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Globalizing Homeland Security

20 Aug

Taking Note: The Drift Toward Autocracy

 

            It is not just one thing that should worry us about the authoritarian tendencies of the Obama presidency, but one thing after another. The cumulative effect of it all.

 

            The latest sign of the times was the August 19th detention of David Miranda, Glenn Greenwald’s partner, at Heathrow Airport under the British anti-terrorist law for nine hours. His laptop, cell phone, and other electronic devices were also confiscated, and presumably examined. We need to wonder what is so frightening about ‘the Snowden documents’ that it induces these flagrant intrusions on the privacy and confidentiality of journalists, and now even their associates. President Obama keeps reassuring Americans, and indeed the world, that he shares a concern for protecting elemental rights, and yet he seems to spare no means to move against disclosures of information that seems awkward for the United States and some allies even when not of great interest to Al Qaeda and the like. Just as 40 years ago the government sought to prosecute Daniel Ellsberg for revealing secrets being kept from the American people, and not from the ‘enemy’ in the jungles and rice paddies of Vietnam. It is not a matter of secrecy for secrecy’s sake, but secrecy to sustain the trust of the citizenry by a cover up of lies and deception.

 

            Keep in mind that by the rules of the road in international affairs, Moscow could not extradite Snowden, and yet Washington insisted, and when spurned, ‘punished’ itself more than Russia and Putin, by canceling the presidential meeting scheduled for Russia in September to discuss issues of common concern, including Syria, Iran, North Korea, nuclear arms control, and presumably the horrifying turmoil that is turning the Middle East into a war zone. Any fool would realize that at this point the United States has much more to gain from a cooperative rather than an alienated Russia, and so what is the point of showing Snowden childish pique by this rebuff of Putin? It would seem that Washington’s concept of such cooperation between the two countries is entirely hegemonic: the United States sets the tune, and Russia is supposed to sing the song. There are no honest disagreements.

It is a one-way street as near as I can tell, and when the songsters in Moscow provide their own lyrics, the music makers in Washington turn hostile, claiming disappointment.

 

            Also, it is not an unfriendly gesture to accord Snowden asylum in view of his political crimes and the punitive approach adopted by the Obama presidency for breaches of secrecy. On the contrary, it is what a human rights culture should lead us to hope for in such situations. Was it really sensible diplomacy to use America’s leverage in the NATO region to disrupt the European flight of Evo Morales, not only violating the navigational rights of Bolivia, and also encroaching upon its sovereignty and insulting its leader. As it turned out, this effort to capture Snowden while he was mistakenly thought to be on his way to Bolivia, angered and affronted all of Latin America, including the usually placid Brazil, which even speculated that it might not now continue with its plan to make a large purchase of fighter aircraft from Boeing. It would seem that the Obama presidency loses its composure as soon as some of its dirty secrets are told, whether involving war crimes in Iraq and Afghanistan or human rights violations around the world.

 

            Instead of such a display of childish frustration, Obama would have helped his cause much more by declaring the Snowden disclosures as a ‘teaching moment,’ an occasion both to discuss the post-9/11 pressures to gain information and the threats poses to freedom and democracy by the inflated demands of ‘homeland security,’ especially when the homeland becomes equated with the world.

 

            The road to autocracy in America, aside from the plutocratic ride of the 1%, tunnels through mountains of secrecy, a panopticon of surveillance, drone warfare, White House approved assassination lists, death squads roaming foreign lands, and a globe-girdling militarism manifest in a network of hundreds of foreign bases, space satellites, provocative military exercises, and outmoded strategic doctrines.

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What If a Russian Snowden?

9 Aug

‘Political Crimes’ are Non-Extraditable and Snowden’s Transfer to the United States for Prosecution would have been a Setback for Human Rights and International Law

 

What is most troubling about how the Snowden case has played out diplomatically and via the media is the almost total refusal to focus attention on the central legal, moral, and political issues. The United States Government from the outset has acted as if it is entitled to have Snowden transferred to its custody because he is a fugitive from American criminal justice. Pursuing this line of reasoning, Washington has exerted pressure on Latin American governments not to grant Snowden asylum and expressed disappointment with Hong Kong, China, and Russia for their refusal to comply with the U.S. request. The assumption has been that this is a simple instance of cooperative law enforcement, and it is thus unfriendly and unreasonable for another government to shelter Snowden by a grant of asylum.

Barack Obama has underscored the importance he gives to this issue by canceling a scheduled a high profile summit meeting in September with Vladimir Putin. He even contends that Russian non-cooperation in relation to Snowden exhibits a ‘Cold War mentality’ that backslides from recent instances of Russian-American cooperation such as after the Boston Marathon bombing. Fairly construed, it would seem that it was Obama, not Putin, who was guilty of Cold War posturing. Recall that even during the Cold War Nixon agreed to meet with Nikita Khrushchev in Moscow at the height of international tensions. It is Obama who frequently tells us of his readiness to negotiate even with the most obdurate of Republican hardliners, but apparently this willingness does not extend to foreign leaders who fail to do what Washington’s wants! Further, it should be appreciated that it is Putin who has affirmed from the outset that he didn’t want the Snowden incident to harm Russia’s relations with the United States. Even after the cancellation of the diplomatic meeting of heads of state, Putin has expressed regret rather than righteous indignation, or even disappointment. As so often, the misuse of political language, 1984 style, inverts reality, and misses what could have been used as ‘a teaching moment’ on the protection of human rights and the promotion of political pluralism in a world of sovereign states.

The misleading character of this Snowden discourse also goes largely unnoticed because it has been not substantively contested, especially by China and Russia. The Latin American triumvirate of Venezuela, Bolivia, and Nicaragua base their offers of asylum on a principled human rights rationale, but even they do not explain their reasoning, especially its legal roots and political justification. All of this leaves a false impression that both sides of the debate about Snowden are acting within a domain of pure discretion, and even leading human rights organizations have reinforced such a misunderstanding by remaining largely silent spectators. As a result, Obama’s petulant cancellation of the summit, and with it an important opportunity on which to explore ways to end the Syrian internal war and to avert a military confrontation with Iran is irresponsibly lost, and for what?

The overall situation could have been far better understood if all parties involved had put forward arguments that articulated their claims in a coherent manner. The United States could have then insisted that despite Snowden’s claims of a political motivation, his acts of espionage and conversion of government property, should not be viewed as ‘political crimes.’ Such a position could have included the assertion that the revelation of American surveillance efforts endangered national and global security, putting the American people and foreign countries at risk, and that there existed a world interest in preventing terrorism creating a shared interest in the enforcement of criminal law. Such a rationale would doubtless include an insistence that present levels of secrecy and scrutiny were reasonable, restricted, and necessary. Further, it would be claimed that the collection of data was done in a non-invasive manner protective of privacy to the extent possible, and designed only to identify suspicious behavior. In effect, the U.S. Government could have argued that what Snowden did was tantamount to complicity with ‘terrorism’ and should be dealt with as a matter of transnational criminal law enforcement and diplomatic cooperation so as to serve the global public good and promote human security.

The Russian position would rest on a contrary line of reasoning based on the belief that Snowden’s acts clearly constituted a ‘political crime’ because of the political nature of what was revealed, the absence of any commercial motivation, the absence of any violent acts, and the evident intention of Snowden to warn the peoples and governments of the world about legally dubious secret and excessive encroachments on privacy and confidentiality of communications. This means that even if an extradition treaty between the countries had existed to oblige Russia to cooperate with the United States in relation to the enforcement of criminal law, a request to extradite Snowden would be rejected because of the nature of his alleged crimes. It is standard practice, long upheld in doctrine and practice by the United States as well, to include a political crimes exception to the mutual obligation to extradite.

In fact, if Russia had transferred Snowden to the United States for prosecution, there would have been a widespread public outcry, no doubt intensified by the perception that other whistleblowers in the security area, especially Bradley Manning and Julian Assange have been recently subject to vindictive and abusive treatment for comparable breaches of American secrecy in the name of national security. The Russian decision that Snowden’s acts should be treated as political crimes seems convincing and reasonable, although regrettably  not articulated along these lines.

As should be obvious, my sympathies lie with the governments that seek to provide Snowden with sanctuary, treating him in effect as ‘a prisoner of conscience’ and someone whose acts will be remembered not for their alleged criminality, but because they raised vital concerns about the nature and proper limits of democratic governance in the 21st century. What Snowden did was not easy. It has established him for many of us as a brave individual who had the courage to step outside the edifices of government and corporate bureaucracy to scream ‘enough!’ Perhaps, the scream has come too late, past the tipping point in this ominous revelation of a digital panopticon. Let us hope not.

In each of these instances where government secrets of the United States were disclosed, the leadership of the country has refused to discuss the substantive issues raised beyond a monolithic denunciation of ‘the leaker’ and a less than credible plea, ‘trust us!’ Trust us, the national security government as we have the experience, knowledge, and sensitivity to strike the right balance between the requirements of security and the protection of freedom. ‘Fooling most of the people most of the time’ is not a prescription for sustainable democracy even acknowledging the vulnerability of the country to the difficulties of addressing the security threats posed by extremist violence in the post-9/11 world.

Unfortunately, also, the most influential media in the United States has not helped clarify the terms of debate by reference to the legal, moral, and political issues. Instead it has largely exhibited its lack of independence and pro-government bias in the Snowden Affair in three major ways:

–consistently referring to Snowden by the demeaning designation of ‘leaker’ rather than as ‘whistleblower’ or ‘surveillance dissident,’ both more respectful and accurate;

–totally ignoring the degree to which Russia’s grant of temporary refugee status to Snowden for one year is in full accord with the normal level of protection to be given to anyone accused of nonviolent political crimes in a foreign country, and pursued diplomatically and legally by the government that is seeking to indict and prosecute; in effect, for Russia to have turned Snowden over to the United States under these conditions would have set a morally and politically scandalous precedent considering the nature of his alleged crimes; such a decision would have been especially objectionable as there was no extradition treaty that established any legal obligation to hand over individuals accused of crimes by a foreign government, and thus to transfer Snowden would have meant doing  gratuitously what even a treaty had it existed would not have required;

–failing to point out that espionage, the main accusation against Snowden, is the quintessential ‘political offense’ in international law, and as such is routinely excluded from any list of extraditable offenses; there are good reasons why the safety valve provided by whistleblowers and dissidents is especially valuable for the citizenry of democratic societies at the present time. When the nature of security threats is so widely dispersed, and can extend to citizens and the far corners of the earth, the possibility of anti-democractic abuse is great. What Snowden has revealed, shows that this danger is more than a possibility, and calls for remedial action in the United States that establishes more restrictive guidelines on what the government may do in relation to privacy and confidentiality than previously existed. In effect, Snowden performed a public service that is being indirectly acknowledged by new attention given in Congress and by the media to a rebalancing of security and freedom more responsive to the values of privacy.

If these elements had been clearly articulated, the United States Government would have seemed ridiculous to complain about the willingness of some foreign governments to give Snowden asylum, and worse than complain, to use its diplomatic leverage in relation to small and vulnerable government to induce them to do the wrong thing. The Obama administration, and Senate hot heads could call Snowden a traitor and bemoan his unavailability for prosecution to their heart’s content, but such behavior would be then seen for what it was: a petulant empire exhibiting its rage and frustration because its hard power global presence was of no use, and its policy options were effectively constrained because other countries abided by the rule of law. Under these conditions to be threatening foreign governments with adverse diplomatic consequences if they refuse to play ball is not only exhibiting a child’s frustration, but it is self-defeating. If properly presented, those countries that offered asylum or refused Washington’s demand for the transfer of Snowden to American custody were behaving in accord with the best teachings of human rights. What should be surprising is that more governments were not forthcoming, leaving it to such small countries as Bolivia, Venezuela, and Nicaragua to withstand the strong arm tactics of the United States, perhaps signaling a welcome new resolve throughout Latin America to no longer accept their former regional identity of providing a backyard for the benefit of the colossus of the North.

If anything, President Vladimir Putin, considering the nature of the Snowden disclosures about the global reach of American surveillance systems, acted with an exceptional respect for the sensitivities of the United States. Instead of merely pointing out that Snowden could not be transferred to the United States against his will, Putin went out of his way to say that he did not want the incident to harm relations with the United States, and beyond this, to condition a grant of temporary asylum on Snowden’s unusual pledge to refrain from any further release of documents damaging to American interests.

Such a tactful approach to a delicate situation hardly merits the hyperbolic aggressive words of the supposedly liberal Democratic senator from New York, Charles Schumer: “Russia has stabbed us in the back..Each day that Mr. Snowden is allowed to roam free is another turn of the knife.” We should ask these deeply aggrieved senators for honest answers, including John McCain and Lindsey Graham, who added their own fiery denunciations of both Snowden and Russia, what they would have done if the situation had been reversed—if a comparable Russian whistleblower had revealed a Russian surveillance system that was listening in on secret government deliberations in Washington as well as invading the privacy of ordinary Americans. I suspect they would have demanded that Obama cancel the meeting because of what such disclosures revealed about Russia’s wrongdoing.

I would expect that the righteous indignation surrounding such revelations and the gratitude in the United States that would be bestowed on a Russian Snowden would know few bounds. The American media too in that situation would have been quick to produce experts on a nightly basis explaining why extraditing such a person would be wrong, and that there existed a contrary duty to provide sanctuary from the harsh workings of the Russian criminal justice system. Pious suggestions would be made that this Russian Snowden is deserving of the Nobel Peace Prize.

In a not so subtle way, the Snowden diplomacy is yet another illustration of American exceptionalism: that is, there is an obligation for others to do what our government would never think of doing. What might be called ‘the iron law of hegemony.’ International law and morality operate on a contrary logic: equal situations should be treated equally. Revealingly, American domestic law is clear about its commitment to protect a Russian Snowden: “No return or surrender shall be made of any person charged with the commission of any offense of a political nature.” 18 United States Code §3185. The United States has repeatedly shielded even individuals associated with violent political acts if the target involves a hostile government or its citizens and property, most notoriously Cuba.

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Polarization Doomed Egyptian Democracy (Revised)

5 Aug

Prefatory Note: I realize that some of the readers of this blog are unhappy with long blogs, and so I offer an apology for this one in advance. My attempt is to deal with a difficult set of issues afflicting the Middle East, especially the seemingly disastrous Egyptian experiment with democracy that has resulted in a bloody coup followed by violent repression of those elected to lead the country in free elections. The essay that follows discusses the degree to which anti-Muslim Brotherhood polarization in Egypt doomed the transition to democracy that was the hope and dream of the January 25th revolutionary moment in Tahrir Square that had sent shock waves of admiration around the world! This has been revised and corrected since its original posting to take account of comments from readers, and my own further reflections. These themes in a rapidly unfolding series of political dramas require an openness to acknowledging failures of assessment. 

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When Polarization Becomes Worse than Authoritarianism Defer Democracy

Doubting  Democracy

We are living at a time when tensions within societies seem far more disruptive and inhumane than the rivalries of sovereign states that have in the past fueled international wars. More provocatively, we may be living at a historical moment when democracy as the government of choice gives rise to horrifying spectacles of violence and abuse. These difficulties with the practice of democracy are indirectly, and with a heavy dose of irony, legitimizing moderate forms of authoritarian government. After years of assuming that ‘democracy’ was ‘the least bad form of government’ for every national setting, there are ample reasons to raise doubts. I make such an observation with the greatest reluctance.

There is no doubt that authoritarian forms of rule generally constrain the freedom of everyone, and especially the politically inclined. Beyond this, there is a kind of stagnant cultural atmosphere that usually accompanies autocracy, but not always. Consider Elizabethan England, with Shakespeare and his cohort of contemporary literary giants. There have been critical moments of crisis in the past when society’s most respected thinkers blamed democracy for the political failings. In ancient Greece, the cradle of Western democracy, Plato, Aristotle, and Thucydides came to prefer non-democratic forms of government, more fearful of the politics of the mob than that led Athens into imprudent and costly foreign adventures.

Of course, there are times when the established order is fearful of democracy even in countries that pride themselves on their democratic character. Influential voices in the United States were raised during the latter stages of the Vietnam War in opposition to what were perceived by conservatives to be the excesses of democracy. Infamously, Samuel Huntington in an essay published by the influential Trilateral Commission compared the anti-war movement in the United States to the canine disorder known as ‘distemper,’ clearly expressing the view that the people should leave the matter of war and peace in the hands of the government, and not expect to change policy by demonstrating in the streets.

It was only twenty years ago that the collapse of the Soviet Union was hailed throughout the West as an ideological triumph of liberal democracy over autocratic socialism. Prospects for world peace during this interval in the 1990s were directly linked to the spread of democracy, while such other reformist projects as the strengthening of the UN or respecting international law were put aside. European and American universities were then much taken with the theory and practice of ‘democratic peace,’ documenting and exploring its central claim that democracies never go to war against one another. If such a thesis is sustained, it has significant policy implications. It would follow, then, that if more and more countries become ‘democratic’ the zone of peaceful international relations becomes enlarged. This encouraging byproduct of democracy for sovereign states was reinforced by the internal experience of the European Union, which while nurturing democracy established a culture of peace in what had for centuries been the world’s worst war zone.

This positive assessment of democratization at the national level is offset by the extent to which Western liberal democracies have recourse to war to promote regime change in illiberal societies. The motivations for such wars is not purely political, but needs to be linked to the imperatives of neoliberal globalization, and to the class interests of the 1%.

In the post-9/11 period the Bush presidency embraced ‘democracy promotion’ as a major component of a neoconservative foreign policy for the United States in the Middle East. Skepticism about the nature such an endorsement of democracy was widespread, especially in the aftermath of the 2003 invasion of Iraq. Harsh criticism was directed U.S. Government self-appointed role as the agent of democratization in the region, especially considering the unacknowledged motivations: oil, regional hegemony, and Israeli security. By basing democracy promotion on military intervention, as in relation to Iraq, the American approach was completely discredited even without the admitted failure resulting from prolonged occupation of the country. The supposed antii-authoritarian interventions in Iraq, Afghanistan, and Libya have not implanted a robust democracy in any of these places, but rather corruption, chaos, massive displacement, and persisting violent conflict. Beyond this disillusioning experience, foreign leaders and world public opinion refused to accept Washington’s arrogant claim that it provided the world with the only acceptable political model of legitimate government.

Despite this pushback, there remains an almost universal acceptance of the desirability of some variation democracy as the only desirable form of national governance. Of course, there were profound disagreements when it comes to specific cases. There were some partial exceptions to the embrace of democracy. For instance, there was support in the Middle East for monarchies as sources of stability and unity, but even these monarchs purported to be ‘democratic’ in their sympathies unless directly challenged by their subjects/citizens.  Democracies maintained their positive reputation by protecting citizens from abuse by the state, by empowering the people to confer authority on the national government, generally through periodic elections, and by developing a governing process that was respectful of the rule of law and human rights.

