanity,” and with the February 14, 2005, massacre in Beirut labeled “a terrorist act,” the ICC had no jurisdiction, even if the UN Security Council wanted to defer the crime to it. Many of the hurdles that slowed investigation and trial would have indeed been dissipated if the massive bomb that killed Hariri and the two dozen other civilians had been correctly categorized as a crime against humanity: no need for a commission, no need for special statutes, no need for the entanglement of Lebanese law and its structural incapacity to handle political crimes, a more powerful team of established prosecutors and judges, fewer logistics created from scratch, and huge sums of money saved, let alone the easy undermining of the investigation and trial by the Syrian government and its allies on the ground. The advantage of having a mixed tribunal, which allowed the STL to comprise Lebanese judges and tie the proceedings nationally, would have been lost, but with the reverse of fortunes of the Cedar revolution, Lebanese judges on the STL were faced with considerable danger at home. Perhaps even more important, had the existing ICC apparatus been tasked by the Security Council to investigate and try the series of killings starting in October 2004, international justice would have vindicated the main reason for the establishment of the ICC, which is to prevent the unnecessary proliferation of ad hoc tribunals and to smooth over international investigations and proceedings. A deferral to the ICC of the massive Lebanon killings would have at least broken the curse of exclusive African indictments and trials at the ICC. Over a decade of the ICC coming into effect in 2002, a list of over forty high officials indicted by the ICC comprised exclusively African names. With all the frustrations and the “ifs,” the STL was established to respond to a massive international crime. The ultimate responsibility for its failure lay with the derelict work of the third investigator, Serge Brammertz, who single-handedly killed the dynamic of justice started by his two predecessors. By the time he left in 2008, the wrong persons were languishing in prison, several dozen people had been killed or maimed in the same criminal pattern, the investigation had receded in the clueless impotence and bungling of an unconscionable head investigator, and the STL had turned into a footnote of Lebanese history. The tribunal grinds on, but one thing is certain: many people would have remained alive if the call for justice by the Cedar revolution had been promptly heeded. Bashir and Qaddafi before the ICC The travails of the STL should not detract us from the larger picture of justice soldiering on in the Middle East and beyond. In the Middle East register, the indictments of the ruler of identify a crime of terrorism that is not subsumed under the category of crime against humanity, nor does it succeed in removing the two-hundred-years-long dual stigma attaching to terrorism since the French revolution:  that a government could commit a “terrorist” act, as in “state terrorism,” or that there are legitimate means of armed resistance in fights against occupation/dictatorship that may claim civilians lives. See Chapter 4 above. The practical upshot is that both the bomb that killed Hariri and the planes that hit the Twin Towers are more accurately described as crimes against humanity than as “terrorist acts,” thereby commanding prosecution by all the states on earth rather than the United States alone or a special UN court for Lebanon.

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Khartum and of the deposed Libyan dictator provide important expectations for their victims. At the ICC, which remains closed because of jurisdictional problems to other obvious suspects including the Hariri assassins, a powerful precedent was set with the indictment of Omar Bashir, the Sudan dictator, and his aides.107 Bashir, like the other presidents-for-life in the region, had encountered resistance he was bent on crushing. With the rise of sundry challenges to his rule, he unleashed his thugs, the janjawid, on the population of Darfur. The scale of the horror in Darfur was such that even the authoritarian members of the Security Council, China and Russia, found it impolitic to prevent the Sudanese dictator’s deferral to the ICC. With the Middle East revolution on, the formal secession of South Sudan, and recurring protests in Khartum on a significant scale, Darfur slipped in the news, but the massacres that had taken place at the hands of Bashir’s militias remained current by the mere power of the ICC jurisdiction and by his official and detailed indictment. Bashir constantly taunts the Court by traveling where he can, but there are many countries where he no longer dares set  foot. As a measure of this new syndrome of the dictator’s fear, the first trip that the deposed ruler of Yemen took was to the United States, where he tested the immunity received against his acceptance to leave power. So does Bashir by visiting countries in Africa to defy the ICC’s arrest warrant. Whatever happens to Bashir or Saleh, fear will follow them to their grave. With this context in mind, the UNSC referral of Qaddafi, his son Seif, and the chief of his intelligence services Abdallah al-Sanusi to the ICC on June 27, 2011, built on an expanding legacy battling the culture of dictators’ impunity. Although the indictments and arrest warrants were delivered in record time, Libya post-Qaddafi raises its own set of problems, which were compounded by the assertion by the new Libyan government of its sovereignty and precedence in the trial of the two surviving indictees jailed in Libya. Despite the enthusiasm and support that had accompanied the ICC work through the war by the Libyan opposition and the rising number of victims in Qaddafi’s frenzy of killing “street by street,” nationalism reared its incompetent head as soon as the opposition came to power. The new government refused to deliver the two jailed indictees, Saif and Senusi, arguing that Libyan justice was in a better position to try them than the ICC. The ICC faces significant problems because of the jurisdictional noose around its neck by the major world powers, the United States, China, Russia, and India, let alone Israel, Sri Lanka, or Cuba who are not ready to submit to international justice. It also suffers from its exclusive indictment of African nationals. Still, the most powerful argument against the ICC is not its selectivity. After all, it was not set up to exclude any one country, and it fell victim of its unfortunate marginalization in the prosecution of the perpetrators of 9/11 because of the choice of the US government to go it alone against Usama Ben Laden and his aides under the label of terrorism, which falls outside the ICC jurisdiction. The more powerful argument against the ICC is about the community that defines it. In the absence of a cosmopolitan one-world state, which even

The ICC prosecutor first indicted two main aides to Sudanese president Omar Bashir, Ahmad Haroun and Ali Kushayb, on February 27, 2007, then Bashir himself on March 4, 2009, with international arrest warrants to boot. A fourth high level official, Abdel Raheem Muhammad Hussein followed suit on March 1, 2012. None had been arrested at the time of writing.

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Kant did not include in his vision, an international tribunal is the product of the agreement of nation-states through a treaty. Despite their international dimension, treaties remain the expression of the sovereign will expressed domestically through the governments and legislatures of each individual state. The importance of a treaty comes from it ranking generally in the hierarchy of domestic sources of law beneath the constitution, but above ordinary law, and it therefore presupposes a serious injection of popular endorsement through an active debate in parliament. Even in so-called monist countries where the space between international and domestic law is narrowed down by virtue of presumed incorporation of the former into the latter, as in Dutch constitutional law,108 treaties are cumbersome laws that require an active investment of the people through their representatives in the legislature and the executive. This makes a big difference for the legitimacy of an international tribunal formed by treaty. When a country is not democratic, the treaty binds a sovereign whose will is confiscated by the dictator. In a repeat of Rousseau’s criticism of Abbé de Saint-Pierre, why would the sovereign be legally bound in his own person by a criminal code, let alone by international criminal law? This explains why most authoritarian countries, including all the Middle East countries before the 2011 revolution, Jordan excepted, have not signed onto the ICC. Despite this reluctance, international justice, in the form of an international tribunal or through universal jurisdiction, has brought to the dictator’s door the reality of criminal law in its international version. He at least is getting scared to travel abroad. There is a related argument against the foreigners’ justice. An international tribunal, or a domestic tribunal taking on a universal jurisdiction, fails the test of legitimacy because there is no community of law that gives it meaning in the first place. Who is the community that gives legitimacy of a foreign tribunal? In a mantra often heard during the Sabra and Shatila trial, who is Belgium to police the world? Conclusion: Crime against Humanity as Philosophical Category The easy response is the complementarity principle provided by jus cogens, the overwhelming understanding in the law of nations. It is now firmly entrenched in the ICC Statute, which “emphasizes” in its Preamble “that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdiction,” and repeats this founding jurisdictional principle in the very first Article: “An International Criminal Court is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions.” Then it becomes a matter of fact and context. Can the justice system in a country that has rid the people from several decades of dictatorial atrocities apply the standards of universal

“The doctrine of monism is so deeply rooted in the country’s legal culture that all national law, including the Constitution, is seen as being hierarchically inferior to international law.” Gerhard van der Schyff and Anne Meuwese, “Dutch Constitutional Law in a Globalizing World,” Utrecht Law Review, vol. 9, 2013, 1–5, at 1. A typical dualist country is Britain, where treaties have effect only after having been transformed into a domestic Act of Parliament.

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justice when trying its deposed dictator? This was a basic problem in Saddam Hussein’s case, which has, but for his atrocious execution, shown the Iraqi judiciary capable of rising to the occasion. Complementarity hit again the Middle East revolution in the difficult case of Libya. While the revolutionary leaders, and the people at large, were eager to see an indictment by the ICC during the revolution, and cheered when it happened, the post-dictatorship government was no less adamant to see the two remaining ICC indictees in their custody tried domestically. More significant in defense of universal justice, and the enhancement of the role of the international judge in putting her mark on a crime against humanity, a community of meaning is not altogether absent from the international scene. It is often referred to as the human rights revolution set upon the world with the establishment of Amnesty International in the early 1960s, and its extraordinary persuasive power since. What is lacking is a mechanism that links more closely the international judge to the individual citizen, but there is undoubtedly a form of cosmopolitan public that has come together as a community of international human rights. For this real community, a massive violation of human rights is a crime erga omnes, punishable anywhere, with jurisdictional mitigation in the form of the complementarity rule. If the national community is incapable of prosecuting the officials guilty of such a crime, then justice has the world for its oyster. If Chile does not prosecute Pinochet for thousands of deaths and disappearances, if Israel cannot put in jail those responsible for the massacre at Sabra and Shatila, if Iraq does not try the man who erased the whole village of Halabja in a few minutes by poison gas, then yes England and Belgium should prosecute them, or the ICC, or any tribunal that can. One hears the objections to this argument loud and clear: some are technical, others are more principled. This is the occasion to put some order in the debate. There is one, and only one, crime worth the investment of planet-wide justice in domestic tribunals under the concept of universal jurisdiction, and/or in the ICC and other internationally established tribunals. This is the crime perpetrated by a criminal against humankind, Vattel’s “monster.” Its definition under the ICC statutes,109 the result of jus cogens involving as wide a set of precedents for dictators as the pirates of the modern age, the Nazi leaders at Nuremberg, the trial of Eichmann in Jerusalem, Saddam Hussein’s trial in Baghdad, Pinochet’s in London, and Sharon’s in Belgium, is a good enough approximation. For a crime against humanity to happen, it must be “widespread and systematic,” which rules out single, isolated acts, and it must target a “civilian population,” which rules out military objectives. The ICC list of crimes provides a wide range of punishable acts: extermination, torture, murder, deportment, even apartheid. It was not difficult to add rape as a subset, so horrendous and common

Article 7, “Crimes against Humanity” of the ICC statutes, defines the crime when wilfully “committed as part of a widespread or systematic attack directed against any civilian population,” and lists eleven categories, including murder; extermination; enslavement; deportation or forcible transfer of population; imprisonment; torture; rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; persecution of a group; enforced disappearances; and apartheid; and “(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.” A shorter definition was established in Art. 6c of the Statutes of the Nuremberg Military Tribunal in 1945, with several elements that remain to date in the long list of the ICC Statute.

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in war, and there is a provision for “other such inhumane acts” that fits well the unfathomable depths of human cruelty. The ingenuity of man in “putting his lethal crown of iron on every reed”110 ignores red lines setting apart human communities on earth. The widespread and systematic effect is the main, correct criterion for the revulsion humanity feels when it finds out about them. The crime against humanity that started the twenty-first century on September 11, 2001, provides a textbook illustration: two towers full of civilians attacked by commercial planes used as human-filled missiles. The three other crimes in the ICC list of punishable offenses, genocide, war crimes, and aggression, are in fact superfluous. Genocide sounds just more systematic and widespread than a crime against humanity, and the special status that it claims in the legal world as well as in the larger public is mooted by the inclusion of “extermination” on the top of the list of crimes against humanity in the first paragraph of ICC Statute Article 7.111 I see little difference between extermination and genocide, and Raphael Lemkin did not invent a useful word for lawyers to use.112 A better constructed reflection on mass crime would have spared the world specious battles over whether massive Armenian killings by Turkish leaders in World War I, and massive Kurdish killings in the Anfal operation of Saddam Hussein in 1987–1988, were tantamount to “genocide.” Genocide, if needed as a specific crime at all, would have made more sense as just another illustration of the list in Article 7 of the ICC that features extermination and other world-repugnant acts as crimes against humanity.113 Genocide carries an enormous emotional charge without the clarity of law to support it. In fact, it is just one additional variation on crimes against humanity.114

Mutanabbi, cited in Chapter 4, note 58. Above note 109. 112 In Genocide in International Law—The Crime of Crimes, Cambridge: Cambridge University Press 2000, 2nd ed. 2009, William Schabas’s central argument leans toward this conclusion, but he does not seem ready to go all the way to reject genocide as superfluous, let alone wrong, as I suggest here. 113 Genocide is a more recent legal category than crimes against humanity. It appears first in Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Washington, DC: Carnegie Endowment for International Peace 1944, 79: “New conceptions require new terms. By ‘genocide’ we mean the destruction of a nation or of an ethnic group.” The word as a category of international crimes was adopted in the 1951 Convention on the Prevention and Punishment of the Crime of Genocide, which narrowed it considerably by requesting evidence of “intent” (Art. 2), and by the fact that there has not been a single trial for genocide under the Convention until the Ayakesu decision of the ICTR in 1998, ICTR-96-4-T, September 2, 1998, which defined genocide “objectively” to prevent the proof of intent from being dominant (para.511). Note however that the General Assembly considered by a large majority the killings in the Palestinian camps of Sabra and Shatila an “act of genocide.” General Assembly resolution 37/123D, December 16, 1982, cited in full in “La plainte contre Ariel Sharon avec constitution de partie civile,” above note 55, 27–28. 114 The debate will not go away. Perhaps the horror of the crime can be better conveyed by the special name attaching to those signal mass crimes in modern history, as in the case of White South Africans’ “Apartheid,” the Khmer Rouges’ “Killing Fields,” Hitler’s “Holocaust,” Saddam’s “Anfal,” Zionism’s “Nakba,” and Sharon’s “Sabra and Shatila butchery (majzara),” as was the case of such signal massacres in history such as “the bombing of Dresden,” the “Sainte Barthélémy,” or “Hiroshima and Nagasaki.” Armenians refer to it as “Medz Yeghern, great crime.” The Turks should at least adopt this appellation. Naturally, the designation of apartheid as a specific crime against humanity in the ICC Statutes cannot be repeated for all other instances, so the problem persists legally, but it may be better addressed emotionally if the victims’ specific terminology is adopted. 110 111

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The other major set of crimes on the ICC list of crimes spectrum falls in the category of “war crimes.” The category builds on the Geneva Conventions and their subsequent Protocols. A war crime need not be widespread or systematic. It takes place normally in an armed conflict, and is identified mostly with reference to treaties on the conduct of war, in a long succession of more or less specific international agreements of which the Geneva Conventions post–World War II are the most important.115 A soldier shooting a prisoner dead commits a crime that is sufficient to trigger prosecution domestically or internationally, but one can hardly see the world mobilizing over the willful killing of one medical aide, horrendous as it sounds, or the execution of an enemy soldier who is hors de combat, both plain “war crimes” under Geneva IV and its First Protocol.116 War crimes’ listing in the crimes under the jurisdiction of the ICC weakens the compelling philosophy at play in the role of the court in dealing first and foremost—exclusively I am tempted to argue—with crimes against humanity as the central category. Fuzzy and incoherent lists weaken the case of universal justice. Then there is the Jumonville-traceable problem of “war” in “laws of war.” As mass violence taking place in war gets further meshed with mass violence occurring outside war, that line has long been blurred. Prosecutor v. Tadic, the International Criminal Tribunal for the former Yugoslavia celebrated decision, confirms the long historic trend erasing the superfluous frontier between civil and international war, which we saw illustrated early on in the case of George Washington.117 Tadic effectively draws the decisive, logical conclusion: “It is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict. Indeed, as the Prosecutor points out, customary international law may not require a connection between crimes against humanity and any conflict at all.”118 With Tadic and its progeny consecrating the disappearance in mass crime of the domestic/international divide, the possibility for victims and their families of receiving some justice across tight jurisdictional hurdles has been considerably strengthened. As for aggression, it is redundant for a different reason:  a state or organization that “aggresses” will have committed a crime against humanity with the first inevitable mass casualty. The state parties to the ICC had left aggression undefined in Article 5 of the Rome treaty. The signatories met again in Kampala in 2010, and agreed on a definition that associates any aggression with the existence of a state, and makes its legitimacy largely dependent on the violation of the relevant UN Charter articles. By limiting it to a state committing aggression, and by conditioning its commitment as a crime on the long-frustrated debates on the Charter about self-defense and proportionality in the trans-boundary use of force, the definition agreed on in Kampala makes it immediately prey to interpretations of states

See Chapter 14 note 60. For the prohibition of ambulance shooting, see Arts. 19 and 20 of the Fourth Geneva Convention; for “safeguard of an enemy hors de combat,” Article 41 of the Protocol Additional to the Geneva Conventions of August 12, 1949, And Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977. 117 See Chapter 14 note 58 and accompanying text. 118 Prosecutor v Tadic, Appeals Chamber, Decision of October 2, 1995, IT-94-1-AR72, (Decision on the defence motion for interlocutory appeal on jurisdiction), para.141. 115

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contending territory from time immemorial. One should not agonize over the difficulty, however. As in the case of genocide and war crimes, the effect of a sudden, brutal, unwarranted war of conquest is only perceived to be intolerable because of its necessarily widespread and systematic harm inflicted on civilians. The Moon’s conquest is no aggression. It is true that more rather than fewer details usually go together with a criminal code. Examples of murder, extermination, enslavement, deportation, imprisonment, torture, rape and other sexual crimes, persecution, disappearing, and apartheid, reinforce the category of crimes against humanity, and render it far more precise. The ICC Statute, as we saw, even leaves room for “[o]‌ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.” The problem is not in this list. It lies in the superfluous dimension of genocide and aggression, which cannot happen without being of “a similar character” to the ICC list of crimes against humanity, and in the inevitable pettiness of a single instance of a war crime that is incapable of triggering the mobilization of humanity for the one unfortunate victim. After the London agreement establishing the Nuremberg Tribunal, “it had effectively appeared inconceivable, in the formulation of one author, ‘to allow the Holocaust getting divided, denatured into six million times one murder.’ ”119 When war crimes become systematic, widespread, and directed at civilians (into which even the hors combat soldier turns upon his imprisonment or surrender), they become crimes against humanity. So the philosophical category is one: crime against humanity, and the practice of justice must adapt to it as fast and as effectively as it can. The troubled line between a crime against humanity and other crimes leaves one category, and only one category of crimes standing as a puzzle for cosmopolitan justice: the single, isolated crime, be it murder, torture, rape, or enforced disappearance, or indeed one of the “war crimes” under the Geneva Conventions. Whether one person is killed, or six millions are, justice should be allowed for the victim. In a domestic context, this is the bedrock of criminal law. In a transnational context, it constitutes the basis for extradition, which takes place every day in countless countries, except that dictators and their aides have remained by and large immune to it. For now, the single crime dominantly remains a matter of domestic law. The dictator’s crimes against humanity still have a long way to go before his impunity becomes the exception and victims vindicated as a matter of course. The still thick line between one murder and a million murders will be blurred over time as perpetual peace advances in the world. Consider a president ordering, or even intimating to a subaltern that he should eliminate an opponent. Any such criminal act will trigger a strong reaction in a democracy, and inevitably lead to the perpetrator’s incrimination. No one is above the law. It does not even need to be so dramatic as for a man in power to order the killing of his political opponent, or his gardener, in the now famous phrase in Pinochet 1.120 If the prime minister of Sweden beats a citizen, or gives orders to an aide to beat him, Frédéric Desportes and Francis Le Gunehec, Droit pénal général, Paris: Economica 16th ed. 2009 (1st ed. 1994), 113: “Il était en effet apparu inconcevable, selon la formule d’un auteur, ‘de laisser se diviser, se dénaturer l’holocauste en six millions de fois un meurtre,’ ” citing C. Lombois, “Un crime international en droit positif français,” Mélanges Vitu 1989, Cujas. 120 Lord Steyn in Pinochet 1, at 1456, 1506B-C, above note 51. See also the use of this strong example by Lord Hope in Pinochet 3, Chapter 16, note 21 of this book. 119

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it is hard to imagine her staying in power. She would also be in all likelihood arrested and tried. If the imperative retribution in a rule-of-law, democratic system fails in this instance, this would be a major indicator of Sweden turning undemocratic. This is commonsensical. Less commonsensical, and the more paradoxical for the scale of suffering at his hand, is the persistence of the dictator’s impunity. As the category “crimes against humanity” stands at the opposite pole of the individual crime, dictatorship becomes the central part of the picture that nonviolence in the Middle East revolution has laid bare to the consideration of philosophers. Crimes against humanity are characteristically linked to the killing machine of the state, whether the dictator uses state power domestically or internationally, and whether “war” is officially declared or not. The state whose rulers carry out massive crimes against their own civilians, including first and foremost nonviolent dissidents and peaceful demonstrators, is a state that is perforce governed by a dictatorship. This brings us back full circle to the beginning. Dictatorship is a crime against humanity because humanity cannot describe rulers who commit a massive and systematic attack against their own people other than as dictators. It may not be necessary to add to the ICC enumeration of crimes under Article 7 that of “dictatorship,” but the judicial punishment of dictators as criminals against humanity is the ultimate category of political philosophy on the way to perpetual peace, in the Middle East and elsewhere.

Les morts, les pauvres morts, ont de grandes douleurs. Baudelaire1

16 The Pyramid of Accountability

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Accountability accompanies the nonviolent philosophy of the revolution beyond its most central expression, the trial of the dictator. No matter how key a figure of widespread criminality the dictator may represent, he is always part of a larger system of repression. From the victims’ perspective, the legacy of dictatorship hurts so many people that a one-size-fits-all response will not do. The response to the system’s brutality over years and decades is necessarily uneven. The new government cannot try every single member of the former regime. Hence the image of a pyramid of accountability as displayed in Figure 16.1: trials at the top of the pyramid for a limited number of people with immense blood and/or corruption on their hands, wide-scale compensation at the bottom for victims after adequate fact-finding and investigation, and lustration laws for active members of the former regime in-between. The pyramid is convulsed by an uneasy relation within its planes, and stands in complementarity and competition with truth and justice/reconciliation and other conviviality-seeking processes, including the processes inherent to constitution-making. The interplay of these various accountability modes raises a number of difficult questions for how justice can best serve the victims. I start with trials, which sit at the top of the pyramid. Trials There is a considerable wealth of experience in international criminal law, a discipline that has come of age in a phenomenally short time. Despite its young age, it boasts its own

“The dead, the poor dead, suffer great pain.” Baudelaire, Les Fleurs du mal (1857), poem “La servante au grand cœur.”

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Constitution

Trials

(Looking forward)

Truth and Reconciliation Commissions (Looking backward)

Lustration

Reparations/RestitutionAsset recovery

Fact-Finding

Figure 16.1  Pyramid of Accountability

textbooks and journals when none existed two decades ago. “International criminal law” is the hard core of an expansive field of “transitional justice” that includes so-called truth and reconciliation commissions (TRCs) as a specific mode of accountability that stands outside the pyramid insofar as they do not usually lead to tangible coercive measures against “guilty” people. The core of the pyramid is judicial. Justice captures the world imagination in a number of celebrated trials of deposed dictators, or their indictment when still in power. Some trials are bungled; some are successful. Indictments without trials are often frustrating, but they bring some solace to victims as the promise of justice haphazardly fulfilled. Both indictments and trials take place in a plethora of fora, domestic and international. In an extensive field, procedure is a useful entry point, which I briefly discuss from the victims’ perspective. About Procedure, Briefly, from the Victims’ Point of View Procedure is central to criminal law. It is complex enough in domestic jurisdictions, but its contours are clear and generally settled in a democracy. “Substantive criminal procedure” ultimately defines the quality of a democracy from a rule-of-law perspective.2 With mass I find this concept best articulated in the works of Owen Fiss. A running theme in Fiss’s works is justice as process where form and function fuse in the judge giving meaning to law. See two book-long collections of his articles in Fiss, The Law as It Could Be, New York: New York University Press 2004; Irwin Stotzky, Law as Justice: The Moral Imperative of Owen Fiss’s Scholarship, New York: Twelve Tables Press 2009, and a highly abstract casebook with Robert Cover, The Structure of Procedure, Mineola, NY:  Foundation Press 1979, developed later with Judith Resnik, Procedure, Westbury, NY: Foundation Press 1988. For a similarly elegant, massive treatise on criminal procedure in France, Frédéric Desportes and Laurence Lazergues-Cousquet, Traité de procédure pénale, Paris: Economica, 3d ed. 2012 (Original 2008).

