What is a Nation? What is a State?
Exploring Minority Rights and their Limits
by Richard Falk, April 19, 2004

(April 9-10, City College of Santa Barbara, “Tribes, Sects, Cultures, & Sovereign States: Group/Minority Rights or Individual Rights, of Both?”)

I welcome this opportunity to participate in a conference devoted to what has become one of the two most tormented arenas of political violence in the world today. The two arenas are significantly interrelated. Our focus during these two days on the dynamics of various forms of fragmentation internal to the sovereign state, can be understood as a fundamental challenge to the normative program of establishing an effective human rights regime applicable to all persons. The resulting tension is generating multiple crises of identity, authority, and loyalty that can often not be resolved peacefully. Of course, the second arena of challenge is associated with issues posed by 9/11 and the American recourse to a “Great Terror War” as an inevitable response, the chief characteristics of which is to define “terror” to encompass all anti-state political violence and to include a strategy of regime change to promote the project of global domination under the anti-terrorist banner.

The Iraq War dramatically highlights the interaction between domestic fragmentation in the aftermath of authoritarian rule with the political impossibilities of imposed democracy as the solution for nation and state in Iraq as a member of international society. With deep irony, the American project of regime change in Iraq has turned a previously Draconian Iraqi state into a scene of multiple terrorism, associated with religious extremism, national resistance, and the state terrorism of the occupiers. The most likely futures for Iraq under these circumstances are the resumption in some form of Sunni authoritarianism, the outbreak of civil war, the emergence of a Shi’ia Islamic Republic, or a prolonged and bloody American occupation that is likely to exert unpredictable shocks here in the United States, making the tumult of the Vietnam Era seem mild by comparison. In other words, this conference is addressing issues that are already shaking the foundations of world order in a manner that I would argue are more profound than anything that has happened for several hundred years (with the possible exception of the advent of nuclear weaponry). We lack an appropriate political language to understand and a political leadership with the capacity for creative and constructive response. We confront a dire set of circumstances in Iraq that do not contain credible positive options for a favorable end game at present.

But even before this lethal brew arising out of 9/11 and its misguided plunge into a cycle of perpetual warfare, the issues associated with the conference were made highly relevant by several prominent developments in the 1990s: the ending of the cold war, which gave rise to a new surge of nationalism that had been previously largely concealed within the sinews of authoritarian states. This was especially the case in the former Soviet Union and Yugoslavia. In the Soviet instance, the collapse of Soviet control over its internal empire of republics containing a variety of minority peoples was essentially unopposed, but political violence erupted at the next lower level of political organization, and persists in a variety of settings, including Georgia, Azerbaijan, Uzbekistan, and elsewhere in Central Asia. In the Yugoslav instance, the tension between a normative order premised on the territorial unity of the state and an emergent set of normative claims associated with the application of the right of self-determination in non-colonial settings produced a series of severe ethnic wars during the 1990s with extensive killing fields, mixed outcomes, persisting turmoil.

The normative debate surrounding Kosovo discloses some of the larger issues at stake, as well as suggesting the elusiveness of solutions dependent on outside intervention and subsequent occupation under international auspices. In this instance, under the combined authority of the NATO KFOR peacekeeping presence and the United Nations post-conflict administrative control over political and economic reconstruction of a Kosovo, producing a continuously tense condition of de facto independence. It will be recalled that back in 1999 the justification for the Kosovo War, conducted without any proper prior authorization by the UNSC, was the protection of the Albanian majority population from oppressive Serbian domination, which included a variety of allegation of serious human rights abuses, and the expectation that far worse was in the offing, designed at the very least to induce coercively a proportion of the Albanian population to flee the country.