Issues during the last decade in the Middle East have brought these issues to the fore: the Green Revolution against theocratic democracy in Iran, the secular de facto rejection of majoritarian democracy in Turkey, and the various transitional scenarios that have unfolded in the Arab countries, especially Egypt, after the anti-authoritarian uprisings of 2011. The torments of the region, especially connected with the Anglo-French colonialist aftermath of the Ottoman Empire, followed by an American hegemonic regime tempered by the Cold War rivalry with the Soviet Union, and aggravated since the middle of the last century by the emergence of Israel, along with the ensuing conflict with the dispossessed Palestinian people, have made the struggle for what might be called ‘good governance’ a losing battle, at least until 2011. Against such a background it was only natural that the democratizing moment labeled ‘the Arab Spring’ generated such excitement throughout the region, and indeed in the world. Two years later, in light of developments in Syria, Egypt, Libya, and elsewhere it is an occasion that calls for sympathetic, yet critical, reflection.

In the last several years, there has emerged in the region the explosive idea that the citizenry enjoys an ultimate right to hold governments accountable, and if even a democratic government misplays its hand too badly, then it can be removed from power even without awaiting of elections, and without relying on formal impeachment procedures. What makes this populist veto so controversial in recent experience is its tendency to enter a coalition with the most regressive elements of the governmental bureaucracy, especially the armed forces, police, and intelligence bureaucracies. Such coalitions are on their surface odd, bringing together the spontaneous rising of the often downtrodden multitude with the most coercive and privileged elements of state and private sector power.

The self-legitimizing claim heard in Tahrir Square 2013 was that only a military coup could save the revolution of 2011, but critics would draw a sharp distinction between the earlier populist uprising against a hated dictator and this latter movement orchestrated from above to dislodge from power a democratically elected leadership identified as Islamic, accused of being non-inclusive, and hence illegitimate.

 

The Arab Upheavals

The great movements of revolt in the Arab world in 2011 were justly celebrated as exhibiting an unexpected surge of brave anti-authoritarian populist politics that achieved relatively bloodless triumphs in Tunisia and Egypt, and shook the foundations of authoritarian rule throughout the region. Democracy seemed to be on the march in a region that had been written off by most Western experts as incapable of any form of governance that was not authoritarian, which was not displeasing to the West so long as oil flowed to the world market, Israel was secure, and radical tendencies kept in check. Arab political culture was interpreted through an Orientalizing lens that affirmed passivity of the citizenry and elite corruption backed up, if necessary, by a militarized state. In the background was the fear that if the people were able to give voice to their preferences, the end result might be the theocratic spread of Iranian style Islamism.

It is a sad commentary on the state of the world that only two years later a gloomy political atmosphere is creating severe doubts about the workability of democracy, and not only in the Arab world, but more widely. What has emerged is the realization that deep cleavages exist in the political culture that give rise to crises of legitimacy and governability that can be managed, if at all, only by the application of repressive force. These conflicts are destroying the prospects of effective and humane government in a series of countries throughout the world.

The dramatic and bloody atrocities in Egypt since the military takeover on July 3rd have brought these realities to the forefront of global political consciousness. But Egypt is not alone in experiencing toxic fallout from severe polarization that pits antagonistic religious, ethnic, and political forces against one another in ‘winner take all’ struggles. Daily sectarian violence between Sunnis and Shi’ia in Iraq make it evident that after an anguishing decade of occupation the American crusade to liberate the country from dictatorship has failed miserably. Instead of a fledging democracy America has left behind a legacy of chaos, the threat of civil war, and a growing belief that only a return to authoritarianism can bring stability to the country. Turkey, too, is enduring the destabilizing impact of polarization, which has persisted in the face of eleven years of extraordinary AKP success and energetic and extremely capable leadership periodically endorsed by the voting public: strengthening and civilianizing political institutions, weakening the military, improving the economy, and greatly enhancing the regional and international standing of the country. Polarization should not be treated as just a Middle Eastern phenomenon. The United States, too, is increasingly afflicted by a polarizing struggle between its two main political parties that has made democratic government that humanely serves the citizenry and the national public good a thing of the past. Of course, this disturbing de-democratizing trend in America owes much to the monetizing machinations of Wall Street and the spinning of 9/11 as a continuing security challenge that requires the government to view everyone, everywhere, including its own citizens, as potential terrorist suspects.

The nature of polarization is diverse and complex, reflecting context. It can be socially constructed around the split between religion and secularism as in Egypt or Turkey or in relation to divisions internal to a religion as in Iraq or as between classes, ethnicities, political parties, geographic regions. In the concreteness of history each case of polarization has its own defining set of circumstances, often highlighting minority fears of discrimination and marginalization, class warfare, ethnic and religious rivalry (e.g. Kurdish self-determination), and conflicting claims about natural resources. Also, as in the Middle East, polarization is not merely the play domestic forces struggling for ascendancy. Polarization is also being manipulated by powerful external political actors, to what precise extent and to what ends is unknowable. It is revealing that in the demonstrations in Cairo during the past month both pro- and anti-Morsi protesters have been chanting anti-American slogans, while the government invites a series of Western dignitaries with the aim of persuading the leadership of the Muslim Brotherhood to accept the outcome of the coup.

Egypt and Turkey

The circumstances of polarization in Egypt and Turkey, although vastly different, share the experience of Islamic oriented political forces emerging from the shadow land of society after years of marginalization, and in Egypt’s case brutal suppression. In both countries the armed forces had long played an important role in keeping the state under the rigid control of secular elites that served Western strategic and neoliberal economic interests. Up to now, despite periodic trials and tribulations, Turkey seems to have solved the riddle of modernity much more persuasively than Egypt.

In both countries electoral politics mandated radical power shifts unacceptable to displaced secular elites. Opposition forces in the two countries after enjoying decades of power and influence suddenly saw themselves displaced by democratic means with no credible prospect of regaining political dominance by success in future elections, having ceded power and influence to those who had previously been subjugated and exploited. Those displaced were unwilling to accept their diminished role, including this lowered status in relation to societal forces whose values were scorned as anti-modern and threatening to preferred life styles that were identified with ‘freedom.’ They complained bitterly, organized feverishly, and mobilized energetically to cancel the verdict of the political majority by whatever means possible.

Recourse to extra-democratic means to regain power, wealth, and influence seemed to many in the opposition, although not all, the only viable political option, but it had to be done in such a way that it seemed to be a ‘democratic’ outcry of the citizenry against the state. Of course, the state has its own share of responsibility for the traumas of polarization. The elected leadership often over-reacts, becomes intoxicated with its own majoritarian mandate, acts toward the opposition on the basis of worst case scenarios, adopts paranoid styles of response to legitimate grievances and criticisms, and contributes its part to a downward spiral of distrust and animosity. The media, either to accentuate the drama of conflict or because is itself often aligned with the secular opposition, tends to heighten tensions, creating a fatalist atmosphere of ‘no return’ for which the only possible solution is ‘us’ or ‘them.’ Such a mentality of war is an anathema for genuine democracy in which losers at any given moment still have a large stake in the viability and success of the governing process. When that faith in the justice and legitimacy of the prevailing political system is shattered democracy cannot generate good governance.

The Politics of Polarization

The opposition waits for some mistake by the governing leadership to launch its campaign of escalating demands. Polarization intensifies. The opposition is unwilling to treat the verdict of free elections as the final word as to an entitlement to govern. At first, such unwillingness is exhibited by extreme alienation and embittered fears. Later on, as opportunities for obstruction arise, this unwillingness is translated into political action, and if it gathers enough momentum, the desired crises of legitimacy and governability bring the country to the brink of collapse. Much depends on material conditions. If the economy is doing reasonably well, calmer heads usually prevail, which may help explain why the impact of severe polarization has been so much greater in Egypt than Turkey. Morsi has succumbed to the challenge, while Erdogan has survived. Reverse the economic conditions, and the political outcomes would also likely have been reversed, although such a possibility is purely conjectural.

The Egyptian experience also reflects the extraordinary sequence of recent happenings. The Tahrir Square upheavals of January 25th came after 30 years of Mubarak rule. A political vacuum was created by the removal of Mubarak that was quickly filled by the Supreme Council of the Armed Forces (SCAP), but accompanied by the promise that a transition to democracy was the consensus goal binding all Egyptians, and once reached the generals would retire from the political scene. The popular sentiment then favored an inclusive democracy, which in 2011, was a coded way of saying that the Muslim Brotherhood should henceforth participate in the political process, finally being allowed to compete for a place in the governing process after decades of exclusion. There were from the beginning anxieties about this prospect among many in the anti-Mubarak ranks, and the Brotherhood seemed at first sensitive to secular and Coptic concerns even pledging that it had no intention of competing for the presidency of Egypt. All seemed well and good, with popular expectations wrongly assuming that the next president of Egypt would be a familiar secular figure, almost certainly drawn from the renegade membership of the fuloul, that is, a former beneficiary of the regime who joined the anti-Mubarak forces during the uprising. In the spring of 2011 the expectations were that Amr Moussa (former Secretary General of the Arab League and Mubarak Foreign Minister) would become Egypt’s first democratically elected president and that the Muslim Brotherhood would function as a strong, but minority, force in the Egyptian parliament. As the parliament would draft a new constitution for the country, this was likely to be the first show of strength between the secular and religious poles of Egyptian political opinion.

Several unforeseen developments made this initial set of expectations about Egypt’s political future unrealizable. Above all, the Muslim Brotherhood was far more successful in the parliamentary elections than had been anticipated. These results stoked the fears of the secularists and Copts, especially when account was taken of the previously unappreciated political strength of several Salafi parties that had not previously shown any interest in participating in the government. Religiously oriented political parties won more than 70% of the contested seats, creating control over the constitution-making process. This situation was further stressed when the Brotherhood withdrew its pledge not to seek control of the government by fielding its own candidate for the presidency. This whole transition process after January 2011 was presided over by administrative entities answerable to SCAP. Several popular candidates were disqualified, and a two-stage presidential election was organized in 2012 in which Mohamed Morsi narrowly defeated Ahmed Shafik in the runoff election between the two top candidates in the initial vote. Shafik, an air force commander and the last Mubarak prime minister, epitomizing the persisting influence of the fuloul. In a sense, the electoral choice given to the Egyptian people involved none of the Egyptian revolutionary forces that were most responsible for the overthrow of Mubarak or representing the ideals that seemed to inspire most of those who filled Tahrir Square in the revolutionary days of January 2011.  The Brotherhood supported the anti-Mubarak movement only belatedly when its victory was in sight, and seemed ideologically inclined to doubt the benefits of inclusive democratization, while Shafik, epitomizing the fuloul resurgent remnant of Mubarakism, never supported the upheaval, and did not even pretend to be a democrat, premising his appeal on promises to restore law and order, which would then supposedly allow Egypt to experience a rapid much needed economic recovery.

It was during the single year of Morsi’s presidency that the politics of extreme polarization took center stage. It is widely agreed that Morsi was neither experienced nor adept as a political leader in what was a very challenging situation even if polarization had not been present to aggravate the situation. The Egyptian people anxiously expected the new leadership to restore economic normalcy after the recent period of prolonged disorder and decline. He was a disappointment, even to many of those who had voted for him, in all of these regards. Many Egyptians who said that they had voted for Morsi expressed their disenchantment by alleging the ‘nothing had changed for the better since the Mubarak period,’ and so they joined the opposition.

It was also expected that Morsi would immediately signal a strong commitment to social justice and to addressing the plight of Egyptian unemployed youth and subsistence masses, but no such promise was forthcoming. In fairness, it seemed doubtful that anyone could have succeeded in fulfilling the role of president of Egypt in a manner that would have satisfied the majority of Egyptians.  The challenges were too obdurate, the citizenry too impatient, and the old Mubarak bureaucracy remained strategically in place and determined to oppose any change that might enhance the reputation of the Morsi leadership. Mubarak and some close advisors had been eliminated from the government, but the judiciary, the armed forces, and the Ministry of Interior were fuloul activist strongholds. In effect, the old secularized elites were still powerful, unaccountable, and capable of undermining the elected government that officially reflected the political will of the Egyptian majority. Morsi, a candidate with admittedly mediocre credentials, was elected to the presidency by an ominously narrow margin, and to make matters worse he inherited a mission impossible. Yet to unseat him by a coup was to upend Egypt’s fledgling democracy, with currently no hopeful tomorrow in view.

The Authoritarian Temptation

What was surprising, and disturbing, was the degree to which the protest movement so quickly and submissively linked the future of Egypt to the good faith and prudent judgment of the armed forces. All protest forces have received in exchange was the forcible removal of Morsi, the renewal of a suppressive approach to the Brotherhood, and some rather worthless reassurances about the short-term nature of military rule. General Adel-Fattah el-Sisi from the start made it clear that he was in charge, although designating an interim president, Adly Mansour, a Mubarak careerist, who had only days before the coup been made chief judge of the Supreme Constitutional Court by Morsi’s own appointment. Mansour has picked a new prime minister who selected a cabinet, supposedly consisting of technocrats, who will serve until a new government is elected. Already, several members of this civilian gloss on a military takeover of the governing process in Egypt have registered meek complaints about the excessive force being used against pro-Morsi demonstrations, itself a euphemism for crimes against humanity and police atrocities.

Better Mubarakism than Morsiism was the underlying sentiment relied upon to fan the flames of discontent throughout the country, climaxing with the petition campaign organized by Tamarod, a newly formed youth-led opposition, that played a major role in organizing the June 30th demonstrations of millions that were underpinned in the final days by a Sisi ultamatum from the armed forces that led to the detention and arrest of Morsi,. This was followed by the rise to political dominance of a menacing figure, General Adel-Fattah el-Sisi, who has led a military coup that talks of compromise and inclusive democracy while acting to criminalize the Muslim Brotherhood, and its leadership, using an onslaught of violence against those who peacefully refuse to fall into line. This military leadership is already responsible for the deliberate slaughter of Morsi loyalists in coldblooded tactics designed to terrorize the Muslim Brotherhood, and warn the Egyptian people that further opposition will not be tolerated.

I am certainly not suggesting that such a return to authoritarianism in this form is better for Egypt than the democracy established by Morsi, or favored by such secular liberals as Mohamed ElBaradei, who is now serving as Deputy Prime Minister. Unfortunately, this challenge directed at a freely elected democracy by a massive popular mobilization to be effective required an alliance with the coercive elements drawn from the deep state and private sector entrepreneurs. Such a dependency relationship involved a Faustian Bargain, getting rid of the hated Morsi presidency, but doing so with an eyes closed acceptance of state terror: large-scale shooting of unarmed pro-Morsi demonstrators, double standards dramatized by General Sisi’s call to the anti-Morsi forces to give him a populist mandate to crush the Brotherhood by coming into the streets aggressively and massively. Egypt is well along a path that leads to demonic autocratic rule that will likely be needed to keep the Brotherhood from preventing the reestablishment of order. General Sisi’s coup will be written off as a failure if there continues to be substantial street challenges and bloody incidents, which would surely interfere with restoring the kind of economic stability that Egypt desperately needs in coming months if it is to escape the dire destiny of being ‘a failed state.’ The legitimating test for the Sisi coup is ‘order’ not ‘democracy,’ and so the authoritarian ethos prevails, yet if this means a continuing series of atrocities, it will surely lead to yet another crisis of legitimacy for the country that is likely to provoke a further crisis of governability.

The controversial side of my argument is that Egypt currently lacks the political preconditions for the establishment of democracy, and in such circumstances, the premature attempt to democratize the political life of the country leads not only to disappointment, but to political regression. At this stage, Egypt will be fortunate if it can return to the relatively stable authoritarianism of the Mubarak dictatorship. Because of changed expectations, and the unlawful displacement of the Morsi leadership, it has now become respectable for the Tamarod, self-appointed guardians of the Tahrir Square revolution to support the ‘cleansing’ the Muslim Brotherhood. It is sad to take note of these noxious odors of fascism and genocide now contaminating the political atmosphere in Egypt.

The very different experience in Iraq, too, suggests that ill-advised moves to install democracy can unleash polarization in a destructive form. Despite his crimes, polarization had been kept in check during the authoritarian rule of Saddam Hussein, The attempted transition to democracy was deeply compromised by coinciding with the American occupation and proconsular rule. It produced sectarian polarization in such drastic forms that it will likely either lead to a new authoritarianism that is even more oppressive than what Saddam Hussein had imposed or resolved by a civil war in which the victor rules with an iron hand and the loser is relegated to the silent margins of Iraqi political life.

In the post-colonial world it is up to the people of each country to shape their own destiny (realizing the ethos of self-determination), and outsiders should rarely interfere however terrible the civil strife. Hopefully, the peoples of the Middle East will learn from these polarization experiences to be wary of entrusting the future of their country to the vagaries of majoritarian democracy, but also resistant to moves by politically displaced minorities to plot their return to power by a reliance on anti-democratic tactics, coalitions with the military, and the complicity of the deep state. There is no single template. Turkey, although threatened by polarization, has been able so far to contain its most dire threats to political democracy. Egypt has not been so lucky. For simplistic comparison, Turkey has had the benefits of a largely evolutionary process that allows for a democratic political culture to take hold gradually at societal and governmental levels. Egypt has, in contrast, experienced abrupt changes in a setting of widespread economic distress, and a radical form of polarization that denied all legitimacy to the antagonist, transforming the armed forces from foe to friend of the opposition because it was the enemy of their enemy. If this is the predictable outcome of moves to establish democracy, then authoritarian leadership may not be the worst of all possible worlds in every circumstance. It depends on context. In the Middle East this may require a comparison of the risks of democratization with the costs of authoritarianism, and this may depend on the degree and nature of polarization.

The presence of the oil reserves in the Gulf, as well as Iran, Iraq, and Libya, along with Israel’s interest in avoiding the emergence of strong unified democratic states in the region makes the Middle East particularly vulnerable to the perils of polarization. In other regions similar structures of antagonism exist, but generally with less disastrous results. The dynamics of economic globalization cannot be divorced from the ways in which nominally independent sovereign states are subjected to the manipulative storms of geopolitics.

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Global Big Brother and the Snowden Hollywood Chase

16 Jul


The post below is a major revision of another piece on the Snowden Affair that was published in AJE. I have dwelled on the pursuit of Snowden because it raises such vital issues of principle, but also because so much of the public discourse has proceeded on a mistaken understanding of the applicable international law. Beyond the legal guidelines on extradition and asylum that are applicable, there are considerations of world order: protecting dissent and pluralism in a global setting in which the principal political actors are sovereign states that increasingly rely on secrecy and security rationales to constrain democratic open spaces. What Snowden did was to expose this dynamic of constraint in relation to secret surveillance programs administered  by private, for profit, contractors. Also exposed was the ‘Global Big Brother’ implications of extending surveillance to foreign societies and their governments. It is these questions that should receive our attention, and the Hollywood circus chase of Edward Snowden should cease for humanitarian and political reasons.

 

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I find the discourse surrounding the Snowden Affair bewildering. The latest reports suggest that the United States is using maximum political leverage, including coercive diplomacy, to discourage small Latin American countries from granting asylum to Edward Snowden. It is also complaining that Russia is giving Snowden ‘a propaganda platform’ and expressing its ‘disappointment’ with China/Hong Kong for its earlier refusal to expel Snowden back to the United States to face charges once his passport was cancelled.