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crime the hallmark of a dictatorship’s legacy, the matter is complicated manifold in the ruins left by a society that has been deprived of basic justice for decades. As the delivery of justice is key to a philosophy of nonviolence that has established the dictator as a criminal against humanity, procedural issues need to be more closely examined, with a particular focus on the victims whom procedure is set to serve as a matter of priority.3 Who Should Try the Dictator? Who should try the dictator was already at the heart of the trial of Louis XVI. As the second question before the French National Convention (the first being the immunity of the king), this question looks less useful for the Middle East of the twenty-first century. Domestic and international tribunals, preferably ones where procedural and substantive criminal rules have long been set, are the only game in town. Parliament trying anyone, let alone the dictator as in the case of Louis Capet, is no longer an accepted way to go about a trial. Still, there is benefit in raising the issue on a more abstract level. Should the despot be tried by an elected parliament or by the people at large? This was the central question before the Convention. Turning to the people both for the trial by allowing them to select or elect a tribunal, or to cast a vote on the rightfulness of any sentence, was argued by the deposed king’s defenders at great length to gain time.4 The response of the large majority of the

In the context of a dictatorship, victims are philosophically the necessary priority in the balance between the deposed ruler’s rights and their long-neglected plea for justice. But a focus on the victims is not necessarily the dominant priority universally, and a fault line appears between democratic and non-democratic societies insofar as the propensity of the police to exercise brutality in democracies elicits a procedure that leans in favor of the alleged criminal defendant, whereas police brutality in a dictatorship is systematic. Police brutality in rule-of-law countries is exposed in crime movies illustrating the Miranda jurisprudence (Miranda v. Arizona, 384 U.S. 436 (1966) articulating necessary, immediate information of his rights to the person arrested), and combated by large case law across the courts of democratic countries, in addition to powerful extraterritorial tribunals’ review such as the European Court of Human Rights (ECtHR), see, e.g., for a practical handbook of relevant cases Jeremy McBride, Human Rights and Criminal Procedure— The Case Law of the European Court of Human Rights, Strasburg: Council of Europe 2009, and increasingly of the European Court of Justice (ECJ) and the Organization of American States Tribunal. This legacy of “protection for the accused/perpetrator” is constantly reinforced by the sustained attention of important human rights organizations, international such as Amnesty International (AI) and Human Rights Watch (HRW), and domestic such as the American Civil Liberties Union (ACLU). Illustration of the trend favoring the rights of the accused can be found in Austin Sarat’s argument in When the State Kills: Capital Punishment and the American Condition, Princeton, NJ: Princeton University Press 2002. (arguing against a culture in the United States that sides too strongly with governmental crime repression, esp. in the use of the death penalty). In contrast, AI and HRW’s work heavily leans in their worldwide message on the converse side, defending the victims of state repression to ‘end the impunity’ of government officials and their hirelings. 4 Articulate arguments for turning to the people for some role in the trial of Louis were put forward by several Conventionalists (Salles, Buzot, Brissot, and Vergniaud especially, as well as Condorcet; see quotes notes 4–9 below), but a speech by Barère on January 4, 1793, carried the day against him. See Albert Soboul, Le Procès de Louis xvi, Paris:  Julliard Archives 1966, 166–68; Edmond Seligman, La Justice en France pendant la Révolution, 2 vols., Paris: Plon 1901, 1913, Vol. 2, 440–45. For the full speech of Barère, 3

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Convention members is summarized in Georges Couthon’s intervention on the day the vote was taken on the subject. Couthon expressly refuted two main arguments, one presented by Buzot, who had suggested that the Convention may well try and sentence Louis, but that the decision should be followed by an appeal to the people “for confirmation.”5 The other argument, presented by Salle, was for the Convention to decide on “the fact,” that is whether Louis was guilty, and then to send the case to be tried by the people variously assembled “in communes or in cantons.”6 This hazy mechanism was clarified by Vergniaud as a call for the “assemblées primaires,” the first tier of electoral bodies who voted in the Convention, and whom he wanted to be called upon to try the king. The mechanism proposed, in Vergniaud’s argument, would be closest to the people’s “sovereign decision.” 7 Barère, then Couthon, rejected all three arguments by asserting that the people’s mandate had already vested in the Convention. Against Vergniaud and Salle’s proposed recourse to the intermediate electoral tier (“assemblées primaires”) for choosing a specially designated tribunal to try Louis, they argued that the Convention was a far superior authority than any of these lower assemblies. Against Buzot, they argued that the people have exercised their sovereign right by electing their deputies at the Convention, with the specific purpose of representing the country in terms of all matters of governance. There is no need to go back to the people for any act that the Convention takes, “otherwise the power that

see Le Pour et le Contre, Recueil complet des opinions prononcées à l’A ssemblée Conventionnelle, Dans le Procès de Louis xvi, 7 volumes, Paris: Buisson, An I de la République [1792–1793]), Vol. 6, 62–158 (hereinafter Le Pour et le Contre, followed by the volume number, and the page, together with the original French.). Recall that on January 15, 1793, a firm majority at the Convention voted against “l’appel au peuple” (424 yes to 283 no, Le Pour et le Contre, 7, 126), and confirmed its own exclusive role as the court judging and sentencing Louis. 5 Buzot, Le Pour et le Contre, 5, 46–73, at 51 (December 28, 1792): “[j]‌e prononce la condamnation à mort contre Louis XVI, et . . . j’en renvoie la confirmation à la nation entière. (I pronounce condemnation to death for Louis XVI, and . . . send it for confirmation by the entire nation.)” 6 Salles, Le Pour et le Contre, 5, 348–71 (December 27, 1792). The argument is somewhat confused. Salles concludes that if the Convention finds Louis guilty, then it must turn to the people for the decision on the appropriate penalty. He then calls for the people “meeting sovereignly” either “in communes or in cantons” to express its opinion on two questions: Will Louis, declared guilty, be put to death? Will Louis, declared guilty, be detained? In the latter case, the people would reserve itself, when peace comes, the right either to banish him or to imprison him for life. Salles, id., at 371–72: “Je demande donc, citoyens, que la convention nationale pose la question de savoir si Louis est ou n’est pas coupable des crimes dont il est accusé; que chaque membre réponde sur cette question par appel nominal; et dans le cas où l’affirmation aura prévalu, qu’elle renvoie au peuple souverain la question politique, c’est-à-dire, l’application de la peine. Je demande en outre, si ma proposition est adoptée et que Louis soit déclaré coupable, que la convention ordonne à son comité de constitution de lui présenter le lendemain un projet de décret qui mette le peuple, souverainement assemblé, soit par communes, soit par cantons, en état d’émettre sûrement et promptement son voeu sur ces deux questions: Louis, déclaré coupable, subira-t-il la mort? Louis, déclaré coupable, sera-t-il détenu? (le peuple, dans ce cas, se réservant à la paix de le bannir ou de déclarer sa détention perpétuelle).” 7 Vergniaud, Le Pour et le Contre, 5, 218–50 (December 31, 1792).

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the people has conferred to us since it wanted a revolution . . . would evidently be illusory.”8 Every single criminal would require his judgment to be confirmed by a vote of the people.9 There was a third possibility, which is now common: the use of an existing or an ad hoc tribunal. This possibility does not seem to have been raised at the bar of the Convention. Establishing an ad hoc court was not envisaged by the conventionalists, nor did any of the deputies argue for sending the king to an already established jurisdiction. It may well be that the precedent of the trial of Charles Stuart made it unpalatable to set up such a court, whose members were severely punished as regicides when the brief Cromwellian republic failed and the English monarchs were back in the saddle. More probably, the judicial system of the ancien régime must have appeared particularly untrustworthy for the new, radical Convention. It already had a bad taste left from the Haute Cour established in the city of Orleans in 1790. Distrust in the judicial remnants of the old regime is evident, for the overwhelming majority of judges were appointed from the aristocracy. In any case, a large majority of the French deputies rallied behind Mailhe’s initial suggestion and the Convention set itself up as a tribunal to judge Louis as the court of last resort, with no need to see any of its decisions “confirmed” by the people. In the Atlantic revolution of which France represented the second constitutive pillar, there was perhaps a conscious but unexpressed precedent in the 1787 US Constitution, where the trial of a president is the prerogative of American parliamentarians. Congress was designated as a two-tiered tribunal, with the House “impeaching” (i.e., charging) the president by a majority “for, and conviction of, treason, bribery, or other high crimes and misdemeanors” (US Constitution Article 2, section 4); and the Senate trying and eventually removing the president by a two-thirds majority (US Constitution Article 1, section 3.) In 1792 France, this template was simplified. There was only one large house of 749 members, and it took over the whole trial, from the accusation all the way to the death sentence. The minority in the French Convention who preferred to “go to the people” at some stage in the trial was composed in part by those who saw in it a dilatory measure, a risk that Robespierre and his supporters were adamant to avoid. But others were following Condorcet’s principled position that the Convention was the supreme legislator and could not try the deposed king lest the separation between legislating and judging were altogether jettisoned. For Condorcet, the Convention judging Louis undermined two fundamental principles of the separation of powers. One was the functional separation between prosecuting and judging in any criminal trial. The other is that the people should have their say, and exercise it in the most direct manner, through the elections of special delegates who would appoint the body that tries the king. That would indeed be some form of an ad hoc tribunal,

Couthon, Le Pour et le Contre, 7, 32 (January 15, 1793): “Tout ce que nous ferons comme corps législatif sera sujet à la sanction tacite, et toutes les mesures de sûreté générale que nous prendrons, soit dans le procès de Louis, soit dans toute autre occasion, comme puissance révolutionnaire, n’auront besoin d’aucune sorte d’acceptation, sans quoi cette puissance que le peuple nous a bien conférée puisqu’il a voulu une révolution, . . . , deviendroit évidemment illusoire.” 9 Id., 33: “Tous les criminels de lèse-nation, sur lesquels frapperoient ces décrets, pourroient donc, après que vous auriez prononcé, invoquer l’appel au peuple, et résister à votre autorité, jusqu’à ce que le souverain se fût expliqué.” 8

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but the main argument of Condorcet was that it was up to the people, in such a grave precedent in France and in Europe, to pronounce judgment, whatever it may be, against the former king.10 Although the proposal was turned down, the argument persisted until Louis’s execution. Unease resulting from the blunt ignorance of basic separation-of-powers principles lingered through the trial, and several deputies refused to vote for the death sentence on the argument that they could not be accusers, judges, and juries at the same time.11 In the world of universal jurisdiction and international criminal courts, this predicament no longer arises. A  legislative assembly never judges a dictator. When the trial is international, the question is about distance to the local community and the tribunal’s representativity. When the trial is domestic, concern is raised about the probity of some judges, whose legitimacy as former appointees of the dictator is questionable. This is part of the larger problem of “constitutional ruins,” including the judicial edifice surviving the dictator. Question marks on the “ruins of the judiciary” are not dissimilar to the constitutional ruins I have discussed previously.12 Although courageous former judges sometimes end up as justice ministers or presidents of higher courts because of the public memory that they stood up to the dictator when they could, many judges have a troubling track record. If the domestic judiciary is structurally inadequate for judging the deposed dictator that it served for so long,13 the only question left is whether an international or a mixed tribunal would be preferable to temper that inadequacy. When the trial is international, the argument is that the judges belong to a legitimate enough pool of generally respected candidates. When the trial advocated is domestic, the argument put forward is about the people/revolution “owning their history.” Various forms have emerged: purely international judges as in the ICC, mixed benches such as the Special Tribunal for Lebanon (STL), exclusively domestic courts as in Tunisia and Egypt. They all have some merit, and some disadvantages, but no one in

Condorcet, Le Pour et le Contre, 2, 29–41. For instance Perès, Le Pour et le Contre, 7, 127; Mazade, id., 7, 130; Grangeneuve, id., 7, 135; Lacaze, id., 7, 139; Lefranc, id., 7, 161; Saurine, id., 7, 163; Vergniaud voted for the death penalty, id., 7, at 132, subject to a reprieve to be voted on further by the Assembly. 12 Above, Chapter 9 on constitutional ruins. 13 When working to set up an international tribunal for Lebanon, “structural inadequacy” was an expression of Owen Fiss in conversation that I used time and again as the reason we could not rely on the Lebanese judiciary for justice in such a political case that Hamadeh’s (October 1, 2004) and Hariri’s bombs (February 14, 2005) underlined. See for my repeated use of the term e.g. in articulating the shape of a mixed tribunal as a compromise between the structural inadequacy of the judiciary and the need to involve Lebanon nonetheless to avoid the stigma of a distant tribunal, Mallat, “Fallout of the Mehlis Report: Some Legal Considerations,” Bitterlemons-international.org, November 17, 2005: “The Security Council will have to decide whether an international tribunal should take on the case. Against the resistance of some Security Council members, including the US government, to establish yet another ad hoc tribunal, we have suggested that the structural inadequacy of the Lebanese judiciary before such a daunting task should be carefully weighed. A compromise between the caution expressed within the UNSC and the insistence of the Hariri bloc and its allies, especially Walid Jumblatt, to have an international tribunal, could take the shape of a mixed tribunal à la Sierra Leone”; see also Majdoline Hatoum, “Chibli Mallat Insists Lebanon Needs Change of Leadership,” The Daily Star, November 17, 2005; Mallat, “Anticipating Mehlis: An International Tribunal for All,” The Daily Star, December 12, 2005. 10 11

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the twenty-first century raises the prospects of the people at large voting for the establishment of the tribunal or electing its judges, as in the constitutions of the Atlantic revolution. The Voice of the Victims Whatever shape the trial takes, the victims of the dictator expect that the procedure will allow them to be heard. Court management of the mass crime trial is complex, and the lack of coordination by inexperienced judges has already affected the integrity of various trials, including the iconic trial of Mubarak in Egypt and of the son of Qaddafi in Libya. In the early phase, different lawyers for different victims of Mubarak all insisted on having their say at the bar according to a criminal procedure law that allows the lawyer to argue his client’s position for hours. When the trial is televised, the risk of pandering to the historic moment increases. Pandering is a temptation true for the lawyers, the prosecution, and the judge. It is mostly an unpleasant sight when the dictator uses the court to grandstand. As seen in the histrionics of Slobodan Milosevic at the Hague, and the arrogance of Saddam Hussein in Baghdad, former dictators are inclined to posture and pontificate. It takes a strong and seasoned set of judges to put deposed dictators back in their right place as petty brutes standing in the dock for crimes against humanity. As it is crucial for the victims to express their grief in court, a modicum of organization and common sense eventually prevails, much of which is in the hands of the judges. Hiccups are inevitable. In the execution of Saddam Hussein, even people who support the death penalty were repulsed by the lack of dignity of the vengeful crowd witnessing Saddam’s final moments. The management of the criminal trial does not stop at sentencing. Both the civil and common law systems dominating the world start with a central role for the police, a role inevitable since time immemorial for societies whose rule of law is written.14 From the perspective of a philosophy of nonviolence, the civil law system differs generally from the common law procedure in one radical fashion. The partie civile in the French civil law system is the most important, because it represents the harmed party and his family. Although the common law allows hearing the voice of the plaintiffs in a criminal case, it is so faint as to be almost inexistent, and the public prosecutor leads the process at the crucial beginnings of the investigation and during the trial. In contrast, the partie civile, representing the harmed party and his family, is present from the very beginning of the criminal law procedures under the civil law system by lodging a “plainte avec constitution de partie civile,” and is actively informed during the investigation.15 In order to accommodate

I am treading here on thin ground, and this should be considered a hypothesis to be probed much more thoroughly. In the modern world, it is far less controversial, even in non-democratic societies. The police (or the equivalent repressive power under any hierarchical rule) is always first on the crime scene. For a timeless allegory of the police, see the novel of Nagib Mahfuz, Awlad haritna (translated in English as The Children of Gebalawi), Beirut: Aadab 1967 (Originally serialized in the Egyptian al-Ahram in 1959). For a more modern rendering by Mahfuz, Yawm qutila al-za‘ im (The day the leader was killed), Cairo: Maktabat misr 1985. 15 Art. 85.1, French Code of Criminal Procedure. For an extensive discussion, Frédéric Desportes and Laurence Lazergues-Cousquet, Traité de procédure pénale, above note 2, sv partie civile and summaries at 956, 1072–74. 14

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the victim, the civil law system has four central protagonists in a criminal trial: in addition to the bench ( justice assise), there is the prosecutor standing for the state ( justice debout, or parquet); the investigative judge ( juge d’ instruction) who, unlike the prosecutor, functions normally as a neutral point of convergence between the interest of the state and the interest of the private party; and the victim as partie civile expressing her grief and actively defending her rights. The partie civile often initiates the complaint by bringing it to the investigative judge, who receives all the documents, information, and requests from the parties concerned, especially the victims. The partie civile can formulate written demands at will in that key phase between the complaint and the investigative judge’s conclusions.16 In the civil law system, the investigative judge concludes his investigation and issues it formally in a report that can dismiss the case altogether (the report concludes with a non-lieu) or confirm the preliminary guilt of the accused in an acte d’accusation (Arabic qarar ittihami) that translates—though not accurately, as “indictment” in English. Whether a non-lieu or acte d’accusation, the prosecutor can appeal the decision. At this stage, an open trial in court takes place, and despite the alleged summa divisio between the common and civil law systems as respectively accusatorial and inquisitorial, the presiding judge directs the trial effectively, and, in important cases, energetically. At the end of the trial, where witnesses, victims, and defendants, directly or through their lawyers, are heard and questioned, the court renders its decision. Under international human rights standards, it is now the norm that a first decision be subject to appeal. From the perspective that concerns us in the philosophical conclusion that justice is postponed for the victim by her own choice during the nonviolent revolution, the continental civil law system appears preferable because of the partie civile as a formal, recognized institution in the procedure. In a civil law system where the victim must be fully heard under the terms of the law, justice is better served than in a common law system when her voice is filtered by a prosecutor who is tasked with serving first and foremost the interests of the state. The civil law system puts the victims in a central position that provides by and large a more coherent fusion of revolutionary change, the establishment of a constitutional rule of law, and the operation of justice in one integrated overarching concept of nonviolence. The victims, after all, are the vector of the revolution in the first place. It is their vision of nonviolence that includes both the imperative of a new constitution and the trial of the man at the helm who harmed them most. In the common law system, there is no investigative judge and no partie civile. The prosecutor, acting for the state, leads the trial from day one. Victims as plaintiffs are subjected to the rhythm chosen by the prosecutor, who ends up indicting the defendant (or not). This explains why the word “indictment” is never quite accurate in French civil law. When a person is indicted at common law, it is always the doing of the prosecution. In the civil law system, the prosecutor’s accusation is important because it plainly speaks for the state representing society at large, but there is also room for the investigative judge who works closely with the victims, and who ultimately issues the acte d’accusation in the form of a judgment responding specifically to the demands of the victim. It is not uncommon for

16

In Belgium, the system was improved further by allowing the partie civile access to the files of the investigation as it develops, as Luc Walleyn explained to me during the Sharon case.

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the investigative judge and the prosecutor to conclude differently. The sitting judges decide, subject to appeal. So from the point of view of the victims in mass crime, the civil law system allows their plea to be actively heard by a judge dedicated to acknowledging their side of the story well before the full trial. At common law, victims mostly depend on the prosecutor.17 My preference for the civil law system needs qualification. The investigative judge will always look over her shoulder to see what the prosecutor has to say, and will inform him of evidence and developments. Sooner or later, the prosecutor’s lead asserts itself, as he represents the interest of society in general, including the victims, and speaks for the state. He is the one official leading the charge in full court, when the investigative judge is pushed out of the picture once her report is filed. The investigative judge can also underperform. In the case against Ariel Sharon, as the expectations of the victims and the world attention were at their highest, the investigative judge who was assigned the case went on holiday. In Lebanon over the Hariri assassination, the third UN investigator went AWOL for almost three years, effectively undermining the dynamism of the trial and the reputation of the tribunal, while people continued to be killed for their very support of the principles behind the establishment of the tribunal. The matter can be simple bad luck. In the Belgian case against Sharon, or at the Special Tribunal for Lebanon, a poorly motivated investigative judge derailed the hopes of thousands of victims through sheer apathy. This may be true for prosecutors as well. Courageous judges on the scale needed by crimes against humanity are more often the exception than the rule. Sometimes the work of the tribunal is undermined by the victims themselves and their lawyers, when the attention to the political impact is given more importance than warranted. In the Hariri case, there were another twenty-one persons killed that day, but their voice was smothered by the relatives and political colleagues of the world famous victim. This meant that the supporters of Hariri were often moved by political calculations that never play out well in the search for justice. It took time and effort to convince the party of Hariri that a tribunal could not be set up exclusively for the one horrible bomb on February 14, 2005, and that the other victims, starting October 1, 2004, with the first assassination attempt against Marwan Hamadeh, and continuing systematically in the following years, warranted the expansion of the investigation to these other murders. Eventually, the STL would factor in those other crimes, but it did limit them in time despite the obvious connection that later assassinations continued to be intimately connected with the murder of Hariri and the work of the STL itself. Serious harm had meanwhile been done that remained unpunished, and the poorer and less famous victims were never allowed to be at the forefront of the search for justice. Their voice would have made the STL far more effective. Irrespective of the difference in procedure, the cumulative record for the search for justice in the Middle East should be read positively. With all its ups and downs that weaken the appearance of justice, Saddam, Musharraf of Pakistan, Mubarak, Qaddafi’s sons and With the proliferation of international criminal courts, the dominance has been of the common law system, but a special section on victims’ rights is often included in the statute of the courts. For a survey, W. Van der Wolf ed., The Rights of Parties and International Criminal Law, The Hague: International Court Association 2011, 69–84 (“victims and witnesses”).

17

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henchmen, Israeli leaders with considerable Palestinian blood on their hands, Ben Ali, Saleh, Bashir: all have been significantly preoccupied by the call for justice that their victims have articulated increasingly forcefully in criminal complaints. Those who appeared in court, those who were indicted, and those who were tried in absentia share one crucial moment of the philosophy of nonviolence:  the nonviolent victim has her day in court. Fine-tuning the process across the complicated chessboard is a matter for the long haul. Evidence A trial still needs to prove that the deposed ruler has committed a crime, let alone a crime against humanity. The French Constitution of 1791 had declared inviolable the person of the king, and his defenders were using that text, together with the established principle nullum crimen sine lege to declare the king immune from a retroactive trial. This axiom is readily accepted by Condorcet “as dictated by humanity and justice,”18 but he rejects it in the case of Louis for two reasons. One is the evident responsibility incurred by Louis for a large number of established crimes, including homicide and consorting with the enemy, which was the reason the king was arrested and forced to abdicate in the first place.19 The other is that the immunity of a king or a president cannot apply to crimes committed outside his royal/ presidential functions,20 as was argued two centuries later in a famous line by Lord Steyn in the Pinochet case about the president who “kills his gardener in a fit of rage,” and repeated by Lord Hope of Craighead in Pinochet 3: The principle of immunity . . . protects all acts which the head of state has performed in the exercise of the functions of government. The purpose for which they were performed protects these acts from any further analysis. There are only two exceptions to this approach which customary international law has recognised. The first relates to criminal acts which the head of state did under the colour of his authority as head of Condorcet, Le Pour et le Contre, 2, 4–5: “On ne peut punir légitimement une action, si une loi antérieure ne l’a mise expressément au nombre des crimes, et elle ne peut être punie que d’une peine qui ait été aussi décernée par une loi antérieure. Cet axiome est dicté par l’humanité et la justice. (One can legitimately punish an action only if a previous law has expressly put it among the list of crimes, and the action can be punished only with a penalty that has been decreed in a previous law. This axiom is dictated by humanity and justice.)” 19 Id., 28: “Je proposerai donc de décréter que l’inviolabilité constitutionnelle, ne s’étendant point aux délits personnels de Louis XVI, il peut être jugé et puni. (I propose therefore to decree that since constitutional inviolability cannot extend to the personal delicts of Louis XVI, he can be judged and punished.)” 20 Id., 9: “crimes étrangers à sa fonction royale (crimes foreign to his royal function)”; and at 11: “mais jamais cette lâche maxime, qu’un roi incendiaire, assassin, parricide, seroit impuni, n’a souillé les loix de la France déjà plus qu’à demi-libre. (But never was this cowardly maxim, that a pyromaniac, assassin, parricide king, would go unpunished, sullied the laws of a France already more than half-free)”; at 22: “Les crimes imputés à Louis XVI, hors de l’exercice de ses fonctions royales, peuvent donc être jugés et punis comme les crimes de la même espèce, commis par un autre individu. (Crimes ascribed to Louis XVI, outside of the exercise of his royal functions, can therefore be judged and punished like the crimes of the same kind committed by another individual.)” 18

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state but which were in reality for his own pleasure or benefit. The examples which Lord Steyn gave [1998] 3 W.L.R. 1456, 1506B-C of the head of state who kills his gardener in a fit of rage or who orders victims to be tortured so that he may observe them in agony seem to me plainly to fall into this category and, for this reason, to lie outside the scope of the immunity.21 Dictatorship goes further than a matter of pleasure, even if some of it, no doubt, is a form of sadism. The better word in the English judge’s elastic expression is “benefit” in the sentence “ for his own pleasure or benefit.” The criminal activity of a head of state is rarely directed at his gardener. It is directed at his political enemies. Since Pinochet 3, when the ruler strays away from “sovereign” behavior to “order people to be tortured,” immunity is inoperative. Killing and torturing for political benefit, which is the more common reason for a dictator threatened by dissidence, cannot be left immune from punishment.22 Had the French Assemblée Constituante decreed in the 1791 French Constitution “immunity for the King,” it would have itself “committed a crime against human kind.”23 But it did not. In an early formulation of the argument, the majority of the Conventionalists rightly decided that the inviolability of the king’s person is contingent on his respect for the laws that other citizens are bound to follow: It is not as king that he paid for pamphlets to destroy national credit, that he bribed France’s enemies; that he formed, in concert with his brothers, an alliance with the

