Archive | Human Rights RSS feed for this section

Help End the Hunger Strike of Khader Adnan

15 Feb

I am publishing here my press release of today expressing urgent concern about the fate of Khader Adnan, a Palestinian activist, who is near death resulting from his continuing hunger strike that expresses his refusal to accept the humiliating conditions of imprisonment without charges and accompanied by an Israeli court approved denial of visitation rights to his wife. Please do whatever you can to exert pressure to obtain the immediate release of Mr. Adnan, and to make the world aware that Israel is responsible for respecting his rights and protecting his wellbeing.  The text below is released under the auspices of the UN Office of the High Commissioner of Human Rights, and prepared in my role as Special Rapporteur for Occcupied Palestine of the Human Rights Council.

*****

> Israel: UN rights expert appeals for international help for a Palestinian
> prisoner on hunger strike
>
> CAIRO / GENEVA (15 February 2012) – The United Nations Special Rapporteur
> on the situation of human rights in the Palestinian territories occupied
> since 1967, Richard Falk, expressed his urgent and extreme concern
> regarding the situation of Palestinian prisoner Khader Adnan, and urged
> the international community to intervene on his behalf.
>
> “I call on the international community, especially States with close
> relations with Israel, to urge the Israeli Government to fulfill its
> responsibilities under international law, most urgently with regard to Mr.
> Adnan,” the human rights expert said. Mr. Adnan, whose life is reportedly
> in jeopardy, has maintained a hunger strike for 60 days in response to the
> humiliating circumstances of his imprisonment without charges by the
> Government of Israel.
>
> “In view of the emergency of his situation, the Government of Israel must
> take immediate and effective action to safeguard Mr. Adnan’s life, while
> upholding his rights,” stressed the Special Rapporteur, who is currently
> undertaking a fact-finding mission to the region.
>
> Mr. Falk also called on the Government of Israel to respect its legal
> obligations pertaining to the several thousand Palestinians it has
> imprisoned. “The improper treatment of thousands of Palestinian prisoners
> by the Government of Israel should be of great concern to the
> international community, and it is a problem that I am paying close
> attention to in the context of my ongoing visit to the region.”
>
> The Special Rapporteur will convene a press conference at the end of his
> regional visit, on 20 February in Amman, and will submit a full report on
> his mission to the Human Rights Council in June 2012.
>
> 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 about the mandate and work of the Special Rapporteur:
> http://www2.ohchr.org/english/countries/ps/mandate/index.htm
>
> OHCHR Country Page – Occupied Palestinian Territories:
> http://www.ohchr.org/EN/countries/MENARegion/Pages/PSIndex.aspx
>
> OHCHR Country Page – Israel:
> http://www.ohchr.org/EN/Countries/MENARegion/Pages/ILIndex.aspx
>
> For more information and media requests, please contact Kevin Turner (+41
> (0)79 509 0557 / kturner@ohchr.org) or write to sropt@ohchr.org.
>
> For media inquiries related to other UN independent experts:
> Xabier Celaya, OHCHR Media Unit (+ 41 22 917 9383 / xcelaya@ohchr.org)
>
> UN Human Rights, follow us on social media:
> Facebook: https://www.facebook.com/unitednationshumanrights
> Twitter: http://twitter.com/UNrightswire
> YouTube: http://www.youtube.com/UNOHCHR
>
> Check the Universal Human Rights Index: http://uhri.ohchr.org/en
>

Tags: , , , , , , ,

Support for BDS National Conference at the University of Pennsylvania

3 Feb

Due to scheduling conflicts I was unable to accept an invitation to speak at the 2012 National BDS Conference that has been organized by Penn BDS, a recognized student organization at the University of Pennsylvania, which happens to be my undergraduate college. I did agree to submit the statement to the conference that I post below in hopes of reaching more people who seek peace and justice in the Middle East, and an end to the long ordeal endured by the Palestinian people. BDS is a worthy cause that deserves the widest possible support from all those of good will with a concern about both the Israel/Palestine conflict and the unacceptable role being played by the United States Government in relation to the struggle and the region.

***********

Solidarity Statement of Richard Falk supporting BDS National Conference at the University of Pennsylvania, February 4, 2012

 

Greetings:

 

It is a cause of deep regret that I am not able to participate in this groundbreaking conference. I commend the conveners for taking this initiative in the face of efforts to intimidate and confuse by those who systematically oppose debate and free inquiry concerning the various dimensions of the Israel/Palestine conflict and its bearing on American foreign policy.

 

I have long supported the BDS as a constructive and creative movement that  raises awareness and mobilizes support for the Palestinian struggle to achieve a sustainable peace based on international law and a sense of justice. The BDS movement was originated by grassroots Palestinian activism, enjoys wide and growing support among Palestinians, and is a shining symbol of the seismic shift in Palestinian tactics of struggle and resistance from violent tactics to nonviolent militancy, and from the territorial confines of occupied Palestine to the world as a whole.

 

Such a shift is both principled and pragmatic, and deserves our encouragement and engagement in tangible ways. The targeting of companies and institutions that profit from Israel’s unlawful policies and practices is a creative and appropriate way for people from around the world to express solidarity with the Palestinian search for peace with justice. To seek sanctions is a means of exerting diplomatic and material pressure on Israel is light of its defiant refusal to accord the Palestinian people their rights under international law.