 

This anger is misdirected.  Taking the overall situation into account, whatever anger has been generated by the Snowden Affair, should be directed at the United States for expecting other governments under the circumstances to transfer custody over Snowden. From almost every angle of relevant law, morality, and politics the human rights case for protecting Snowden against the long arm of American criminal law is overwhelming. Anyone who commits nonviolent ‘political crimes’ should almost always be entitled to be protected, and should certainly not be compelled to hole up in an airport transit lounge for weeks of anguishing suspense while governments sort out the interplay between dealing justly with Snowden and not upsetting the diplomatic applecart.

 

The persisting official U.S. approach was concisely conveyed by an American embassy official in Moscow to a Human Rights Watch representative who then was apparently asked to relay it to Snowden at his airport press conference held a few days ago: “U.S. authorities do not consider him to be a human rights defender or a whistleblower. He broke the law and he has to be held accountable.” Yes, Snowden broke American law, but he did it to reveal improprieties in the American surveillance programs that raised serious questions of the Constitutional rights of citizens, as well as the overseas legitimate concerns of foreign governments.  President Obama made an enigmatic statement to the press about the pursuit of Snowden: “We’re following all the appropriate legal cannels and working with various other countries to make sure the rule of law is observed.” If read as I would interpret the applicable rule of law, the United States should abandon its efforts to gain custody as Snowden’s alleged crimes are ‘political offenses.’ Obviously, Obama has a different understanding.

 

Russia did its part to create legal confusion when the Russian president, Vladimir Putin, told the world media that Moscow was refusing to comply with the American request to turn Snowden over because Russia had no extradition treaty with the United States, but such an assertion overlooks the political offense exception to extradition, which should certainly be applied here.

 

It has become increasingly evident even to American public opinion that a twisted logic has gripped Washington in this case. What is more, the underlying U.S. assumptions have been partially accepted by many governments throughout the world who should know better, namely that Snowden should not be the benefit of sanctuary in the face of this all out effort by the United States to prosecute him criminally. There are no applicable extradition treaties that bind the governments to turn Snowden over for prosecution to the United States in the countries where he has so far been present, and even if such a treaty did bind China or Russia, it should not be of help to Washington. Remember the elaborate inquiry into whether the Spanish extradition request in 1998 so as to prosecute the Chilean dictator, Augusto Pinochet, should be honored led to an elaborate set of legal inquiries in Britain where he was detained; he was finally sent home from London to Chile on the grounds that his medical condition made him unfit to stand trial in Spain.

It is standard practice for international law to allow governments to refuse a request for extradition in the event that the accusation involves a political crime.  It is true that the definition of a political crime is unsettled. It is widely understood that violent and heinous behavior involved in genocide, crimes against humanity, terrorism, and maybe hate speech, are not considered to be ‘political crimes.’ The rationale for this exception to transnational criminal law enforceable is humane and in keeping with a pluralist world of sovereign states. As with any protective policy, there may be a cost, but the democratic ethos is in favor of incurring such costs in the interest of curtailing abuses of state power. Such costs seem worth bearing, especially in the United States, considering several recent trends: projection of global power in a unique manner; imposing a regime of homeland security on the American people that has been shown vulnerable to abuse; a decline in the checks and balance mechanisms that offer the citizenry protection against autocratic tendencies of government, especially under wartime conditions; privatization of the security and paramilitary functions of the state. Snowden’s acts should be seen as swimming against this authoritarian tide.

 

It is a matter of upholding the quality of world order, as well as supporting an international legal order that makes the world safe for political diversity and dissent. It is the latter norm that is raised by the Snowden disclosures, the global public interest in strengthening the options of individuals who challenge what they believe to be an overreaching of state power. In the world of the 21st century, ideological diversity is less significant than whistleblowing dissent that is a fantastic public service on behalf of democratic openness, countering tendencies to rely on excessive secrecy in the name of post-9/11 security in which literally everyone, everywhere is a hypothetical threat. Of course, the balance of values and interests is not so clear except to conspiracy-minded dogmatists. The state is responsible for protecting its people against threats, and these can be mounted from within and without. It is said that ‘two wrongs don’t make a right,’ but here it is possible that ‘two rights should not be treated as a wrong.’ It may be that Snowden deserves some credit even here as reportedly he has not disclosed some material that would expose the way in which the National Security Agency (NSA) operates, which could jeopardize reasonable data collection procedures.

 

Should revealing a secret government surveillance system of global proportions be treated as revealing an international  wrong? It should be a ‘no brainer’ that Snowden’s alleged crimes are quintessentially ‘political’ in nature, which would make a grant of extradition an unlawful and regressive violation, as well as an encroachment on Snowden’s human rights. Not only this, but by far the most serious ‘crimes’ exposed by Snowden documented the seeming wrongdoing of the U.S. Government and its private contractors, including Snowden’s employer, Booz, Allen, & Hamilton. As the world now knows thanks to Snowden, the controversial surveillance targets were not only the totality of Americans, but, as well, included foreign governments and many of their most confidential activities. Under these circumstances, it seems surprising that Washington has been so vigorous in the pursuit of Snowden under conditions that made it inappropriate to prosecute him for crimes under U.S. law so long as he remained outside the country.

 

To date, the mainstream media dutifully tagging along with the crime chase narrative. The American strategy has managed to keep public attention focused on Snowden rather than on what his disclosures to date have revealed, and what more further bomb shells may be present in the material that is in the hands of the media, but not yet disclosed. It is one more negative example of ‘American exceptionalism.’ It is hard to imagine that the political leadership in Moscow or Beijing, or even London or Paris, would be lecturing Washington in a similar fashion if the shoe were on the other foot. Such a government would probably and sensibly shut up, and hope that the whole mess would quietly slip from view. Why the United States decides to act differently is worth a separate investigation.

 

We need to realize that extradition is a technique to foster maximum international collaboration designed to encourage the enhanced enforcement of national criminal law. If extradition is unavailable, as here, or even if it had been available, it would be inapplicable, there exists no respectable legal basis for the American international pursuit of Snowden? The approach adopted by Washington is quite absurd if examined objectively, and rests exclusively on its presumed geopolitical clout. What the United States has been arguing is that since it claims the authority to cancel summarily Snowden’s passport (which itself may not be ‘legal’ since the right to travel is constitutionally protected unless there has been a prior formal judicial proceeding), he has no legal right to be present in a foreign country, and hence the politically appropriate act by a foreign government is to expel him forthwith to his country of nationality. In effect, such an approach if generally adopted would make extradition completely superfluous, and in fact, because of its limitations, far less effective than the passport cancellation/expulsion ‘remedy’ that would circumvent the political crimes exception where it is most needed and appropriate.

 

Lawyers, of course, earn their living by finding ingenious ways to produce counter-arguments that sometimes override not only common sense, but public reason. In this vein, it can be plausibly argued that the crimes charged against Snowden involve espionage laws and theft of government property, and as such, extradition could be granted because such behavior does not deserve to be treated as a political crime? Some commentators have reinforced this assert by pointing to the volunteer Israeli spy, Jonathan Pollard, who has languished in American jails for years to show that the U.S. is entitled to gain control over Snowden to punish those who violate its espionage laws. Even the slightest reflection would reject the relevance of such an analogy. Pollard was unlawfully giving highly classified information to a foreign government and apprehended in the territory where the crime was committed, which makes the political nature of the crime irrelevant. If Snowden remained in the United States his political motivations could be argued in a court, but would not exempt him from criminal indictment and prosecution. His crimes could then be explained as politically motivated extra-legal instances of civil disobedience in the Thoreau/Martin Luther King tradition. Snowden’s conduct might also be defended legally by stressing his non-criminal intentions and the ‘necessity’ he reasonably believed provided a basis to reveal the realities about the truly frightening scope and depth of surveillance, and thus avoid the greater harm to public interests by its undisclosed contiuation. These were more or less the arguments that Daniel Ellsberg so persuasively relied upon in the Pentagon Papers case 40 years ago to support his contention that the American people were entitled to know how their leaders manipulated facts and law to justify Vietnam War policies.

 

What the U.S. Government is attempting with Snowden, it seems, is a classic instance of bait and switch. Since extradition could not get the results Washington so desperately wanted even if it had been available, only diplomatic leverage could do the job. Here international law is less help to Snowden, although I would have hoped that international morality would come to his rescue. The debate now evidently swirls around the appropriateness of a grant of asylum by some foreign government, and securing safe passage to such a country. Surely, a foreign government that acceded to American demands and handed Snowden over for prosecution would bear the responsibility of knowing that Snowden’s imprisonment would follow as certainly as night follows day, and that they were weakening the protection of individuals who are wanted by governments eager to prosecute political crimes.

 

So far no government has been so craven as to adopt such a course of action, although none has really mounted a principled challenge to what the United States has done, and several European states have unlawfully denied air navigation rights to Bolivia’s presidential plane because the United States suspected that Snowden was on board. And apparently Austria allowed the plane carrying Evo Morales, President of Bolivia, to make an emergency landing and then be searched, and only after it was found that he was not on board was the plane allowed to resume its flight. If he had been on board, then issue of transfer would have been raised.

There does exist an extradition treaty between Austria and the United States that entered into force in 2000, and contains the following provision in Article 4(1): “Extradition shall not be granted if the offense for which extradition is requested is a political offense.” End of story!

 

States possess wide discretion with respect to asylum policy, although asylum  is conferred as a human right by Article 14(1) of the Universal Declaration of Human Rights. Asylum should be granted whenever there exists well-founded grounds for fearing persecution if the person in question is expelled to the country of nationality. The granting and withholding of asylum has always been surrounded bycontroversial ideological considerations. During the Cold War the United States, although not formally granting asylum, never deported someone seek sanctuary from Castro’s Cuba or other Communist countries and rarely allowed sanctuary for claimants from anti-Communist countries even if fears about their wellbeing if returned were well established. It is far preferable to put asylum policy on a principled basis, but as matters now stand, there is no international legal standards that govern asylum practice.

 

Because asylum, unlike extradition, is treated as discretionary at the national level, diplomatic pressure is to be expected. Asylum is situated at the interface of law and morality, creating ample room for political maneuver. Intense geopolitical pressures can be brought to bear as in this case, but inappropriately from the perspective of human rights or the maintenance of a democratic and pluralist world order. It is particularly unseemly to place small Latin American countries under the gun of United States’ retaliatory diplomacy, especially when these governments are acting empathetically toward someone whose challenged conduct was undertaken on behalf of freedom and democracy with nothing personal to gain materially and much to lose.  It was not as if Snowden was disgruntled after being fired from his lucrative joy as a government contract employee. Or even like the CIA retirees who wait until their pensions kick in before breaking with the agency, and writing their

‘show and tell’ stories.

 

Surely, Russia is better situated than Venezuela to harbor Snowden without having to worry about adverse political consequences.  In Russia went ahead and offered Snowden asylum, perhaps the White House would express its frustration by issuing an intemperate statement about Russia’s unfriendly move, but likely leave at that. Doing anything more would be incredibly foolish, but of course that is no assurance that it wouldn’t happen.

 

All along the true challenge to the U.S. Government, the American and world independent media, and to governments and people throughout the world is consider whether such a massive regime of secret unregulated surveillance by the U.S. government in the name of national security is legally, morally, and politically acceptable. Snowden’s individual fate, although properly a matter of the greatest concern, is secondary to the substance of the issues of principle that are present.  In an unusual show of global public spiritedness and sensitivity, Navi Pillay, the UN High Commissioner for Human Rights issued a highly relevant statement: “Snowden’s case has shown the need to protect persons disclosing information on matters that have implications for human rights, as well as the importance of ensuring the rights of privacy. National systems must ensure that there are adequate avenues for individuals disclosing violations to express their concern without fear of reprisal.”

 

Despite the hue and cry associated with this rather indecent and extended effort by the U.S. Government to gain custody of Snowden, it is forgotten that his ‘criminal’ acts have already had some beneficial results:

–opening an overdue national debate in the United States as to the proper balance between surveillance and security;

–creating a global awareness of the extent to which the American surveillance regime has a global reach that threatens confidentiality of foreign governmental activity and the privacy of ordinary persons everywhere;

–encouraging relevant Congressional committees to consider placing limitations on invasions of privacy;

–tightening of the rules and policies relating to Department of Justice interference with journalists via acquisition of phone logs and emails.

 

We will miss the most crucial point of Snowden’s ‘crimes’ if we do not devote our attention to these fundamental political challenges directed at human security, democratic ways of life, and a pluralist world order. To be  distracted by the circus of the Snowden chase any longer is to play along with a shameless geopolitical caper!

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Misreading the Snowden Affair

11 Jul

This post is a revised and modified version of an essay published as an Op/Ed two days ago by Al Jazeera English; it attempt to reflect on the significance of the Snowden disclosures, and why governments did not rebuff the American efforts to take Snowden into custody as an accused criminal by the simple assertion that ‘political crimes‘ should never be the subject of cooperative inter-governmental efforts to achieve the enforcement of criminal law in a foreign country. The world benefits from the safety valve of such sanctuary, as does the country that is seeking to arrest and punish the whistleblower even if most of its leaders and opinion makers do not realize this. So far even the U.S. Government has not insisted that Snowden’s crime is somehow not to be considered ‘a political crime,’ nor could it plausibly make such an argument. For this reason to capture Snowden the United States has relied on its diplomatic clout and geopolitical capacity to impose costs on those who do not comply with its wishes. So far in the Snowden Affair it is small Latin American countries, including Bolivia, Ecuador, and Venezuela, that have risked the ire of the United States by pursuing independent policies with respect to Snowden, and acting correctly from the perspective of law and morality.

 

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            I had thought that there was a clear set of principles that make the frantic American diplomatic pursuit of Edward Snowden as a fugitive from justice a rather empty and futile gesture. As far as I can tell, there is not even a need for asylum, which is normally reserved for someone with reasonable fears that persecution will occur is forced to return to his country of nationality. Every foreign governments should have been prepared to grant Snowden residence status because his alleged criminal acts in the United States were without doubt political crimes.

 

            I had thought it was as straightforward as law can be that any person who has committed a political crime should be exempted from mandatory extradition even if a treaty existed imposed a duty on its parties to hand over individuals accused of serious criminal activity. To be sure, from the perspective of the United States Government, Snowden’s exposure of the PRISM surveillance program was a flagrant violation of the Espionage Act and breach of classification constraints was unlawful. But it was also as self-evidently a political crime as almost any undertaking can be. There was no violence involved or threatened, and no person is harmed by the disclosures.

Quite the contrary, information in the public interest, related to the defense of individual liberties and national sovereign rights was made available, enhancing the prospects for protecting democracy against its many enemies.

 

            What puzzles me is why the refusal to hand Snowden over by expelling him to the United States, which is what Washington has asked Russia to do, raises any kind of serious question beyond wondering how and why the U.S. government officials posed such a request almost in the form of a demand in the first place. The U.S. Government approached Moscow as if they were harboring a common criminal: “We expect the Russian Government to look at all options available to expel Mr. Snowden to the United States to face justice for the crimes with which he is charged.” Putin spurned the request, but he might have made his correct stand stronger either by indicating that Snowden was welcome to remain in Russia or by rebuffing such a strongly worded request as inappropriate.

 

            It is also puzzling why governments in Europe did not politely respond to Washington by simply saying that it has long been their firm policy and consistent practice not to collaborate with foreign governments in the pursuit of individuals accused of committing nonviolent political crimes. There are excellent public policy and humanitarian reasons why such ‘criminals’ should not be treated internationally as fugitives from justice. Whistleblowing serves the overall public interest relating to maintain a balance of state and society in democratic polities, and providing sanctuary for those who commit political crimes benefits the public good of a state-centric world order.  

 

            It seems clearly within the domain of reason to believe that the extent of secret surveillance, both conducted by the United States within its own borders and globally, is posing a dangerous threat to the future of democracy, to the freedom, privacy, and the security of individuals, and to the national sovereignty of all states. In these respects, Snowden’s crimes are from a global perspective not crimes at all, but should be viewed as timely and brave contributions to human security.

 

            His disclosures can also be interpreted from within the United States as acts of civil disobedience, that is, deliberate violations of law to call attention to greater wrongs.   It was Snowden’s conscience as a citizen that appears to have led him to act against his normal interests, giving up a successful career and high income as a skilled government contract employee working in the private sector and accepting the pressures and insults that he must have anticipated would follow upon such a frontal challenge to counter-terrorist security policies relied upon by the most powerful country in the world. There is every indication that Snowden knew exactly what he was doing, and why. He deliberately violated the applicable criminal law of the United States in a sensitive area of national security, and not surprisingly has been labeled ‘a traitor’ by politicians and some media opinion writers, and some zealots have even accused him of ‘treason.’ Beyond this, more moderate critics have insisted that unlike Daniel Ellsberg who remained in the country after he released the Pentagon Papers, Snowden does not deserve to be respected as a whistleblower because he did not stay around to face the legal music, subservience to the criminal law system being regarded as the essential expression of good faith by those who claim to be acting for the public good when they defy the law for a supposedly higher good. It should be appreciated that in the post-9/11 world, especially within the United States, there is an almost unlimited willingness of American courts to treat government procedures of surveillance and policies of confidentiality as ‘reasonable’ provided only that a justification is made that such measures are needed to keep American safe and prevent future terrorist incidents. It is true that Snowden is insisting that his balancing of security and freedom is to be preferred over that of the government, including its elected representatives and leaders.

 

            The U.S. Government international pursuit of Snowden seems to  contradict its own long standing practice of refusing to give up to foreign governments those wanted for political crimes, including in some instances even shielding persons charged with terrorist activity if the target country is viewed as an enemy state. The most notorious example of such a pattern involves Luis Posada Carrilles, an exile from Cuba with a long record of involvement in anti-Castro terrorist activity and state terrorism. Carrilles, among other violent acts, is alleged to have been centrally involved with a plot to blow up a Cuban passenger plane in 1976 that killed all 73 persons on board. He has been living for decades without legal difficulties in Florida. This is not meant to show the extremes to which the political crimes doctrine is carried. Rather it illustrates carrying this exemption from criminal accountability much too far, and raises the opposite problem from that associated with the affair of Snowden.

 

            The shameful behavior of several European governments, succumbing to American pressure, cannot be overlooked, and suggests the extent to which law and morality can be bent by the exertion of geopolitical leverage. It is notable that such well established governments of France, Portugal, Spain, and Italy caved in, denying overflight rights to the plane carrying Evo Morales, President of Bolivia, apparently hoping to persuade a friendly government to seize Snowden wherever the plane eventually landed, and then turn him over to American authorities if he were on board who would have him transported back to the United States to face charges. It should hardly be surprising that such diplomatic hard ball at Bolivia’s expense angered several Latin American countries, justifiably sensitive to such a display of U.S. willingness to throw its weight around in a manner humiliating to a head of state in a Latin American country. It is unimaginable that the United States would tolerate such behavior if its president were to be denied normal overflight rights because there was believed to be on board an Iranian who had just revealed some state secrets about Iran’s nuclear program because he was fearful that the development of nuclear weapons by Iran would lead to war. Undoubtedly this effort to divert the Bolivian presidential plane was an anguishing reminder to Latin America that the imperial mentality responsible for the Monroe Doctrine and ‘gunboat diplomacy’ in the Western Hemisphere was not entirely a thing of the past.