R v. Bartle and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet; R v. Evans and Another and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet, [1999] UKHL 17 (March 24, 1999), Pinochet 3, see Chapter 15 note 53, speech of Lord Hope of Craighead (Emphasis added). The passage continues: “The second relates to acts the prohibition of which has acquired the status under international law of jus cogens. This compels all states to refrain from such conduct under any circumstances and imposes an obligation erga omnes to punish such conduct. As Sir Arthur Watts Q.C. said in his Hague Lectures, page 89, note 198, in respect of conduct constituting an international crime, such as war crimes, special considerations apply.” See also above Chapter 15 note 120. 22 One word on black letter law in the field, so far as international law can be subject to black letter law (for the non-lawyer reader, black letter law is clear-cut law): the ICJ ruled in 2002, in the middle of the Sharon case in Belgium, that a sitting president or prime minister, or a foreign minister, was immune from a universal jurisdiction case, while he would not be immune from a tribunal established under “international law” (i.e., the ICC, established by treaty, or the tribunals established following a decision of the Security Council), International Court of Justice, “Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),” Feb. 14, 2002, (“Yerodia case”), discussed above Chapter 15 note 68. Like the final Pinochet opinion, that decision created an intellectual fault line, in that a dictator disguising himself as president-for-life or absolute monarch—the bane of modern history—would never be affected in his lifetime, while a president or prime minister who subjected himself to the periodicity of elections would eventually be caught up with. In the case against Sharon then in full swing in Brussels, an additional complication in an already dense thicket was further muddied by the nature of the Israeli system, where the subordination of Palestinians is constitutionally structural, but where the non-democratic nature of the Israeli political system does not necessarily mean it is a dictatorship in the shape of the Arab/Middle Eastern neighbors’ pattern. One can be a criminal against humanity and not be a dictator. One cannot be a dictator without being a criminal against humanity. 23 Condorcet, Le Pour et le Contre, 2, 6: “crime envers le genre humain.” 21

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enemies of the nation; it is not as king, against the laws he himself approved, that he armed foreign troops against the citizens.24 It was “time,” Condorcet concluded, “to teach kings that this silence of laws on their violations is the crime of their power, and not the will of reason or equity.”25 In the tradition of the Enlightenment, he explained that the alleged “inviolability” of the king responds to fear and is not exacted by reason. So much so, indeed, that the trial that Condorcet supported would be even endorsed by the king himself, the way a killer accepts that prison is the natural consequence of his criminal act: In a cause where the entire offended nation at the same time accuses and judges, it is to the opinion of human kind, it is to posterity that it must render account of its behavior. It must be able to say: all the general principles of jurisprudence, recognized by the enlightened men of all countries, have been respected. It must be able to challenge the blindest partiality from mentioning a maxim in equity that it did not observe; and when it tries a king, the kings themselves, in the secret of their own conscience, must be forced to approve its justice.26 Condorcet’s premise is convincing enough, but it does not dispense with proof. From the perspective of the victims, the harm is done, the culprit is at the top of an evident chain of command, but there still remains the need for more tangible evidence produced in court to establish the culpability of the dictator put on trial. Saint-Just drew in his second speech the argument of Louis’s guilt from the king’s own defense at the Convention: “Louis answered, when your president asked him about the violence which he exercised against the people: ‘I was the master then; I did was seemed right to me.’ ”27 Indeed, when asked about various massacres that had taken place since the fall of the Bastille, Louis answered: “I was the master in marching my troops as I wanted, at that time.”28 True, he denied in the same breath any intention of doing harm, for “never was my intention to spill blood.”29 But the argument Id. 9: “Ce n’est point comme roi qu’il payoit des libelles pour détruire le crédit national, qu’il soudoyait les ennemis de la France; qu’il formoit, de concert avec ses frères, une ligue contre les ennemis de la patrie; ce n’est pas comme roi, qu’au mépris des loix approuvées par lui-même, il armoit contre les citoyens des satellites étrangers.” 25 Id., 19–20: “Il est temps d’apprendre aux rois que ce silence des loix sur leurs attentats est le crime de leur puissance, et non le voeu de la raison ou de l’équité.” 26 “Dans une cause où une nation entière offensée est à-la-fois accusatrice et juge, c’est à l’opinion du genre humain, c’est à celle de la postérité qu’elle doit rendre compte de sa conduite. Elle doit pouvoir dire: tous les principes généraux de jurisprudence, reconnus par les hommes éclairés de tous les pays, ont été respectés. Elle doit pouvoir défier la partialité la plus aveugle, de citer aucune maxime d’équité qu’elle n’ait observée; et quand elle juge un roi, il faut que les rois eux-mêmes, dans le secret de leur conscience, soient forcés d’approuver sa justice.” Condorcet, Le Pour et le Contre, 2, 3. 27 Saint-Just, Le Pour et le Contre, 5, 312 (December 26, 1792): “Louis a répondu, quand votre président l’a interrogé sur la violence qu’il avoit exercée contre le peuple: j’ étois le maître alors; j’ai fait ce qui me paroissoit le bien.” (Emphasis in original.) 28 “J’étais le maître de faire marcher les troupes comme je le voulois, dans ce tems-là.” Interrogatoire, December 11, 1792, Le Pour et le Contre, 4, 226. 29 “Jamais mon intention n’a été de faire répandre du sang,” id. 24

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that Saint-Just built on Louis’s defense is powerful. Being the master, how can the dictator march his troops against people without spilling blood? For without blood spilled, the question does not arise. This is the daily scene of demonstrations in a democracy. The democratic ruler never marches his troops to kill nonviolent demonstrators. Even when the demonstrators are violent, physical violence is used only exceptionally. A shoot-to-kill policy has no place in a democracy. There results a shift in the burden of proof. To be master is to be responsible. A government’s first task is to protect its citizens, a task understood well in the trial of the Ottoman governors of Damascus and Beirut. When it fails, specific government officials are responsible, and, like the Ottoman governor of Beirut, need to convince the tribunal putting them on the stand that they tried extremely hard to avoid blood on the street.30 In such brutal regimes as those who rule the early twenty-first century Middle East, the whole system of responsibility is turned upside down, and the ruler is obsessed by challenges to his rule, and mostly preoccupied by those challenges which are nonviolent. He controls everything. He is the master. His prima facie guilt appears in a phrase made famous during Pinochet’s trial: “Not a single leaf moves in Chile without me knowing it,” Pinochet callously declared eight years into his brutal rule.31 He knew everything because he was the master, as he marched his troops and his security agents to torture, kill, and disappear people. The image of the leaf is telling precisely because it is a metaphor. It makes humans cringe because everyone understands what it means. To the victims, the dictator pretending that he is not aware of the crimes committed under him is insult added to injury. People are killed, tortured, and disappeared, all instances far more evident for the dictator to know than the movement of a leaf. Rulers are astute in not leaving a smoking gun for their crimes.32 The reason “the final solution” is a metaphor for the most horrendous crime against humanity in modern history is because one will not find a signed order by Adolf Hitler to torture and kill Jews, or Poles, or Gypsies. The reason “ethnic cleansing” was still a metaphor decades later is because one will not find Slobodan Milosevic or Saddam Hussein signing a piece of paper that See Chapter 15, note 23 and accompanying text, on Khurshid Pasha’s trial. The Spanish original appears with some variations in various sites on Pinochet’s phrase, and the dates vary (1975, 1981, with the most precise date mentioned as being October 7, 1981). See, e.g., BBC Mundo, “Se cierra un capítulo” (“a chapter is closed”), December 10, 2006: “En este país no se mueve ninguna hoja sin que yo lo sepa” (“In this country not a single leaf moves without me knowing about it”). For English see, e.g., BBC News, “General Pinochet’s Dance with Justice,” September 8, 2006. 32 There are several appropriately telling scenes in Shakespeare, for instance in Exton’s assassination of King Richard II on the request/instigation/suggestion of Richard’s rival and successor, Bolingbroke: 30 31

“Henry Bolingbroke [by then in the play King Henry IV]: Exton, I thank thee not; for thou hast wrought A deed of slander with thy fatal hand Upon my head and all this famous land. Exton [the executioner] From your own mouth, my lord, did I this deed.” Richard II, V, 6 (1595). The assassination is carried out by Exton because he knew that Henry wanted Richard dead. He had heard it “from his own mouth.” While Henry denounces the deed and bans the killer, his pilgrimage to Jerusalem to clean his conscience from it reads like a guilty confession. Note the genius of Shakespeare in keeping the matter ambiguous to the end.

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says: “Kill all the Croats you find in your way,” “kill all the Muslims of Bosnia,” or “kill all the Shi‘is, or the Kurds.”33 Dictators learn quickly about the danger of a metaphor caught up by precedent. No post-Nazism dictator will be found mentioning a “final solution.” After the Belgian indictment of Ariel Sharon, who was found two decades earlier “personally responsible” for the Sabra and Shatila massacres by the Israeli Kahan Commission, orders such as the one issue by Sharon to “mop up” refugee camps will not be easily uttered.34 Bullies and dictators adapt their language in anticipation of the day of reckoning they fear regardless of their expressed braggadocio. Only an idiot calls nowadays for “mopping up” or “cleansing” people out of existence. “Ethnic cleansing” is a code-word for crimes against humanity, albeit a metaphor. Even in the absence of a militant “mopping up” order as in Sharon’s infamous case, the question, in law, is also known as command responsibility, or respondeat superior. Its case-law application can be detected as early as the condemnation to death of Ottoman officers in Damascus who did not prevent killings of civilians by their subordinates or punish them.35 Command responsibility was defined as the Yamashita standard by the US Supreme Court in a majority opinion written by Harlan Stone: Where murder and rape and vicious, revengeful actions are widespread offenses, and there is no effective attempt by a commander to discover and control the criminal acts, such a commander may be held responsible, even criminally liable, for the lawless acts of his troops, depending upon their nature and the circumstances surrounding them.36 The case of a dictator is much more evident in the systematic repression of dissidents or nonviolent demonstrators. When the revolution brings thousands to the streets, can something of the magnitude of a massacre happen in a dictatorship where the ruler has not “controlled the criminal acts” in Yamashita? Although the written, physical order to kill will in all likelihood never be found, the ruler is “master and sovereign,” and the presumption of the

Even the infamous writing on Iraqi army tanks reoccupying the city of Najaf on March 20, 1991, la shi‘a ba‘ d al-yawm (“No Shi‘a after today”), can be construed as a metaphor for “no Shi‘i rule in Najaf, or Southern Iraq, after today,” that is after the legitimate army of Saddam Hussein has freed Iraq from illegitimate rebels. For documentation on the atrocities perpetuated in the Iraqi intifada of March–April 1991, see various reports by Max van der Stoel (d.2011), the special rapporteur on Iraq; and Chapter 15, note 35; for the quote “No Shi‘a after today,” see Kanan Makiya, Cruelty and Silence, London: Jonathan Cape 1993, 96. 34 See Chapter 15, note 82. 35 See Chapter 15, note 10. 36 In re Yamashita, 327 U.S. 1 (1946), 27 n.10, citing the Military Commission that delivered the judgment appealed before the US Supreme Court. This case is generally mentioned as a “laws of war” case. As established now in jus cogens and supported by the ICTY decision quoted in Chapter 15 note 118, it fits as well or better in the “crimes against humanity” category. For a sample of a large literature on command responsibility, see, e.g., K. Ambos, “Superior Responsibility,” in Antonio Cassese et al., The Rome Statute of the International Criminal Court: A Commentary, Oxford: Oxford University Press 2002), Vol. I, 823–72; Guenael Mettraux, The Law of Command Responsibility, Oxford: Oxford University Press 2009. US Supreme Court Justice Harlan Stone is also the author of the Carolene Products footnote discussed at Chapter 11 note 57 and accompanying text. 33

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victims and their relatives is that he made it clear to those under his command to harm them, or that he knew and did nothing to stop it or remedy it. This is also a powerfully bright line that separates dictatorship from democracy. Many an elected president or prime minister has resigned over much less than a fullblown set of massive demonstrations against him.37 If blood is spilled by the police or any other state agent, the head of the executive branch reacts responsibly to the natural and healthy shock in society by having those responsible investigated and prosecuted. In contrast, the dictator will deny any “bad” happening in plain contradiction of the atrocity committed; he will move mountains to prevent an investigation and to obstruct the way of a proper trial. He will forbid and threaten nonviolent demonstrators and punish and jail prisoners of opinion, civil resistants, and street protestors, including women grieving for their relatives imprisoned or disappeared. These are sure indicators of a guilt that a prosecutor or a judge should not find difficult to substantiate. It is true that until his trial is completed by a declared conviction, the presumption remains that the dictator is innocent until proven guilty. But by the time he has been deposed by the revolution, the elements needed to establish the dictator’s guilt have developed several fold, and intensified in the last days of his rule. Growing evidence is clear and profuse: the sheer number of nonviolent victims, the immunity of police from any investigation extended by the top executive leader, the dictator’s protection of ministers and intelligence heads he appointed and kept in place, and the continued pattern of state agents beating up political opponents, raping them, torturing them, and disappearing them. By the time the revolution has deposed him two or three decades after he has taken on command-for-life, any presumption of his innocence has worn very thin, even if the written and signed order to kill, torture, or disappear is missing, most probably because it does not exist. Under Mubarak, eight hundred nonviolent demonstrators were killed in less than three weeks. “Under Mubarak” is a metaphor for “under the rule of Mubarak exercising it as the master.” This is true not only over the three weeks of the Nile revolution that brought him down; this is the reality of the long night of the dictatorship that equates it with a crime against humanity. Not a leaf moved without Pinochet knowing. From a smattering of cases when the first request for extradition came from Spain to the unfortunate relaxation of Pinochet by a callous British Interior Minister, the files had swollen to over three thousand documented murders. By 2012, the horror list had been comprehensively documented by an official commission in Chile.38

Martin Boehmer argues in “The Shadow of Disobedience” (Paper posted on May 8, 2011 at http://www.righttononviolence.org/from-the-mothers-of-argentina-to-the-mothers-of-syria-by-rn-board-member-bohmer/ with my brief presentation comparing the women of the Plaza de Mayo with the Syrian women who started the revolution in Damascus’s Marja place, see Chapter 3 note 68), at 10, that the mothers of the disappeared in the Plaza de Mayo cast a shadow that led to Argentina’s president resigning when the police killed two people in demonstrations provoked by hyperinflation: “[Argentinian president Nestor] Kirchner decided never to repress any demonstration:  he could not trust the capacity of the security forces, he knew the Argentine President cannot rely on the capacity of the State to create the shadow of hierarchy.” 38 Although doubts on exact figures persist, the official Chilean “Valech commission” put the number of victims at some 40,000 people, and listed the names of 9,795 political prisoners, many of whom were tortured in Pinochet’s jails; see two reports posted on http://www.usip.org/publications/ 37

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There is great difficulty in data, but evidence is soon overwhelming in the number of victims and their treatment by the ruler’s henchmen. A useful departing point is the harm done by a government to prisoners of opinion. It constitutes a powerful mark for the establishment of a dictatorship, and runs the full gamut of harassment, arrest and incarceration, menace to their families, torture, disappearance, and outright murder. When a government incarcerates people for their opinion, this is a sure sign that the head of that government is engaging in the sinister slope of dictatorship. No rocket science is needed to prove it. The president-king-ayatollah-prime minister turning dictator is a clear suspect. He knows, and should be universally reminded, that his place is in prison awaiting trial, where like any other petty criminal, he remains innocent until found guilty. Dictatorship is a prima facie crime against humanity. Other Mechanisms of Accountability: Repar ations, Lustr ation, Reconciliation, Constitutions . . .  “La question des indemnités restait à régler.”39 This is how Richard Edwards, a close observer of the advent of international criminal law in the trials of Mount Lebanon in 1860–1861 starts the appendix to his rich, contemporaneous book.40 The details are simply remarkable in the documentation provided in this appendix, including the list of people punished, extracts from the judgments, and the legal modalities for compensation.41 For it was already commission-of-inquiry-chile-03; http://www.indh.cl/wp-content/uploads/2011/10/NominaPPT2011.pdf. As in the case of Sabra and Shatila, the massive murders in Rwanda, Cambodia, or Europe under Hitler, more recently the massacres in Libya and Syria, getting numbers right is excruciatingly difficult. 39 Richard Edwards, La Syrie 1840–62, Paris: Amyot 1862, 381. 40 See also for an impressive official documentation for the time, several annexes to the Commission Internationale de Beyrouth’s minutes, Antoine Daou tr. and ed., Hawadeth 1860 fi lubnan wa dimashq, lajnat beirut al-dawliyya, al-mahader al-kamila 1860–1862 (The events of 1860 in Lebanon and Damascus— The Beirut International Commission, the full reports 1860–1862), Beirut: Mukhtarat 2 vols 1996: – Vol. 1, 73, annex to session 4, October 26, 1860, compensation paid to Christians (Mount Lebanon displaced/refugees and Damascus victims); – Vol. 1, 74–75, compensation to villagers to restore their homes; and in Vol.2, 347–38, annex to session 29, May 4, 1861, list of estimates for losses in the Mountain villages and the compensation paid under Shakib effendi, including payments to various villages and regions from “the government and the Druzes” (allati dafa‘atha al-hukuma wal-duruz); – Vol.2, 396–97, Annex to session 2, August 1, 1861, special estimate for the losses of the Christians of Damascus; – Vol. 2, 466–70, Annex to session 42, December 9, 1861, “summary of contributions and disbursements to the extra-ordinary compensation fund, from 4 June to 22 October 1861” (“mujaz iradat wa nafaqat sunduq al-ta‘wid ghayr al-‘adi min 4 huzayran wa hatta 22 tishrin al-thani 1861”). The closing sessions of the Commission Internationale de Beyrouth are practically all devoted to compensation. The last session, session 50, May 23, 1862, continues to include figures of compensation, and adds important documentation consisting of a wrap up on the causes of the “events” and the proposed constitutional-administrative reorganization of the Mountain, at 523–76. Note the powerful triangle that allowed for the rest of the century to remain calm and prosperous in that troubled part of the world: arrests and trials, monetary compensation, constitutional reorganization. 41 Decree proposed by the Ottoman emissary, and adopted by the international commission, id. Edwards, La Syrie 1840–62, above note 39, at 382–87, for general modalities for compensation, compensation for land

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plain that criminal condemnation entails monetary compensation, which naturally follows a guilty verdict. From a philosophical perspective, compensation comes second to criminal retribution, lest reparations are allowed to simply absolve crimes. From a legal perspective, the line is set clearly enough between liability in crime and liability in tort. From a practical perspective, compensation is a matter of numbers and effective distribution. Compensation in large-scale harm is generally paid to the victims as a class, whether they suffered in the flesh or are next-of kin who need closure after the loss of dear ones. Compensation requires a constant impetus from as large a number of victims as possible, and a steady and competent leadership in the new government. The most effective drive for compensation in history is that carried out by Israel for the Jewish survivors of Hitler’s crimes against humanity. Like class action in civil cases in the United States where hundreds of plaintiffs are brought together into a mechanism that allows the case to go forward more cost-effectively, criminal courts are faced with large numbers of victims that they cannot handle as an ordinary crime in their everyday practice. In contrast to massive tort actions by multiple victims, the departing point is the criminal nature of the trial of dictators, as opposed to the civil trial considered in tort. A civil trial is not a route that victims would conscionably take in the wake of the revolution. They are not after money, nor is the revolution after money. This is the first characteristic of the indemnification of victims in a philosophy of nonviolence. It is based in criminal compensation, not in civil redress. Of course, reparations can be totally severed from any judicial trial, whether it is civil or criminal. After all, governments regularly decide that victims of bombing, natural disaster, or combat abroad are entitled to reparations from the general budget of the state. Mutatis mutandis, compensating the victims of the dictator is a governmental priority. One of the first actions of the new governments in the Middle East after the fall of the dictator was to organize a system of compensation for those who were killed in the revolution. But a proper indemnification of the victims of a crime against humanity should not be philosophically severed from their cause. The underpinning of nonviolence as the integral philosophy of history would otherwise be impaired. Courts faced with thousands of complaints try to put some order in a potentially overwhelming situation. An additional reason the story of the victim is important to hear comes from the fact that victims in crimes against humanity tend to be very different in the way harm has been inflicted on them. Often torture, disappearance, and/or killing stretch over a long period, and the dictatorship hones its repressive agencies accordingly. No wonder that the indictments and actes d’accusation run in international criminal law over hundreds of pages. The sentence of one military tribunal judging Ben Ali in absentia, runs over a thousand pages.42 And additional court management is needed to address complications that

and building loss (indemnités immobilières) and compensation for personal loss (indemnités mobilières). Article 18 specifically provides for the procedure in the case of loss of life. The sum of 150 million piasters, a considerable one for the time, was set aside for compensation, and dedicated just to the Christians of Damascus, id., 381. Inevitably, compensation falls way short of the effective monetary losses of the victims, let alone their moral entitlement. 42 See Human Rights Watch, “Tunisia:  Flaws in the Landmark Ben Ali Verdict,” July 5, 2012, citing the 1066-page judgment of the Le Kef military tribunal, which concluded its work on June 13, 2012, and sentenced Ben Ali for life for complicity in murder under Article 32 of the Tunisian Penal Code.

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arise from the need to protect witnesses and victims—a protection that does not generally matter in civil suits against corporations and other mass tortfeasors. Compensation for the victims is a natural consequence of criminal responsibility. This is another truism in domestic law. In crimes against humanity, an immense array of considerations renders the simple principle fraught with complications. In the records available from 1860, question marks remain on the discrepancy between the funds allotted for compensation and the monies effectively disbursed.43 Restitution is often easier, as the property was generally confiscated by a dictator or his aides, now dead, absconding or in prison, and is more easily returned to its original owner. On the ladder of accountability, asset recovery to ensure that the family and cronies of an arrested dictator do not wallow in his corrupt money is another important tool for the victims’ compensation, mentally as well as financially. Asset recovery by post-dictatorship governments has become a discipline with its own twists and risk. Companies and law firms that get involved are heavily paid from the assets; the post-dictatorship government that goes against the assets has its own internal difficulties coordinating the effort because of the ruins that the dictatorship leaves behind. The causality link between assets and compensation is rarely thought through with any precision. Asserting its importance is the best one can do at this stage of our reflection, for details are daunting. The experience of asset recovery will provide a series of case studies for a very long time, including for returning fortunes amassed by the Middle East dictators and absconded in tax havens, bank accounts hidden under other names, and property purchased by fictive corporations. And even when the dictator’s assets are recovered, their benefiting the dictatorship’s victims is often wanting. Lots of hoops stand in the way of justice as compensation. The concept of crime against humanity needs to be studied more precisely in this consequential regard. The return of the assets, which is usually conducted bilaterally between the new government and the countries where they are suspected to have been hidden, is a complicated process in which the government may be competing with the victims and their families. Case law remains uncertain, disparate, and dispersed, but a legitimate government has normally precedence in its say about assets, as victims tend to be in the hundreds. It is different in practice. Poorer people are at a disadvantage in a complex international jungle that is still new to these forms of reckoning, at a time when banks and the dictators’ acolytes are happy to keep the money of the deposed ruler forever stashed in numbered safes in underground vaults. An additional twist comes from the fact that the new government is snowed under by other concerns, including trials and constitution-making, not to mention infighting and jockeying for power, so the victims may have to organize themselves on their own. Until its legitimacy is better established, the post-dictator government tends to lag behind victims acting in the international equivalent of a diligent partie civile. From the point of view of justice, this appears right: victims have a priority to benefit from recovered assets over the government representing society at large. In the real world, there is much left to be desired on this and so many other conflicting and unsettled scores, from “the odious

Details in Leila Fawaz, An Occasion for War. Civil Conflict in Lebanon and Damascus in 1860, London: I.B. Tauris 1994, 154–63 (Damascus), 169–78 (Mount Lebanon).