There were many ambiguities associated with this NATO undertaking, especially the irony of embracing the KLA, which in the subsequent Bush/Sharon period would qualify without doubt as a “terrorist organization.” But there were other disturbing aspects of recourse to war in Kosovo: deep suspicions that the US Government was not interested in achieving a diplomatic solution, indications of mixed motives in Washington, including finding a role for NATO in the period after the cold war, and assurances that the US would stay involved in European affairs. Beyond this, the conduct of the Kosovo War by its reliance on high-altitude bombing, the extension of the target list to include civilian targets in Belgrade, the provocative bombing of the Chinese Embassy, the use of depleted uranium ordinance, the absence of any combat casualties on the NATO side were among the elements that cast a long dark shadow across the humanitarian pretensions of the operation.

Since the end of the active hostilities, there have been a series of difficulties, but most relevant for our purposes, has been a pattern of what has been called “reverse ethnic cleansing” in which the new category of victims have become the remnants of the Serb minority that continues to live in Kosovo, and were ethnically identified with the former perpetrators. The persistence of de facto independence for Kosovo also seems to violate an earlier UN pledge that its engagement with Kosovo would not challenge the sovereign unity of Serbia, which had been the lead republic in the former federated state of Yugoslavia. Kosovo is an example of third-order self-determination claims, considering movements against alien or colonial rule as first-order claims, independence for the autonomous units in a federal state as second-order claims, and positing sovereignty claims by indigenous peoples as fourth-order claims. Although it is dangerous to be dogmatic, and not sensitive to context, third-order self-determination claims seem to be fraught with difficulties, especially if the proposed independent territorial community includes an important minority that is ethnically or religiously associated with the former sovereign state.

The conceptual issue can be understood as follows: when does ‘a minority’ qualify as ‘a nation’ or ‘a people’ (the language used to designate the holder of the right of self-determination in international law) and when should ‘a nation’ be entitled to form ‘a state’ even at the cost of fragmenting a former state? And there is the related issue posed relating to humanitarian intervention or, as the International Commission on Intervention and State Sovereignty, phrased it, an exercise of “The Responsibility to Protect” by the organized international community, that is, the United Nations? Kosovo illuminates the dilemmas

associated with this theme of nationhood verse statehood as the basis of political community. If a minority feels beleaguered and discriminated against, and does not succumb to assimilation, it will often tend to form a defensive nationalism as a mode of cultural survival. This is especially true if the minority is geographically distinct, speaks a separate language, adheres to a different religion, and has sufficient numbers to consider itself capable of becoming a viable independent political entity. Under these circumstances, the unity of the state is likely to be drawn into question, and the dominant elites will be inclined to tighten their control over such a restive minority, which in turn radicalizes still further separatist tendencies. As a result, quite often armed struggles occur, which can produce prolonged political violence with much suffering and bloodshed. Looking around the world at places such as Sudan, Kashmir, Sri Lanka, Colombia, parts of Indonesia, to mention a few of the more prominent instances, it is obvious that this tension between national consciousness and state unity is one of the great divisive forces active in the world with no happy ending in sight.

Whether the engagement of the international community is a plus or minus depends on the circumstances. There seems to be little doubt that from an Albanian perspective, the NATO intervention was welcome, ending the Serb oppressive rule, attracting back almost all of the hundreds of thousands of Albania refugees who had fled the country, producing a UN presence that created space in Kosovo for a potential economic recovery and the possible construction of a political democracy. To date, these hopes have not been realized. Further, even if the record in Kosovo after the intervention had been more encouraging we need to pose a decisive question from the perspective of shaping global policy: did the Kosovo War produce a precedent that can give rise, with adjustments for circumstances, to a principled framework that would operate in other roughly comparable settings?