 

            It is not known why Snowden himself shifted the context from the exemption of political crimes to a request for asylum, which presupposes a justifiable fear of persecution of returned to the country of nationality. It may be that he was not advised about the availability of political crimes exception to extradition or that he was informed by Russia and other governments that he would not welcome to remain in their country, perhaps because of seeking to avoid diplomatic difficulties with the United States. As it was, the U.S. officials and influential media commentators treated the refusal of Russia, China, and Hong Kong to hand Snowden over as an unfriendly, if not hostile, act. Secretary of State Kerry somewhat bizarrely reminded Russia of their recent cooperation in relation to the Boston Marathon terrorist case, as if this somehow created an obligation on Russia’s part to behave in a similar way with respect to Snowden. What make this bizarre is the seeming equivalence struck between the Boston murderers and Snowden.

 

            It is against such a background that Nicolás Maduro, President of Venezuela, offered Snowden asylum on July 5th, the national holiday celebrating independence in his country. The offer of asylum to Snowden on such an occasion was resonant with symbolism relating to a reminder to Washington that time have indeed changed, and even small Latin American countries will define their own national interests and shape public policy on the basis of Venezuelan values. Snowden has reportedly accepted the offer, but there is no indication how he will make sure that his trip from Shermetyevo International Airport in Moscow to Caracas is not interrupted on route in a way that allows the United States to take him into custody.

 

            There is another question lurking in the background. Will Venezuela be now made to pay for doing the right thing? And what of Bolivia, Nicaragua, Ecuador that each indicated sympathy with Snowden’s request for asylum? There has been speculation that in the post-Chavez era Maduro has been seeking to normalize relations with the United States, and that this goal might now be put on indefinite hold. And what about Hong Kong, China, and Russia that spurned American efforts to have Snowden expelled to the United States after his passport was cancelled? How far will the U.S. Government push this anti-leak diplomacy?

 

            I suppose that this attack of ‘surveillance panic’ is a symptom of the larger importance being attached by Washington to cyber security, and worries about disabling attacks directed at information networks by way of hacking and debilitating viruses. Even granting this, to go after Snowden in this way is more than panic, it suggests one more example of American exceptionalism that causes anger and resentment throughout the world—in effect, the United States is insisting that we expect from others far more than we are prepared to give. It is especially striking that among Snowden’s disclosures are confirmations of the earlier rumors that the United States and Israel had collaborate to develop the computer worm or virus, Stuxnet, that had been used in 2010 to disrupt operations in Iran’s nuclear facilities. As with the use of drones around the world, the blowback risks seem once more ignored as America flexes its geopolitical muscles without regard for the constraints of international law, the logic of reciprocity, and the values of a free society.

 

            Reciprocity is the indispensable foundation of effective international law, and it is here that the Snowden Affair seems particularly disturbing. If a Chinese Snowden was to make comparable revelations that violated Chinese criminal law there would not be a chance in a million that the United States would return such an individual to China, and wouldn’t Washington be outraged if China used its leverage to persuade governments to divert a plane suspected of carrying the person they were seeking to prosecute, especially if it were a plane known to be carrying the president of a sovereign state?

 

           

            Why should it be deemed ‘unfriendly’ to offer sanctuary to Snowden as European countries, and even China and Russia, seemed to believe? Why were even the Latin American countries seemingly only led to act when the Bolivian president was denied normal international comity in international airspace as head of a sovereign state, and this seemed like an affront that called for a response? Giving sanctuary to political crimes helps makes the world safe for political dissent and pluralism, and offers a shield against the autocratic security state. It should be expected as a dimension of a commitment to human rights and democracy. It is admirable that Venezuela, whatever its reasons, stepped forward to offer Snowden asylum, which was certainly deserved from the perspective of refugee law, considering the vindictive and punitive approach taken toward such other recent ‘leakers’ as Bradley Manning and Julian Assange.

 

            What may be most regrettable in this yet unfinished drama is the American refusal to engage in self-scrutiny, to wonder whether surveillance and secrecy are not being abused, a gross over-reaction to 9/11 and extremist threats, that alters the balance between state and society in an anti-democratic manner, as well as treats the entire world as if falls within the ‘territorial’ domain of U.S. national security. Such a worldview is decidedly imperial as it has no intention of honoring reciprocal claims made by others, and implicitly places the United States above the law by allowing it to seize such a fugitive from justice wherever in the world he might be found, thereby manipulating cooperative international criminal law enforcement to suit its own particular priorities.

 

            Instead of seeking to prosecute and punish Snowden, the healthy national response would be to consider placing stronger limits on governmental surveillance and extraterritorial security claims, and certainly to open such a debate. It is crucial that American citizens not be fooled by the politics of deflection by which the government and a pliant media avoid the message of disclosure and obsess about the messenger who discloses. It has never been more important for Americans and others to discuss the substantive concerns that prompted Snowden to take such a hazardous course. And yet the energy of the country has been almost exclusively devoted up to now to the purported need to punish this individual of conscience who chose courageously to endure the predictable fury of a state when some of its most unseemly secrets were shared with the public. Snowden gave us as planetary citizens this incredible opportunity and responsibility to evaluate the acceptability of these state secrets, which if not taken, might fasten forever the tentacles of the security state upon an increasingly nominal and pliant body politic. 

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Gaza: 7th Year of Unlawful Blockade (UN HRC SR Press Release)

15 Jun

Gaza Blockade

Prefatory Note: I am posting a press release of yesterday, 14 June 2013, to take note of the start of the seventh year of the Israeli blockade. After the Mavi Marmara incident, 31 May 2010 and the more recent November ceasefire agreement between Israel and the Gaza government there was an undertaking to ease the blockade with respect to the flow back and forth of people and goods, but the situation remains desperate for the civilian population of Gaza that remains essentially locked into the Gaza Strip where economic destitution has reached epidemic extremes and where the water is mostly unfit for human consumption. The international community, and its main leaders, have commented adversely on the blockade, but nothing happens! It is this sense of powerlessness that is undermining the legitimacy and relevance of the United Nations to the suffering of the Palestinian people, and with particular relevance to the extreme ordeal of the civilian population of Gaza.

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Freedom Flotilla 

 

 

UN Human Rights Office of the High Commissioner

Press Release on start of 7th year of Gaza Blockade

Collective punishment in Gaza must end: Israel’s blockade enters its 7th year – UN Special Rapporteur        

GENEVA, 14 June 2013 – The United Nations Special Rapporteur on the situation of human rights in the Palestinian territories occupied by Israel since 1967, Richard Falk, called today on Israel to end its blockade over the Gaza Strip, six years after it was tightened following the Hamas takeover in June 2007. The human suffering of the land, sea and air blockade imposed on the 1.75 million Palestinians living in one of the most densely populated and impoverished areas of the world has been devastating.

“Six years of Israel’s calculated strangulation of the Gaza Strip has stunted the economy and has kept most Gazans in a state of perpetual poverty and aid dependency,” said the UN expert. “Whether it is fishermen unable to go beyond six nautical miles from the shore, farmers unable to access their land near the Israeli fence, businessmen suffering from severe restrictions on the export of goods, students denied access to education in the West Bank, or patients in need of urgent medical attention refused access to Palestinian hospitals in the West Bank, the destructive designs of blockade have been felt by every single household in Gaza. It is especially felt by Palestinian families separated by the blockade,” he added.

Gaza children at fence

“The people of Gaza have endured the unendurable and suffered what is insufferable for six years. Israel’s collective punishment of the civilian population in Gaza must end today,” said the Special Rapporteur.

“Israel has the responsibility as the Occupying Power to protect the civilian population. But instead of allowing a healthy people and economy to flourish, Israeli authorities have sealed off the Gaza Strip. According to statistics released by the Israeli Ministry of Defense, last month’s exports out of Gaza consisted of 49 truckloads of empty boxes, three truckloads of spices, one truckload of cut flowers, and one truckload of furniture,” he said. In 2012, the total number of truckloads of exports leaving Gaza was 254, compared to 9,787 in 2005 before the tightening of the blockade.

“It does not take an economist to figure out that such a trickle of goods out of Gaza is not the basis of a viable economy,” noted the UN expert. “The easing of the blockade announced by Israel in June 2010 after its deadly assault on the flotilla of ships carrying aid to the besieged population resulted only in an increase in consumer goods entering Gaza, and has not improved living conditions for most Gazans.  Since 2007, the productive capacity of Gaza has dwindled with 80 percent of factories in Gaza now closed or operating at half capacity or less due to the loss of export markets and prohibitively high operating costs as a result of the blockade. 34 percent of Gaza’s workforce is unemployed including up to half the youth population, 44 percent of Gazans are food insecure, 80 percent of Gazans are aid recipients,” he said.

“To make matters worse, 90 percent of the water from the Gaza aquifer is unsafe for human consumption without treatment, and severe fuel and electricity shortage results in outages of up to 12 hours a day. Only a small proportion of Gazans who can afford to obtain supplies through the tunnel economy are buffered from the full blow of the blockade, but tunnels alone cannot meet the daily needs of the population in Gaza.”

“Last year, the United Nations forecast that under existing conditions, Gaza would be uninhabitable by 2020. Less optimistic forecasts presented to me were that the Gaza Strip may no longer be viable only three years from now,” said the Special Rapporteur. “It’s clear that the Israeli authorities set out six years ago to devitalize  the Gazan population and economy,” he said, referring to a study undertaken by the Israeli Ministry of Defense in early 2008 detailing the minimum number of calories Palestinians in Gaza need to consume on a daily basis to avoid malnutrition.  The myriad of restrictions imposed by Israel do not permit civilians in Gaza to develop to their full potential, and enjoy and exercise fully their human rights.

ENDS

In 2008, the UN Human Rights Council designated Richard Falk (United States of America) as the fifth Special Rapporteur on the situation of human rights on Palestinian territories occupied since 1967. The mandate was originally established in 1993 by the UN Commission on Human Rights.

Learn more, log on to: http://www2.ohchr.org/english/countries/ps/mandate/index.htm

UN Human Rights – Occupied Palestinian Territories: http://www.ohchr.org/EN/countries/MENARegion/Pages/PSIndex.aspx

UN Human Rights – Israel: http://www.ohchr.org/EN/Countries/MENARegion/Pages/ILIndex.aspx

For more information and media requests, please contact Kevin Turner (kturner@ohchr.org) or Kiyohiko Hasegawa khasegawa@ohchr.org) or write to sropt@ohchr.org

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15 Jun

Prefatory Note: What follows below is the text of the report presented on 10 June 2013 to the Human Rights Council. It offers an overview of the situation from the perspective of human rights and international humanitarian law in occupied Palestine. Both Israel and the United States boycotted the session, presumably to express their displeasure with the report and my role as Special Rapporteur. UN Watch distributed a defamatory resolution calling for my dismissal from the position, and the United States delegate, Ambassador Donahue, called for my resignation. No government formally endorsed the UNW resolution, and so it was never acted upon, while I took the occasion of the press conference to confirm my unwillingness to resign, and on the contrary, to continue to do my best to reflect as honestly as possible the realities confronting the Palestinian people from the perspective of international law. In the open debate the European Union represented criticized what was called the inappropriate failure to limit my report to ‘law and facts,’ pointing particularly to what was described as ‘the political’ in paragraph 7. In that paragraph the report offers some comments on the futility of securing the Palestinian right of self-determination by way of resuming direct negotiations; by expressing such skepticism about the diplomatic track, the EU apparently regarded the assessment as political, but to my mind it was an appropriate comment on why the prospects for protecting and realizing Palestinian fundamental rights under international law are likely to remain in total eclipse. The text below can be read in its formal context by using the link to the actual document to be found on the Human Rights Council website. *************************

United Nations

A/HRC/23/XX
General Assembly Distr.: General 27 May 2013   Original: English

Human Rights Council Twenty-third session Agenda item 7

Human rights situation in Palestine and other occupied Arab territories

Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Richard Falk*

Summary
     In the present report, while noting the continuing non-cooperation of Israel, the Special Rapporteur addresses Israel’s Operation “Pillar of Defense” and the general human rights situation in the Gaza Strip, as well as the expansion of Israeli settlements – and businesses that profit from Israeli settlements and the situation of Palestinians detained by Israel.

  Contents Paragraphs Page I. Introduction – 3 II. The Gaza Strip – A. Operation “Pillar of Defense” – B. Economic and social conditions C. Health in Gaza – D. Ceasefire implementation – V. Palestinian detainees in Israeli prisons and detention centres – VI. Settlements VII. Businesses that profit from Israeli settlements VIII. Recommendations
I. Introduction

  1. Once again it is necessary to highlight the failure of the Government of Israel to cooperate in the implementation of this mandate even to the extent of allowing the Special Rapporteur to enter occupied Palestine. Such entry is required to gain first-hand information about alleged human rights and international humanitarian violations by the Occupying Power, and appropriate cooperation by Member States in such official undertakings is prescribed in Articles 104 and 105(2) of the Charter. It is further specified in the 1946 Convention on the Privileges and Immunities of the United Nations, especially relevant is Article VI, Section 22, “Experts on Missions for the United Nations.” To enable mandate holders  to carry out their assignments in accordance with best practices, it would be important for the Human Rights Council to insist that Member States of the United Nations  live up to these obligations.
  2. The Special Rapporteur wishes to raise another concern regarding the independence, credibility, and effectiveness of this mandate. Ever since the Special Rapporteur assumed this position, “UN Watch” – a “pro-Israel” lobbying organization accredited as an NGO to the UN ECOSOC, has issued a series of defamatory attacks demeaning his character, repeatedly distorting his views on potentially inflammatory issues. This smear campaign has been carried out in numerous settings, including at the Human Rights Council, as well as university venues where the Special Rapporteur gives lectures in his personal capacity on subjects unrelated to the mandate. The lobby groups’ smears have been sent to diplomats and United Nations officials, including the Secretary-General, who has apparently accepted the allegations at face value, issuing public criticism of the Special Rapporteur. It is disappointing that such irresponsible and dishonest attacks have been taken seriously, with no effort to seek the views of the Special Rapporteur or otherwise verify the accuracy of the allegations. To set the record straight, the Special Rapporteur proposes that UN Watch be investigated to determine whether it qualifies as an independent organization that operates in accord with its name and stated objectives, and is not indirectly sponsored by the Government of Israel and/or other “pro-Israel” lobbying groups affiliated with the Government, as well as whether its programme of work is of direct relevance to the aims and purposes of the United Nations.[1] Even a superficial review of their website confirms their preoccupation with character assassination, and the absence of an organizational agenda that corresponds to its claim to exercise oversight over United Nations activities.[2]  It is notable that despite its efforts to discredit the Special Rapporteur, UN Watch has never offered substantive criticisms or entered into any serious discussion of the Special Rapporteur’s reports.  Such defamation of a special rapporteur is detrimental to the independence and substantive intention of any mandate. It diverts attention from the message to the messenger, and thus shifts public interest away from the need to protect human rights in contexts that have been identified by the Human Rights Council as of particular concern.  The Special Rapporteur recommends that this issue be viewed in relation not only to his mandate, but also as a matter of principle relating to ensuring a responsible role for NGOs within the United Nations system. In like manner, it seems important to encourage a greater willingness on the part of senior United Nations officials to defend special rapporteurs who are subject to such diversionary attacks, or at the least, not to be complicit.
  3. To fulfil the mandate to the extent possible under the circumstances above-mentioned, the Special Rapporteur completed a mission to the occupied Gaza Strip from 1 to 3 December 2012. The mission intended to investigate issues pertaining to the economic and social rights of civilians in Gaza, which have received considerable attention given the comprehensive Israeli blockade that has existed since mid-2007 and continues to preclude economic viability by prohibiting almost all forms of export, thereby continuing to impose unacceptable hardships on the civilian population as a whole. The mission also investigated the effects of a major military attack by Israel, code named Operation “Pillar of Defense,” which occurred from 14 to 21 November 2012.
  4. There are several general developments that have occurred since the submission of the last report to the Human Rights Council that seem relevant to the mandate. Perhaps the most significant development occurred on 29 November 2012, when the General Assembly voted to recognize Palestine as a non-member observer state, a status that is a step on the path to the realization of the collective and inalienable right of self-determination that belongs to the Palestinian people as a whole.
  5. The Special Rapporteur was invited to give the opening address at an international conference involving distinguished experts from several countries. The conference occurred on 8-9 May 2013 at Birzeit University and was devoted to the theme of “Expanding the Legal Paradigm for Palestine”. Because of the impossibility of attending the event in person, the Special Rapporteur addressed the audience via Skype. The presentation emphasized the limits of International Humanitarian Law (IHL) in the context of prolonged occupation, a concern that has been expressed in previous reports. Three overlapping legal regimes were distinguished:
    1. IHL, as contained in the Fourth Geneva Convention of 1949 and  Additional Protocol I: useful for identifying violations associated with behaviour of the Occupying Power toward the civilian population of the Occupied Territory: including construction of settlements, collective punishments, targeted assassinations, diversion of water, excessive force, conditions of detention and imprisonment. There is an additional deficiency here arising from the failure of Parties to the Geneva Conventions to uphold the duty set forth in common Article 1 “to respect and to ensure respect for the present Convention in all circumstances.” If a pattern of persistent violation is present and sustained for a period of years, as with Israel’s occupation of Palestine, then steps should be taken to encourage compliance. Such a collective responsibility by all Contracting Parties to “repress grave breaches” is made clearer in Protocol I, Articles 86 and 91, a treaty that has the status of customary international law.
    2. Oslo Framework: allocation of administrative and governmental responsibilities to Areas A (Palestinian), B (joint Palestinian-Israeli), and C (Israeli) that creates a different legal regime, especially given the different standards of protection and access to law accorded to Israeli settlers and Palestinians living within in the West Bank. The Oslo process, with its five-year timeline for the resolution of final status issues, constituted a humane acknowledgement that a belligerent occupation of a society must be ended. United Nations and European Union reports indicate that the Palestinian presence in Area C (which covers 61% of the land but only 4% of the Palestinian population), is under constant pressure, and even threat of elimination. It is estimated that 350,000 Jewish settlers in about 200 settlements and outposts are living in Area C, having appropriated the preferred land, situated mainly on high ground, making use of disproportionate amounts of water exploited from local aquifers at the expense of the Palestinian population. In other words, the Oslo formula has facilitated additional encroachments on Palestinian territory that have the appearance of permanence and violate the Fourth Geneva Convention’s obligation on the Occupier to refrain from altering the nature of the occupied country or appropriating its resources.
    3. Prolonged Occupation: there is no presently applicable international legal framework that captures the extent to which the interests and wellbeing of the civilian population are severely jeopardized, perhaps irreversibly, if the occupation lasts longer than five years. Israel’s occupation of Palestine has lasted 46 years, a period that causes serious mental disorders associated with living for decades without the protection of laws and rights and with stifling restrictions on mobility and travel. Israel’s occupation shows no signs of ending. The prolonged state of exception and the normalisation of occupation have nurtured a climate where the cumulative impact of large numbers of settlers and settlements, which the Human Rights Council’s fact-finding mission on Israeli settlements aptly described as “creeping annexation”, and the unlawful Israeli annexation and demographic manipulations in East Jerusalem have created fundamental threats to the Palestinian right of self-determination. It is the judgment of this Special Rapporteur that such issues bear directly on upholding the right of self-determination, and represent a flaw or insufficiency in the conventional conceptions of IHL and international human rights. This flaw or inadequacy should be addressed by either the International Committee of the Red Cross by convening an international conference to draft a convention for Occupations that surpass five years, or the manifold issues related to prolonged occupation be examined by a commission of inquiry composed of relevant international law experts.
  6. It has been widely accepted in commentary on the Israel/Palestine conflict that the only path to a sustainable and just peace, as well as the fulfilment of the Palestinian right of self-determination, is through direct negotiations. Strong efforts have been made in the last several months both by the concerned Governments, by the United States as the principal intermediary and by the renewing the Arab Peace Initiative of 2002, to revive negotiations. This Arab Peace Initiative has been modified to allow for ‘land swaps,’ which appears to be a means of incorporating major settlement blocs into Israel and opening the door to territorial adjustments in response to Israel’s security interests.
  7. The Special Rapporteur is sceptical of the value of direct negotiations at this time, especially in relation to the protection of the human rights of Palestinians, above all their right of self-determination. The political preconditions for effective negotiations do not seem to exist on either side: for Israel, a pro-settler Government with a seeming expansionist vision of the territorial scope of Israel and annexationist policies in the West Bank, including East Jerusalem, does not seem inclined to withdraw to 1967 lines or to address such other issues as the division of Jerusalem, the rights of Palestinian refugees, the non-diversion of water from Palestine’s aquifers, and the sovereign equality of a Palestinian state.