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debt” of the dictator to the preemption of the victims by inchoate personnes morales known as governments.44 A nonviolent revolution simplifies matters in that it does not take into account people killed by the revolution, as there are none. It is left only with people killed by the dictator. This allows it to undertake the process with its own philosophy, which reinforces revolutionary nonviolence insisting that compensation be done and is seen to be done when the dictator has been deposed, one of the central arguments in this book. Lustr ation Laws and Truth Commissions Judicial trials and monetary reparations are not the only mechanisms relevant to justice in the wake of a nonviolent revolution. They are part of an array of measures the sheer variety of which underlines the broad yearning for justice after the dictatorship is ended. Armed with some of the procedural sinews broadly brushed in trials and related compensation mechanisms, I now return to the larger pyramid of accountability with which this chapter started the discussion. The pyramid appears with judicial trials at the top, lustration laws at the bottom, and truth and justice commissions acting as alternative or supportive mechanisms of accountability. The pyramid is an uneasy one, and its levels shift constantly. The figure of the pyramid is complicated by the fuzzy categories in each case: truth and justice commissions are committees generally appointed by the government, and appear under several denominations, including reconciliation (South Africa), equity (Morocco), remembrance (Poland), historical clarification (Guatemala), or simply as truth commissions.45 The variety of names underlines a variety of tasks, which generally fall short of judicial prosecution. An added complication comes from the blurred lines between traditional fact-finding and truth and justice commissions. Fact-finding commissions may be just that, fact-finding, and inscribe in their task the rejection of any criminal consequence from their findings. But this is not always true, for they can also be the first step to judicial trials at the top of the pyramid. This was the model followed by most international tribunals set by the United Nations Security Council, including for the former Yugoslavia, Rwanda, and Lebanon. So despite efforts at streamlining the various levels, both fact-finding missions and truth and reconciliation commissions could lead to prosecution. This is not usually expressed in their initial set-up. For the purpose of the current discussion about nonviolent revolution, let us simplify the taxonomy, at least to appreciate the general architectonics of the pyramid. In general fact-finding missions are limited in scope and do not indicate what comes in their wake. On the lower level of the pyramid are restitution and reparations decided by the government, and they carry direct consequences for the victims and/or the accused. But they usually do not create a common forum where victims and victimisers confront each other. Lustration laws, which affect fewer people from the former regime, come before. On odious debt, see Odette Linau, Rethinking Sovereign Debt, Cambridge, MA: Harvard University Press 2014. 45 The website of the United States Institute for Peace (usip.org) features a database of some forty “truth commissions” and “commissions of enquiry.” 44

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They are also decided by the government. They too do not usually bring in one forum tortioners and their victims. Alongside the pyramid, truth and reconciliation commissions are assigned much wider tasks, and they have a signal advantage in bringing together the two sides of the violent past. But their preferred objective is reconciliation, not criminal retribution. In terms of their time frame, fact-finding missions and commissions are ad hoc, limited in time, and they leave it to the political process and the court of public opinion to decide on the consequences of their findings. Truth and reconciliation commissions include an amnesty component that allows public confessions to prevent criminal prosecution, and the period of their activity is well delineated in their founding texts. Compensation mechanisms take a very long time, partly because of the difficult recovery of assets, although a staggered system can be implemented, with a priority for the most destitute victims of the dictatorship to receive some compensation in the early phase. Trials tend to also extend over a lengthy process, which is complicated by a number of unfathomable factors. Among the pell mell examples of the Middle East revolution, we have seen immunity in Yemen, trials and mistrials of Mubarak and his sons in Egypt, in absentia trials for Ben Ali and his close family in Tunisia, the death of Qaddafi in Libya, and the slow trial of his son and his chief of intelligence, in addition to large variations when it comes to lower officials, the recovery of assets and the compensation of victims, and the type of “political death” meted out to those accused in lustration laws of having been actively part of the regime. Lustration46 Lustration laws deserve a closer look in the pyramid of accountability. Also called vetting laws and political exclusion laws, they gained worldwide fame in the American denazification of Germany after the Second World War. The effort was considerable. A US State Department compilation of the laws and regulations put in place by the occupying powers, led by victorious America, remains over a half century later a powerful testimony of the extraordinary investment of time, money, and power to perform in the nascent West German state the remodeling required to get past the dark era of Nazism.47 The transplantation of the model in Iraq fifty years later would prove disastrous. The Middle East revolution is clouded in a negative shadow cast by the de-Baathification process that was set in train soon after Saddam’s deposition in 2003. Iraq was subjected to a similar international regime of occupation that the United States exercised in Germany and Japan. In Iraq, however, the United States missed the key difference in the general embrace of Nazism by the German population, in contrast to the established massive rejection of Ba‘thism by a large section of Iraqi society for years on end. In the brutal and exclusionist sectarian and ethnic nationalism forced by Saddam Hussein on Iraq, Shi‘is and Kurds Some of the extensive literature on lustration can be found in the work done with my class of the Global Justice Think Tank on Libya, Mallat et  al., “The Efficacy of Lustration Laws within the Pyramid of Accountability: Libya compared,” The Yale Journal of International Law online, Vol. 39, 2014, 112–34. 47 See for this sample of the high quality efforts expended by the US government in its de-Nazification efforts,  The Department of State, Germany 1947–1949:  The Story in Documents, Publication 3556 (U.S. Government Printing Office 1950). 46

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represented a sociopolitical reservoir of active dissidence constituted by over two-thirds of the population. Opposition to Nazis in Germany bore little resemblance in terms of the size and vehemence to the opposition in Ba‘thist Iraq, at least at the time when the dictator was finally brought down. The confusion arose from the mistaken projection of an international legal regime of occupation on a country that was genuinely liberated for a large part of its people by the US invasion. With the sweeping nature of de-Ba‘thification, which was ordered together with the disbanding of the whole army overnight, lustration in Iraq turned into a failed mirror of the German experience. The use of de-Ba‘thification to settle scores was evident, and the price exacted was heavy. In two major elections, which were wobbly enough considering the state of insecurity in which they took place, the way the de-Ba‘thification committee worked backfired badly. As late as 2014, the country was still being destabilized by the erratic course taken by the de-Ba‘thification Committee. The price was heavy for the Committee itself, and soon after the second parliamentary elections in 2010, the head of the de-Ba‘thification Committee was assassinated. The assassination underscored the ill-thought conception and application of the German precedent in a country that had in common with Nazi Germany little more than Saddam Hussein’s fuzzy replication of the ugly figure of Adolf Hitler. Comparaison n’est pas raison. With the Iraqi failure as background, lustration laws were back on the political agenda in 2011. In Egypt, they took the form of the court disbandment of Mubarak’s National Democratic Party (NDP) and the transfer of its assets to the state, but the initial lustration law was rejected by the Supreme Constitutional Court.48 In the absence of a lustration law, a former prime minister was running for the presidency less than two years later, while leaders of the opposition to Mubarak were prevented from running by a vetting committee that used a criminal record originally created by Mubarak to disqualify the leader of the Brotherhood, Khayrat al-Shater, as well as one of the most articulate liberal dissidents, Ayman Nour, both of whom had spent years in jail when they challenged Mubarak’s rule. Libya went to the other extreme. The lustration law passed in 2012 was rightly criticized by the UN Special Envoy for its obvious overbreadth.49 Done at the bidding of the Islamic faction in parliament, which forced it on a legislative body intimidated by violent behavior, including the armed surrounding of the justice and interior ministries, its first victim was the main figure of the revolution against Qaddafi, Mustafa ‘Abdel Jalil.50 It may be better not to have lustration laws than what has so far transpired. But lustration laws can work. They require sophistication and an apparatus that are generally lacking in countries devastated by the long absence of the rule of law. Although this was also true in Germany after Hitler, the US administration was omnipresent, well-trained, and

On June 14, 2012, the Supreme Constitutional Court issued two highly controversial decisions. The first dissolved an elected parliament on the argument that the elections were based on a flawed law that breached the equality between the candidates. The second held unconstitutional the lustration law passed by that parliament before its dissolution. See my “Saving Egypt’s Supreme Constitutional Court from Itself,” Ahram online, June 15, 2012. 49 See Mallat et al., “The Efficacy of Lustration Laws within the Pyramid of Accountability: Libya Compared,” above note 46. 50 Jalil was a judge on the Court of Appeals and a Justice Minister under Qaddafi. He held a leading role in the opposition when he resigned from his position to lead the revolution domestically and internationally. 48

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well-funded. It is hard to see lustration laws working well in countries that do not have an adequate legal apparatus. With the wobbly record of the Middle East revolution, the jury is still out on both the need for lustration and its efficacy. The experience across the world is not well streamlined enough. In a set of recommendations prepared in the aftermath of the Libyan controversy over its lustration laws, three areas were identified for urgent attention: the first concerns the categories of people subject to lustration. As in the case of the most prominent figure during the Libyan revolution (Jalil), lustrating a leader of the revolution because he was formally attached to the former regime is ludicrous. The second concern is about effective due process for those lustrated. Lustration that immediately triggers exclusion is suspect. The onus should be fine-tuned, possibly in a reversed default procedure: if named by the lustration committee, a former official should stay on an impending ballot at least until his defense has been heard. The third area is about the adequacy of the means needed to enforce legislation, including the delicate role of judges who oversee the application of the law by the lustration committee, and who may themselves be subject to lustration for dealing with the ancien régime of which they formed part. In the same way mixed domestic-international tribunals are sometimes useful to address the structural inadequacy of the justice system left behind by the dictatorship as part of its judicial ruins, a mixed lustration committee, including prominent international figures who stood for the victims historically, might provide a better way forward to allay the problem of staffing such a delicate body. The Middle East revolution, and the world at large, may even benefit from a respected neutral body anchored internationally as a stable and confidence-inspiring lustration committee. TRCs Truth and reconciliation/justice commissions hail from a very different philosophy, but they err on the opposite side of lustration laws. Lustration laws are easily over-inclusive, and too many people get caught in their rough-and-ready net. Truth commissions have the inverse deleterious effect. They let too many big fish get away with murder. Such commissions have developed considerably since the first prototypes in the mid-1970s. Even before the famed South African Truth and Reconciliation Commission, some fifteen similar bodies had been established. Since the apparent success of the South African experiment, dozens have followed. The Middle East has been, not surprisingly, a relative exception before 2011. Morocco is the only tangible case of a commission seriously set out by the government, and the jury is still out on its effectiveness.51 In Bahrain, a UN commission headed by a respected figure of the (brave new) world of international criminal law resulted in recommendations that were forgotten soon after the initial official embrace of the king

51

The Commission, called in Arabic hay’at al-insaf wal-musalaha, French “Instance équité et réconciliation,” was established by the king of Morocco in 2004 and delivered an extensive report in December 2005, available on its site, http://www.ier.ma/. The report lists some ten thousand victims (disappeared, tortured, wrongly jailed). It established a compensation mechanism for the families, but fell short of assessing any political or criminal accountability for Moroccan officials. See Susan Slyomovics, The Performance of Human Rights in Morocco, Philadelphia: University of Pennsylvania Press 2005, esp. ­chapter 7.

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vanished like the smile of the Cheshire Cat. All-out repression became the hallmark of the government dealing with the Pearl revolution.52 What Morocco and Bahrain simply say is that truth commissions do not work without a change of regime in the first place. The dictators, in that case two kings, are not interested in either truth or justice getting too close to them or their favored minions. So when does a truth and justice commission work? A word on the South Africa Truth and Reconciliation Commission. I must confess to have been a supporter of that institution from the beginning and to have been involved in discussions which led to its establishment. Its success has exceeded by far my expectations. It had the potential for failing abysmally. It could have been ignored. The opposite is the reality. Over 7,000 applications for amnesty. Submissions and evidence from over 20,000 victims. The evidence has stopped denials of the many serious human rights violations committed by the apartheid security forces.53 The case of South Africa may be an outlier, and TRCs sit uneasily in the pyramid of accountability. When the dictator’s trial does not take place, justice is the loser by way of the truth commissions ersatz. The TRC’s very religious concept of “reconciliation” following “confession” masks the reality that the truth that it sets up works against justice, because the victimizer is provided an amnesty if he publicly confesses his sins. Drawing on a mixture of Catholic concepts and on psychoanalytic lore, confessions before truth commissions conjure up admitting to have committed a crime only to prevent the responsibility that would have otherwise been obtained from a guilt forced out by a trial. There are obviously other specificities in the South Africa case, not least that it was initiated and endorsed in large part by those in power, namely then Frederik de Klerk. Like Gorbachev with Communist rule across the Eastern bloc, it is difficult to imagine that he should be punished for actively dismantling apartheid.54

Bahrain Independent Commission of Inquiry, led by Cherif Bassiouni, November 23, 2011, available at http://mcherifbassiouni.com/, together with other international investigations conducted by Bassiouni, notably in Libya (report of June 8, 2011) anticipating the ICC indictment of Qaddafi; and in the former Yugoslavia. Contrary to Libya and the former Yugoslavia, the Bahrain inquiry led nowhere. 53 Richard Goldstone, “Foreword” to Martha Minow, Between Vengeance and Forgiveness, Boston: Beacon Press 1998, xii. 54 On South Africa’s TRC process, I was informed in an e-mail by Erika George on October 31, 2013, that “Desmond Tutu’s No Future without forgiveness [New York: Doubleday 2000] is the best discussion of the motivation for this mode of post-atrocity process . . . The process is widely recognized as Tutu’s handiwork and it is not without subsequent critique for discounting the importance of justice and remedy for past wrongs.” South Africa is in many ways a unique story of a passage from dictatorship to an open society, so unique apartheid was as a criminal system, which, one should recall, took a long time to be recognized as such universally. I date the sea-change perception of apartheid in the legal world to an article by Elizabeth Landis, “South Africa’s Apartheid Legislation,” Yale Law Journal, in two parts, vol. 71, 1961, 1–52, and vol. 72, 1962, 437–500. One should also note that Mandela’s INC had morphed in the 1960s into a violent movement, or at least one that reserved its historic right to use violence until the end of apartheid. The more searching obituaries of Mandela in 2014 revolved over the genuineness of his espousal of nonviolence in the final phases of the struggle in practice, while he remained attached to the right of bearing arms against apartheid in theory. 52

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Those who privilege truth and reconciliation commissions because of their universally acknowledged success in South Africa are only right to some practical extent. Atrocities perpetrated by a system, including the system of apartheid that is now part of the list of crimes against humanity in the ICC, are so numerous and widespread in society that it is inconceivable to try all the people who were part of it. This is a matter of practicality. The stronger ethical argument in favor of truth and reconciliation, possibly, is the superiority of the mechanism because of its intrinsic extension to the whole society, as opposed to the more symbolic and limited trial of top criminal perpetrators.55 TRCs may be particularly appropriate for societies such as South Africa, where the collapse of a special type of dictatorial state that its founders called apartheid comes in meaningful part from within its public heirs such as the former white chief executive. This is not the case for nonviolent revolutions that bring down an entrenched dictatorship, and are premised in their philosophy on the trial of the fallen dictator and his aides. Truth and reconciliation commissions may even appear as a negative cop-out threatening the integrity of the nonviolent philosophy of the revolution in its essential advocacy, as it unfolds, of the trial of the dictator. In the Middle East revolution, none of these nuanced and genuinely reformist figures such as De Klerk and Gorbachev are available. Presidents-for-life, supreme leaders-ayatollahs, monarchs, and emirs are all entrenched dictators. Should they initiate reform, no one will stand in their way, and maybe society can find in itself enough fortitude for victims to express their wish in seeing at least some bygones be bygones, as long as they disappear from political life forever. In a process of reform where dictators such as Gorbachev and De Klerk initiate the passage to democracy, an exception rather than the rule because of the very nature of dictatorship, the nuances can be infinite. In the pyramid of accountability, justice needs common sense and balance. In that case also, reconciliation takes the shape of a serious work on constitutions as the reshaping of the social contract against the former system. This last mechanism, the constitution-making of Part II of this book, deserves special attention, lest the forest of proper reconciliation is missed for the trees of TRCs and lustration laws. Constitutions and Accountability It is not usual to consider constitutions as a mode of accountability. This is wrong. Constitution-making after any revolution may be looking for the future, but it has a constant, heavy eye on the past, with which it represents a decisive break for the revolutionary constituents. In a nonviolent revolution, the break with the dictator in a trial is an essential part of the philosophy of nonviolence, and comes together with constitution-making as the passage from the nonviolent revolution to the institutionalization of its philosophy into law. Traditionally, constitutions that follow dictatorial regimes include a preamble that expresses the break. They do not extend into accountability, which is left to other processes.

See for instance Minow, Between vengeance and Forgiveness, above note 53, 87–90, who argues that in the pursuit of a large set of healing, education, and retribution goals, truth commissions are “not a second best alternative to prosecutions,” at 88, and suggests the adoption of both, at 89.

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A lustration law clashes necessarily with the right to participate in political life. Restitution is premised on property confiscation against which the citizen is normally protected. While a major difference between constitution-making and the pyramid of accountability is that the first looks forward, while accountability looks backward, both in theory and in practice the flow of the timeline is not so tight. To make it tighter, I propose to conclude that constitution-making is a more effective tool established in a philosophy of nonviolence than the resort to those other modes looking backward, especially TRCs. If we take this proposal seriously, and imagine a perfect constitution emerging all clad on day one after the dictator has been deposed nonviolently, then many mechanisms of accountability described in this part immediately turn operational. As a matter of course, accountability for the past is invariably enshrined in the criminal dispositions of the constitution, and the ban on political parties based on a concept of exclusion finds its way to the very heart of the constitutional future of the country. From that constitutional debate flows the need to think the whole problem through, and not merely as a rhetorical reference in the new social contract. Under the conclusion reached in this part that dictatorship is a crime against humanity, and that courts across the world, including those of the newly freed country, must try the dictator; that high-level members of the former regime with heavy blood on their hands should also be tried criminally; that measures of effective regret, including open denunciation of the dictator and active participation in the revolution, must be considered as extenuating factors of various intensities; that monies siphoned off by the dictator’s system of corruption should be recovered and distributed equitably among his victims; that property confiscated must be returned to its owners or their descendants; that forms of memorialization in fact-finding commissions with as detailed a factual account as possible of those who were killed, tortured, or disappeared in the long night of the dictatorship, then the better constitution will have automatically included forms of accountability such as TRCs and lustration laws. The problem is that a constitution does not emerge fully clad after years of dictatorship. In a relatively timeless philosophy of nonviolence, it does. When time is factored in, the levels of the pyramid of accountability are further discombobulated by the parallel constitutional process. Constitution-making as a form of reconciliation between men and women imbued with a philosophy of nonviolence actually strengthens its conceptual unity as the breakthrough crucible of history. As a first necessary moment of the philosophy of nonviolence after the dictatorship is ended, the order of reasons makes the constitution prior to trials and other forms of accountability. But as constitution-making is always a process, the structure of a philosophy of nonviolence makes it inevitable for the two necessary moments post-dictatorship—constitutionalism and justice—to dovetail, reinforcing or setting back each another, and in any case complicating the purity of the philosophical edifice. Conclusion: The Pyr amid’s Uneven Allure Let us look at the figure of the pyramid drawn at the beginning of the chapter once more. For the philosophy of nonviolence, the pyramid of accountability informs the overall

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picture on two major accounts: the numbers concerned and the interaction within and outside the planes of the pyramid. In terms of numbers, trials represent the iconic, central connection between the nonviolence of the revolution and the message it carries beyond the end of the dictatorship. They are the tip of the pyramid, symbolically powerful because the dictator and his aides get tried, but are much smaller in the number of torturers and killers sentenced criminally. Lustration laws provide a larger net of former regime members in the box of the accused, but this is metaphorical as jail is not envisaged in their case. Reparations provide a wider net for the victims at large, but they ignore the perpetrator, while fact-finding is diffuse and largely toothless from the perspective of the victims. The pyramid is uneven, therefore, but it serves at least a didactic purpose in putting some order in a complex set-up that changes over time. The other complication arises from the interaction between the various planes within the pyramid and mechanisms outside it. Within the pyramid, reparations can be carried out totally independently from trials, but trials often lead to the compensation of the victims by those convicted. Outside the pyramid, in the larger public sphere where criminal accountability is not sought, TRCs usually interact with the base of the pyramid, the fact-finding mission that could also recommend their establishment, and with the top, that is, the trials that they supplement. Fact-finding can lead both to TRCs and to trials, but the people caught in the TRCs’ non-criminal system are spared trials as a matter of course. Reparations bring least accountability in terms of the perpetrators, except when they are the result of the trials. And lustration laws create an additional problem for constitution-making that stands alongside the pyramid, because they generally clash with clauses in the constitution that prevent citizens from being excluded from the political process. Mostly forgotten in the discussion about reconciliation is constitution-making as a way to reconciliation. Unlike TRCs and the various mechanisms within the pyramid, a constitution looks forward to conviviality among all the citizens. If my analysis of constitutionalism is correct, constitution-making is the work of the revolutionaries who share in the process one commonalty: their nonviolent stance against the dictator and his apparatus. This is the most natural way of forging ahead for the citizens whom the nonviolent revolution has united in a fresh start, and who look forward instead of dwelling solely on the past. The pyramid of the dead weighs heavily on the living. It calls us to account. With the dual search for constitutionalism and justice as the necessary moment of the philosophy of nonviolence, the added contrast of looking back to fashion the future is healthy and appropriate. Constitutions cannot completely do away with the need to bring the dictator to justice, but fair public trials together with proper constitution-making may render TRCs and lustration laws by and large unnecessary.

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Let me inject a sophistry: there is no “transitional justice.” In fact, there is not even “justice in transition.” There is only one justice, which is philosophically eternal and universal. Its ark is hyperbolic and tends toward the infinite, which it never reaches. Frustrated by the infinite, justice remains eternal and universal. The same justice has always been, and always will be. Slavery is a monstrosity in Aristotle’s Athens, in Jefferson’s Washington, or in its current Gulf countries’ iteration in the way foreign African and Asian workers are treated. A thirteenth-century jurist from Aleppo expressed it best: al-‘adala la tataba‘‘ad,1 justice is indivisible: One may well ask: How can you advocate breaking some laws and obeying others? The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all”. Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law.2 With Aquinas and Martin Luther King Jr.’s eternal justice, there is little difference between Socrates’s hemlock and Kawakibi’s poison. The revolution does not have a special set of Ibn Abi-al-Dam (d.1244), Adab al-qada’ (art of judging), Beirut: Al-kutub al-‘ilmiyya 1987, 96. Martin Luther King Jr., “Letter from a Birmingham Jail,” April 16, 1963, available e.g. at www.africa.upenn. edu/Articles_Gen/Letter_Birmingham.html.

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principles for “justice in transition,” or “transitional justice.” The humanly conceived principles of justice are the same forever. As a philosophical category, justice is as eternal as truth. Under dictatorship its basic principles are simply ignored or flouted.3 “It is therefore to the laws of this universal justice which is common to all constitutions, unchangeable in the midst of the shocks of opinions and revolutions, that we must submit our choices.”4 Development of this fraught theme belongs to a much wider philosophical investigation. For the purposes of the philosophy of nonviolence, suffice for now to acknowledge there are no principles of justice that hold true before the dictatorship has been removed, and different principles of transitional justice that hold true after the revolution has ended the dictatorship. Transitional justice is a practical matter, not a philosophical one. Practicalities may be daunting in countries devastated by several decades of dictatorship, but the rules for the dictator sitting in judgment are not different from the rules justice considers necessary for any normal trial: the rights of the accused and the rights of the victims are at the center of a time-bound process that the trial conducted by an impartial court expressing the state’s monopoly over violence balances out into a result we receive as judgment. In the nonviolent revolution, the peculiarity of justice for the victims is informed by their deferral of the trial to when the dictator has been deposed. When the trial comes, eternal justice lays down the rules, which are the ones whose violation has led to the dictatorship in the first place, and which must now be reinstated by the revolution as an essential part of its success. There is neither transitional nor revolutionary justice. Justice fails in any criminal trial if the basic balance between victim and accused is not respected by the court. All serious lawsuits brought for crimes against humanity share a measure of success in advancing the case of innocent victims; laying the grounds for his arrest and trial, scaring the dictator in the dock, and building blocks across democratic states that reduce the dictators’ impunity worldwide. In the Middle East intermittent cases of international justice since 1860, those accused were indicted by an independent court, feared the process significantly as it slowly developed, and were condemned to various degrees, even when the end story was different for each. As justice is eternal and universal, and never transitional, does it make a difference if the dictator who is finally put in the dock has been removed violently or nonviolently?

The Germans have a special word for this form of “rule by law,” which is the use of law to deliver injustice, “Rechtsbeugung,” from “beugen,” to bend, pervert, the course of justice. John Borneman translates as “justice illegality”; see Borneman, Settling Accounts. Violence, Justice, and Accountability in Postsocialist Europe Recht beng ung, Princeton, NJ: Princeton University Press 1997, 67, and at 69–70 for the prosecution of judges and law enforcement officials illegally wielding justice in the former East Germany. “Justice accused” is another term, which Robert Cover uses for his book on nineteenth-century practices of US judges upholding racial discrimination and slavery, Cover, Justice Accused: Antislavery and the Judicial Process, New Haven, CT: Yale University Press 1975. I have used “rule by law” extensively for depicting the way law is manipulated in the Middle East for obvious authoritarian purposes; see on Israel’s manifold and systematic use of law to discriminate against Palestinians, Mallat, Introduction to Middle Eastern Law, Oxford: Oxford University Press 2007, 217–22. 4 “C’est donc aux loix de cette justice universelle commune à toutes les constitutions, inaltérable au milieu du choc des opinions et des révolutions des empires, qu’il faut ici soumettre nos décisions.” Condorcet, in Le Pour et le Contre, Recueil complet des opinions prononcées à l’Assemblée Conventionnelle, Dans le Procès de Louis xvi, 7 volumes, Paris: Buisson, An I de la République [1792–1793], Vol. 2, 4. 3

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In recent memory, we have two cases of the dictator facing justice in the wake of a violent upheaval. Saddam Hussein was tried and executed. His trial was fair on balance, but it operated in an atmosphere of utter violence. Caught on mobile phones by an angry mob of onlookers, his hanging on December 30, 2006, was grotesque and repulsive. Some of the subsequent hangings of his aides occasioned an even more somber descent into the ugly. Qaddafi was executed extrajudicially, but he had been indicted by the International Criminal Court in formal proceedings several months earlier. His last words, recorded on mobile phone cameras, were to ask the armed men who had caught up with him in the sewer where he ended to “show mercy.” We fortunately do not see the full, nauseating execution, but it takes place with a voice in the background repeatedly saying that “he should not be killed.”5 Victims are torn: some are relieved by the sordid killing of the man who has made them and their loved ones suffer for years; others—sometimes the same ones because human beings are thoughtful and conflicted—are denied a closure they long for by the vengeful disregard for justice when the mob kills the dictator. When the trial fails to happen, or fails grossly in its conduct, the story of their loss no longer stands a chance of including the crucial part told by its main protagonist. The dictator gets buried with his story of the crimes committed under his rule. Trials in the wake of nonviolent revolutions are different, if only because of the atmosphere prevailing in and around the courtroom. The former dictator and/or his close aides are physically present in the dock. We have seen how 2011 produced interesting variations on this theme. In Tunisia Ben Ali escaped to Saudi Arabia, and was tried in absentia. An extradition process for common law criminals was started, but it hit the wall of the Saudi royal family’s fear of precedent. In Yemen, the appointment of an obscure vice president at the helm complicated the arrival of justice. A central piece of the so-called Gulf Cooperation Council agreement was the immunity that Saleh required to sign the transfer of his powers to his vice president. In Egypt, the dictator was apprehended because he did not flee the country. Mubarak was arrested and tried. This is the best outcome possible. If only the case had been better managed, this occasion would have gone some way toward fulfilling the philosophy of nonviolence in a key Middle Eastern country with a proper trial respecting the full rights of the defense, providing an enhanced voice of the victims, and possibly resulting in the abolition of the death penalty as an additional building block of the philosophy of nonviolence. The release of Mubarak from jail into house arrest in 2013 shows how fraught the process of accountability remains, and justice after the commitment of crimes against humanity faces a long and uncertain future. The Egyptian mishap is unfortunate, but it only dents the course of the ark. A different story is always unfolding somewhere, adding more cases, more twists and nuances, more frustration, and more room for justice progressing and retreating across the planet. In a rich and halting history of which the region has been part and parcel in documented trials since 1860, the breakthrough in the Middle East revolution is the coming together of Various YouTube postings can be seen of Qaddafi’s gory last moments. For these quotes in English, Ethan Chorin, Exit the Colonel: The Hidden History of the Libyan Revolution, chapter “the Gruesome end: October 20,” London: Saqi, 2012 (Kindle).