This past week was the tenth anniversary of the terrible genocide that took as many as 800,000 mainly Tutsi lives in Rwanda while an authorized UN protective presence stood by paralyzed and unaugmented, despite strong advance warnings of what was being contemplated by the Hutu rulers. It is well-documented that the great champions of humanitarian intervention earlier in the Balkans and more recently in Iraq, Great Britain and the United States, used the full extent of their political leverage to inhibit a UN protective role in Rwanda as the genocidal pattern started to unfold back in 1994. In this respect, the Rwandan case stands out as the clearest case where there existed an international responsibility to protect, a duty to respond to imminent humanitarian emergencies, if at all possible, on the basis of a proper mandate from the UN Security Council. As a practical matter, to avoid the Kosovo dilemma, it would be a beneficial reform in such situations in the future, if the Permanent Members of the UN Security Council, would formally, or at least informally, waive their right of veto in circumstances of humanitarian emergency. Of course, there is an inevitable gray area. Opponents of the Kosovo intervention argue to this day that no such humanitarian emergency existed at the time, that the allegations of atrocity were partially fabricated, and that diplomatic options had not been tried with due diligence by the US Government, which evidence shows was hell bent on war.

It is also important to mention the case of Somalia, where a humanitarian undertaking, with UN backing, was quickly terminated in 1993 when a firefight in Mogadishu cost 18 American lives. In that instance, the American-led peacekeepers had initially been welcomed by the people of the country when it appeared that the UN mission was to bring food and medicine to a suffering population in what was then described as “a failed state.” Failed or not, when the Clinton presidency expanded the original mission undertaken two years earlier by Bush, Sr. to include state-building, which meant choosing political leaders. The unresolved struggle for power in Somalia among the ethnic factions that suddenly felt marginalized and threatened quickly morphed into a frenzy of opposition against the international presence recast as “intruders.” At the time, American officials tried to invalidate this opposition by calling the resistance to the US-led presence as the work of corrupt and greedy “war lords,” which seemed a way of denying the people of Somalia first-order self-determination in the face of chaotic circumstances. Interestingly, in the setting of Iraq we seek increasingly to invalidate the growing resistance by describing its partisans as “remnants of the Baathist regime,” “dead-enders,” “thugs and criminals,” and whatever other delegitimizing labels our leaders can conjure up to justify the persistence of an occupation that is more and more deeply resented by all sectors of Iraqi society, with the possible exception of the Kurds.

It is not plausible to discuss this range of concerns without a few comments on the Israel/Palestine conflict, whose persistence has for so longer challenged the conscience of humanity. From the perspective of the conceptual concerns of this essay the conflict passed through a series of phases, omitting any discussion of its deeper historical roots that stretch back to biblical times, yet give resonance to conflicting present expectations of the right to the contested land. The present shape of the struggle evolved out of a period following World War I when Palestine was a Mandate of the League of Nations, administered as a unified territory under British administrative control in their role as Mandatory authority. Within the mandate, there lived a Palestinian nation and a rather small Jewish minority, aspiring to become a ‘homeland’ for world Jewry in accordance with the promise given by the Balfour Declaration to the world Zionist movement in 1917. In 1948, amid growing tensions between the two peoples, greatly aggravated by the spillover into Palestine of the wider effects of The Holocaust, the United Nations decreed a partition of Palestine that would have provided two states for the two nations. This plan was repudiated by the Arab governments that launched a war designed to resist Israeli statehood, but leading to an Israeli victory and the expulsion from a large part of the Palestinian territory of its Palestinian residents, producing a huge refugee population. In this period, the Palestinians lived in the area of the West Bank under Jordanian administrative control, in effect, a captive nation, with a residual number of Palestinians living as a minority in Israel.

Since 1967, the Palestinian nation in the West Bank and Gaza has been living under harsh conditions of a prolonged occupation, agitated by the two intifadas and the Israeli repressive responses. From time to time a “peace process” has been initiated, most notably for seven years during the 1990s, with the aim of producing, or in effect, resurrecting the two-state solution proposed decades earlier by the UN, but now confining the Palestinian state to some 22% of the original mandatory territory, restricting drastically the rights of Palestinian refugees, and sustaining the great majority of Israeli settlements established in occupied Palestine in violation of international humanitarian law. In these circumstances, a two-state solution does not offer the Palestinians a fair solution. The alternative that has been discussed at various points has been the establishment of a single, secular bi-national state covering the entire territory of Palestine as it existed under the mandate. Israel refuses to consider such an outcome, both because it would mean the end of the Zionist conception of a Jewish state, and because it would cede too much authority to the Palestinians, especially in view of their demographic majority.