II. The Gaza Strip A. Operation “Pillar of Defense”

  1. The most sustained use of force since the Operation “Cast Lead” occurred when Israel launched Operation “Pillar of Defense,” on 14 November 2012 that continued for eight days. The timeline of violence leading up to the attack is complex, with no clear cause and effect relationship.[3] There were incidents of border violence and rocket fire in the days before, yet there is widespread agreement that the definitive moment occurred when the Hamas military leader, Ahmed Jabari, was assassinated in a targeted killing. It was a safe assumption that the assassination of such a high value target would occasion a strong retaliation from Gaza. This was confirmed by widely-respected Israeli peace activist Gershon Baskin, who confirmed that Jabari, at the time he was killed, was in the final stages of negotiating a long-term ceasefire with Israel.  In a New York Times article published during Pillar of Defense, Baskin points out that Israel has tried every military option to crush the capacity and will of Gaza to engage in violent resistance. In his words, “The only thing it has not tried and tested is reaching an agreement for a long-term mutual ceasefire.”[4] As Baskin points out, Jabari had long been in Israeli crosshairs and was known to have masterminded the capture and detention of the Israeli soldier Gilad Shalit.  Jabari was the leader who had kept Shalit alive and in good health while in captivity for several years, who had prevented rogue militias in Gaza from engaging in violence against Israel, and had acted to uphold prior ceasefires that had stemmed the level of violence on the Gazan border in recent years, which directly contributed to keeping Israeli casualties at zero since “Cast Lead.”
  2. Israel justified “Pillar of Defense” as a defensive response to Gaza rocket fire. The United States along with several European countries supported this claim. The U.S. Department of State expressed this sentiment when the attacks started: “We support Israel’s right to defend itself and we encourage Israel to continue to take every effort to avoid civilian casualties”.[5] Supporters of Palestine regarded Israel’s concerted use of force against urbanized and vulnerable Gaza as ‘aggression’ and ‘criminal.’ Israeli military analysts argued that the strategic purpose of Pillar of Defense was to restore deterrence in light of the deterioration of recent increases in violence emanating from Gaza and to destroy the capacity of Gaza’s military forces to launch long-range rockets able to reach the major centers of population in Israel.[6] Both sides claimed victory when the Egyptian-brokered ceasefire agreement came into effect on 21 November 2012. Clearly, both sides had made adjustments in light of the experience of Cast Lead. The Israeli side avoided a ground attack that had turned the tide of public opinion against its operation in 2009, and took some steps to avoid large civilian casualties. On the Gazan side, casualties to police and militants were greatly reduced by avoiding targeted facilities and taking secure shelter, and damage to rocket launchers was reduced by greater mobility and use of underground launching sites. The terms of the ceasefire lend support to the claim of the de-facto authorities in Gaza that Israel had given ground: agreeing not to engage in future targeted assassinations, and to meet to discuss the opening of the crossing points to goods and persons. The implementation of the ceasefire agreement is discussed later.

10. The Special Rapporteur’s mission had been conceived to obtain information about the situation in the Gaza Strip in light of the United Nations study that suggested that Gaza’s viability would be at serious risk by 2020.[7] The Special Rapporteur did not abandon that goal, but added concerns regarding Pillar of Defense, since the ceasefire had gone into effect ten days before the Special Rapporteur’s arrival. Several aspects of the attacks raised serious issues of IHL bearing on the use of excessive force in relation to a population living under conditions of occupation. Although Israel implemented its plan of ‘disengagement’ in 2005, it did not end its legal responsibilities as the Occupying Power. This conclusion reflects Israel’s control of entry and exit to Gaza from land, sea, and air; frequent violent incursions; and a blockade maintained since mid-2007. The situation in Gaza has been likened to a large open air prison in which the inmates control the interior while the guards control the perimeter. 11. The Special Rapporteur’s mission consisted of three activities: visits to targeted areas and meetings with families affected adversely by Pillar of Defense; briefings with United Nations officials and with national and international representatives of NGOs active in Gaza; and meetings with local journalists, doctors, and individuals knowledgeable about the policies, practices and discussions among the senior level of the de facto authorities. It was an intense yet illuminating means to acquire a direct appreciation of the overall human rights situation in Gaza. 12. It is difficult to summarize the meetings with family members affected by the attacks. The Special Rapporteur visited the Ismail Mohamed Abu Tabiekh Aslan neighbourhood of Gaza City, which is situated close to the border with Israel and experienced heavy artillery and missile attacks. Some residents reported that drones were used to attack. The Special Rapporteur met with adult residents, mainly men, who spoke movingly of how the attacks damaged the modest infrastructure (especially electricity and water storage) of this extremely poor neighbourhood and killed their animals, which were crucial to their meagre livelihood. They also spoke of their shared sense of vulnerability during the attacks, with no facilities available to offer protection. Strong psychological impacts were widely reported, especially affecting young children who were experiencing nightmares, bedwetting, and panic attacks. There were physical effects resulting from damage to residences in a setting where unemployment was widespread and there were insufficient resources to repair damage even if materials were available. Several interlocutors reported that they had worked in Israel until 2001, but subsequently were unemployed and became dependent on international aid. 13. The Special Rapporteur visited the destroyed residence of the Al Dalou family, which lost ten family members, including four young children during the attack. Jamel Mahmoud Yassin Al Dalou, the surviving grandfather to the four dead children, described himself as a trader in foodstuffs who lived with his family in the Nasser neighbourhood and enjoyed better living conditions than most Gazans. Mr. Al Dalou said that during the November attacks “every one of us was a target…the sky was full of Israeli planes and drones, everything that moved could be hit.” “I left to go to my business by taxi to bring needed food to the family, while there people came to me crying and told me my house had been hit, the worst news I received in my life. I rushed home to find many working to remove the rubble of the destroyed house.” Finding the deaths of his children and grandchildren, Mr. Al Dalou commented, “If they cannot deal with Islamic militants, should they attack children? We have no problem if Israelis attack militants, but this was a great injustice. I lost my family. I am sleeping on the street. Only my son and I survived. This is one of the worst crimes. Where is the international court to prosecute the perpetrators? They destroy our houses, take our land, and destroy our women and children. To whom can I complain?” This man’s voice represented the pain and grief encountered throughout the visit: “I keep asking Allah to help me be patient, to deal with this injustice and tragedy, to punish the perpetrators of these crimes, and to have their mothers and fathers suffer as I am suffering now.” This was the same essential story told by other victims and survivors of the attacks with whom the Special Rapporteur spoke.  From an IHL perspective, what seems striking is that several of the damaged structures were situated in clearly demarcated residential districts. There is a new yardstick by which to assess responsibility for military strikes on civilian targets. On the one side, the bombing and missile technology has become much more accurate, allowing for less accidental or collateral damage. At the same time, this increased accuracy creates a presumption that direct hits on civilian residences are deliberate, and thus exhibit criminal intention. In certain instances, there may have been someone living in a residential building who was acknowledged as a militant or serving in the government, but such a presence does not justify targeting an entire residential or apartment complex. In such circumstances, the collateral damage to civilians far outweighs the direct damage inflicted on legally acceptable targets. The Special Rapporteur was informed by several Gazans that rockets were neither stored nor fired from residential districts, but were stored underground and launched from open spaces. Such information was confirmed in the briefing received from the United Nations security specialist. 14. The Special Rapporteur was briefed by United Nations officials and civil society representatives who had observed and investigated compliance with human rights and international humanitarian law during Pillar of Defense.  The concerns noted above were affirmed and our attention was called to other important issues. Israel’s intentional targeting of journalists covering Pillar of Defense was highlighted as a concern that needs to be addressed by the international community, especially those who advocate for press freedoms.  The view was repeatedly expressed that Israel’s attacks constitute a part of its continuous collective punishment of Palestinians. In this respect complaints regarding Israeli impunity for such actions, including the lack of will of the international community to firmly address Israeli impunity, were frequent. One representative insisted that “justice required accountability of Israelis and upholding rights of Palestinians.” The Special Rapporteur was informed that Israeli attacks had shifted from being restricted to specific targets in the first four days of Pillar of Defense, which appeared to avoid serious civilian casualties and damage, to later attacks on civilian and agricultural targets as well as reliance on less accurate forms of weaponry, particularly shelling by naval and land artillery. It was also noted that a neglected humanitarian impact of the attacks was to create more than 60,000 internally displaced persons, who had no refuge after leaving their places of residence. It was suggested that because there does not appear to be a willingness to have an international inquiry into the violations during the attacks, it places a burden of responsibility on human rights NGOs. There was widespread agreement that the possibility of peace depended on ending the blockade and shifting commerce from the tunnels to the crossings, with Israel being blamed for its lack of clarity in relation to the definition and breadth of the ARAs. The Special Rapporteur was left with the strong impression that the ceasefire agreement, even if were to be fully implemented, was a stopgap measure, and that more fundamental changes needed to be taken to allow Gaza to focus its energies on long-term viability. 15. The Special Rapporteur met with several representatives of Gaza’s fishermen, including Nizar Ayaash, Head of the Fishermen’s Association, and  Mohammed El Asi, Head of Tawfeq Association. There are about 3,700 professional fishermen in Gaza who supply food for approximately 50,000 Gazans. The fishing industry has been hard hit by Israeli restrictions and interference with fishing operations. Fishing had been restricted to three nautical miles, which limits productive activity severely, as most edible fish live near rocks that are mostly situated between 12 and 20 nautical miles from shore. To catch fish nearer to shore requires special equipment that few of the Gaza fishing boats possess, such as drag nets to catch bottom fish. The Pillar of Defense attacks appeared to target buildings on shore belonging to the Fishermen’s Association, and did extensive damage to the structures, as well as destroyed or damaged 85 fishing vessels.  The Special Rapporteur was informed that there were high hopes that restrictions would be eased after the ceasefire, and to some extent this happened. There was a green light to fish the coastal zone up to six nautical miles, although Israeli gunboats were accused of often harassing fishing activities, firing at the boats, arresting fishermen, excluding their boats from the enlarged zone, and even shelling boats for no reason. Incidents reported included the confiscation of and arrest of those on board a boat belonging to one of the individuals at our meeting that had taken place only a couple of days earlier, coupled with attacks on fishing vessels the previous day. No reason was given for such arrests, and although these fishermen were released, it produced considerable anxiety and resentment and often fishermen are unable to recover critical and expensive equipment, such as motor engines for their boats or even the boats themselves. It is difficult for most Gazan fishermen to earn enough to sustain a minimum standard of living for his family. Many have given up fishing.  The Special Rapporteur was also told that the buildings attacked were never used to store weapons, and that this had been confirmed by both the International Committee of the Red Cross and international media. It is evident that under conditions of blockade, the difficulties of providing the population with ample, healthy food have grown and been compounded by budgetary constraints that limit UNRWA’s capability to overcome the shortfall. To allow Gazans to take full advantage of their fishing resources would seem to be a primary obligation of the Occupying Power. 16. The mission met with Palestinian women who had either been prisoners themselves or had close relatives in prison. One was the internationally known Palestinian, Hana Shalabi, who had been released from an Israeli prison in the October 2011 Shalit exchange and then re-arrested in an abusive manner at her family home. Ms. Shalabi had not been accused of a crime, but held under administrative detention, which is inconsistent with IHL requirements of prompt charges and trial in the event of detention. Upon re-arrest Ms. Shalabi started a hunger strike that put her at grave risk of death. Israeli authorities agreed to her release, but with the proviso that she would be deported to Gaza, which is away from her family and habitual place of residence. Such a deportation is clearly punitive, and is disturbingly insensitive to Ms. Shalabi’s needs for family and medical support after her experience. The Special Rapporteur recorded other accounts of prison conditions confronting Palestinians: reliance on solitary confinement, denial of family visits, punishment of hunger striking prisoners, punishment for purely political activity, inadequate medical facilities and treatment. The Special Rapporteur also heard complaints about difficulties of accessing United Nations officials to express grievances, summed up by one comment: “When you live this experience it is completely different from talking about it.”  The situation of Palestinian prisoners in discussed in detail further below. B. Economic and social conditions 17. Several meetings were held with United Nations officials and NGO representatives and experts that were relevant to an assessment of social and economic conditions. Field visits were undertaken to examine some of the difficulties with water and sewage facilities, as well as to view damage inflicted by Pillar of Defense. The mission met with the Deputy Director of UNRWA in Gaza, who imparted some key information. His general conclusions are important: (1) UNRWA is “vastly underfunded” to give needed services, especially food, to that portion of the Gazan population that is dependent on aid; (2) the character of dependence is so acute as to qualify as an of ‘emergency’; (3) the Israeli blockade is responsible for this crisis of dependency, with 10% of Gazans being aid dependent prior to the blockade in 2007, while current the percentage has risen to an astounding 70%; (4) the struggle to restore housing destroyed during Cast Lead was expected to be completed in 2013, but that goal is un-achievable given the $20 million of damage done during Pillar of Defense; (5) the water situation is desperate, with 90% of Gaza’s aquifer “unfit for human consumption,’ and Israel diverting a disproportionate share of the coastal aquifer. UNRWA indicated that resumptions of violence worsen this extremely bad economic and social situation. It was emphasized that allowing exports would “do wonders” to restore economic viability. Another concrete step would be for Israel to allow Palestinian agricultural activity nearer to the buffer zone that Israel establishes for security reasons on the Gaza side of the border. The insufficiency of electricity availability and the contaminated nature of the water supply are among the most serious challenges. It was reported that the tunnel network makes the population rely on black markets for many consumer goods, a dynamic that was declared to strengthen Hamas, which gains large revenue by taxing tunnel traffic, and to weaken the Palestinian Authority, which obtains revenue from products that enter or leave Gaza through the crossings.  To improve longer term prospects in Gaza several steps are essential: (1) lifting the blockade is necessary if the economy is to be normalized, which would still require 5-10 years of unimpeded effort; (2) financing the construction of a major desalination facility, possibly via the International Monetary Fund; (3) shifting agricultural production to less water intensive crops; (4) installing solar networks for heat and electricity; (5) improving sewage treatment to avoid further pollution of the Mediterranean Sea.

  1. 18.  The mission met with members of the WASH Cluster and received detailed briefings. There was stress on the urgent need for supporting self-sufficiency and enhanced water quality. The scarcity and supply issues were reportedly aggravated by Israel having cut Gaza off from West Bank aquifers, which appears to violate the arrangements concerning allocation of water in the Oslo II agreements. Israel is implementing an approach that treats Gaza as an entirely independent entity, while from a Palestinian perspective it would be preferable to treat the West Bank and Gaza as one, especially for water policy. Israel currently diverts 92% of aquifers for its own use, and this deprives Gaza of the most efficient way to satisfy its water needs. Given this situation, the practical option for Gaza is a major investment in desalination capabilities, although there were suspicions that Israel is seeking to sell its desalination technology to Gaza. Without desalination and water purification initiatives, the public health hazard of contaminated water is likely to prove catastrophic for Gaza. 95% of water in Gaza is unsafe for human use. It was alleged that Israel allows Gaza to invest in its own program of infrastructural improvements, and then bombs the improvements achieved.  The extent of Israel’s responsibilities as Occupying Power with respect to such matters as water and electricity, which are essential aspects of protecting the civilian population, is paramount. It was recommended that desalination and sewage facilities be regarded as improper targets in the event of Israeli attacks. It was claimed that past targeting of such facilities has discouraged foreign donors from reinvesting, and that difficulties encountered in importing spare parts posed an obstacle to maintenance works. There was an emphasis on the need for greater electricity to pump water, enabling more efficient use of Gaza’s food-producing potential. There were also reports of wasted water due to faulty treatment facilities, increased salinity in ground water, and administrative problems with foreign funding due to the split in control between formal recognition by Israel of the Palestinian Authority as still controlling Gaza and the de facto status of the authorities.
  2. 19.  Fundamental to the viability of Gaza is the question of food security, both as a present and future challenge. The Special Rapporteur was made aware of the range of problems. The Gaza Strip is 321 square miles, and the latest population estimate is 1.75 million residents, making it one of the most densely populated and impoverished territories in the world. These underlying conditions have been aggravated by Israel’s maintenance of a security buffer zone on the Gaza side of the border that deprives Palestinian farmers of 34% of available agricultural land. Periodic Israeli incursions have destroyed wells and farm animals, and have made it hazardous to work the land.  Pillar of Defense inflicted considerable damage on agricultural structures and animal shelters throughout Gaza. The Special Rapporteur was informed that agriculture seemed to have been particularly targeted. To have any hope of achieving long-term viability, the agricultural sector depends on an end to the blockade; improved access to seeds; better irrigation; secure access to the land; a reduced and demarcated buffer zone; and the renewal of exports of key products in viable quantities. Long term projections that assume continued population growth and improving living conditions, including less dependence on international donors, are uniformly pessimistic about the future of Gaza, especially if it continues to be cut off from the West Bank and the outside world.
  3. 20.  The gravity of the situation has been dramatized recently by confrontations between Gazans and UNRWA as a result of food shortfalls.[8] The UN projection of the collapse of Gaza as a viable entity for the current population by 2020 was confirmed by NGO representatives, who even suggested that such a projection was optimistic, especially in relation to water quality and availability, and that 2016 was more realistic. Present conditions are threatening to unleash a health epidemic. There are reports of widespread mental difficulties being experienced by virtually the entire juvenile population. UNRWA felt that it would be only possible to improve the overall situation in Gaza if its annual budget were increased by $200 million to $300 million, which seems unlikely at present. The NGO Action Against Hunger noted that any prospect for agricultural sufficiency and livelihood capacity will depend on Gaza reclaiming at least 50% of the coastal aquifer.