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nonviolence ending the dictatorship and the enduring label of dictatorship as crime against humanity. It never plays out fully in this ideal scheme, but the cumulative record should not be discarded for the inevitable flaws occurring in the different situations. Something tangible happened. Justice in the form of the accountability of fallen dictators is part and parcel of the revolution, and the more promising when the revolution has brought down the torturer- and executioner-in-chief nonviolently to the dock. His story is an important one to hear in court. Minor Philosophical, Major Political Problems Becoming a Dictator As dictatorship is a crime against humanity, let us now examine the bearing of this premise on how one recognizes a dictator, and on the issue of immunity as a possible part of his final exit. These are important, practical issues, but they are minor philosophically. With regard to the particular turn in life at which a ruler becomes a dictator, political science, let alone law, is unable to offer such a moment in time with any precision. “The resistible ascension of an Arturo Ui” is usually gradual.6 It is possible in some cases to know the point of no return, say when the ruler turning dictator assassinates an opponent, bans a key opposition journal, manipulates elections and laws to stay in power, jails people for their opinion, victimizes a minority openly, or sails roughshod over the separation of powers. Healthy democratic societies generally get rid of their ruler for what appears as peccadillos in the register of dictators. It is hard to imagine that a democratic ruler will kill his people just to remain in power, despite conspiracy theories of all types.7 “Conspiracy theory” becomes simple conspiracy at common law, a crime to be punished. Conspiracy theories, which abound in the Middle East, are lazy intellectual constructions, alternatively a frustrated expression of citizens who feel they have no say, and no responsibility, in the fate of their societies and countries. When they develop in a democracy, they ring serious alarm bells on the perception of the judicial system. The lack of an immediate and healthy reaction to a budding criminal behavior by the ruler is a bright-line marker of the difference between democratic societies and those that are not. Prisoners of opinion provide another strong indication that dictatorship is upon a country. It is simply criminal for a ruler to arrest, disappear, or kill a person for her opinion.

In his play The Resistible Rise of Arturo Ui (Original German Der aufhaltsame Aufstieg des Arturo Ui, 1941), Bertolt Brecht describes with great humor the resistible empowerment of a dictator by a submissive society. Dictatorship takes a while to develop. Occasionally it may come suddenly, as in a military coup. A  philosophy of nonviolence naturally opposes military and similar coups d’Etat, the more so when a military junta self-anoints as government, like SCAF and then Sisi did in Egypt. In contrast, when a rising political thug turns into a dictator, the moment when mass mobilization becomes imperative, or any lesser measure capable of standing up to the budding strongman, becomes a matter of political opportunity that is more difficult to pin down. 7 See the president killing the gardener arguments in Chapter 15 note 120 and accompanying text. Of note is that conspiracy theories operate generally in the case of the killing of a president, not in the killing by the dictator of his opponents. 6

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One of the hurdles on the way to the unachieved Kantian peace is that non-democratic societies wreak havoc domestically and internationally because the would-be dictator is not brought to justice soon enough.8 A dictator is like a bully in the school. Unless he is put in check early on, he continues bludgeoning his entourage into submission and aggrandizing his dominion of fear. In democratic societies, mechanisms that put in check the bully in power may be heavy and complex, but the law generally works, and elections constitute an important tool to change would-be bullying rulers.9 On the whole, “becoming a dictator” elicits a host of practical considerations, with some significant thresholds that are clear enough to loudly ring the alarm bell. In the Middle East, the line has long been crossed.10 In cases where the dictator is ceding way, after the revolution, to a ruler similarly tempted, the key is to stop the bully spirit early enough. The sorry story of the elected prime minister of Iraq in 2010 and of the first democratically elected president of Egypt in 2012 show how important it is to remain vigilant on the way to democracy after the dictator has fallen. Bad habits of the boss mentality persist for a long time. Golden Exits Similarly practical is the question of the “golden exit.” In the literature on transition, a strong realist school suggests that indicting a ruler ensures that he never give up his rule to avoid ending up in prison.11 The practical upshot is that room must be left for a golden exit, which spares the lives of thousands. If the exit road is completely shut, the dictator is cornered and has no choice but to intensify the repression in a fight to the death. Such logic fails a number of causality tests, for its premise is that a dictator is interested in leaving if one offers him and his family immunity from trial and a retirement package. Dictators do not function in this way, and by the time the revolution is in full swing, the political logic of their demise is compelling in the fatidic spiral described earlier.12 The dictator loses ground, gives way, even apologizes for past errors, only to realize that concessions

The typical example is Hitler’s Munich putsch in 1923, when he could have been seriously punished, in contrast with Kristallnacht (1938), when his retribution was already way more difficult. All petty thugs have similar moments when their brutal behavior goes so unpunished that the road to dictatorship appears suddenly wide open to their expansive rule. 9 In frail democratic societies, the work of the late Max van der Stoel (d.2011) in preventing former Soviet satellites from descending to the ugly route appears exemplary. This and other such instances need to be documented and theorized more thoroughly. 10 In the case of Israel, it is more complicated by a central factor, which is the reluctance of the government to kill one’s own, with the government defined as Jewish and “one’s own” circumscribed to Jews. In other Middle Eastern countries, the government kills one of its own without a problem. I am sensitive to this argument as it was made to me in conversation, sometime in the 1990s, by Ahmad Chalabi. But see contra above Chapter 3 notes 57–58 and accompanying text, arguing that brutally discriminatory countries define their “own” citizens, whom they then set to cast equality upon. Palestinian refugees are “absentees” (as defined by Israeli law) who simply do not exist. 11 For instance, Nelson Mandela negotiating with De Klerk to end apartheid, see Robert Mnookin, Bargaining with the Devil, New York: Simon and Schuster 2010, 106–36. 12 Above Chapter 3, section on “the spiral.” 8

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he makes or might be ready to make are simply insufficient to stay in power, let alone to avoid being tried when deposed. There is also a false psychological argument at play in the golden exit scenario:  it suggests that the dictator is always disposed to cut his losses, as would a reasonable human being. So long as immunity is ensured, it is thought, and a big financial package secured, then a plush exit functions like a golden parachute for executives in large firms who are offered a way out by others taking over their jobs. For various reasons, the comparison with the corporate golden parachute is inept. Bargaining away accountability is both false and unnecessary. Bargains are false because the psychology of a dictator, as well as the logic of the revolution, are incorrectly distorted in a game theory of sorts that is utterly incapable of factoring in a multi-causal, complex set of considerations in a fluid and evolving situation. The dictator of Syria intensified his violence without an indictment. The dictator of Libya intensified his violence despite an indictment. Something else in the psyche of the dictator is at play, and the argument against “cornering” the dictator like the proverbial wounded animal with his back to the wall is simplistic. Bargaining guilt by gilded amnesty is bad for two other, more significant reasons. Mostly it is not necessary. Often the dictator flees out of fear arising from the mounting revolutionary tide, and finds refuge in a place that he trusts enough because of a privileged relation with its rulers. The revolution is usually incapable of standing in the way of his exit. This was the case of the Shah in 1979, and of Ben Ali in 2011.13 No bargain is relevant there, obviously, and the receiving country will bear the consequence of assisting the deposed dictator when the successor government and/or his victims organize themselves well enough to request a proper extradition. Another reason for the inappropriate simile of the golden exit is that some mediator will always intervene to propose one or more countries that offer refuge to the dictator as a way out. Good luck to him, but he should know that immunity for the dictator is void if one does not have the proper mandate from the victims. Only the victims or their next-of-kin if they have been killed or incapacitated can give a mandate for such existential bargain over the pain inflicted on their loved ones. This difficulty is compounded in the case of a nonviolent revolution as the trial of the dictator is part of its philosophy. The victims of dictatorship have all a stake in the quid pro quo for shunning violence through the revolution’s painstaking ascent.14 No one but them, collectively and down to the last demonstrator killed or beaten up by the regime, is entitled to give up their fundamental right to the trial of their victimizer-in-chief. Considering that dictatorship is a crime against humanity that by definition involves hundreds or thousands of victims, assembling the amnesty or pardon is simply impossible.15

Even then, it is difficult to find a place of refuge. The Shah spent his last exile years in constant movement because of the pressure by the Iranian government on refuge countries claiming him back for trial. The new Tunisian government has failed to exercise the right pressure on Saudi Arabia to see Ben Ali surrendered to justice. 14 See the argument over difficult cases, hundreds in history, such as Rudolf Kasztner negotiating with the Nazis to save hundreds of Jews from certain death, Mnookin, Bargaining with the Devil, above note 11, 51–82. 15 One can find the argument made already at the bar of the French Convention where families of the victims of the massacres of August 10, 1992, testified, on December 9, 1792, before the Conventionalists turned 13

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For all these reasons, the golden exit has no place in the revolution’s nonviolent philosophy. It undermines its integrity by establishing an immunity that the opprobrium attached to a crime against humanity can never allow.16 It ultimately rests on false premises, which the will we have from the very pen of Mu‘ammar al-Qaddafi exemplifies: “We could have bargained over our issue [stepping down] and received a secure and stable personal life, and we received many proposals, but we chose confrontation as duty and honor.”17 Inevitably, this sort of bargain ends up being fraught with impracticalities. It could happen of course, but it more often fails into secret but impractical arrangements accompanied by rumors—for example that Chavez invited Qaddafi, the Russian Foreign Office is seeking a country for Asad . . . —so the revolution should not agonize too much about it. A nonviolent revolution may not be able to prevent the dictator from fleeing. If exile happens, the post-revolutionary government and the victims will accommodate the flight as an event that will remain a victory landmark, and then go for him abroad on the strength of the universal argument that dictatorship is a crime against humanity. The new government can establish an effective trial, in absentia if absolutely necessary, and can press extradition or seek the support of the International Criminal Court by becoming a party to it in order to benefit from its worldwide jurisdiction. As a nonviolent revolution unfolds, however, the “golden exit” argument undermines its spirit and the coherence of its call by shielding the dictator from the accountability that is an essential constituent part of the philosophy of nonviolence. On the Death Penalty To embrace this philosophy further, we must now consider the effects of nonviolence on the outcome of the trial. judges, see Albert Soboul, Le Procès de Louis xvi, Paris:  Gallimard 1966, 132–33 (the plea of the victims before the Convention was elaborate as they argue for the death penalty on account of the application of the law equally to all. It bears 221 signatures, id., fn 30, at 263). See also Saint-Just, second speech at the Convention, December 27, 1792, Le Pour et le Contre, Vol. 5, 325: “[C]‌e pardon, qu’on cherche à vous suggérer, c’est l’arrêt de mort de la liberté, et le peuple lui-même, doit-il pardonner au tyran? . . .  N’oubliez pas non plus qu’une seule voix, quand il s’agit d’un tyran, suffit pour empêcher sa grace. (This pardon, which they are trying to suggest to you, is the death sentence of liberty, and the people itself, should it pardon the tyrant? . . . Do not forget either that one single voice, when it concerns the tyrant, is sufficient to prevent his pardon.”) 16 The Yemen case is an unfortunate example undermining that essential aspect of accountability for a thirty-year dictator. While it morphed into a bad example for other dictators, especially with the encouragement of UN apparatchiks to take the road of Damascus with similar schemes in mind, the criminal story of Abdallah Saleh will hardly end at the GCC/Saudi escape route offered to the deposed Yemeni dictator. Although UN diplomats have a propensity to coddle dictators, this is not always necessary: throughout the Libyan revolution, the UN envoy to Libya never mentioned immunity as a way out for Qaddafi. 17 “kunna nastati‘ al-mutajara bi-qadiyyatina wal-husul ‘ala hayatin shakhsiyyatin aamina wa mustaqirra wa ja’atna ‘urudun [telling slip/typo, the published text uses /sh/ instead of /dad/, i.e. ‘urushun, meaning crowns’], wa lakinnana ikhtarna an nakun fil-muwajaha wajiban wa sharafan.” Qaddafi’s will, dated July 17, 2011. The will was published on several websites, including a pro-Qaddafi website http://www.muamaralgadafi.com/vb/archive/index.php/t-10743.html, visited mid-March 2013, but gone in 2014 (I kept a file as I suspected the site might go down). Although the authenticity of this “political will” is not proven, the bombast does sound like Qaddafi, including the poor Arabic and the grammatical mistakes.

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Many revolutions, violent and nonviolent, try their deposed dictator and his aides. The French revolution did so two centuries ago, as did the brief government of Cromwell in England a hundred years earlier. What is different in the nonviolent revolution is dual: in order to preserve its nonviolent nature, the revolution requests the trial of the dictator as it marches to depose him. I have examined this component trait at some length, because it is part and parcel of the philosophy of nonviolence’s order of reasons. Nonviolence also raises the question whether the abolition of the death penalty for the dictator is also part of its philosophy after the revolution has succeeded in arresting him. This is difficult philosophical terrain, even if the nonviolent advocate appears at first sight to be a natural abolitionist, but only at first sight. For one may accept that the trial is necessary for the nonviolent philosophy of the revolution, and yet consider that the death penalty as the ultimate sentence remains valid. In the necessary trial of the dictator, does the nonviolent philosophical trait of the revolution exclude his possible execution? It will be some time before the ink spilled over the death penalty will dry in legal, sociological, philosophical, and human rights circles. The arguments for and against are wellknown, but we need to examine them briefly for their eventual relevance to the discussion at hand. Supporters of capital punishment base it mostly on retributive justice. Kant provides a solid philosophical architecture for those who advocate the death penalty, and a particularly powerful one considering his position as the leading moral thinker of the Enlightenment and of perpetual peace. Following a retributive law (lex talionis) prominently featured by Hammurabi and reaffirmed in the Biblical and Qur’anic calque of “an eye for an eye,”18 Kant’s punishment retributes all breakers of the law. In this logic, murderers are punished by society that puts their victims in an equal position vis-à-vis those who harm them, a position that the state takes over and mediates in the spirit of retribution called on by the victim. I confess, in passing, that I never understood the philosophical difference among retribution, retaliation, and revenge. Kant’s is mostly an equality argument:  “The best equalizer before public justice is death . . . Accordingly, every murderer—anyone who commits murder, orders it, or is an accomplice in it—must suffer death; this is what justice, as the idea of judicial authority, wills in accordance with universal laws that are grounded a priori.”19 To Kant’s credit, his argument is that a mandatory death penalty for all murderers ensures that the wealthy and the powerful do not escape it. The argument of equality is accompanied by a more subtle argument of universality based on the concept of the murderer as co-legislator in the basic social contract.20 Kantian

This is anchored in Hammurabi’s founding calque ca mid-eighteenth century bce: “If someone breaks the tooth of a free man, who is his equal, his tooth will be broken” (CH § 200); and “if someone poaches the eye of a free man, his eye will be poached” (CH § 196). Retribution/lex talionis is qisas in Arabic, see the principle at Q. xvi: 126, and the calque developed in v: 45, “life for life, eye for eye, nose for nose, ear for ear, tooth for tooth.” The Qur’anic calque obviously derives from the Old Testament, ca twelfth century bce, where it gets repeated in Exodus xxi: 23–25; Leviticus xxiv: 18–20; and Deuteronomy xix: 21. 19 Kant, The Metaphysics of Morals (Die Metaphysik der Sitten,1797), tr. Mary Gregor, Cambridge: Cambridge University Press 1991, 107. 20 Id., 108:  “No one suffers punishment because he has willed it but because he has willed a punishable action; for it is no punishment if what is done to someone is what he wills, and it is impossible to will to be 18

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capital punishment advocacy rests on the impossibility of man legislating his own exception to the retributive law. As a part of society, Kant’s murderer formulates the penal law through his participation in the social contract, for he is a citizen like others, and cannot set himself apart from the retributive force of what he willed as law. Even if he ends up alone languishing in prison on an island when everyone else has left, in Kant’s forceful image in this section of the Metaphysics of Morals, the murderer cannot escape the death penalty. Opponents of the death penalty provide an array of considerations anchored, thirty years before Kant, in Cesare Beccaria’s treatise Dei Delitti et delle Pene.21 In the course of two centuries, Beccaria’s initial arguments have been articulately honed by Amnesty International. Against Kant’s equality in retribution, the abolitionist’s response is about the fallible and selective dimension of capital punishment that makes it necessarily unequal in practice. By rejecting the death penalty, society prevents a dual inegalitarian pitfall: “[First] As long as human justice remains fallible, the risk of executing the innocent can never be eliminated . . . [Second] The death penalty is discriminatory and is often used disproportionately against the poor, minorities and members of racial, ethnic and religious communities. It is imposed and carried out arbitrarily. In some countries, it is used as a tool of repression to silence the political opposition . . . ”22 The weak and poor disproportionately suffer from the death penalty, and political dissidents are the special target of brutal regimes. Against Kant’s equality through the death penalty, the sociology of death sentences proves the exact opposite. Capital punishment consecrates inequality instead of upholding it.

punished.—Saying that I will to be punished if I murder someone is saying nothing more than that I subject myself together with everyone else to the laws, which will naturally also be penal law if there are any criminals across the people. As a co-legislator in dictating the penal law, I cannot possibly be the same person who, as a subject, is punished in accordance with the law; for as one who is punished, namely as a criminal, I cannot possibly have a voice in legislation (the legislator is holy). Consequently, when I draw up a penal law against myself as a criminal, it is pure reason in me (homo noumenon), legislating with regard to rights, which subjects me, as someone capable of crime and so as another person (homo phaenomenon), to the penal law, together with all others in a civil union. In other words, it is not the people (each individual in it) that dictates capital punishment but rather the court (public justice), and so another than the criminal; and the social contract contains no promise to let oneself be punished and so dispose of oneself and one’s life. For, if the authorization to punish had to be based on the offender’s promise, on his willing to let himself be punished, it would also have to be left to him to find himself punishable and the criminal would be his own judge.” 21 Cesare Beccaria, Dei Delitti e delle Pene (On crimes and punishments), London:  Presso la Società dei Filosophi (facsimile edition of the first edition), Milan: Feltrinelli 2001 (Original 1764). Beccaria’s main argument against the death penalty is in the barbarity of society taking one’s life when it prohibits any of its members from doing the same. Kant does not take him seriously: “In opposition to this the Marchese Beccaria, moved by overly compassionate feelers of an affected humanity (compatibilitas), has put forward his assertion that any capital punishment is wrongful because it could not be contained in the original civil contract; for if it were, everyone in a people would have to have consented to lose his life in case he murdered someone else (in the people), whereas it is impossible for anyone to consent to this because no one can dispose of his own life. This is all sophistry and juristic trickery.” Kant, The Metaphysics of Morals, above note 19, 108. 22 All references to this and subsequent Amnesty International “facts on the death penalty” from AI’s site. The Arabic version is available at http://www.amnesty.org/ar/death-penalty/myths-facts/facts.

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Against the Kantian universalist argument that the citizen turned murderer cannot legislate an exception to his own case, the argument is that “[t]‌he death penalty is the ultimate denial of human rights. It is the premeditated and cold-blooded killing of a human being by the state in the name of justice . . . It is the ultimate cruel, inhuman and degrading punishment, whatever form it takes—electrocution, hanging, gassing, beheading, stoning, shooting or lethal injection.” This derives from Beccaria. Against the universalism of retributive justice for the murderer/legislator, the right to kill the murderer is countered by the right to life as a fundamental, basic, absolute human right which no law can trump. Not only can the state make an irrevocable mistake by breaching the universality of the right to life, but it also commits a foul deed in carrying out the ultimate cruel and unusual punishment: “Like torture, an execution constitutes an extreme physical and mental assault on an individual.” In short: the universality of Kant requiring the murdering citizen to be murdered under a participatory citizenship in equal lawmaking is countered by Beccaria’s universal clemency couched in Amnesty’s integrity of human life. Put in these terms, there is a clash of absolutes, which then receives temperance on both sides. Even the most determined supporter of the death penalty for murderers will accept exceptions, ranging from the absolution of the killer acting in self-defense—criminal codes admit that you can kill your aggressor if you have reasonable grounds that he is out to kill you imminently—to exceptions related to age, mental condition, or some extraordinary situation.23 The strongest opponent of the death penalty accepts temperance from the converse perspective: the right to kill a criminal escapee by the agent of the state if he cannot be arrested without an imminent threat to the life of his pursuers. Absolutes therefore get breached on both sides. The arguments for and against the death penalty operate generally in the context of a “normal” society.24 If we take this further to judge the exceptional situation where the nonviolent revolution is on the march against a dictator accused of crimes against humanity, a more complex scene needs to be addressed. Several specificities arise in this context. The law has it easier than political science or sociology. At its most abstract, law equates the political ruler committing a crime with the common criminal. To deal with a common murderer, the system has been honed over centuries of a slow and occasionally difficult debate over responsibility: self-defense, mitigating circumstances, absence of discernment—these are important exceptions. But they are exceptions, for the rule is accountability. Common

One of the most poignant decisions in recorded English cases is The Queen v. Dudley and Stephens (1884), reproduced in Michael Sandel, Justice: A Reader, New York: Oxford University Press 2007, 3–7, where men stranded in a lifeboat decide to kill and eat the younger and weaker among them to survive. The court held that they were guilty of murder, irrespective of the circumstances, but the Crown commuted their sentences to six months in jail. 24 In a Middle Eastern context, the “cultural relativist” argument is inapposite factually. Even Ben Ali banned the death penalty in Tunisia, while Saudi Arabia and Iran apply it widely, and the reader can find moving testimonies against capital punishment by leading Arabs and Muslims thinking along the same lines in a collective effort carried out with Amnesty International in the 1990s; see Mallat ed., “Dossier sur l’abolition de la peine de mort,” Travaux et jours, vol. 70, 2002, 155–260. Among the most remarkable testimonies are those who lost members to their family in resistance to dictatorship and yet oppose the death penalty on record. The Dossier was also published as a separate booklet. 23

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crime is intolerable to society, and the principle is punishment consecrated by law irrespective of the motive. Mutatis mutandis, the killer ruler is treated in the same way. Political science and sociology have a harder terrain to navigate. The common law criminal does not elicit social sympathy, although there lingers a human fascination with murderers that finds its best expression in such masterpieces as Truman Capote’s In Cold Blood (1966) and Robert Musil’s Ein Mann ohne Eigenschaften (1942), where the novels’ criminal convicts—respectively Smith and Moosbrugger—find a forceful empathetic ear, the first with a famous American maverick author and his elite readership of New York, the second with the wider Austrian literati class. This sympathy finds a universal echo: a rare report of a death penalty trial in Tripoli (Syria) in July 1668 shows the reluctance of the judge to execute a local mischievous character who goes by the expressive nickname of ‘Antar, a bombastic thug who terrorizes the local population (albeit without seemingly committing murder).25 Perceptions on the line between political and common crime fluctuate, and the death penalty fluctuates with them. Once upon a time, political crime in liberal Europe was a defense in law against the death penalty, until it was jettisoned formally by the French Court of Cassation in the 1930s.26 Nearer to us, the atmosphere shifted. “Terrorism” has grown into a political crime that gets punished more severely. On the other hand, a common law criminal who machine-guns kids in a Connecticut school triggers similarly universal opprobrium as the organizer of civilian planes turned into missiles against trade towers. The serial killer and the criminal against humanity fall under the same criminal canopy of worldwide condemned atrocity. Part of the solution to the unusually dense thicket can be found in the very concept of crime against humanity. A  crime against humanity requires a particular intensity and a significant number of victims, and it includes a clear political intent, which is wanting at common crime. In the argument defended in this book, dictatorship is the ultimate overarching category of a crime against humanity, and is by nature political. What we face in a revolution is a special kind of political animal called a dictator, who commits crimes against humanity every day to remain in power. In that case, does the multiplied nature of the crime require a more severe regime of retribution that includes the death penalty? The reader can now see the drift of the argument veering steadily against abolitionism. In the degree of crimes any society must recognize, dictatorship is the harshest, and deserves a harsher punishment that a common crime, even one committed by a serial killer or the machine gunner of children at a local school. Dictatorship as a crime against humanity within the country gets an even higher degree of condemnation than when crimes against