The outside role of the United States has been decisive, but not helpful from the perspective of finding a sustainable peace. The US approach, rooted as much in domestic ethnic politics as in grand strategy, has accentuated the disparity in power between the two parties, and has made it seem unnecessary for Israel to base peace on the ‘rights’ of the Palestinians under international law rather than on ‘the facts on the ground’ and their military superiority and diplomatic leverage. The ordeal of this unresolved conflict underscores the dependence of global justice on geopolitical circumstances.
What stands out from a review of these instances is precisely the primacy of geopolitics, by which is meant the way in which the particular struggle relates to the strategic designs of major political actors. In a unipolar world, geopolitics has become virtually indistinguishable from US foreign policy. Somalia was of marginal or no strategic interest, and the intervention was hence very shallow, and easily reversed in the face of national resistance. Rwanda, even more so, was not viewed as strategically relevant, and against the background of the Somalia experience of a year earlier, all the incentives were to turn aside the humanitarian emergency. Kosovo was, as earlier suggested, a mixed case, with strategic incentives sufficient to provide a realist underpinning to what was proclaimed to be a humanitarian intervention. At the time, a critic such as Noam Chomsky voiced his dissent by repudiating the humanitarian rationale, calling the operation “military humanism,” arguing that if the humanitarian motivations were genuine then the US would have flexed its muscles with respect to the embattled Kurdish minority in Turkey, and elsewhere.

I think an assessment of this pattern of action and inaction is more complicated than Chomsky would have us believe. I would differ from Chomsky on Kosovo, regarding the factual circumstances in Kosovo that existed in 1999, especially against the background of the Bosnian experience culminating in the Srebrenica massacre of 1995, as presenting the international community with a genuine humanitarian emergency. I would further argue, which is admittedly controversial, that the mixed motives associated with American strategic interests in keeping NATO alive and Europe stable, made it more likely that the interventionary undertaking would not be as shallow and fragile as in Somalia and elsewhere in subSaharan Africa, and therefore it had a reasonable prospect of being effective.

Applying this reasoning to Iraq, we notice, first of all, that there was no current humanitarian emergency, and that the humanitarian rationale was almost entirely a post-hoc effort to divert attention from the false security claims associated with alleged Iraqi possession of illicit stockpiles of WMD. But we further notice that the strategic stakes for the United States in Iraq are huge, and that however formidable the resistance to the American-led occupation has become, it is dismissed as irrelevant to the American engagement. The United States is suffering increasingly heavily casualties, but we have yet to hear a single mainstream voice utter a word in support of a Somalian exit strategy, or even a Vietnam exit strategy based on some sort of negotiated phased withdrawal.

The aftermath of the Iraq War has brought to the turbulent surface the various tensions that I have been describing and commenting upon. It illustrates the degree to which nationalism under siege from alien sources can produce a strong unifying effect even in the face of deep religious and ethnic cleavages, at least temporarily, among internal groupings that had previously viewed each other as implacable and hostile adversaries. A cartoon in the LA Times by Mike Keefe makes this point rather vividly. The visual parts of the cartoon shows Sunnis and Shiites fighting together against the American occupiers. The caption reads: “Hey, Mission Accomplished..We’ve unified Iraq!” A primary lesson of the Vietnam War, apparently unlearned so far in the Iraq setting, is that whenever a national resistance becomes unified and resolved, it will over time prevail over even a militarily superior and determined intervening great power. Of course, the strategic motives were always suspect in Vietnam, causing leading realists of the day such as Hans Morgenthau and George Kennan to oppose the war from the outset. With respect to Iraq, too, there was a chorus of realist opposition in the period leading up to the Iraq War, but because the strategic consequences are so large, there is a far greater uncertainty at least at this stage as to what to do next. And also, with Vietnam, there was a coherent alternative to the American presence. In Iraq there has been an assumption that any hasty removal of the American presence would lead to a bloody struggle for power that would produce dangerous regional effects.