C. Health in Gaza 21. The Special Rapporteur met with health experts associated with World Health Organization, UNICEF and the Gaza Community Mental Health Programme. They presented a grim picture of the health situation in Gaza. One unexpected finding was their shared assessment that the health effects of Pillar of Defense were more severe than those that followed from Cast Lead, despite lower casualties. An increased perception of deliberately targeting neighbourhoods and agricultural settings, more fear arising from recollections of past violence, and greater sensitivity to extreme vulnerability were cited. Mental health experts mentioned the extent to which each major violent incursion in Gaza destroys whatever progress had been achieved in recent years causes a net depressive mood and reality summarized by the word often encountered in such briefings: ‘de-development’. 22. As far as medical care there were reports of an increase in referrals for treatment in Israel and Egypt (for instance, 8,000 in 2007 as compared to 16,000 in 2011) for persons suffering from cancer and cardiac conditions, as well as other diseases that could not be treated in Gaza. This increase in referrals was explained as partly caused by the deterioration of medical equipment in Gaza, the inability to import spare parts, and the failure to invest in advanced medical facilities. Despite these shortcomings, health specialists did report that there was some improvement in the overall medical situation following the Mavi Marmara incident in 2010, when it became easier to receive travel permits (95% of requests were approved, although often with harmful delays) and to import certain medical equipment. The Special Rapporteur received reports of tragic deaths caused by delays in issuance or denial of travel permits for those needing urgent treatment. Other problems identified included the unavailability of 30% of essential medicines and pharmaceutical supplies that had to be shipped from the West Bank, 192 drugs were out of stock. 23. During Pillar of Defense, public health facilities were severely strained and the population came to depend on NGO assistance, amidst reports of a high incidence of physical and mental injuries. The Gaza Community Mental Health Programme emphasized the degree to which the impact of the siege and wartime violence on the mental wellbeing of the civilian population has been both adverse and cumulative. They spoke of the high level of stress observed in most Gazans, with secondary symptoms of despair, hopelessness, and powerlessness, and somatic complaints that originate with acute stress such as high blood pressure among children. Health workers in Gaza often sense that there is a need to prepare Gazans psychologically for the next cycle of violence. Under such circumstances there occur signs of a loss of the will to live. Such pessimistic assessments were inconsistent with accounts that emphasized the high morale of the civilian population, despite the stress, as evidenced by the refusal to leave even when opportunities to do so emerge. There were suggestions that the stress and economic challenges of sustaining livelihoods seemed connected with a rise in domestic violence, post-traumatic stress, and indications that for children older than seven there were reactivated haunting memories of the horrors experienced during Cast Lead. It was stressed that medical experts are themselves survivors of trauma-inducing situations who require counselling. While people in Gaza suffering from physical ailments seek help, those with mental difficulties tend not to, being culturally inhibited from acknowledging mental problems. Even taking this into account, it was reported that there exists a 70-80% treatment gap between those who need help but do not receive it because of shortages in the health system. Added to this is the serious health concern relating to disease associated with contaminated water and inadequate nutrition that has led to widespread stunting in children. These impressions were elaborated upon in a meeting with the psychiatrist, Dr. Eyad El-Serraj, who confirmed the observations made by other health specialists and emphasized a variety of issues that were aggravating the situation, including refusals by Israeli hospitals to accept patients from Gaza who were unable to pay the exorbitant costs of treatment. He recommended creation of a private patients’ fund that could be drawn upon for medical treatment outside of Gaza. D. Ceasefire implementation 24. The ceasefire agreement[9] between the de-facto authorities in Gaza and Israel embodied an understanding that, beyond an immediate cessation of hostilities, Israel would refrain from incursions and targeted assassinations in Gaza and would also allow the movement of people and goods at the crossings.  Despite the various interpretations of this broader sense of the ceasefire understanding, with some Israelis contending that it was only an agreement to discuss, there was a general expectation, at least among Palestinians, that Israel would loosen the stranglehold it has held over the civilian population and make life more tolerable.  Both sides have largely refrained from resuming hostilities, but several developments suggest that Israel has not adhered to the spirit of the ceasefire agreement.  There are few signs of a loosening of the blockade and in recent weeks, targeted assassinations of suspected militants and incursions by the IDF into Gaza have resumed.  The excessive use of force by the Israeli security forces in the enforcement of the Access Restricted Areas (ARAs) continues with disturbing regularity.  Several setbacks over the past weeks and months are highlighted hereunder. 25. The Special Rapporteur is disturbed by excessive use of force in the enforcement of ARAs on land and at sea as well as military incursions with bulldozers into Gaza.  The Special Rapporteur is also concerned by punitive measures taken by Israel, such as rescinding the fishing zone and closing border crossings, which amount to the collective punishment of the civilian population. 26. On 22 February, the IDF reportedly fired live ammunition toward a group of Palestinians enjoying a picnic approximately 400 metres from the border fence, resulting in three Palestinians injured.  On 9 and 19 February, a total of six fishermen were arrested in separate incidents less than six nautical miles off the coast.  In both incidents, the fishermen released the same day, but their boats were confiscated.  On 18 and 21 February, a total of four fishermen were shot and injured by Israel, three nautical miles from shore.  Two were shot by rubber bullets, while the remaining two, including one minor, were injured by shrapnel from live bullets. 27. Allegedly in response to a rocket fired on 26 February by the Al-Aqsa Martyrs Brigades, which caused no casualties, Israel closed the Kerem Shalom crossing and tightened restrictions in the ARAs on land and at sea.  Israel also adopted severe measures to enforce the ARAs, including live-fire shooting without warning, leaving civilians, including farmers, seriously injured.  Four Palestinians have been killed and 106 injured by Israel in the ARA since the ceasefire.[10]  Israeli Naval Forces increased their attacks on Palestinian fishermen within six nautical miles by using rubber and live bullets, at times without advance warning, despite the ceasefire agreement which expanded the fishing zone from three to six nautical miles, resulting in injuries to fishermen.  IDF tanks and bulldozers have also made numerous incursions over the past months into Gaza to undertaken levelling and excavations. 28. On 21 March, Israel again reduced the maritime area along the coast, shrinking it three nautical miles.[11]  Fishermen aiming to fish in areas up to six nautical miles were ordered by Israel through megaphone to return to within three nautical miles.  On 23 and 24 March, Israeli naval forces opened fire toward Palestinian boats located at 1.5 nautical miles from the coast.[12] 29. The Special Rapporteur is concerned about Israel’s periodic closure of the Kerem Shalom crossing as a retaliatory measure to tighten the stranglehold of Gaza.  Kerem Shalom is the crossing point for goods and approximately 40% of the goods coming through are food and other basic supplies, including cooking gas. Its prolonged closure leads to shortages of basic items and higher prices of commodities.  After 21 March, Israel closed the Kerem Shalom crossing, bringing the movement of goods to a halt for the second time after the earlier closure from 27 February to 3 March. Restrictions were also imposed at the Erez crossing, limiting movement to humanitarian cases holding permits. The Israeli authorities re-opened Kerem Shalom crossing for a day on 28 March, after having closed it for seven successive days. Crossings at Erez and Kerem Shalom resumed again, subject to pre-21 March restrictions, on 2 April. 30. The Special Rapporteur expresses concern about the human rights and humanitarian consequences of breaches of the ceasefire agreement.  While the continued illegal blockade of Gaza by the occupying power and its failure to uphold its responsibilities to ensure the protection of civilians remain of utmost concern, the Special Rapporteur is alarmed by what appears to be the use of collective punishment upon the entire civilian population of Gaza by Israel. 31. The ceasefire agreement will continue to be tested.  Nevertheless, the Special Rapporteur is mindful that the continued blockade of Gaza, of which the restricted fishing zone is only one component, remains of primary concern to the residents of Gaza.   The Israeli stranglehold is such that Gaza’s monthly exports consist of a few truckloads of cut flowers, date bars, cherry tomatoes and spices.[13]  Israel’s blockade is stunting the potential for economic development in the Gaza Strip. III. Palestinian detainees in Israeli prisons and detention centres 32. The Special Rapporteur continues to be disturbed by reports concerning the treatment of thousands of Palestinians who are detained or imprisoned by Israel.  As of the submission of this report, the Government of Israel had in custody around 4,800 Palestinians.[14]  The Special Rapporteur deeply regrets that Israel continues to ignore problems, which he and other United Nations human rights bodies have repeatedly enumerated in official reports, related to the detention of Palestinians.[15] The results are Israeli violations on a massive scale.  While the Special Rapporteur highlights hereunder cases and issues of concern within the reporting period, the following policies and practices remain serious, on-going concerns: detention without charges and other forms of arbitrary detention, such as Israel’s abusive mis-use of administrative detention; torture and other forms of ill, inhumane and humiliating treatment; coerced confessions; solitary confinement, including of children; denial of equality of arms; denial of visits by family members and the International Committee of the Red Cross; denial of access to legal representation; unacceptable conditions in prisons and detention centres; lack of access to required health care, at times amounting to medical neglect; and denial of access to education, including for children.  These concerns are punctuated by Israel’s flagrant disregard of article 76 of the Fourth Geneva Convention. 33. Israel’s treatment of Palestinian children in detention continues to alarm.  Many of the Special Rapporteur’s concerns in this respect were raised in his report to the General Assembly in September 2011.[16]  A February 2013 UNICEF report reminds the international community that Israel’s treatment of Palestinian children routinely violates the Convention on the Rights of the Child and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[17]  It concludes that “in no other country are children systematically tried by juvenile military courts that, by definition, fall short of providing the necessary guarantees to ensure respect for their rights.”  UNICEF’s report further concludes that “the ill-treatment of [Palestinian] children who come in contact with the [Israeli] military detention system appears to be widespread, systematic and institutionalized throughout the process, from the moment of arrest until the child’s prosecution and eventual conviction and sentencing.”  In a clarifying indication of the extent of the problems, UNICEF notes that its conclusions are based, among other things, on ten years of consistent allegations.  Another clarifying indication of the extent of the problems comes by way of one of UNICEF’s recommendations: “Israeli authorities should give immediate consideration to establishing an independent investigation into the reports of ill-treatment of children in the military detention system, in accordance with the 2002 recommendations made by the United Nations Special Rapporteur on the situation of human rights on [sic] Palestinian territories occupied since 1967.”  Over ten years of serious violations against Palestinian children remain to be answered for by Israel.  It is telling to contrast the treatment that Israel metes out to Palestinian children with the treatment it affords Israeli children, including settlers in Palestine.[18]  This contrast is one way of comprehending the grossly discriminatory nature of Israel’s occupation. 34. The death of Palestinian Arafat Jaradat on 23 February 2013, while in an Israeli facility, constitutes another criminal mark on Israel’s detention regime.  While no cause of death was formally recorded,[19] the Palestinian Authority’s chief medical examiner, Saber Aloul, observed the autopsy and reported clear indications of ill-treatment and torture on the body of the previously healthy 30-year-old.  In particular, Dr. Aloul reported that Mr. Jaradat’s death was caused by nervous shock resulting from severe pain, which was due to injuries inflicted through direct and extreme torture.  Dr. Aloul found that Mr. Jaradat displayed severe bruising on his upper back, deep bruising along the spine, and significant bruising on both sides of the chest. The autopsy uncovered bruising on both of his arms and inside his mouth, blood around his nose and three fractured ribs.[20]  The death of a prisoner during interrogation is always a cause for concern. Israel remains firmly committed to impunity for its officials who interrogate Palestinians.  This is evidenced by a study carried out by B’Tselem, which determined that, between 2001 and 2011, over 700 complaints of abuse by Israeli security agents interrogating Palestinians resulted in not one criminal investigation.[21]  In this context, there is a clear need for an outside, credible investigation to clarify the circumstances that led to Mr. Jaradat’s death. 35. On 2 April 2013 another Palestinian died while imprisoned by Israel.  By all accounts Maysara Abu Hamdiyeh died from cancer.  Still, the Special Rapporteur has received credible allegations regarding inadequate health care that may amount to medical neglect.  Such allegations include a four-month delay in sending Mr. Abu Hamdiyeh to a hospital, providing him with the wrong medication, and then transferring him to an eye doctor when he was suffering from throat pain and had swollen lymph and salivary glands.  The Special Rapporteur was informed that Israel had denied Ms. Abu Hamdiyeh’s sons visitation rights for eleven years, and did not release him even when it was confirmed that his cancer was terminal.  Mr. Abu Hamdiyeh died chained to a bed in a prison, without the presence of – or even any chance to say goodbye to –his family. Mr. Abu Hamdiyeh’s death in these circumstances should be considered in the context of years of reports of lack of access to health care and medical neglect suffered by Palestinians detained by Israel.[22]  According to information provided to the Special Rapporteur, there have been at least 54 cases of clear medical neglect that have resulted in the deaths of Palestinians in Israeli prisons. 36. The sense of hopelessness grinded into Palestinian prisoners by Israel has caused many to launch hunger strikes.  Especially over the past year, prisoners have undertaken hunger strikes to protest their treatment and conditions of their detention, especially at Israel’s frequent mis-use of long-term detention without charges.[23]  At the time of finalizing this report, seven Palestinians were on hunger strikes:[24]  Samer Al-Barq; Samer Al-Issawi; Younis Al-Hroub; Muhammad Ahmad An-Najjar; Zakariyah Al-Heeh; Ibrahim Al-Sheikh Khalil; and Hazem Al-Tawil.  Each was protesting against being detained indefinitely without charges.  Samer Al-Issawi had been on a hunger strike for an extraordinarily long period and was in danger of death.  According to media reports, Israel was offering to release him on the condition that he would be forcibly deported to another country.  Such a deportation would likely violate article 49 of the Fourth Geneva Convention, which prohibits the forced transfer or deportation of protected persons from occupied territories.  This was, nonetheless, the treatment given to Ayman Sharawna, who ended his nearly seven month hunger strike in mid-March in return for deportation to Gaza for 10 years. 37. It is interesting to note that Messrs. Sharawna and Al-Issawi had been released from Israeli detention on 18 October 2011, in connection with the deal between Israel and Hamas that resulted in the release of Israeli soldier Gilad Shalit.  It should be of concern to Israelis, Palestinians and international actors that the Government of Israel appears increasingly willing to break the terms of that deal.  While 1,027 Palestinian prisoners were released in exchange for one Israeli soldier, Israeli authorities have since re-arrested at least 15 of the Palestinians who were released.  Twelve remained imprisoned at the time of finishing this report.  To the Special Rapporteur’s knowledge, none of those who were imprisoned were subject to any criminal or other charges.  Similarly, Israel has demonstrated its readiness to disregard the 14 May 2012 agreement reached with representatives of Palestinian prisoners that ended the hunger strike in which at least 1,000 Palestinians participated.  According to that agreement, in return for ending the hunger strike, Israel would remove prisoners from solitary confinement; allow family visits; limit the use of administrative detention; and make efforts to improve general conditions.[25]  All reports indicate that Israel has backtracked on each element.  Yet Israel’s unacceptable disregard of these commitments is part and parcel of its prolonged occupation of Palestine.  Israel’s detention regime, in particular, seems designed to disrupt Palestinian society, producing an atmosphere of arbitrariness, instability and powerlessness.  The Special Rapporteur reminds the international community that over 750,000 Palestinians have been detained by Israel since the occupation began in June 1967 – equaling around 20 per cent of the Palestinian population. IV. Settlements 38. The Special Rapporteur continues to be concerned by Israel’s consistent and systematic expansion of settlements through subsidies, expropriations, house demolitions and demolition orders, granting permits for homes in settlements and intensifying the exploitation of Palestinian natural resources.  In the first quarter of 2013, Israel demolished 204 Palestinian homes and structures, displacing 379 Palestinians.[26] 39. The report of the Human Rights Council’s fact-finding mission to investigate the implications of the Israeli settlements reconfirmed that “the State of Israel has had full control of the settlements in the Occupied Palestinian Territory since 1967 and continues to promote and sustain them through infrastructure and security measures”.  It concluded that “The establishment of the settlements in the West Bank, including East Jerusalem, is a mesh of construction and infrastructure leading to a creeping annexation that prevents the establishment of a contiguous and viable Palestinian State and undermines the right of the Palestinian people to self-determination”.[27]  The process of “creeping annexation” that is slowly redrawing the contours of the West Bank contrasts with Israel’s purported annexation of East Jerusalem, but both are clearly violations of the Fourth Geneva Convention. 40. A lready in July 1979, twelve years after the first illegal Israeli settlement of Kefar Ezyon was established in the West Bank, the report of the Security Council’s Commission established under resolution 446 to examine the situation relating to settlements in the Arab territories occupied since 1967, including Jerusalem, arrived at similar findings, namely that “… the pattern of that settlement policy […] is causing profound and irreversible changes of a geographical and demographic nature in those territories, including Jerusalem.”, and that “… in the implementation of its policy of settlements, Israel has resorted to methods – often coercive and sometimes more subtle – which included the control of water resources, the seizure of private properties, the destruction of houses and the banishment of persons, and has shown disregard for basic human rights, including in particular the right of the refugees to return to their homeland”.[28]  Among its recommendations, the Commission stated that “as a first step, Israel should be called upon to cease on an urgent basis the establishment, construction and planning of settlements in the occupied territories. The question of the existing settlements would then have to be resolved”. 41. Almost 34 years later, and following another international fact-finding mission, Israel continues to flout, with total impunity, international humanitarian law, including the obligation as specified in Article 49(6) of the Fourth Geneva Convention not to transfer its population into the occupied territory. Israel’s commitment to the settlement enterprise was succinctly expressed decades ago by former Prime Minister Ariel Sharon, when he stated, as Minister of Defense:“In my opinion what determines our fate for many generations to come are the Jewish settlements.  Without underestimating the importance of war and military combat in the defense of our country, I think that in establishing settlements in the Galilee, in the Negev, in the Golan Heights, in Judea and Samaria, in the Jordan Valley and in the Gaza Strip I had the privilege as the chairman of the Settlement Affairs Ministers Committee and as the Defense Minister to decide about the establishing 230 settlements all over Israel, more than 60 of which in the Galilee.  To me, the settlements are the most important thing”.[29] 42. It is telling of Israel’s policy and intentions with regard to settlements that following the General Assembly accorded Palestine the status of non-member observer state at the United Nations on 29 November 2012, Prime Minister Netanyahu authorized 3,000 new units in settlements.  Israel’s population registry indicates that the number of settlers in the West Bank, including East Jerusalem, grew by 4.5 per cent in 2012 to an estimated total of 650,000 settlers. 43. In the course of Israel’s unrelenting settlement expansion, a total of 6,676 residential units were approved in 2012, including 3,500 residential units intended for the controversial “E-1” corridor between East Jerusalem and Maale Adumim.  In its March 2013 report to the Ad Hoc Liaison Committee, the Government of Palestine explained that, “Construction in the Bab Ash-Shams/“E1” area […], would complete the Israeli wedge of settlements that stretches from occupied East Jerusalem down to the Dead Sea, thus separating the northern from the southern West Bank, and destroying all hope for a free, sovereign and viable State of Palestine”.[30] 44. In East Jerusalem, settlers continue their efforts to expand, including through forced evictions in the Old City, Silwan, Sheikh Jarrah, At-Tur, Wadi Joz, Ras al-Amud, and Jabal Al Mukabbir.  According to figures collected by the United Nations Office for the Coordination of Humanitarian Affairs, 299 Palestinians were displaced in the West Bank, including East Jerusalem this year in January and February, compared with 879 Palestinians displaced throughout 2012.[31] 45. The case of the Shamasneh family, in Sheikh Jarrah since 1964, but now subject to eviction proceedings against them by the General Custodian and Israeli Jewish landowners, is symptomatic of a wider trend. Although some Palestinian families in Sheikh Jarrah come under the provisions of the Protected Tenants Act 1972, the Shamasneh family reportedly are not eligible for protection as they did not have a written rent agreement with the Palestinian who sub-leased the property to them between 1964 and 1967.  A ruling on the case by the Israeli High Court is expected on 20 May 2013.[32] 46. In another case of forcible displacement of Palestinians, the Israeli Municipality and the Ministry of Transport are undertaking construction in Beit Safafa to complete a highway to serve the expansion of settlements in and around the southern part of East Jerusalem, and to expedite the annexation of Gush Etzion.  As usual, Palestinian residents were not consulted during the planning process and will not benefit from the highway, which will cut across the centre of Beit Safafa.  Instead, once the highway is completed, the residents of Beit Safafa will find themselves in a fragmented community with further loss of freedom of movement and access to essential services. Residents will lose the ability to use and develop property in proximity to the highway, and its value will fall, violating their collective right to develop the community.  The Special Rapporteur will closely follow the appeal by residents of Beit Safafa for an immediate stop order in the Israeli High Court scheduled on 26 June 2013.[33] 47. Settler violence continues unabated and affects Palestinians, including children living in communities located close to illegal settlements, on a daily basis.  146 cases of settler-related violence resulting in Palestinian casualties or property damage have been reported this year.[34] Incidents of settler violence range from physical assaults against Palestinians, including shooting live-firearms and stone-throwing, to vandalism against schools, mosques and private property.  Hundreds of olive trees and other agricultural assets owned by Palestinians have already been damaged this year.  Beyond the intended effect of intimidating and harming Palestinians, a worrying aspect of this violence has been the almost non-existent efforts of the IDF to protect Palestinians or to investigate settler abuses.  All too often, as repeatedly captured on video, Israeli forces arrive at the scene of violence instigated by Israeli settlers, standby as passive witnesses, or worse – respond by firing tear gas canisters and rubber-coated metal bullets at the Palestinians.  If recently proposed new legislation to give settlers broader discretion to open fire and to allow more permissive rules of engagement, introduced by Naftali Bennett, head of the Jewish Home Party and cabinet member is adopted, it will imbue settlers with a greater sense of impunity. 48. At the time of finalizing this report, Israel’s newly-formed coalition shows no sign of breaking with Israel’s policy of disregard for international law.  The Housing Minister, Uri Ariel, just before President Barack Obama’s visit to Israel and Palestine, declared on television that “building will continue in accordance with what the government’s policy has been thus far”.[35]  The Special Rapporteur believes that without Israel demonstrating good faith compliance with the Geneva Conventions with respect to settlements, the political preconditions for peace negotiations do not exist. V. Businesses that profit from Israeli settlements 49. The Special Rapporteur’s report[36] to the General Assembly in October 2012 focused attention on business enterprises that profit from Israeli settlements.  A central part of the report was the highlighting of a selection of businesses that have engaged in profit-making operations in relation to Israeli settlements. The Special Rapporteur noted his commitment to seeking clarification from these businesses and, in this respect, wishes to briefly mention the responses received from these businesses.  Additional recent developments in relation to businesses that profit from Israeli settlements are discussed thereafter. 50. Of the 13 businesses highlighted in the last report, responses were received from six: Assa Abloy; Cemex; Dexia; G4S; Motorola; and Volvo.  No reply was received from Ahava; Caterpillar; Elbit Systems; Hewlett-Packard; Mehadrin; The Riwal Holding Group; or Veolia Environment.  It is disappointing that the latter six businesses decided that it was not necessary to respond to allegations of serious human rights and international humanitarian law abuses and violations. Yet it is especially disappointing in the cases of Hewlett-Packard and Veolia Environment, as each has signed on to the United Nations Global Compact, which implies the good faith commitment to adhere to the guidelines for corporate behaviour. 51. Volvo’s response clarified that Merkavim no longer produces buses that transport prisoners from Palestine to Israel.  This is useful information.  However, Volvo repeated its argument that, while “it is regrettable and sad if our products are used for destructive purposes…we have no means to ultimately control how and where our products are used.” The Special Rapporteur notes that this line of argument has been adopted by other companies and intends to examine its adequacy against applicable international laws, standards and commitments in a future report. 52. Motorola’s response informed that “As a well-respected and responsible corporate citizen, our global activities are conducted in accordance with U.S., local, country and other applicable laws, as well as our own code of business conduct.  Our company has a comprehensive set of policies and procedures that address human rights that are designed to ensure that our operations worldwide are conducted with the highest standards of integrity.”  It is regrettable that this reply does not respond to the allegations, which were that Motorola provides surveillance and communications systems that constitute integral parts of the infrastructure of Israeli settlements and checkpoints along the wall, and that such systems facilitate the implementation of improper restrictions on Palestinians’ freedom of movement within their own territory.  It would be of particular interest to know how Motorola’s due diligence policy takes account of such allegations, when Motorola considers additional sales to the State of Israel. 53. The Special Rapporteur received somewhat positive responses from Assa Abloy, Dexia, G4S and Cemex.  Assa Abloy clarified that its Mul-T-Locks factory was moved from Barkan, Palestine, to Yavne, Israel in 2011.  The Dexia response clarified that the relevant entity is Dexia Israel Limited (formerly Otszar Hashilton Hamekomi), and that Dexia Israel Limited, as a non-retail bank, does not provide credit to private individuals. It also confirmed that Dexia Israel Limited has a role in servicing loans from the Government of Israel to settlements.  G4S confirmed its intention to exit its contracts with the customers in question and further confirmed that such contracts expire from 2012 to 2015.  G4S also provided an overview of its progress in putting its human rights policies and practices in place, which it expects to do in 2013.  Cemex confirmed that it understands that Israel is the Occupying Power in Palestine, and clarified that its plants in Mishor Adumim, Mevoh Horon and Atarot produce exclusively concrete, not other construction materials.  Cemex asserted that the Yatir quarry is not an Israeli settlement, but referred in this connection to a decision of the Israeli High Court of Justice that characterized the matter as a political rather than a legal issue.  While Cemex also referred to the Occupying Power’s duty, under article 55 of the Hague Convention (1907), to safeguard the capital of the occupied State, the Special Rapporteur recalls that the profits from the quarry go to Cemex, which holds 50 per cent ownership, and Kfar Giladi Quarries. Still, the Special Rapporteur was encouraged to be informed that Cemex, in response to his report, is “considering the possibility of executing a new internal audit on the Cemex Israel [sic] concrete plants in order to check the present compliance with the UN Global Compact Group principles.” 54. International attention is increasingly drawn to the activities of Israeli and international business enterprises involved in profit-making in occupied Palestine. The Human Rights Council’s fact-finding mission to investigate Israeli settlements denoted a range of potential violations that stem from such activities.[37]  The fact-finding mission concluded that “private entities have enabled, facilitated and profited from the construction and growth of the settlements, either directly or indirectly”.  The mission recommended that “[p]rivate companies must assess the human rights impact of their activities and take all necessary steps – including by terminating their business interests in the settlements – to ensure they are not adversely impacting the human rights of the Palestinian people.  The mission further recommended that the Human Rights Council’s Working Group on Business and Human Rights be seized of the matter. 55. The case for action against businesses profiting from the Israeli occupation has been strengthened by recent reports from a wide range of actors. The report Trading Away Peace: How Europe helps sustain illegal Israeli settlements, by 22 major international human rights and humanitarian organizations, made explicit links between the settlements, businesses and Israel’s critical trade with Europe.[38] A leading Palestinian human rights organization, Al-Haq, reported on the responsibility of EU Members States for the huge settlement produce industry.[39]  Palestinian farming and civil society organizations collectively reported on the extent to which international trade with Israeli agricultural companies is destroying Palestinian agriculture.[40]  A confidential report by the EU heads of mission to Jerusalem contained recommendations to ensure that European consumers are not mis-led into purchasing settlement products that are labelled as originating from Israel.[41]  The EU report also called for EU citizens and companies to be informed of the financial and legal risks involved in purchasing property or providing services in Israeli settlements. Against this backdrop, according to media reports, the EU’s High Representative for Foreign Affairs and Security Policy, Ms Catherine Ashton, wrote to EU Ministers for Foreign Affairs calling for enhanced efforts by Member States to fully and effectively enforce EU labelling legislation vis-à-vis Israel.  It is in this context of increasing awareness that the Special Rapporteur will continue to report on businesses that profit from Israel’s prolonged occupation of Palestine. VI. Recommendations 56. The International Committee of the Red Cross or a commission of inquiry composed of relevant international law experts should convene to examine issues particular to prolonged occupation and move toward a convention to address such occupations. 57. Israel must allow Palestinians to make use of their maritime area, up to 20 nautical miles in line with its commitments under the Oslo Agreements. 58. Israel should lift its illegal blockade of Gaza and clearly demarcate ARAs.  ARAs can only be established in line with applicable international legal standards and commitments undertaken by the State of Israel. 59. The international community, with Israel’s full cooperation, should finance the construction of a major desalination facility in Gaza; install solar networks for heat and electricity; and urgently improve sewage treatment to avoid further polluting of the Mediterranean Sea. 60. The international community, with Israel’s full cooperation and in direct consultation with farmers in Gaza, should support a shift in agricultural production in Gaza to less water-intensive crops, including by facilitating improved access to seeds; should support the improvement of irrigation networks; and should ensure that farmers can utilise their farmland. 61. The international community, with Israel’s full cooperation, should create a private patients’ fund that could be drawn upon to support medical treatment outside of Gaza as needed. 62. The international community should establish a commission of enquiry into the situation of Palestinians detained or imprisoned by Israel.  This enquiry should have a broad mandate, to examine Israel’s track record of impunity for prison officials and others who interrogate Palestinians. 63. The international community should investigate the activities of businesses that profit from Israel’s settlements, and take appropriate action to end any activities in occupied Palestine and ensure appropriate reparation for affected Palestinians. 64. The Office of the High Commissioner for Human Rights, with the support of the Human Rights Council, should establish a mechanism to support Special Rapporteurs who are subject to defamatory attacks, especially those that divert attention from the substantive human rights concerns relevant to their respective mandates.  