See presentation and references in Mallat, Introduction to Middle Eastern Law, above note 3, 80–81. The full case can be read in Khaled Ziadeh, Al-Sura al-taqlidiyya lil-mujtama‘ al-madini (the traditional image of urban society), Tripoli: Manshurat ma‘had al-‘ulum al-ijtimia‘iyya 1983, at 88–90. 26 French Cour de Cassation, Criminal Chamber, August 20, 1932 (“The Gorguloff case”). The court found that the assassination of the French president of the Republic Paul Doumer by “terrorist” Paul Gorguloff was no different than a common murder, and that its undoubted political intent did not compel extenuating circumstances or a bar to the death sentence attaching to political crimes in the criminal code. Gorguloff was executed on September 14, 1932. 25

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humanity are committed toward another people, in a war for instance. Although both reach to the bottom of inhumanity, massively killing one’s own people shocks the human mind more than killing a noncitizen. The abolitionist is therefore losing even more terrain to the supporter of capital punishment for the dictator’s crimes after a nonviolent revolution. By any measure of comparison, the common crime pales before the dictator’s. To defend himself on the political science/sociology terrain, the abolitionist needs to move into atmospherics. The time-honed argument that “blood will draw blood” is an empirical observation that cannot rise easily to philosophical principle. I will try nonetheless to defend abolitionism for the nonviolent revolution’s trial of the fallen dictator, on the strength of two conclusions reached earlier in the book. The first is that nonviolent revolution is morally and practically superior in its drive to remove a dictator than is violent revolution. Keeping the high moral ground requires that spirit to prevail beyond the nonviolent revolutionaries’ success in bringing the dictator down without shedding his blood. The second conclusion is that constitutionalism is much more likely to work as a new social contract whose people and leaders have rejected spilling the blood of their victimizers. In both cases, I am using a Gestalt perspective. In the first case, conjuring up revolutionary atmospherics to reject the death penalty can be found in an argument common to many revolutions. “I will never lose sight [of the reality] that the spirit in which we shall judge the king shall be the same with which we will establish the republic.”27 If the spirit of the revolution that establishes the republic is nonviolent, then the spirit of the republic when it judges the dictator shall be nonviolent. As for the constitutional argument in a Gestaltian approach:  Granted that the state post-dictatorship is violent, what if the violence it exerts can be moderated to replicate, as much as it is philosophically possible, the nonviolence of the revolution that gets refounded on the basis of a democratic social contract? In that case, the judge of the nonviolent revolution will continue to deal pain, but he will no longer deal death, and no one can deny the physical pain of the death penalty. After all the pain that judges inevitably deal excludes the physical violence that torture constitutes, and the physical violence exercised by order of the judge is always limited to the strict amount needed by public force to prevent the criminal from fleeing prison, or from disobeying reasonable orders given to convicts. A coherent philosophy of nonviolence that includes the abolition of the death penalty in the trial of the dictator may not be possible. We are therefore limited to atmospherics, in a Gestalt-like spirit of nonviolence. Overbroad arguments remain, about blood drawing blood, empirical considerations on the arbitrariness, ineffectiveness, and irrevocability of the death penalty Amnesty International-style, and a Tocquevillian note on how the corrective dimension of criminal punishment disappears when the person who is being punished gets executed.28 All these arguments and more combined together lead to Gestalt, atmospherics. “Je ne perdrai jamais de vue que l’esprit avec lequel on jugera le roi, sera le même que celui avec lequel on établira la république.” Saint-Just, November 13, 1792, in Le Pour et le Contre, Vol. 1, 187. See also Condorcet above note 4. 28 “They say: our laws no longer kill. Therefore we have a penitentiary system. There is a lapse in logic: it is quite obvious that the death penalty excludes the idea of a penitentiary system; but once this penalty abolished, 27

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There is one further philosophical argument against the death penalty for the dictator and his aides in the wake of a nonviolent revolution. After all, we all share, to different degrees, some responsibility for our silence when Voltaire’s infâme ruled unimpeded, and we all have dirtied our hands in failing to muster enough courage to stop the rise of dictatorship and its entrenchment. We did not stop the bully in time. By killing the dictator, even in the wake of a proper trial, we, the revolutionary society at large, forget our share of responsibility in letting dictatorship succeed in becoming an unpunished crime against humanity until we went down massively into the street to accomplish the revolution. Having abdicated our responsibilities the moment when we should have collectively stood up to the rise of the despot, we can no longer wash our hands completely and request the judge to sentence him to death. We can draw further comfort as abolitionists in a philosophy of nonviolence, a contrario, from the very spirit of the French revolution, which was violent from the day the Bastille was stormed, celebrated as such, and incorporated in the legitimacy of the rise in arms against the king. No wonder that the revolution ate its own children, and that it has posed for generations difficult moral questions that professional historians and lay readers alike have been unable to solve. How can one like a revolution that has been so bloody? In marked contrast, the spirit of the Middle Eastern revolution shunned violence from day one of the massive popular revolt locally in 2006 Lebanon, 2009 Iran, and regionally since 2011. Combining abolitionism with the constituent belief of the revolution in the trial of the dictator as an essential part of its philosophy, is consistent with conjuring up that same spirit to forever stay the hand of the executioner, including against the most criminal of all criminals, the dictator. “The theory of your judgment will be that of your magistracy: and the measure of your philosophy in this judgment, will also be the measure of your liberty under the constitution.”29 There was a final argument for those who beheaded Louis, which they built on the danger that a deposed dictator continues to provide in a counterrevolution. The dictator is a “unique” case, because he morphs into a magnet for the counterrevolution. “Uniqueness” is what Robespierre built upon to depart from his previous “principled” stance against the death penalty. He was ready to abandon principle just for Louis, on the notorious argument that the nation will die if Louis does not: “I regretfully pronounce this fatal truth . . . But Louis must die because the nation must live.”30

the penitentiary system no longer exists virtually; a man no doubt needs to be alive to be put in prison.” The quote comes from Tocqueville’s comparative investigation with his colleague Gustave de Beaumont of the prison system in America and France following his visit to the United States in 1830, Ecrits sur le système pénitentiaire en France et à l’ étranger, as cited by Gilles de Robien, Alexis de Tocqueville, Paris: Flammarion 2000, 155–56. 29 “La théorie de votre jugement sera celle de vos magistratures: et la mesure de votre philosophie, dans ce jugement, sera aussi la mesure de votre liberté dans la constitution.” Saint-Just, Speech at the Convention Nationale, November 13, 1792, Le Pour et le Contre, above note 4, Vol. 1, 187. 30 “Je prononce à regret cette fatale vérité . . .  Mais Louis doit mourir parce qu’il faut que la patrie vive.” Robespierre, First speech at the Convention, December 3, 1792, Le Pour et le Contre, above note 4, Vol. 3, 401. Robespierre was a fervent abolitionist less than two years earlier; see his “Discours sur la peine de mort” before the Constituent Assembly on May 31, 1791 (available e.g. on Wikipedia), where he describes “scenes

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Two hundred years before the Middle East we live in, the French revolutionaries faced the dilemma in equating the death of the dictator with the birth of the new social order.31 At least one of the French constituents turned judges solved it in a way that was consistent with his opposition to the death penalty. It was, again, Condorcet. Against the Robespierrist faction who saw Louis as the continuing instigator of violent counterrevolution, including foreign invasion, Condorcet kept to his principles. For Condorcet and a large number of French deputies confronted by the king’s crimes, there is no room for a revolutionary exception: I believe the death penalty is unjust whenever it is applied to the guilty who can be kept without danger for society; and this truth is capable of rigorous demonstration. I believe that with the exception of this unique case which cannot occur in a truly free constitution once it is well established, the total abolition of the death penalty is one of the most efficient ways for the improvement of the human species, by destroying this tendency to ferocity that has dishonoured it for such a long time. I believe that the example of murders ordered by the law is the more dangerous to public morality as the constitution of a country leaves to men a greater portion of their natural independence. Penalties which allow correction and repentance are the only ones suitable to a regenerated human species.32 Robespierre was profoundly mistaken: there is no risk to France’s existence if the nation keeps the deposed dictator alive after a proper trial. Saint-Just was perversely right: the trial of the dictator reflects on the society that the revolution commits to build, and the sentence is very much part of the trial. History ridiculed them both on this score. No one can accept that the future of the French Nation was conditioned by the beheading of Louis. Saint-Just lived in his own flesh, at age 25, the logic he set on its head. The Terreur he participated in unleashing took his own life on the guillotine, since that was the logic of the revolution killing its former dictator rather than leaving him to die in prison. Condorcet did not have to betray his abolitionist convictions. He, again, rode the high philosophical ground.

of death” administered by society as “cowardly assassination” (“ces scènes de mort, qu’elle ordonne avec tant d’appareil, ne sont autre chose que de lâches assassinats.”) 31 I am talking here about archetypes. Examples remain vivid in the case of Saddam Hussein, inspiring or directing from his cell a violent counterrevolution, and that of Abdallah Ocalan, who was spared execution in Turkey on account of the yearning of the Turkish government for an alignment on the abolitionist position of the EU members. The government and judges of Iraq were wrong, Turkey was right. 32 “Je crois la peine de mort injuste toutes les fois qu’elle est appliquée à un coupable qui peut être gardé sans danger pour la société; et cette vérité est susceptible d’une démonstration rigoureuse. Je crois qu’à l’exception de ce cas unique qui ne doit point se présenter dans une constitution vraiment libre, une fois bien établie, la suppression absolue de la peine de mort est un des moyens les plus efficaces de perfectionner l’espèce humaine, en détruisant ce penchant à la férocité qui l’a trop long-temps déshonorée. Je crois que l’exemple de meurtres ordonnés au nom de la loi, est d’autant plus dangereux pour les moeurs publiques, que la constitution d’un pays laisse aux hommes une plus grande portion de leur indépendance naturelle. Des peines qui permettent la correction et le repentir, sont les seules qui puissent convenir à l’espèce humaine régénérée.” Condorcet, Le Pour et le Contre, above note 4, Vol. 2, 46-7.

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With all these arguments pro and contra, the abolition of the death penalty may not be part and parcel of the philosophy of nonviolence. Short of a decisive rejection of capital punishment for the dictator and his most ruthless aides, I am content with as decisive a negative philosophical conclusion as possible. If the argument of this book is correct, the nonviolent revolution needs the dictator to be tried. It does not need him to hang. On “the Right to Kill a Dictator” Let us return briefly to indictments. “Indictment” is typically a common law term. The trial after indictment takes place only if the defendant is physically present, in close connection with habeas corpus as a procedure central to the development of the common law. A trial will take place under the civil law despite the accused’s absence. His absconding or flight will propel an inevitable result of the trial, which is a condemnation in absentia, par contumace. In the common law system, everything stops at the indictment, and the trial resumes only when the accused is arrested or voluntarily surrenders to justice. It is not clear which is the better system for crimes against humanity, but the increased global domination of the US legal system has effectively forced most international and mixed tribunals to favor the common law procedure. In a domestic common law court, once indicted, the defendant who does not show up is considered to be a legitimate target of forceful arrest, and he can be killed by duly mandated state agents—police, constables, marshals, special forces—if he resists them threateningly. In a French civil system, the same can happen at various stages of the process as well, but the legitimacy of using violence, including killing the accused in case of armed resistance, appears to be morally stronger when the trial is brought to an end in a judgment in absentia.33 Although the process is limited by the lack of appearance of the accused, there is more argumentation and more time given than when the trial stops at indictment, so in general terms the French civil law system is marginally more appropriate. The difference between the two systems is not determinative of radically different outcomes when the suspect refuses to appear before the court. In both cases, fleeing justice allows the use of force by the state at various points of the accused refusing to surrender A related difficulty arose in Belgium around the indictment of Sharon. While the investigative judge was dithering, the public prosecutor took a firmer stance, charging Sharon under the law. The problem was how to notify that decision to the accused, a sitting prime minister in a powerful country, with a known address, and an embassy to deliver the indictment. As I understood the prosecutor’s explanations during the closed sessions of the trial, the Belgian embassy did not deliver it, but the issue was solved when Sharon appointed a lawyer, and so it was not technically necessary to deliver the accusation personally with the lawyer being available. On the other hand, the specificity of the criminal law system, as opposed to other cases of a commercial or contractual nature, is such that a person so accused by the public prosecution must appear in court. As lawyers of the victims, we did not feel strong enough to challenge Sharon’s refusal to appear. We had provided the investigative judge with the statements of a key protagonist in the case. He stalled and ignored the request. We pressed the court on this issue at the session of January 23, 2002. Elie Hobeika, who had repeatedly stated that he was ready to go to Belgium to “clear his name,” was killed the following morning in a car explosion in Beirut; see above Chapter 15 note 65. No investigation in the killing was ordered by the Belgian court, and the one conducted in Lebanon did not produce any clues beyond a booby-trapped car stolen with fake identities that could not be traced further.

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to the trial. What is more important, from a philosophical point of view, is that a criminal system that allows violence to be exercised domestically against an escapee opens the door to the right of the state to kill him if he resists arrest life-threateningly to the police executing the judge’s arrest warrant. In that case, the state could still kill, even if it does not otherwise allow capital punishment. Although trivial domestically—and great material for crime movies, hostage situation dilemmas, and Wild West-style chases—this right to kill the fugitive becomes a puzzle in an international context if and when a competent court seeks force to bring the accused to justice. Examples are galore, none more illustrative than the cases of Bashir and Qaddafi. Since the indictment of Bashir took place over crimes against humanity in Darfur, one question has remained unanswered: In the absence of a state arresting him on the occasion of a visit, can another state step in to seize him? Can force be used to arrest Bashir within Sudan in order to execute the ICC warrant? The empirical answer has so far been negative.34 But why should a criminal against humanity not be pursued actively in the light of his indictment, very much in the same way that a common criminal is? After all, the common criminal is energetically hunted when he absconds domestically, and actively pursued in the country where he finds refuge through an extradition process if he flees abroad. The case of Qaddafi is illustrative of this paradox. Here is a dictator indicted by the ICC in a situation where an international coalition, acting under Security Council permission, is systematically bombing government forces in Libya for months on end. It is not clear whether Qaddafi was spared by the foreign attackers, or whether they conducted targeted operations against him. One would think that he would indeed be targeted, as the little guys under his command were ruthlessly killed. Plus there is a notable difference between the two targets of the NATO coalition bombing: Qaddafi was formally indicted; they were not. There is therefore a stronger reason to go after him and “take him out,” in the awkward metaphor, as a matter of priority over his hirelings and orderlies. We must then accept the conclusion that the indicted dictator who refuses to give himself up is wanted for justice “dead or alive” like any common criminal in a domestic setting. Preferably alive, of course, but dead if he resists arrest threateningly. Resisting arrest arguably triggers the right to use lethal force against him. This is a disturbing question, and a pressing one. Qaddafi was a case in point, so are now dozens of indictees across the world wanted for justice by international criminal courts. The way the ICTY, supported actively in this by the EU and the United States, went about forcing Serbia and Croatia to surrender fleeing war crimes and crime against humanity indictees, was not the lethal way. Still, violence was not altogether absent, and some puzzling facts render the picture less clear: the ICTY in former Yugoslavia has used European forces on the ground in Bosnia and elsewhere to close the net on fugitives. Over the course of time many indictees either surrendered willfully or went underground and were arrested There are of course several examples of countries sending in special forces to arrest people abroad James Bond-style, including Israel for Adolf Eichmann and Turkey for Abdullah Ocalan. In neither case was the action mandated by an international tribunal. Conversely, the ICC and similarly established UN tribunals have not yet used direct (arguably through Interpol’s agency) or vicarious force (the UN blue berets) to arrest a fugitive under indictment.

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by national security personnel working as vicarious agents for the ICTY. Pressure was relentlessly exercised by various EU governments on countries to surrender indictees in hiding, and many found the way to the Hague, including the most notorious figures of the Milosevic and Karadic type. When the new Serbian and Croatian governments resorted to force to execute the ICTY arrest warrants, the matter turned into a variation on extradition, same as any other common criminal. The theoretical difficulty gets therefore tempered by a set of mediations over time, until the person indicted as a criminal against humanity provides the memorable scene of a haggard character emerging from hiding in a less than flattering poise. Gone is the bombast in ordering troops to commit mass murder at the height of the dictator’s sad career. The scenes out of Saddam’s “spider hole” and of Qaddafi’ sewers offer special closure to the victims. This is still all vicarious force. International courts might eventually need their own police. Meanwhile, they will continue to rely on pressure short of the use of their own force to get all criminals arrested, and “taken out” if they resist arrest, including criminals against humanity. But the dilemma intensifies in a situation of an ongoing intensive war, like in the case of Qaddafi. As force was used in the wake of UNSCR 1973 (2011), did the ICC have the right to rely on NATO forces, including by requesting a special combat unit, to go after the named indictees? In that eventuality, can the sovereignty of the state where he is absconding from justice stand against his arrest? In our philosophical enquiry, would dictatorship defined as a crime against humanity entitle the use of force to arrest Qaddafi if he refused to surrender to the ICC indictment, as he did; more specifically, could he be targeted if he resisted arrest, as he did, by hiding behind thousands of armed soldiers, militia, and mercenaries? The question is not rhetorical. On the face of it, Qaddafi was not spared the use of force, even if no active attempt to target him evidently appeared to be part of the bombing of Libya. But the violent turn of the Libyan revolution makes the question beside our core philosophy. After all, the case of Libya is precisely one where the revolution was violent, and therefore outside the pale of the philosophy of nonviolence we are actively pursuing as the nexus of history. The question takes a different turn in the context of foreign intervention in a nonviolent revolution.

18 Coda On For eign Intervention and Non violence

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“Coda” is defined in one Oxford dictionary as “the concluding passage of a piece or movement, typically forming an addition to the basic structure.”1 This narrow meaning is useful for the order of reasons adopted in this book because coda qualifies this chapter as a marginal addition to the basic structure of a philosophy of nonviolence. Foreign military intervention is not a philosophical factor in a nonviolent revolution, which is for the most part a domestic mobilization. True, great revolutions are rarely shorn from neighborly meddling of various kinds, so upsetting they are to the prevailing regional and international order. That was the case in the Atlantic revolution, and the Middle East revolution since 2011 is no exception. But a nonviolent revolution, which represents the central rupture in the history of change as argued in this journey, takes place by definition irrespective of foreign intervention, military or otherwise. It concerns primarily society and the dictator. In the philosophy of nonviolence, where the people rise en masse and unarmed to remove an entrenched dictator, foreign intervention is a coda, almost an afterthought. It should not matter. But it does, not only because of the thin boundaries that a revolution reveals between established states, but because it takes place in the Middle East against an entrenched set of interlocked authoritarian practices from the formal protracted domination of Morocco over the Western Sahara, that of Israel over Palestine, all the way to the spread of the Shi‘i-Sunni/Iran-Saudi fractures to every single country where there is a whiff of a minority of Shi‘is or Sunnis. It matters additionally because we have also determined that dictatorship is a crime against humanity, and as such requires humanity to take an active part in the dictator’s comeuppance. All dictatorships in the world, including those persisting in China and Russia in the evolving twenty-first century, are scared of the nonviolence model of revolutionary change. http://www.oxforddictionaries.com/us/definition/american_english/coda.

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The legal literature on foreign intervention in revolutions/civil wars is as old as colonialism.2 This last chapter does not add much to that literature, which operates regardless of whether a revolution is violent or not. This concluding section considers the two main questions raised by armed foreign intervention in a nonviolent revolution. The first question is about “naked” military intervention in the shape of war or invasion launched by a foreign power. Can a nonviolent revolution call on a military intervention to counter a dictator’s resort to foreign military support by dictatorial governments, as in Bahrain, or the import of foreign militias and mercenaries, as in Syria and Libya? Can it call on the Responsibility to Protect doctrine against immense violence exercised by the dictator? More subtly, can it call for foreign military intervention instead of taking up arms itself? The second question derives from the discussion about dictatorship as a crime against humanity, and the consequent expectation of the dictator’s trial as part and parcel of a philosophy of nonviolence unfolding in history as we live it. I follow up here on the section at the end of the last chapter on the right to use force to arrest an indicted dictator, with a focus on nonviolence. In a nonviolent revolution, is use of force by foreign power(s) legitimate to implement a judicial decision that recognizes dictatorship as a crime against humanity? Let me consider the two questions in turn, then in a brief synthesis. Foreign Military Intervention as War When it comes to foreign armed intervention as war, there are two sets of possibilities relevant to the philosophy of nonviolence. Both make foreign intervention an aggravating, negative factor in the revolution. In both cases, foreign military intervention should be rejected. If, in the first possible set, the people rise against dictatorship and the fledgling dictator calls in foreign military support to shore up his repression, such intervention is not qualitatively different from the use of his own repressive troops. It just adds a more brutal, complicating element to the inherent violent nature of his dictatorship. In this case, the revolution can and should remain nonviolent. It will just have to succeed against a more brutal dictator. His embrace of foreign troops to put down the people, sent by like-minded dictatorial governments or hired as mercenaries, worsens the immorality of his violence. It makes the revolution more legitimate politically and philosophically, more powerful morally and practically.

As shown in the seminal books of Marti Koskennniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960, Cambridge:  Cambridge University Press 2001, and Anthony Anghie, Imperialism, Sovereignty and the Making of International Law, Cambridge:  Cambridge University Press 2005, public international law can hardly be divorced from the rise of colonialism. Remarkably, in Kant’s Treaty on Perpetual Peace discussed extensively in Chapter 5 above, the German philosopher makes a determined rejection of colonialism at various points in the text; see especially in the discussion of the third definitive article his emphatic denunciation of Europe’s conquest and subjugation of peoples in Africa, Asia, and America. Kant, Perpetual Peace and Other Essays, Ted Humphrey tr., Indianapolis, IN: Hackett 1983, 106–43, at 118–19.

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If, in the alternative set of possibilities, when the people rise against the dictator and are unable to prevail, they call in foreign military intervention to help them win, then the revolution will have lost its nonviolent anima. A nonviolent revolution should not need to summon up foreign troops to help it prevail militarily, because it should never reach the point of advocating and exercising violence in the first place. In this case, the nonviolent revolution that calls in foreign military support, including varieties of UN or other “peacekeeping” forces, will have lost its defining trait. The philosophical response is simple in both cases. Foreign military support called in by the dictator just adds to his machine of violence. Foreign military support called in by the nonviolent revolution ends the philosophical raison d’être of the revolution. The reality is grayer. By definition, foreign intervention in various forms and intensities is inevitable in momentous world-historical events. They would not be world-historic otherwise. We need to consider this gray area in the light of some dramatic developments of the Middle East revolution, but we should not lose sight of the whole discussion remaining a coda to the overall philosophy of nonviolence: namely, that foreign military intervention against the revolution adds a layer of brutality to the regime, and that foreign military intervention in support of the revolution empties it of its central meaning. In a nonviolent revolution, there is a legitimate question about the need to protect civilians from the Armageddon of ethnic cleansing, large-scale destruction, the use of mass weapons of death—in short the horrors one is familiar with when it comes to entrenched dictators of the Saddam, Asad, and Qaddafi type. Should democratic countries then intervene, on the request of the revolution and/or out of sympathy for the horrors inflicted on civilians, to rid the country of the dictator? The precedent of Libya comes to mind, under the “never again” argument following the Holocaust, Rwanda, and the Balkans. Benghazi was about to be obliterated by vengeful Qaddafi forces, and NATO intervened militarily at the last minute to save the city. Despite its actuality as recent history, we should not get sidetracked. The Benghazi dilemma conjures up the usual difficulties in engaging the fledgling Responsibility to Protect (R2P) doctrine: international law, the Security Council mechanisms and deadlocks, the magnitude of the repression and its imminence—all these factors have given way to a large and significant literature that evolves through an immensely complex thicket.3 There is arguably a

A large literature on the “Right to Protect/R2P” doctrine took its first formal shape in the International Commission on Intervention and State Sovereignty (ICISS) set up by Canada in September 2000. ICISS released in December 2001 a report on “The Responsibility to Protect,” Ottawa: Ministry of Foreign Affairs 2001. The report was followed by the “2005 World Summit Outcome” (General Assembly, A/60/L.1, September 15, 2005), which includes in a special section on “Responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity” (paras.138–40). Edward Mortimer showed in a precise summary delivered at Yale Law School on March 28, 2014, how the original R2P was watered down in 2005 by the return to the Security Council as the collective body that could allow it. See Mortimer, “On Intervention,” May 25, 2014, at RighttoNonviolence.org, and a shorter op-ed version in Arabic, Nahar, June 9, 2014 “hal min dawr lil-tadakhkhul al-khariji difa‘an ‘an huquq al-insan? (Is there a role for foreign intervention to defend human rights?).” R2P appears to have become prisoner again, at least formally, of the traditional UN Charter framework with despotic veto-wielding governments preventing its application for fear of the precedent in their own domestic rule.