In another important respect, the Iraq conflict increasingly illustrates the confusing reality of “nationalism.” If we look at Turkey, we can easily posit the 12 million Kurdish minority as “a captive nation” (especially, the six million or so Kurds living in eastern Anatolia); that is, a nationalism that is suppressed by the state. This reality is somewhat disguised by the misleading juridical claim that the Turkish state confers a Turkish nationalist identity on the entire population regardless of their preferred nationalist and ethnic identity. The great Turkish nation-builder, Kemal Ataturk, insisted in this vein that the Kurds were “mountain Turks,” and should be assimilated into the general population without any deference to autonomy claims or even cultural rights associated with language and traditions. There is thus a tension between nationalist aspirations of minorities and the statist aspirations of Turkish Kemalism. There is some prospect that the current less statist leadership in Turkey, the soft Islamic Ak Party, can revive the Ottoman practices of internal tolerances toward minorities, allowing Kurdish cultural rights to flourish and granting a strong measure of regional autonomy and self-administration in eastern Anatolia where at least half of the Kurdish minority is geographically concentrated.

But if we now look back at Iraq one last time, we can take some account of the various religious and ethnic factions that supposedly divide the country. Under Saddam Hussein, Iraq was governed as an authoritarian state that oppressed both its Shi’ia majority and its Kurdish and Turkaman minorities. There was surely a Kurdish nationalist tendency seeking a separate political reality or, at minimum, internal self-determination based on an autonomous status, but these aspirations were opposed not only by Baghdad, but by regional forces threatened by Kurdish independence movements. Nationalism as a psycho-political reality was at odds with juridical nationalism handed down from above at the level of the state. Oddly, at this point, in the face of the American occupation, there is the possibility that juridical nationalism will command the loyalties of the entire Iraqi population, with the probable notable exception of the Kurds, and create in Iraq that previously unimaginable stabilizing fusion between the state and the nation at least for as long as the interventionary presence of the United States remains the defining preoccupation of the Iraqi people and their most influential leaders.

If this fusion should occur, it will convert the Iraq War from its notorious status of last May of “mission accomplished” to a new tragic circumstance from a Washington perspective of “mission impossible.” Whether and how soon the United States discovers the reservoirs of moral and political imagination to extricate itself from this mission impossible remains to be seen. It may in the end depend on the oppositional prudence of the American citizenry rather than upon their elected representatives, who continue to act as sheep, not as responsible upholder of American interests, custodians of constitutional obligations, and promoters of the public good at home and abroad.

In summary, I would like to offer several briefly stated conclusions:

(1) It is important to acknowledge that the national aspirations of abused minorities (or in some instances of majorities) will not be realized by the benefits of juridical nationalism conferred on all citizens by the legal fiat of the territorial government;

(2) The emergence of human rights as a focus of international concern poses a subversive challenge to the territorial supremacy of sovereign states;

(3) The option of humanitarian intervention on behalf of abused minorities is unlikely to be effectively undertaken in the absence of accompanying strategic interests, and should be endorsed by the United Nations and world public opinion only in extreme cases;

(4) The main justification for such protective international action should be premised on a condition of a current humanitarian emergency, which is not established by a record of past abuses, even if severe, or by the present fact of dictatorial rule;

(5) In the absence of such a humanitarian emergency, interventions that claim humanitarian goals are likely to clash with nationalist goals, even those at the level of the state, and provoke nationalist resistance;

(6) Nationalist resistance, especially if unified and coherently led, is not susceptible to military defeat, although the resisters and the civilian population may endure huge casualties and prolonged suffering;

(7) The future of democracy and the promotion of individual and collective human rights should depend on the internal political processes of sovereign states, encouraged by educational ‘intervention’ in support of the values of human dignity for the foreseeable future;

(8) Adherence to the norm of non-intervention, including by regional international institutions and the United Nations, seems desirable outside of the exceptional circumstances of a humanitarian emergency.