* Late submission.
[1] For the relevant criteria against which it must be judged, see http://csonet.org/?menu=30.
[3] For a summary of the charges and counter-charges see “TIMELINE: Israel launches Pillar of Defense amid Gaza escalation,” Haaretz, 20 November 2012 http://www.haaretz.com/news/diplomacy-defense/timeline-israel-launches-operation-pillar-of-defense-amid-gaza-escalation.premium-1.479284
[4] See “Israel’s Shortsighted Assassination,” Baskin, New York Times, 16 November 2012 http://www.nytimes.com/2012/11/17/opinion/israels-shortsighted-assassination.html?_r=0%5D
[5] United States Department of State Press Release, 14 November 2012 http://www.state.gov/r/pa/prs/ps/2012/11/200551.htm
[6] See Israeli assessment of Pillar of Defense in Shlomo Brom, ed., “Introduction,” The Aftermath of Operation Pillar of Defense, Institute for National Security Studies, Memorandum 124, 2012.
[7] United Nations Country Team, occupied Palestinian territory, Gaza in 2020: A liveable place? August 2012 http://www.unrwa.org/userfiles/file/publications/gaza/Gaza%20in%202020.pdf
[8] For a graphic account see Mohammed Omer, “Anger at UNRWA in Gaza grows” Al Jazeera, 01 May 2013 http://www.aljazeera.com/humanrights/2013/04/20134294185559594.html
[9] The following is the verbatim English text:  1. Agreement of Understanding For a Ceasefire in the Gaza Strip.  A. Israel should stop all hostilities in the Gaza Strip land, sea and air including incursions and targeting of individuals.  B. All Palestinian factions shall stop all hostilities from the Gaza Strip against Israel including rocket attacks and all attacks along the border.  C. Opening the crossings and facilitating the movements of people and transfer of goods and refraining from restricting residents’ free movements and targeting residents in border areas and procedures of implementation shall be dealt with after 24 hours from the start of the ceasefire.  D. Other matters as may be requested shall be addressed.  2. Implementation mechanisms:  A. Setting up the zero hour for the ceasefire understanding to enter into effect.  B. Egypt shall receive assurances from each party that the party commits to what was agreed upon.  C. Each party shall commit itself not to perform any acts that would breach this understanding. In case of any observations Egypt as the sponsor of this understanding shall be informed to follow up.
[10] OCHA Protection of Civilians Weekly Report, 19-25 February 2013, p.3
[11] GFO-DUO Gaza Weekly Update 18-24 March 2013
[12] OCHA Protection of Civilians Weekly Report, 19-25 February 2013
[13] State of Israel Ministry of Defense, Coordinator of Government Activities in the Territories, Gaza Crossing – Monthly report March 2013.
[15] See  the Special Rapporteur’s previous reports (A/HRC/7/17; A/66/358; A/HRC/20/32, and recent reports by the Special Committee on Israeli Practices (A/66/370 and A/67/550).
[16] See A/66/358, paras 34-40.
[18] See A/67/550 para 16.
[22] See, for recent examples, A/66/358 and A/67/550. See also Physician’s for Human Rights Israel, Oversight and Transparency in the Israeli Penal System, (July 2008), available at http://www.phr.org.il/uploaded/דוח%20שקיפות%20ובקרה.pdf.
[23] For video on administrative detention and hunger strikes, see http://therealnews.com/t2/index.php? option=com_content&task=view&id=31&Itemid=74&jumival=8123
[24] See Addammeer, Eight on Hunger Strike: Hunger Strikes are the Weapon of Prisoners in the Fight Against Administrative Detention, 10 March 2013, available at: http://www.addameer.org/etemplate.php?id=584.
[26] OCHA Protection of Civilians Weekly Report 23-29 April 2013
[27] A/HRC/22/63).
[28] Report of the Security Council Commission Established Under Resolution 446 (1979), 12 July 1979 (S/13450) http://unispal.un.org/UNISPAL.NSF/0/9785BB5EF44772DD85256436006C9C85
[30] Report of the Government of Palestine to the Ad Hoc Liaison Committee meeting in Brussels, 19 March 2013, p.13
[31] OCHA Humanitarian Monitor Monthly Report February 2013, p.18
[32] Ibid., pp.12-15
[33] Civic Coalition for Palestinian Rights in Jerusalem, Urgent Appeal for Action, 6 April 2013
[34] OCHA Protection of Civilians Report 30 April to 6 May 2013
[35] Israel Settlements Will Continue To Expand, Says New Housing Minister Uri Ariel, Reuters, posted 17 March 2013
[36] A/67/379.
[37] A/HRC/22/63.
[39] Feasting on the Occupation: Illegality of Settlement Produce and the Responsibility of EU Member States under International Law, available at http://www.alhaq.org/publications/Feasting-on-the-occupation.pdf.
[41] Copy on file with the Special Rapporteur.

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Seeing in the Dark

11 Apr

Seeing in the Dark with Victoria Brittain

 

            As with the best of journalists, Victoria Brittain has spent a lifetime enabling us to see in the dark! Or more accurately, she has shined a bright light on those whose suffering has been hidden by being deliberately situated in one or another shadow land of governmental and societal abuse, whether local, national, or geopolitical in its animus. These patterns of abuse are hidden because whenever their visibility cannot be avoided, the liberal mythologizing of the decency of the modern democratic state suffers a staggering blow. In recent years this unwanted visibility has permanently tarnished the human rights credentials of the United States due to the spectacular exposés of the horrifying pictures of prisoner abuse at the Abu Ghraib prison in Iraq or various reports of grotesque treatment of Guantanomo detainees. As with Bradley Manning and Wikileaks, the U.S. Government should be embarrassed by its response: a preoccupation with these unwelcome leaks of its dirty secrets, while manifesting indifference to the substantive disclosures of its endorsement of torture and other crimes against humanity. But it is not, and that has become and remains a deep challenge to all of us who wish to live in a society of laws, not sadistic men, a society based on ethics and human rights, not cruelty and dehumanization. Once such secrets have been revealed, all of us are challenged not to avert our gaze, being reminded that upholding the rights and dignity of every person is the duty of government and the responsibility of all citizens, and when flagrant and intentional failures along these lines remain unchallenged, the credentials of decency are forever compromised.