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breaking point where the scale of the repression is such that large sectors of the population are at risk of being exterminated or displaced. It is just too hard to merely sit and watch a large-scale massacre take place. Whoever can do something, anything to prevent the massacres, including military intervention, should act. R2P is a matter of balancing the least of two evils, military intervention or letting people get slaughtered massively. This is a classic dilemma that has hardly found a coherent response and will remain opportunistic for years to come. When the massacre of civilians is so significant as to provoke worldwide nausea, the balance tilts more readily in favor of military intervention to protect them, generally by securing an area within the country that would be large enough to allow them a safe haven, and by working against the dictator and his executioners openly and effectively to reduce their firepower. In the debate over the Responsibility to Protect doctrine, the difference is not usually made between a violent and a nonviolent revolution. In the case of Libya, we have seen how the revolution might have been nonviolent for a few hours, maybe even for a few days in Benghazi and in Tripoli. Violence by the revolutionaries then took over.4 When Qaddafi regained the upper hand, it was a matter of balancing the costs of military intervention and the risk of Benghazi being obliterated. It was a classic R2P dilemma, and the geopolitics tilted in favor of stopping him. We must however make a different case for nonviolent revolutions. The Bahraini revolutionaries had it right twice. Despite the relentless repression of the government, they refused to take up arms. Despite the military intervention of Saudi Arabia and its Gulf allies that brutally smothered the revolution, they did not call for a foreign military counter-intervention, even if one were possible.5 Whether in Bahrain, in Saudi Arabia and the Gulf states since 2011, in Iran since 2009, in Lebanon since 2005, a nonviolent revolution does not require the firepower of foreign countries to come to the rescue. Better to sit it out, be inventive, patient, and steadfast. Nonviolence is a way of life, a strategy and a tactic, a philosophy that is integrated in the institutions that prolong it, and in the justice that it triggers when the despot has been deposed. Nonviolence cannot easily brook the destruction of its whole anima by injecting it with revolutionary violence, regardless of whether violence is local or imported. There remains a central, counterintuitive figure. It is decreed by the reality of an unfolding nonviolent revolution that is unable to prevent large-scale atrocities committed against the population. In that case, my argument is that any exercise of violence against the dictator is preferably restricted to the foreign power. Let me dwell a moment on this counterintuitive conclusion. Syria is a case in point. Until the summer of 2011, the revolution in Syria was massively nonviolent. The international community, and the US government in particular, did little

See Chapter 3 note 50 and accompanying texts. Although a more principled America could have used its military base in the middle of Manama to tell the Saudis that the perimeter of the base, and the capital, were off limits militarily, or at a minimum by threatening to close it so that it does not bear witness to the brutal invasion that killed the Pearl revolution at a time when a solution was at hand. For the “constitutional options” initiative in Bahrain, see above Chapter 3 note 36.

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to help, militarily or otherwise. A combination of factors slowly transformed a massive nonviolent revolution into a violent one.6 The only question thereafter was how much foreign governments that support the removal of Asad should arm the increasingly militarized opposition to the regime. As the opposition became more ruthless and more radical, international support waned, and the revolution fell into the trap that the dictator had openly and deliberately pushed it into: ever more brutal, extremist, and sectarian. I have underlined this transformation of the Syria revolution in Part I of this book as a profound mistake. Like Bahrain and other countries, the Syrian revolution should have doggedly kept to its nonviolent course. When the regime chose an all-out repressive course against civilians, the revolution arming was wrong, which only succeeded in accelerating the course of extremism sought by the dictator. This was the tragic dilemma of Syria in early summer 2011, and mutatis mutandis, Bahrain-like situations. Hard-hit civilians need to see a stop to the killing spree organized by the government, and at the same time keep the revolution on its nonviolent course. If we want to salvage nonviolence and protect the civilians from massive governmental onslaught, then the better course of action should be a foreign military intervention conditioned on the domestic revolution remaining nonviolent. Let me pursue the logic of this counterintuitive proposition. When a nonviolent revolution turns violent, it takes the worst possible course. To anticipate this deadly course of action, it is preferable for the revolution to remain nonviolent and seek foreign military intervention, rather than arm itself and turn violent. Further under this logic, if foreign military action is taken against the dictator, the nonviolent revolution on the ground no longer needs to turn violent. The use of violence by foreign intervention becomes in that case the only way left to secure the most important trait of the revolution, its nonviolent philosophy. This can even be more strongly articulated: the condition for foreign military intervention to allow the philosophy of nonviolence to prevail is for the revolution to remain nonviolent. How this arguably novel equation may play itself out logistically is terrain-sensitive. Each case varies in time, intensity, opportunity, and geopolitics. But the proposition constitutes the next frontier of nonviolent philosophy, one where the immense brutality of a government against its nonviolent population having “risen up in non-arms,” to coin a phrase, is so threatening to world peace and so shocking to the conscience of humanity that those who can do something to stop it cannot simply look away. The occasion to apply this policy was missed in Syria in the early months of the revolution, with tragic consequences that slowly turned “the Syrian revolution against Bashar al-Asad” into a “problem from hell.”7 The opportunity to prevent the descent into hell may have also been missed in Bahrain, Jordan, and Saudi Arabia, in Iran in 2009, in Lebanon in 2005. This counterintuitive conclusion stands in open contradiction to my earlier argument about the need for nonviolent revolutions to reject foreign military interventions in the first place, be patient, and regroup. After all, the argument is that the revolutionaries On Syria’s revolution turning violent, see above Chapter 3 notes 53–55 and accompanying text. For Right to Nonviolence’s various initiatives on Syria, see the dossier at http://www.righttononviolence.org/ initiatives-2/countries/syria/. 7 From Samantha Powers’s expressive title on the Rwanda-style tragedies, A Problem from Hell: America and the Age of Genocide, New York: Basic Books 2002. 6

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must accept that their nonviolent revolution is not succeeding because it is not massive enough, and not dynamic enough to trigger mass defections ending the dictator’s repressive machine. The normal course of action when the nonviolent revolution is incapable of removing the dictatorship is to consider reviewing its strategy, wait, and better re-organize its challenge to the ruling system. In the Middle East revolution, and elsewhere, in Burma, China, Ukraine, this has happened time and again, without triggering a foreign military intervention against the dictator. I must admit, however, that in situations of great moral distress for people revolting nonviolently and getting mowed down by an extraordinarily repressive machine, I sometimes give in to the need for a superior force from the outside to help the innocent. In the order of reasons, solace can perhaps be found in developing the counterintuitive proposition as an imperative to keep the nonviolent revolution nonviolent. If the reality of the dictator’s violence decrees persistent and massive nausea in the world at large because of the imminent or continuing massacre of the civilian population, then the nonviolent revolution requires a foreign military intervention that prevents it from resorting to arms. There may be an alternative to this dilemma. Foreign Military Action as Judicial Implementation In the section of the previous chapter crassly entitled “the right to kill a dictator,” I concluded that in a nonviolent revolution, the nonviolence-justice continuum means that there is no need to shed any blood, including the dictator’s. The dictator will stand trial when the revolution succeeds. Should he resist arrest life-threateningly then, he could be forcefully subdued, and in an extreme situation, wounded or even killed. By then, he would not be different from the fugitive life-threatening common criminal. The nonviolent philosophy of the revolution would thereby remain intact. What happens when the international criminal system responds to the nonviolent revolution’s expected demands to have the dictator indicted in a legitimate judicial forum, either under universal jurisdiction or before an international court—paradigmatically the ICC? In that case, one must assume that there is no clear prospect for his immediate ousting; otherwise the indictment would be rapidly vindicated by his deposition and his trial. But what if the prospects of his fall and arrest are distant, because the revolution is less active, or because the revolution is getting protracted, has failed, or appears on the defensive? Then the expected, suspended, trial that is the hallmark of nonviolent philosophy is undermined by the indictment’s delay or ineffectiveness. If a proper indictment is issued and an arrest warrant made effective internationally, would not the use of force, including wounding or killing the indicted dictator by some police or marshal-like international force, be warranted? This is a difficult problem, relevant in the case of Omar Bashir and several other African and Balkan indictees. Overall, we have seen how the ICC and the part of the international community that supports it and its sister tribunals have used only soft power, with the ICTY securing tangible results in Europe, and the ICC mixed ones in Africa.8 When

See above Chapter 15.

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there is no active revolution, this is probably the right course of action, which builds the net around the dictator in a slow, progressive pressure. The obvious reason for waiting is an international atmosphere where impunity for such massive political crimes has receded. If one waits long enough, while pressure builds up, the dictator and his close aides are trapped inside their country and restricted when traveling abroad to visit only like-minded dictatorial countries. Resort to the long-term fulfilment of justice is warranted further by the rise of democracies in the world accelerating the power of “soft” measures domestically and internationally, as dictators become increasingly prehistoric dinosaurs amid the rising clamor that dictatorship is the quintessential crime against humanity. Two hundred years ago, Condorcet and his republican companions set the bar at the highest philosophical level, joining together the conjunction of history as the ultimate tribunal, and law and morality as infallible guides, and adumbrated the argument that the Middle East revolution has decisively confirmed: “It is when there will be in Europe one single king to judge, that his trial, having become an ordinary case, will not merit that other nations looking at it be fixated upon it.”9 With advances and retreats over two hundred years, the world of the indicted dictator has narrowed down significantly, if never enough for his victims. It would have narrowed even more if 9/11 had not pushed back liberties and rights the world over at the turn of the century. And yet there arises a serious dent in the order of reasons when equating dictatorship with a crime against humanity in the philosophy of nonviolence. The dent gets illustrated in the following case: What if there is an active revolution that continues to be nonviolent, numbers of innocent victims swell by the thousands, and an indictment takes place in an international court? Would “taking out” the indictee resisting arrest be legitimate? On the face of it, this situation is not different from the common criminal who escapes justice. Once an indictment or acte d’accusation (or a condemnation in absentia in the civil law system) has been pronounced by a legitimate court in a quasi-universally accepted legal process, the indictee/accused/condemned who resists arrest violently could be killed by the police, marshal, or special force that is sent to arrest him. The situation domestically is banal. In the international field it is exceptional. But it is exceptional only in the absence of an active revolution. It is not so exceptional when a violent revolution is met with such a massive amount of violence that the dictator and/or his aides get indicted internationally. This was the case of Bosnia, Kosovo, and Libya. I have discussed the case of Libya above, which builds on the precedents of Bosnia and Kosovo, and concluded that distinguishing between the low-level soldier and the dictator at the top as legitimate targets of the armed intervention is unwarranted. But Libya, like Kosovo and Bosnia, provides an instance of a violent revolution that does not fit in the nonviolent framework of our investigation.

“C’est quand il n’y aura plus en Europe qu’un seul roi à juger, que son procès, devenu une cause ordinaire, ne méritera plus de fixer les regards des nations.” Condorcet to the National Convention, in Le Pour et le contre, Recueil complet des opinions prononcées à l’Assemblée Conventionnelle, Dans le Procès de Louis xvi, 7 volumes, Paris: Buisson, An I de la République [1792–1793], Vol. 2, 50.

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The question remains pressing when the nonviolent revolution successfully calls on enforcing the indictment of the dictator while the massive killings of unarmed demonstrators and related crimes against humanity persist and intensify. Our whole edifice of nonviolence then bursts at the seams. As the revolution only suspends the trial of the dictator until after he is deposed, as part of its nonviolent philosophy, what if it has an occasion to see him indicted before he is deposed, and the indictment is acted upon by force? If an indictment is warranted, and it obviously is as a dictator has committed crimes against humanity, it simply does not make sense for the nonviolent revolutionaries to oppose its implementation by force. In that case, would not there be prima facie justification to use force in support of justice? The Libyan precedent comes to mind again, but we have seen that the example is not adequate. In Libya, the revolution was violent, which explains war spreading its fog over Qaddafi’s judicial targeting. When the nonviolent revolution requests an international condemnation of the dictator in the shape of a judicial indictment by the ICC, or a specially established international tribunal, or even some universal jurisdiction in a country with a robust legal system, there is a legitimate question about the validity of the indictment being made effective under the hallowed metonymy of “the use of all necessary means,” including force. In the international sphere that the crime against humanity naturally extends to, use of proportionate and direct force would correspond to what the judiciary does in any domestic situation. Why should force not be provided against the dictator as well in the midst of his active killing spree against civilians rising up en masse to end his rule nonviolently? Use of force should be considered seriously in this case, not so much as an exception to the philosophy of nonviolence, but as an application before its time of the right of the nonviolent revolution to try the dictator. As the dictator is a criminal against humanity, and there is an occasion available to try him on foreign soil, or in an international tribunal, a license to kill in the face of the violent resistance of the dictator, in implementation of an international arrest warrant, could be activated under the aegis of the properly constituted international or foreign tribunal. The problems that ensue are more in the nature of the complicated practicalities of the international scene than in the principles of justice. People in the nonviolent revolution suspend the trial because they cannot conduct it before the dictator is deposed. But if international justice can be activated and its proponents have conducted a proper investigation while crimes against humanity can be seen in real time on any television screen, and if an indictment and an arrest warrant have been issued, then there is no sense in removing real teeth from the universal field of justice away from the nonviolent revolutionary, and deprive a people, massively victimized, of having a military action directed at their mass murderer. This is the logical consequence of the definition of dictatorship as a crime against humanity. When humanity acts on the definition, and the dictator is indicted as his killing spree continues, then why not “take him out”? In a nonviolent revolution, a ruler is a dictator in whose name and under whose direction a large number of crimes have been committed, and his criminal record has been massively documented over time against a dissident civilian population represented typically by prisoners of opinion jailed, disappeared, and killed. When the large-scale popular upheaval that we call a revolution starts, the dictator compounds a criminal record, built over years and

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decades, by using massive force against unarmed protestors.10 If he remains in his palace or in his bunker, and the nonviolent revolution is unable to unseat him in order to try him, would the victims as people rising nonviolently against him not be entitled to request from the international community of democratic states the use of force to target the criminal wherever he may be hiding? Even when there is no formal indictment because of some procedural hurdle, as a dictator is defined according to the demonstration of this third part as being a “criminal against humanity,” would not the use of force against him after some sort of summons be appropriate, especially when the mass killing of nonviolent protestors is proceeding prima facie in full plain sight of humanity? So the quandary in short: a dictator digging in and becoming fiercer, + a nonviolent revolution stalling because it is getting mowed down by massive brutality, + the prima facie killing of protestors intensifying, + an international indictment and arrest warrant, or some seriously constructed summons before an impartial court being available: Can then foreign force be used against the dictator for crimes against humanity? My answer is yes, but it remains tentative. This is an unseen situation as of yet, even if it could have been considered in nonviolent revolutions such as Lebanon in 2005, Iran in 2009, and Syria and Bahrain in 2011. Its logic appears implacable, but its danger for the integrity of the philosophy of nonviolence is real. * * * I will now try to reduce the danger of frittering away the nonviolent philosophy of the revolution by tying together the two branches of the Coda: foreign military intervention as war, and foreign military action in potentially lethal pursuit of a dictator as a criminal against humanity. The combined response is animated by the same philosophy, which is the necessary consideration of the nonviolent revolution together with the dictator’s indictment and trial as two of the three constituent components of a philosophy of nonviolence. Let me first summarize the conclusions reached in this Coda: 1. In answer to the dictator using massive force against a nonviolent revolution with an impending threat of annihilating large groups of civilians, foreign military 10

Some further practical considerations to consider: Dictators in the midst of a nonviolent revolution usually do not travel, in large part because they might appear to have fled the country, but one can imagine factual variations such as the travel of a dictator and other close aides and his immediate family to a friendly dictatorial country. These cases, like the golden exit options discussed in Chapter 17, are hard to anticipate in full detail. If principles are followed, the variations of practice should not be difficult to adapt to. The Tunis precedent is an alluring variation, which raises questions that can be answered. Ben Ali fled the nonviolent revolution of Tunisia to the safety of the Saudi dictatorship. The revolutionary government can and should hound him where he hides as a case of extradition, and the officials in the country of refuge who persist in shielding him from his victims may be considered accomplices, at least obstructers in the course of justice. In Tunisia however, the nonviolent revolution has succeeded, so the case is different from the pressing question addressed in this coda, namely whether a nonviolent revolution can be supported by outside force against the dictator in application of an indictment/prima facie occurrence of crimes against humanity while he is still in power. For Ben Ali, the failure of Saudi Arabia to surrender him to the Tunisian judiciary, or to an alternative forum that could try him more effectively, is a function of the weakness of the Tunisian post-dictatorship government.

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intervention is preferable to the nonviolent revolution taking force into its own hand and losing its defining soul. This is a variation of the Responsibility to Protect doctrine, but it is specific to nonviolent revolutions, and far more compelling in keeping the integrity of nonviolence as philosophy of history. 2. The use of foreign force in a nonviolent revolution to arrest the indicted dictator, and if not, to physically subdue him, and yes, possibly kill him if he does not surrender to an impartial tribunal of the ICC type, flows from the logic of a philosophy of nonviolence that equates dictatorship with a crime against humanity. In both cases, violence is considered philosophically warranted. Foreign military intervention against a dictator preserves the integrity of revolution as nonviolent. Foreign intervention as lethal action against the dictator resisting arrest responds to the principle of his trial as part and parcel of the nonviolent revolution. Taken together, the dual branches of my conclusion privilege the second proposition: if the dictator’s system is to be ended, the dictator must be at the top of the target list. This conclusion responds to the common sense that accompanies people’s reaction to the evil expression of the cruelest dictators in modern history, of the Hitler and Saddam type. History would have been far more clement on the world if they had been neutralized earlier by being arrested or “taken out.” In the order of reasons, both branches of the conclusion constitute an exception. A nonviolent revolution should succeed without the help of military intervention of either kind. My guarded readiness to depart from absolute nonviolence, and allow violence to be exerted directly against the dictator as a criminal against humanity, is animated by the moral philosophy running through this book: how to ensure the success of nonviolence as the central nexus of the philosophy of history, during the revolution and beyond, in the Middle East and elsewhere.

2011: Nonviolence or What happened? 1

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So what happened? And where are history and its philosophy taking humankind? Two hundred years after the Atlantic revolution swept Europe and the new world, the Middle East revolution is on the march, in continuity and rupture with its great sister: continuity through the set of yearnings that Tocqueville described best in Democracy in America forty years after the revolution freed the United States and France of colonial and national kingship; rupture with the concept that violence is a legitimate means to end tyranny. The world’s most convulsed region since the nineteenth century ushered in 2011 nonviolence as the philosophical nexus of history against the written record of four thousand years dominated by violence as the midwife of political change. In 2011, four dictators were deposed, three of them by nonviolent revolutions, and the nonviolent movement spread as wildfire from Oman to Morocco. We are in the midst of an Atlantic revolution-style world transformative event. True, setbacks are galore. The violent counterrevolution is also on the march. It takes various forms: former “comrades in non-arms” turning armed against each other, sectarianism eating up the elan of the exhilarating nonviolent revolutionary days, extremism in the shape of messianic religious calls fanning the flames of identitarian violence, remnants of the ancien régime maneuvering to hold on by hook and by crook, and a military caste bent on stealing the revolution from the civil state promised by the nonviolent revolution’s powerful march to depose the dictator. Where the nonviolent revolution succeeds in bringing down the

Que s’est-il passé? This is inspired by Gilles Deleuze, Mille plateaux, Paris: Minuit 1980, 235–52: “1874—Trois nouvelles, ou ‘qu’est-ce qui s’est passé” (arguing that novellas (nouvelles), stories (contes) and novels (romans), address the past with three configurations of linearity).

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dictators, the continuity of its philosophy is measured against the difficulty in sustaining its yearning by a society that freed itself nonviolently from political violence. There will be advances and upsets across the generational shift, and the result is not preordained. In a philosophy of history conceived through Martial Gueroult’s radical idealist framework, one that is informed by decrees of reality and an order of reasons developed in this journey, the nexus of nonviolence conjures up a set of paradoxes that its actors, the millions of nonviolent people in the street, solve in three necessary moments. During the revolution, nonviolence can be flawless. Not a single agent of the dictatorial government, including the dictator himself, needs to be physically harmed. Here, the formidable legacy of Gandhi, Christ, and Martin Luther King Jr. is vindicated in the absolute. When the revolution has removed the dictator, absolute nonviolence can no longer respond to the same pristine expression that prevailed in its long march. Then, the new government draws a path based on the coercive, binding, and violent nature of the law. Judges, who are simple citizens during the revolution, are back to dealing pain and death, every day. The nonviolent revolution knows that its success means violence regulated in a generally accepted legal framework called “republic” by Kant and “democracy” by Tocqueville. The revolution can be nonviolent in the absolute, but it knows that the constitutional and judicial moments follow, and that the system that it replaces is by necessity violent. The nonviolent revolution suspends violence in the belief that success means an inevitable government re-monopolizing violence, albeit one ruled by law under a new social contract called a constitution. During the revolution, the message of Gandhi and Christ is lived to the full. Once the revolution succeeds in removing the dictator, this core message can no longer be vindicated in absolute, for even Christ and Gandhi could not seriously conjure up a society that does not repress its criminals violently. The second moment in the order of reasons arises when the social contract is drawn anew. ‘Abdel-Rahman al-Kawakibi was prescient, in his tractate against despotic government, to squarely reject violence as a way to bring down dictatorship. He was also right that those who opposed despotism must be ready to replace it with a non-despotic government, and the question is about the continued common work of nonviolent revolutionaries that will allow them to anchor their success in the new state. The constitutional moment follows the revolution like night follows day. The new social contract shines as the promise of a conviviality based on human rights democratically protected. The safeguarding of nonviolence in post-dictator societies requires new constitutional tools. This book has identified some: for the nonviolent revolution to carry its spirit onto the making of a constitution, the divisiveness of elections constitutes one immediate risk. The nonviolent revolutionary front, inchoate as it is, requires its unity to remain firm on those fundamental values that carried the nonviolent revolution to success. It cannot be brusqued with a rapid concatenation of laws and constitutions. The lack of leadership does not necessarily mean that the revolution goes stale when it comes to the constitutional moment of nonviolence as nexus of history. The more people think for themselves, in typical Kantian fashion, the more they stand up and get counted, the less charisma needs to vest in one person, and the healthier society is on its way to confront its deep-rooted problems amid the ruins left by the dictator.

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Institutional design in the Middle East shares the LEJFARC legacy of constitutionalism worldwide, but various Middle Eastern countries will need to build on their own culture to read proactively its nonviolent antecedents, and to design their constitutions and accountability mechanisms in the way that accords best with the makeup of their societies. In the Middle East, constitutional conviviality has its own problems to solve, especially in the adaptation of a specific legal culture where religion is dominant, and transcending its sectarian demons is necessary. The rest of the world will have to devise its own way to societies where people no longer have to suffer physically for their politics. The Middle East is one region among many where dictatorship is finding its comeuppance as a crime against humanity, and where a new social contract is getting explored. With each region and country determined by its own specificity, the Middle East requires a different imagination than constitutionalism has so far provided to the world. Religion defined by exclusionary laws wreaks havoc on an individual’s equality. Sectarianism adds an immense negative weight on conviviality. It sets the individual against the member of a different community as an outlaw, and smothers her independent voice before the communities’ nefarious antagonisms. Intolerant religious values and the sectarian straitjacket form a distinctive part of the constitutional challenge confronting the Middle East nonviolent revolution. As the memory of dictatorship morphs into less anger and more wisdom, society drawing a new contract needs to look beyond the legacy of the dictator in order to confront the rigidity of the sectarian, ethnic, and linguistic divisions that survive him. The Middle East faces a legacy of sacred laws and of sectarian setups for which classical constitutionalism does not have adequate answers. Sectarianism will not will itself away. Nor is a sectarian identity, or any other identity for that matter in a community, an all-bad reality. Seen from a positive angle as protection of minorities’ representation in government, the scourge of sectarianism has morphed into a worldwide challenge to political representation, and the received notion of democracy as a purely secular proposal healthily breached. In the wake of a nonviolent revolution, these deep-rooted problems are easier to confront if the spirit of the revolution continues to be carried out as the main philosophy of change. But they are stubborn. The constitutional battle for a working Middle East is joined. It will take at least a generation to bear fruit. The third moment of a philosophy of history moved by the nexus of nonviolence is about accountability, mostly through the judicial prism. While defining constitutionally the modern age as the sovereignty of the people, the Atlantic revolution missed the key moment of justice when judicial accountability was lost in the institutional oblivion of America to the English tyrant, and when the flaws of the trial of Louis XVI in the French revolution skirted the central question of dictatorship as a crime against humanity, and failed to fully appreciate it. The philosophy of history after 2011 introduces one massive novelty in this register: the revolution projects its nonviolence also as a philosophy of justice. Justice accompanies the nonviolent revolution like the full moon accompanies the clear night. One is inconceivable without the other. Throughout a process that bans violence as the nexus of historical change, the moon shines over the revolution as the promise of justice against the dictator. During the revolution, there is no justice save the one postponed. The revolution merely suspends the dispensation of justice. The trial of the dictator hangs like an immense cloud over the revolution’s delivery of nonviolence. Its necessary conduct is key to the revolution’s nonviolent philosophy. Its tangible success helps bring closure on the violent past.