 

            This is but a prelude to commenting briefly upon Victoria Brittain’s extraordinary recent book of humane disclosure, SHADOW LIVES: THE FORGOTTEN WOMEN OF THE WAR ON TERROR (London: Pluto, 2013; distributed in the United States by Palgrave Macmillan). Brittain is a journalist who not only sees in the dark, but what is even rarer among the restless practitioners of this profession, she stays around long enough to listen. Here she listens with empathy and insight to the words and experience of women whose male partners have been targeted in Britain and the United States by the rapacious masters of homeland security in the years since the 9/11 attacks. These women and their children, mainly living in Britain, are the forgotten and neglected ‘collateral damage’ of those who are detained year after year without charges or trials as terrorist suspects. As the book makes clear, Muslims as a distinct ethnic and religious group, have been deprived of rights available to others accused of political crime. She quotes an American lawyer, Linda Moreno, “After 9/11 the Constitution was suspended when it comes to Muslims, especially Palestinians.” (p.161) But it was not only the liberal governments that were at fault, it was also the media that stereotyped anyone accused of being a jihadist or somehow sympathetic with the aims and activities of those alleged to be guilty of acts of terrorism as unquestionably evil, and such a menace as to deserve ill-treatment. In Brittain’s words, “[t]he enormity of the injustice perpetrated over a decade and more has been airbrushed out of America’s and Britain’s mainstream consciousness.” She goes on to ask a question we need to ask ourselves with all due gravity—“How did we get so coarsened that this is virtually unremarked?” (p.23)

 

            The real story here is that of several women who try to live in the ruins created by the detention of their husbands, and seek to do whatever they can to bring normalcy to their family life, and raise their children as lovingly as possible in the process. It is a difficult life where the reverberations of Islamophobia are daily felt via the hostility of neighbors and the treatment experienced in schools and elsewhere. In other words, society, as well as government and the media, are complicit in the incidental, yet severe, punishments endured by these families of targeted individuals. Yet the picture is not entirely grim as these women are also courageous and determined not to be defeated, even as they struggle against depression and acute anxiety, as well as the loneliness associated with the loss of their loving partner and co-parent. And what is worse in some ways, are witnesses to the collapse of their men due to the mistreatment of prolonged prison experiences unalleviated by the reality of indictments and charges. These men are mainly held on the basis of secret evidence that is not even disclosed to their lawyers, and the majority seem entirely innocent, victims of post-9/11 panic politics nurtured by the nanny security state. When in Britain such detainees are released, it should not be confused with ‘freedom’ because the former prisoner is require to wear electronic tags, subject to curfews, daily reporting to local police, living with rigid restrictions on visits by friends, routine intrusions in family space by security personnel, even prohibitions on use of computers. In summing up the overall ordeal of these families, Brittain comments, “[f]or all of them, something worse than their very worst nightmares had come true.” (p.149) One of the daughters who had endured this reality asks plaintively, “[l]isten to my story, then decide if you will be able to live my life.” (p.67) It occasions no surprise that the several of the men attempt suicide or experience paranoid delusion and that the women become clinically depressed.

 

            There is for several of the women a kind of existential double jeopardy. They came to Britain or the United States as refugees to escape from deadly torments in Afghanistan, Pakistan, and Palestine, expecting at least the benefits of a liberal democracy, and instead were confronted by a far worse existence than what they had reluctantly left behind. Sometimes their memories were filled with happiness, as with one woman describing her earlier time in Afghanistan: “The life was not easy, but it was beautiful.” (p.154) These years of injustice were “intertwined with memories, ghosts and dreams of an Afghanistan or a Palestine—past or future. Those other shadow lives infused everything for them, if you came close enough to listen, and were, with their faith. Their secret lifeline of joy against bitterness and despair.” (p.164) Not only what was remembered, but also what was hoped for, believed in, a faith, often with overtones of the Koran, of a deliverance yet to come, however difficult the life of exile had become.

 

            Especially, the women from a Palestinian background were passionate about educating their children, sometimes doing the schooling at home to avoid the unpleasant atmosphere facing Muslim children in British society. Other children of imprisoned fathers received their education at local schools. Brittain is sensitive to their acute sense of their special circumstances: “One child spoke for several others when she said that now loyalty and duty to her absent father meant excelling at school and remembering to be happy.” (p.158) Remembering to be happy! Every child should be exempt from such a duty!

 

            Victoria Brittain has written a book that we need to read, ponder, discuss, and to the best of our ability, act upon. It is a captivating book of love and dedication, as well as of torments, and it is mainly the intimate renderings of these women doing the best they can under the most agonizing of condition that no decent society should allow to persist. What is made clear throughout is the degree to which the state-sanctioned cruelty to these individuals, including the terrorist suspects themselves, is a blend of panic, sadism, and anti-Muslim hatred, and cannot be convincingly explained away as regrettable but necessary measures to ensure the security of societies threatened by terrorism. In effect, Brittain condemns reliance on such disproportionate means in the alleged pursuit of the end of security, opportunistically sacrificing the few to promote the pseudo-contentment of the many. In his short Foreword, John Berger puts the essence of what makes SHADOW LIVES a mandatory reading experience: “What makes this book unforgettable and terrible is its demonstration of the extent of the human cruelty meted out by the (human) stupidity of those wielding power. Neither such cruelty nor such stupidity exist in the natural world without humankind.” (p.ix). In her Afterword, Marina Warner issues a similar injunction, although more directly: “..we need uncomfortable books like this one, to ask the tough questions.” (p.166) Indeed, we do!

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Reading Palestinian Prison Diaries

30 Mar

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The Prisoners’ Diaries: Palestinian Voices from the Israeli Gulag, edited by Norma Hashim, in close collaboration with the Centre for Political & Development Studies, Gaza, 2013

There are many moving passages that can be found in these excerpts from prison diaries and recollections of 22 Palestinians. What is most compelling is how much the material expresses the shared concerns of these prisoners despite great variations in writing style and background. A few keywords dominate the texts: pain, God or Allah, love, dream, homeland, steadfastness, tears, freedom, dream, prayer. My reading of these diaries exposed me to the distinct personal struggles of each prisoner to survive with as much dignity as possible in a dank and poorly lit circumstances of isolation, humiliation, acute hostility on the part of the prison staff, including abusive neglect by the medical personnel. The diaries also confirmed that even prolonged captivity had not diluted the spirit of Palestinian resistance to Israeli occupation, but on the contrary had intensified it.  A strong impression of the overall illegitimacy of Israel’s encroachment on the most fundamental rights of the Palestinian people is also present on virtually every page.

Although not professional writers, the sentiments expressed have a special kind of eloquence arising from their authenticity and passion.  A female prisoner, Sana’a Shihada, on learning that her family had been spared the demolition of their family home, describes the ordeal of her interrogation in a poetic idiom: “..the anger of the interrogators was like snow and peace to me [an Arabic saying that conveys a sense of being ‘soothing’]. I felt the pride of the Palestinians, the glory of Muslims, and the brightness of honesty. I knelt to Allah, thankfully. My tears fell on the floor of the cell, and I am sure they dug a path which those later imprisoned will be able to see.” Or the words of Eyad Obayyat, a prisoner facing three lifetime sentences for his role in killing several Israeli soldiers, “Among us prisoners, the unity of love for our homeland was precious above all other things.” Another, Avina Sarahna, asks poignantly, “Is resisting occupation a crime?…Let me be a witness to the truth, and let me stay here.” Speaking of the pain of being separated from her four children, Kahera Als’adi writes, whom she discovered were living in an orphanage: “I couldn’t keep myself from bursting into tears. Was my loving family scattered like this? Was fate against us because of our love for our homeland?..After that visit, I felt like a slaughtered sheep.” These randomly selected quotations could be multiplied many times over, but hopefully the overall tone and coherent message are conveyed by these few examples.

What I found most valuable about this publication was its success in turning the abstraction of Palestinian prisoners into a series of human stories most of which exhibit agonized feelings of regret resulting from prolonged estrangement from those they most love in the world. Particularly moving were the sorrows expressed by men missing their mothers and daughters. These are the written words of prisoners who have been convicted of various major crimes by Israeli military courts, some of whom face cruel confinement for the remainder of their life on earth, and who have been further punished by being deprived of ever seeing those they love not at all, or on rare occasions, for brief tantalizing visits under dehumanizing conditions, through fogged up separation walls.

It is hard not to treat a prison population as an abstraction that if noticed at all by the outside world is usually reduced to statistics that appear in reports of human rights NGOs. These autobiographical texts, in contrast, force us to commune with these prisoners as fellow human beings, persons like ourselves with loves, lovers, needs, aspirations, hopes, pious dreams, and unrelenting hardships and suffering. There is also reference to the other side of the prison walls. These prisoners show concern for the suffering that imprisonment causes their families, especially young children and elderly parents.  Given the closeness of Palestinian  families it is certain that those who are being held in prison would be terribly missed, especially as their confinement arises because of their engagement in a struggle sacred to virtually every Palestinian. Such humanization of Palestinian prisoners is undoubtedly superfluous for Palestinians living under occupation or in refugee camps where arrests, which resemble state-sanctioned kidnappings are being made daily by Israeli security forces. It is a tragic aspect of the occupation that after 45 years of occupation there is not a Palestinian family that is left untouched by the Israeli criminalization of all forms of resistance, including those that are nonviolent and symbolic.

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We need a wider ethical, legal, and political perspective to grasp properly this phenomenon of Palestinian prisoners. The unlawful occupation policies of Israel are unpunished even when lethal and flagrantly in violation of international humanitarian law, and are rarely even officially criticized in international arenas. In contrast lawful forms of resistance by the Palestinian people are harshly punished, and the resulting victimization of those brave enough to resist is overlooked almost everywhere.  If we side with those who resist, as was done during World War II when those Europeans mounted militant forms of resistance against German occupation and criminal practices, we glorify their deeds and struggle. Yet if the occupier enjoys our primary solidarity we tend to criminalize resistance without any show of empathy. To some extent, this book cuts through this ideological myopia, and lets us experience the torment of these prisoners as human beings rather than as Palestinian ‘soldiers’ in the ongoing struggle against Israel.

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In the past year, heroic Palestinian hunger strikers, initially Khader Adnan and Hana Shalabi, did their best to call attention to the abusive character of Israel’s terrifying violent arrests in the middle of the night followed by imprisonment for lengthy periods without even making charges or holding trials. Israeli recourse to administrative detention takes place even in circumstances where the person being confined was engaged in no activities that could be remotely considered to pose a security threats.  It is notable that despite hunger strikers putting their own lives at severe risk to protest such inhumane behavior by Israel in its role as the occupying power, the world refuses to pay attention even to such hunger strikers, which is somewhat shocking despite decades of lectures to the Palestinians to renounce armed resistance, and engage instead in nonviolent forms of resistance, and if they do so, they will win political support for their grievances even from governments allied with Israel, including the United States. To date the evidence suggests a far uglier pattern: when Palestinians resist by way of armed struggle, their actions are denounced and their grievances are ignored, while when they resist nonviolently, their actions and their grievances are ignored. What is worse, while this shift in Palestinian tactics has taken place in recent years, the Israeli governing process moves steadily to the right until now in March 2013, the latest governing coalition in Tel Aviv is avowedly settler oriented. The international background music has not changed, and Washington loses no opportunity to sound the trumpets while declaring its unconditional and undying loyalty to Israel, pretending not to notice violations of international law and the deliberate efforts to make the two state solution yesterday’s dream, today’s nightmare.

The preoccupation of these prisoners with the fate of the singular Israeli prisoner at the time, Gilad Shalit, was something of a surprise for me, although it is understandable. Why, the Palestinians ask themselves, does the world make such a fuss about a single Israeli being held in Gaza after being captured during a military mission, and ignore the fate of the many thousands of Palestinians detained for year after year because they fought for the freedom of their country? Once considered, such a question is both natural, and once asked, the grotesque display of double standards seems self-evident. But there is also an opposite appreciation of the significance of Shalit expressed, which recognizes that the October 2011 deal struck to release 1,027 Palestinian prisoners would not have happened had Shalit not been captured. In this sense, the Palestinians in recording their feelings realize that their freedom has been made possible because Hamas succeeded in capturing and holding Shalit. This was no small achievement. During the massive attacks by Israel on Gaza in 2008-09, Operation Cast Lead, IDF commanders told their troops that this violence had been unleashed so as to gain the release of Shalit. Had Hamas allowed Shalit to go free or had be been killed in the operation, then there would have been no negotiations for the release of Palestinian prisoners. It is as simple as that. Of course, it is not simple. Many of those released were soon rearrested by Israel, once more undermining even minimal trust between the two peoples, and again showing that Israel can defy legal and moral obligations without facing any adverse consequences, a metaphor for the overall stranglehold of the occupation.

Above all, these texts in almost every page confirm that particularly prized Palestinian collective public/private virtue of sumud or steadfastness. Such exhibitions of courage indirectly shames those of us who suffer far less or not at all, and yet find ourselves discouraged and dispirited by the ills of the world to an extent that we retreat from public engagement to the comfort zones of sanctuaries of escape. These prisoners have no such option, maintaining their commitment to the Palestinian struggle in the darkest of circumstances, consigned to spending their most energetic years behind bars or surrounded by dank prison walls. We can ask ourselves where does such courage come from? There is no definite common answer. Yet what comes across from these diary pages are deep commitments  rooted in love of family and homeland as strengthened by religious faith and practice and sustained by prison camaraderie or in embittered reaction to the dehumanizing atmosphere of enduring prison life year upon year.

We should not forget that there is a callous and manifest unlawfulness about this network of Israeli prisons, all but one of the 19 being located in Israel, in direct violation of Article 76 of the Fourth Geneva Convention governing belligerent occupation: “Protected persons accused of offenses shall be detained in the occupied country, and if convicted they shall serve therein.”  Underlying such a provision of law is a humane impulse: compelling an individual to be imprisoned in the occupying country imposes a geographic separation from family and homeland, which in the Israeli case is accentuated by a permit system that as a practical matter makes family visits from occupied Palestine a virtual impossibility. With respect to prisoners from Gaza, there are virtually no prison visits allowed even if sentences are for several decades or lifetime. As is widely known, the people of Gaza have been subject to a punitive blockade maintained ever since mid-2007 that involves a massive imposition of collective punishment on the civilian population, a crime of war so specified in Article 33 of the Fourth Geneva Convention.

Israel’s cruelty toward Palestinian prisoners is underscored by its recent practice of releasing West Bank hunger strikers at death’s doorstep, then deporting them for a period of years to Gaza, that is, beyond access to their families and normal places of residence, at a moment when their physical condition is so deteriorated that they could not possibly become a security threat and when most in need of nurture and familiar surroundings. Hana Shalabi, who was particularly close to her family, was so deported to Gaza for three years and just days ago. Ayman Sharawneh was similarly deported for ten years as part of a plea bargain. Such shocking practice is worthy of global condemnation. It involves another form of collective punishment inflicted both on the person so confined to Gaza and to his or her family that is not allowed to travel from the West Bank to Gaza. There is a triple  perverseness about this practice of prisoner release: Gaza itself an open-aired prison also serves Israel as a site of punitive internal exile, and makes the distinction between ‘prison’ and ‘freedom’ almost disappear into surreal thin air.  One can only imagine the global protest movement if Hamas had conditioned Gilad Shalit’s release on his confinement in a Salafi controlled region of Egypt!

This pattern of unlawful imprisonment and unjust deportation also interferes with the preparation of adequate defense representation as Palestinian lawyers also experience routine difficulties in obtaining permits and visiting rights. Article 76 also requires that prison conditions for those living under occupation should under no condition be worse than those of Israeli prisoners in Israel, which makes the disallowance and obstruction of family visits for Palestinians unlawful, as well as cruel.

It is increasing evident that international humanitarian law falls short when it comes to offering suitable protection to the Palestinian people who have been living under occupation since 1967, with no end in sight. It is not only occupation, but a continuous process of encroachment that cumulatively has assumed the character of de facto annexation via the massive settlement phenomenon. Under these circumstances, and given the inalienable right of self-determination that belongs to the Palestinian people, there is posed some protection for rights of resistance. These rights need to be exercised in a manner respectful of civilian innocence, but difficult issues of identification are posed in relation to armed and violent Israeli settlers. True, those who act in resistance are not technically prisoners of war, who are protected the Third Geneva Convention, but they are acting to fulfill fundamental rights being violated by those who occupy their land and sit in judgment when they act defensively. What is needed, beyond all doubt, is a code of conduct, if not an additional protocol to the Geneva Conventions, that fills in this gap associated with resistance. Resisters should be treated with the same dignity under international humanitarian law as is associated with Prisoners of War. Their acts, even if violent, are in keeping with prevailing societal and civilizational values, and perpetrators, even when confined for reasonable security reasons, should be treated with appropriate dignity. Unlike sociopathic common murderers, rapists, and the like (and even they should also be treated in accord with international standards), the acts of Palestinian prisoners are viewed as heroic by their own society and political culture, as well as many people throughout the world. They deserve international recognition and protection. Their ‘crimes’ will eventually be vindicated by history as part of a final chapter in the struggle against European colonial rule.

I believe it to be a moral obligation of all of us who care about human rights and freedom to read this book, and share it with others. The Palestinians, whose rights and dignity have been long trampled upon, especially deserve our deepest empathy, as well as our solidarity in their struggle. Reading the words of these prisoners vividly discloses the nature of such a struggle in the form of witnessing by those Palestinians who have put their lives at risk for the sake of recovering their stolen homeland. We also owe a debt of gratitude to Norma Hashim who has edited this collection as a work of devotion and an expression of solidarity with and reflection on the Palestinian struggle. Its publication in book form is timed to coincide with Palestinian Prisoner’s Day, April 17th.

The pdf version of Prison Diaries can be downloaded now for USD1.99 at http://theprisonersdiaries.blogspot.com. The printed book will be available at palestinemall.net from 17 April 2013.

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Urgent UN Press Statement: Release Palestinian Hunger Strikers Now

13 Feb

The following press statement was issued 13 February 2013 under the auspices of the UN Human Rights

Council in my capacity as Special Rapporteur for Palestinian Territories Occupied since 1967. This nonviolent

resistance to unlawful and abusive detention practices by Israel is a human rights outrage that should be the

occasion of media attention and a worldwide outcry. I encourage all who can to exert pressure on Israel before

these individuals die in captivity. They are currently reported to be in grave condition. Please use all

social networking tools to alert contacts.

 

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Press Statement – UN expert calls for the immediate

release of three Palestinian detainees on hunger strike held by Israel without

charges

 

GENEVA (13 February 2013) – United Nations Special Rapporteur Richard Falk

today called for the immediate release of three Palestinian detainees held

without charges by Israel. Mr. Falk expressed deep concern for the fate of

Tarek Qa’adan and Jafar Azzidine, who are on their 78th day of hunger

strike, and Samer Al-Issawi, who has been on partial hunger strike for

over 200 days.

 

“Continuing to hold Mr. Qa’adan, Mr Azzidine and Mr. Al-Issawi under these

conditions is inhumane. Israel is responsible for any permanent harm,”

warned the independent expert designated by the Human Rights Council to

monitor and report on Israeli rights violations in Palestine. “If Israeli

officials cannot present evidence to support charges against these men,

then they must be released immediately.”

 

“Mr. Qa’adan and Mr. Azzidine are reportedly on the verge of death, with

the threat of a fatal heart attack looming,” the expert noted, recalling

that both men were arrested on 22 November 2012 and began their hunger

strikes on 28 November, after being sentenced to administrative detention

for a period of three months. They were transferred to Assaf Harofi

Hospital near Tel Aviv on 24 January 2013 after their conditions

deteriorated sharply.

 

This is the second time that Mr. Azzidine and Mr. Qa’adan have undertaken

hunger strikes against administrative detention, since they took part in

the mass hunger strike of Palestinians from 17 April to 14 May 2012. Mr.

Qa’adan had been released after 15 months of detention on 8 July 2012 and

Mr. Azzidine had been released on 19 June 2012 after three months of

detention, before being re-arrested.

 

“Israel must end the appalling and unlawful treatment of Palestinian

detainees. The international community must react with a sense of urgency

and use whatever leverage it possesses to end Israel’s abusive reliance on

administrative detention,” urged the Special Rapporteur.

 

Mr. Falk noted that Israel currently holds at least 178 Palestinians in

administrative detention.

**********

 

 

 

 

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