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Revolutionary action evolves the system of ideas decreed by the reality of the millions who have marched, successfully and less successfully, to remove dictatorships nonviolently. Nonviolence is no longer a simple means; it is a coherent worldview activated by the revolutionary marcher, in the image of “Christ marching for justice” as portrayed a thousand years ago by Arab philosopher-poet al-Ma‘arri. In its millions, the marchers are cognizant of the harm about to be done to them, but refuse to do harm regardless, strong in their belief that truth does not always precede action, that nonviolence does not stop at the elated moment when the dictator is deposed, that a social contract inspired by the belief in nonviolence cedes the stage to consent in the reinvention of society, and that the trial and other accountability mechanisms to clear the nightmare during the long night of the dictatorship are finally within reach. When judges go back to dealing pain, and preferably no death, one should no longer expect to physically suffer from being involved in politics. All citizens can intermittently dabble on the public scene, in the ballot box, and on the street, restful in their conviction that nonviolence will convey social yearnings forever unimpeded. Crime for which the judge deals the pain of incarceration can no longer be political, and democratic society is left with the coercive force of the law only for those who breach it in common crime. This is the Middle Eastern contribution to the philosophy of nonviolence. It is heir to Jesus, Gandhi, Martin Luther King Jr., the fall of the Berlin wall, and Tien an Men. More than its religions, this Middle Eastern philosophical constitution is universal. It unfolds into three plateaus, which are the revolutionary, constitutional, and judicial moments successively examined in our journey. The future of the nonviolent revolution is secure morally and philosophically. How to hasten it politically is a different matter, and is left to the skills of the revolutionary, logistics on the ground, and the global extension of the halo of shame and fear under which dictators are forced to live forever as designated criminals against humanity. The next horizon in the philosophy of nonviolence may well be local, as in the neighborhood, and domestic, as inside the home. Trials and other forms of accountability for deposed despots are very much a part of the nonviolent revolution, but they will eventually pass. As Kantian peace between democracies settles over Planet Earth’s communities gathered into states or whatever other communal bond they may choose to privilege, a local-domestic horizon for nonviolence will be philosophically necessary, which includes common crime and domestic violence. Most human beings have already started down this local and domestic path of nonviolence, but its completion may require a different philosophical emphasis. These are areas of nonviolence that our journey did not examine. The eradication of daily crime in a spirit adumbrated by the analyses of Foucault is a promising route. Such Deleuzian lignes de fuite inform and are informed by a more comprehensive philosophy of nonviolence than this book sought to explore, but they will benefit immensely from humankind’s embrace of nonviolence as the nexus of a post-2011 philosophy of history. Whatever new horizons they reach out to conquer, nonviolent marches to come will span out better without a dictator left in the universe to cast his heavy shadow as an unperturbed criminal against humanity. Nor did we examine closely enough the privileged vector to nonviolence that women, as opposed to men, constitute.

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Gaston Bachelard shows some of the way in his preference to the feminine anima over the masculine animus as the spirit of the world, and concludes quoting Jung: Anima is always the refuge of simple, tranquil, continuing life. Jung was able to say: “I have defined anima simply as the Archetype of life.” An Archetype of immobile, stable, united, well attuned life to the fundamental rhythms of an existence without drama. The one who thinks about life, about simple life without searching for knowledge, inclines towards the feminine. By concentrating themselves on the anima, reveries help us to rest. Our best daydreams come in each of us, men or women, from our feminine side. They bear the mark of undeniable femininity. If we did not have in us a feminine being, how could we rest? This is why I have thought it necessary to inscribe all our Daydreams under the sign of the Anima.2 Nowhere is the motto that woman is the future of man so real as in nonviolence. Feminism and other nonviolent battles for equality waged by subordinate groups of society open other avenues, including the neglected talents of the economically disadvantaged that a shallow understanding of free markets leaves stranded on the precarious side of life. This opening onto new windows may be a fitting end of our journey.

Gaston Bachelard, La Poétique de la rêverie, Paris:  Presses universitaires de France 1960, “Animus”— “Anima,” 48–83, at 80–-81: “L’anima est toujours le refuge de la vie simple, tranquille, continue. Jung a pu dire: “J’ai défini l’anima tout simplement comme l’Archétype de la vie.” Archétype de la vie immobile, stable, unie, bien accordée aux rythmes fondamentaux d’une existence sans drames. Qui songe à la vie, à la simple vie sans chercher un savoir, incline vers le féminin. En se concentrant autour de l’anima, les rêveries aident au repos. Les meilleures de nos rêveries viennent en chacun de nous, hommes ou femmes, de notre féminin. Elles ont la marque d’une féminité indéniable. Si nous n’avions pas en nous un être féminin, comment nous reposerions-nous? Voilà pourquoi nous avons cru pouvoir inscrire toutes nos rêveries sur la Rêverie sous le signe de l’Anima.’ See also id., at 59, “L’anima n’est pas une faiblesse. On ne la trouve pas dans une syncope de l’animus. Elle a ses puissances propres. Elle est le principe intérieur de notre repos. (Anima is not a weakness. We do not find it in a collapse of the animus. It has its own strengths. It is the internal principle of our rest.)”; at 73: “Il faut bien comprendre que le masculin et le féminin, dès qu’on les idéalise, deviennent des valeurs. (We must well understand that masculine and feminine, as soon as we transform them into an idea, become values.)”; at 74: “Adam est devenu ‘le dépositaire de la puissance sévère,’ Ève ‘la gardienne de la tendre douceur.’ (Adam has become “the depository of severe power,” Eve “the guardian of tender gentleness.”); also at 74: “En l’anima est le principe commun de l’idéalisation de l’humain, le principe de la rêverie d’être, d’un être qui voudrait la tranquillité et par conséquent, la continuité d’être. (In anima lies the common principle of the idealization of the human, the principle of the reverie of being, of a being who seeks tranquility and, consequently, the continuity of being.)” In my translation here, citations are omitted, and the italics remain as in the original.

2

Bibliogr aphy

i This bibliography is restricted to the works cited in the book. For convenience to the reader,  the page or pages are cross-referenced in bold. I  have omitted personal conversations, newspaper articles, blogs, tweets, Facebook entries, e-mails, and related ether-carried references that appear in the text of the book or in the footnotes for these entries. For the works accessed digitally, the URL available in the footnotes is mentioned again here only when the reader might find it difficult to retrieve the full text in a simple Internet search by author and title. For works read on Kindle, a mention follows. Unless otherwise mentioned, available sources on the Internet were accessed latest in July 2014. I have kept all electronic references on file. Transliteration of Arabic and Persian sources in this bibliography follows a simplified format of the International Journal of Middle East Studies already adopted in my Introduction to Middle Eastern Law. In the main text Kasani flows better than al-Kasani, but I have restored the /al-/ al-ta‘rīf in the bibliography. Also “ibn” is ignored for alphabetical ordering here. Not all classical titles are translated, as most are allegoric. Table of Authorities for Works Cited Court Cases The referencing system to court cases is eclectic, as scholars have not yet established a common citation in all jurisdictions and for all periods. Belgium: Public Prosecutor v. The Butare Four, Cour d’Assises de l’Arrondissement Administratif de Bruxelles, June 8, 2001 (“The Butare four”), available at http://competenceuniverselle. files.wordpress.com/2011/07/arret-8-juin-2001.pdf. 264 349

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Index

i Entries in quotation marks indicate a concept Ackerman, Bruce 123, 158 Accountability constitutional, 312–3 fact-finding, 307 judicial, 289–90 lustration, 307 need for, 289 ‘pyramid of ’, 289–90, 313–4 reparations, 304–5 truth and reconciliation, 310 Aggression, 286–7 Ahmed Pasha, 249–52 Amin Ahmad, 92–3 ‘Anima’, 10, 13, 36, 47, 99, 335–6, 343–7 Antigone, 35 Aquinas Thomas, 74, 76–7, 315 Arab, Arabism, 4–5 ‘Dark Arabism’, 5 ‘Arabi ibn, 83, 91 Bachelard Gaston ‘Breakthrough, coupure’, 18 ‘anima’, 347 Badi‘ genre, 78 Bahr al-‘Ulum Hasan, 94–5

Bahrain see also revolution, Pearl sectarianism in, 49 truth commission, 310–1 Beccaria Cesare, 323–4 Bid‘a, 78–9 Borneman John, 45, 115, 256–7, 263, 316 Char René, 3, 16–7, 36 China electoral manipulation, 172 Choper Jesse 159, 202 Christ, 9, 34, 89–90, 113 ‘Civil Society’ constitution, role in drafting, 169–71 vetting, 168–9 state, relationship with, 166–8 ‘dawla madaniyya’ (civil state), 97 Commission Internationale de Beyrouth, 250–5 Condorcet, 157, 228, 328, 329 as key Enlightenment figure, 157 on electoral majority, 163 on trial of Louis XVI, 228–9, 293–4, 298–300, 316

381

382 i Constitution inclusion of, civil society, 168 economic concerns, 153–4 political parties, 165–6 legislative power, 157–8 executive power, 158 judicial power, 158–9 federalism, 159–60 amendments and revision, 161 ratification, 161 rights of citizen, 162 philosophy, 153, 154–5, 162 precedent, 156 process, 124, 134–5, 170 purpose, 133 template, 157 timing, 141–2 ‘Constitutional moment’ regime type, impact of, 137 definition, 123–4, premises for, 45, 124, 140–1, 211 Constitutional Monarchy in Bahrain, 65, 138–9, 141 republican/monarchy divide, 138–9 nuance, 137–8 ‘Constitutional ruins’ causes of, 134–7 Corbin Henry, 91 Cover Robert, 31, 110–11, 114–7 Crimes against humanity definition, 284–6 distinguished from, aggression, genocide, war crimes, 239–43 evolution of concept, 233, 237–8 formal judicial birth, 242 prima facie case dictatorship as, 221–3, 234–9, 304 Dam Ibn Abi al-, 80–1 Death Penalty for dictators, 324–6 establishing social order, 327–8 major arguments against, 323–4 for, 322 ‘Decrees of Reality’, 21–5, 29–30, 46, 99, 119–20, 124, 235, 344

Index Deleuze Gilles, 19–20, 23, 111–2, 343, 346 Democracy definition, 11–12 rights of citizen, 11–2 violent nature of, 110–2 Descartes René, 19, 29, 91 Dictator absolute power, need for, 140–1, 319–20 counter-narrative, 66–7 criminal activity, 271–2 collusion with, 268–70 definition, 36 ‘golden exits’, 319–21 immunity, 229–31, 266, 298–300, 320 manipulation of laws, 172 promises of reform, 61–2, 136 repression, 66–7 removal of, causes, 63–5, 67 (failure of reform) sectarianism, 49, 66 Dictatorship distinguished, 301–4, 318–9 mimesis, 95–96 Egypt Bishri amendments, 142–4 constitutional process, 124, 142–4, 150–1, 213 executive power, 158 freedom of religion, 186 Islamic law, 175, 178–9, 190–2 judicial review, 199 lustration law, 309 politics of transition, 148, 149 post-revolutionary justice, 317 sectarianism, 177 Elections nature, 141 purpose, 172–4 timing, 141–2 Ely John Hart, 173 Carolene Products footnote 4, 202 Extremism, impact on terrorism, 150 Fact-finding missions and commissions definition, 307–8 role of UN, 253

Index ‘Failed state’ causes, 130–1 occurrence, in Lebanon, 129 in Somalia, 128–30 dangers, 131 Fascism Arab, 5 Doctrine, 154 Islamo-, 4 Judeo-, 5 Fawaz Leila, 247, 250, 254, 306 Federalism benefits, 160, 209 definition, 159 variations, 159–60 Fiss Owen, xvii, 202, 292, 294 ‘Anti-subordination principle’, 153, 173 ‘Substantive criminal procedure’, 290–1 ‘Structural inadequacy’, 294 Fitna connotations of, 75–6 defined, 73 linguistic derivatives of, 78–9 Forceful arrest amount of force, 329–30, 338–9 internationally, 330–1, 339–41 legitimacy, indictees, 329 Foreign military intervention consequences of, 335–6 as protection for civilians, 335–6 as war, 334–5 Fossaert Robert Civil Society definition, 166–9 colonial practices continued, 131 ‘ethnolyse’, 127 La Société, 166 Middle East intellectual renewal, 93–4 ‘N, H, S’ orders 23 ‘rainbow approach’, 23 Foucault Michel, 6, 42–3, 204, 346 France judicial review, 198–9 freedom of religion, 181–2, 185 freedom of speech, 188–9 rights of citizen, 162 trial of head of state, 293–4 Fried Charles, 157 Fuad Pasha, 250–4

j 383

Gandhi, 7, 9, 16, 30, 34, 39, 54, 87 and criminal law, 113–4 Genocide, 285 Ghufran, 88 ‘Grand revolutionary coalition’ electoral institutionalization of, 148 ideal construct, 151–2 need for, 146–7, 151 Gueroult Marcel, 19–23, 25, 29, 46, 107, 124 Hallaj, 90 Hammurabi, 162, 174, 206, 221–2, 322 Havel Vaclav, 9, 69 Hegel G.W.F, 12–13, 20–3, 90, 124 Hourani Albert, 92–4 Hudaibi Hasan, 94 Ibrahim Saadeddin, 41–2 Iceland constitutional process, 169–70 Idealism, see Radical Idealism India role in sectarianism, 204 Iran Green Revolution, 1, 40 Islamic Revolution, 53–4 judicial review, 199 role in sectarianism, 48–49, 204 Iraq executive power, 158 federalist structure of, 160, 209 invasion of Iran, 256, 258–9 invasion of Kuwait, 64, 256, 258–9 Islamic law, 193–4, 207 role of civil society, 167 sectarianism, 207–8, 308 Islamic Law Article 2 template, 178–90 ‘aggiornamento’, 190–1 constitutional concerns, 175 incorporation, 194–7 treatment, 190–4 Israel constitutional structure, 64–65 sectarianism, 177 Jackson Robert, 242 Jacquerie, 18 Jihad, 54, 83, 94, 238–9

384 i Judicial accountability Eastern Europe, 256–7 France, 227–9 Latin America, 257 Middle East, 253–5 premises of, 219–20 ‘Judicial ruins’, 148, 310 Judiciary constitutional role, 158–9, 197–8 ideal structure, 200–3 judges, appointment of, 201 Junblat (Joumblatt) Kamal, 28, 51 Junblat (Djonblat) Sa‘id, 254 Justice individual victims, 287–8 origin of concept, 221–2 universal and eternal nature of, 315–6 violent upheaval, 233–4 Kahn Paul, 15–7, 36, 115, 159, 263 Kant Immanuel anti-colonialism, 334 death penalty, 322–4 definition of enlightenment, 15, 344 Kant-Cover paradox, 110, 113–120, 124, 218, 283, 346 perpetual peace, 30–1, 101–17, 319 Kasani Ala’ al-Din, 79, 90 Kawakibi ‘Abd al-Rahman, 96, 222–3, 315, 344 ‘Kawakibi Template’, 84–7 Kekhia Mansur 41–3 Kefaya movement, 41–2, 191–2 Khurshid Pasha, 252–4, 301 Kuwait freedom of religion, 186 judicial review, 198 Laws of war development, 240–1 Lebanon Cedar Revolution, 3, 24, 40, 129 judicial review, 199 politics of transition, 141 ‘LEJFARC’, xv,156–62, 211 and dullness, 163–5 Leibniz, 235–6

Index Lieber Francis, 240–1 Libya constitutional process, 146 constitutional ruins, 147 Islamic law, 193–4 judicial review, 198–9 politics of transition, 148, 150 Lustration German precedent, 308 Iraqi failure, 308–9 scope of, 309 requirements, 309–10 Luther King Jr. Martin, 7, 9, 39, 113 Ma‘arri Abu al-‘Ala’, 88–90, 177–8, 346 Maher Arar case, 70–1 Maimonides (Ibn Maimun), 90 Majoritarianism evolution of, 162–5 in revolution, 165–6 Marx Karl, 10, 15–7, 69 Materialism, 15–7 Middle East class dimensions, 47–8 cultural nonviolence, Kawakabi template, 86–7 poetry, 87–90 Sufism, 90–2 history, 92–5 geopolitical factors, 48 human rights of, 48 judicial accountability of, 247–53 nation-states, arbitrariness of, 125, 204 sectarianism, Damascus and Beirut 1860, 247–8 Sunni-Shi’i divide, 48–49, 74, 77–8, 204–5 Middle East nonviolent revolution anima, see separate entry birth of, 36–38 purpose, 12 judicial accountability birth of, 255–6 emergence of, 264–8, 272–6, 281–2, 317–8 failure of, 270–1 nonexistence of, 258–60 leadership, 38–9, 98

Index nexus, see separate entry nonviolence, absolute nature of, 45–6, 115–6 peculiarity, 24, 34–5, 57, 60, 115–116 outbreaks of violence, in Libya, 55–7, 150 in Syria, 57–9 precedent, 33–4 role of media, 38–39 success, measuring, 60–1 need for, 59–60 universalist nature, 5, 10–11, 43, 49–51 use of term, 3–4 women in, Mihna, 76 Minority, 127 ‘Monarblic’, 60, 130, 137–40, 199 Monarchy co-optation of, 139–40 criminal nature of, 231 Montesquieu, 69, 158–9, 162, 168, 174 ‘Separation of powers’, 153–5 Morocco constitutional amendments, 140 centralized system, 160 truth and reconciliation commission, 310 Murr ‘Awad al-, 82, 134, 144, 179, 207 Mutanabbi Abu al-Tayyeb, 87–88, 285 Nahda, 4, 82 Nationalism Arab, 4, 5 of language, 4–5 Nation-state birth of concept, 100–1 Nexus, 8, 10, 13, 17, 25, 29, 45, 55, 69, 117, 120, 163, 217, 331, 342–6 Nietzsche Friedrich, 24, 99 Nonviolence absolute nature, government bloodshed, 36 foreign military intervention, 336–8, 341–2 limited violence, 52 retaliatory violence, 44 ahimsa, 9–10 Arabic silmiyya, xv, 9, 97 Arabic la‘unf, 10,

j 385

constitutional moment, 212–4 death penalty, 326–7, 329 definition, 5, 35, 52–3 justice, 234–7, 316 limited nature, 116–7, 218 narrative, 9–10, 18, 45 ambiguous terms, 81 terrorism, 73 philosophy of, 5, 13–4, 23, 24–5 self-defense, 54 self-immolation, 36–37, 55 simplification of paradox, 36 stable states, creation of, 132 transition, 45, 150–1 use of term, 8–9 Nour Ayman, 41–3, 65, 147 ‘Order of reasons’, 13, 19, 20, 29, 45, 99, 117–20, 211, 219–20, 313, 322, 333, 338–9 overview of, 342–4 three levels of, 19–20 use of term, 13 Paine Thomas, 69, 226, 237 Pakistan federalist structure, 160 Islamic law, 190–1 ‘Perpetual peace’ birth of concept, 99–101 as ‘democratic peace theory’, xvi, 107 federation of states, 103–4, 109–10 nature of government, 103, 105–6, 107–9 paradox of, 112–5 purpose of, 102 universalist nature of, 102–3 restated, 117 Philosophy establishing truth, 21–3 expression of narrative, 18–9 major theses of, 15 manifesto, 12–14 revolutionary culture of, 69–70 modified by action, 14–7 need for, 18–9 universal nature of, 226–7 Post Robert, 188

386 i

Index

Qur’an alternation in power, 173 capital punishment, 322 religious freedom, 83, 195, 196, 197 Reparations asset recovery, 306–7 compensation for crime, 304–5 court management of, 305–6 restitution in crimes against humanity, 306 ‘Radical Idealism’, 20–3 Rawls John, 163, 171, 175–6 Religion ‘acid tests’, 179–80 constitutional concerns, 176–9 freedom of speech implications, 188–9 treatment of, constitutional, 189–90 legislative, 195–7 Revolution, see also Middle Eastern nonviolent Atlantic, xiv, 156–7, 159, 163–5, 170–1 as precedent, 6–8, 10–11, 34, 48, 69, 343, 363 providing constitutional template, 180, 200, 203, 205 resistance to oppression, 224–6, 234–5 justice in, 239, 257, 293, 295, 333 definition, 7–8, 35–6 French, 71–3 justice in, 225–43 terrorism, Terreur, 71–73, 102, 164, 328 monarchy in, 225, 227–9 history of violence, 5–6 in Libya, 41, 45–6, 48, 52, 55–7, 59–60, 66–7, 142, 146, 150, 317, 320, 330, 340 in Syria, 27, 33–4, 40–6, 49–52, 57–60, 63, 303–4, 320, 334, 336–7 in Yemen, 48, 52, 57, 62, 72, 97, 116, 141–2, 145–50, 212, 321 Jasmine (Tunisia), xiii, 37–8, 47, 149 Nile (Egypt) xiii, 37–39, 149, 191, 203 Pearl (Bahrain), 40, 45, 48–9, 52, 55–7, 65–6, 82, 138–9, 141, 208, 217, 336–7, 341 political nature, 23–24 Revolutionaries critical mass, 35–36 impact of, 18–19 Right of resistance Atlantic Revolution, 224–5 in Islam, 74–7, 79–80, 217

Roberts Adam, 8–9 Robespierre, as state terrorist, 71–3 on trial of Louis XVI, 228, 293, 327 on kingship as crime against humanity, 232–4 on death penalty, 328 Rousseau, 29, 31, 69 and perpetual peace, 105–7 ‘law as expression of general will’, 162 Russia electoral manipulation, 172 Sacrifice, 55–7 Sadr Musa, 41–3, 82, 272–6 Said Edward, 42–3 Saint-Pierre Abbé de, 30 Projet de Paix Perpétuelle, 100–110 and Rousseau, 102, 105–8 and European Union, 104 and Kant, 102, 107–9 Sarakhsi Shamseddin, 79–80, 197, 238–9 Saudi Arabia terrorism, 72 ‘Scarf ’ constitutional treatment, 183–4, 187 controversy, 181–3, 187–8 gender implications, 184–5 judicial treatment, 181, 185–6 Secession demand for, 125–6 causes, 131–2 dangers, 126–7 Sectarianism constitutional concerns, 127–8, 174–5, 177–8, 203–4, 345 remedies, 205–6 world prevalence, 204–5 Sharp Gene, 8, 49–50, 52, 62 Shirazi Sadr al-Din (Mulla Sadra), 3, 91–2 Somalia division of, 125–6 ‘Syad Barre syndrome’, 128–9 South Africa truth and reconciliation commission, 310–1 Special Tribunal for Lebanon, alternatives, 280–1 ineffectiveness, 277–79 judicial accountability, 44, 276–7

Index Spinoza, 154, 224 ‘Spiral’, 61–4, 134 Sudan division of, xiii, 125–7 ‘Surprise narrative’, 39–40, 41–2 Switzerland freedom of religion, 185 Syria Damascus Spring, 63 Nonviolent revolution in, 27, 57 Militarization, 27, 58–9, judicial review, 198 Systems of law civil law, partie civile, 295–7 common law, fleeing justice, 329–30 indictment, 329 Terrorism birth of concept, 71–3 definition, 71–72 Western/Middle Eastern cooperation, 70–2, 135 Thawra, 75 Tocqueville Alexis de, 343–4 US penitentiary system 327 death penalty, 327 democracy as negative term, 108–9, 164 ‘three races’, 163–5 Trial ad hoc venues, 294 citizenry involvement, 291–4 court management, 295 evidence need for, 300 burden of proof, 300–1 proving prima facie case, 301–4 legitimacy, 242–3 philosophical need for, 232–4, 316–7 of Bashir, 281–3 of Ben Ali, 298, 305–8, 317, 320 of Charles Stuart, 228, 230, 293 of East European dictators, 243, 256–7 of Louis Capet, 223, 227–37 of Rafik Hariri’s assassins, 78, 223, 265, 276–82, 294, 297 of Latin American dictators, 257–8

j 387

of Mubarak, 19, 22, 295, 303, 308, 317 of Pinochet, 257, 261–3, 273–4, 284, 287, 298–9, 301, 303 of Saddam Hussein missed occasions, 259–63 in Iraq, 268–71 of Qaddafi in Lebanon, 271–6 at ICC, 281–3 of Sharon, 263–68, 297 of 1860, massacres in Lebanon and Syria, 246–55 scope, 230, 298 victim involvement, 297–8 Tribe Laurence 123, 173 Turk Riad, 42–3, 50–1 Truth and reconciliation commissions (TRCs) benefits, 312 drawbacks, 312 precedent, 310–11 substitute for justice, 290, 311 Tunisia constitutional process, 145 executive power, 158 Islamic law, 192 politics of transition, 147–50 post-revolutionary justice, 317 sectarianism, 203–4 Turkey freedom of religion, 186 UK judicial review, 198–9 freedom of religion, 186 freedom of speech, 188–9 Unamuno Miguel de, 55 Universal jurisdiction complementarity, 283–4 effectiveness, 261–5 limitations, 266, 280–3 punishable crimes, 284–7 revival, 260–1 United Arab Emirates judicial review, 199 US racial discrimination, 114 constitutional process, 170 constitutional structure, 156–7 federalism, 159–60, 162, 209

388 i US (Cont' d.) freedom of religion, 186, 196 freedom of speech, 188–9 invasion/occupation of Iraq, 270 judicial review, 159, 199, 201 rights of citizens, 162 trial of a president, 293 Utrecht, Treaty/Peace of, 99–104 compared with Westphalia, 100–1

Index historical prohibitions, 238–9 selective domestic immunity, 241 international immunity, 241–2 Weber Max, 30, 111 Women and anima, 147 constructed minority, 206 role in nonviolence, 346–7 unequal citizenship, 164 symbol of success, 46–7

Vattel Emer de, 227–8 War definition, 108, 240 War crimes definition, 286 historical impunity, 239

Yemen constitutional process, 145–7 constitutional ruins, 148 judicial review, 199 politics of transition, 148, 150 post-revolutionary justice, 317