 

The BDS movement is certainly inspired by the anti-apartheid global campaign waged so effectively against the racist regime in South Africa, but it also has its own originality. It is notable that Israel’s style of governance and occupation is increasingly perceived as a form of apartheid, which has been recognized in the Statute of the International Criminal Court as a Crime Against Humanity.

 

I wish this conference the greatest possible success in spreading the word about the importance and relevance of the BDS campaign. It offers all Americans an excellent opportunity to become engaged and responsible citizens of conscience and offset the wildly partisan and unjust policies of the U.S. Government toward the conflict and its proper resolution.  

 

II/3/2012

Healing Wounds: Seeking Closure for the 1915 Armenian Massacres

12 Jan

 

Richard Falk & Hilal Elver

 

            Recently the National Assembly, France’s lower legislative chamber, voted to criminalize the denial of the Armenian genocide in 1915, imposing a potential prison sentence of up to one year as well as a maximum fine of 45, 000 Euros. The timing of this controversial initiative seemed to represent a rather blatant Sarkhozy bid for the votes of the 500,000 French citizens of Armenian descent in the upcoming presidential election. It follows similar pre-election initiatives in 2001 when the French Parliament officially declared that the massacres of Armenians in 1915 were an instance of genocide and in 2006 when the Assembly first voted to criminalize Armenian genocide denial, an initiative that never became law because the French Senate failed to give its assent. And this hopefully may happen again with respect to this recent Assembly move.

 

            Predictably, the French action was perceived by Turkey as a hostile provocation. The Turkish government, which has so far refused to describe the 1915 events as ‘genocide,’ immediately reacted, warning France of adverse economic consequences if this initiative went forward, and has reacted by withdrawing its ambassador and freezing inter-governmental economic relations. The Turkish Prime Minister, Recip Teyyip Erdogan, denounced the action of the French Assembly that had been initiated by a prominent member of Sarkhozy’s party. Erdogan, known for his forthrightness, advised the French Government that instead of criminalizing the Turkish unwillingness to acknowledge the 1915 events as genocide, France should busy itself with determining whether its harsh tactics used during the 1950s in Algeria, and supposedly responsible for up to a million Algerian deaths during the long French campaign to hold onto to its north African colony constituted genocide.

 

            There are many issues raised by this turn for the worse in French-Turkish relations, and its embittering dialogue about historic events. Perhaps, the most important, is whether it is ever justifiable to criminalize the expression of an opinion about a set of past occurrences that goes against a societal consensus. It is true that genocide or Holocaust denial can be hurtful to those who are survivors or descendants of survivors, and identify with the victims of such severe wrongdoing, and its attendant suffering, but whether the sensitivities of these communities should ever be protected by the criminal law seems doubtful, conflicting with freedom of expression and censuring inquiries into historical events that are unpopular and controversial, but occasionally illuminating enough to challenge conventional wisdom. It would seem that informed agreement and social pressure should be sufficient to deter all but the most extremist instances of denial if a genuine and sufficient consensus exists as to the locus of responsibility and the character of the events. In this instance, such criminalization is especially unfortunate as even if the facts of the 1915 events are reasonably well established, the relevance of genocide is certainly ambiguous and somewhat problematic, especially from a legal perspective.

 

            Against this background, where Turkey has not yet been willing to describe the events of 1915 as ‘genocide’ the criminalization of the denial is more likely to raise tensions that encourage a long overdue accommodation. Of course, there are related irritants to the Turkish-Armenian relationship, especially the unresolved conflict over the future of the Nagorno-Karabakh enclave in Azerbaijan. Among thoughtful Turks there continues to be some questioning of the character of the World War I events in question, not about their tragic character or even a willingness to condemn Ottoman wrongdoing, but there remains a Turkish governmental and societal reluctance to pin the label of genocide on these occurrences. It is well known that the Armenian diaspora has long been seeking to induce key governments around the world to make formal declarations to the effect that what happened in 1915 was genocide, and some 25 governments have done so, as have many lesser political entities such as sub-divisions of the state or cities. Such efforts to legalize historical truth, as distinct from mourning historical events, is itself

a political gimmick to circumvent diplomacy and accommodation. But to criminalize genocidal denial represents a still further escalation of Armenian efforts to resolve the controversy over this potent g-word through branding of denial as a crime. We would insist that rather than resolving the conflict, such steps make a politics of reconciliation that much more difficult for both parties.

 

            The discourse on genocide has always been confusing, multi-layered, and often toxic. The word ‘genocide’ is weighted down by its implications, explaining both why there is such a strong impulse to invoke it and an equally intense effort to deny its applicability.  We need to distinguish genocide as a crime in international law from the political assessment of historic events as genocide due to a clear pattern of deliberate killing of an ethnic or religious group. And such a political assessment needs to be further distinguished from a moral condemnation of a pattern designed to destroy systematically a beleaguered minority that might properly be described as ‘genocidal,’ or what has been more recently described as ‘ethnic cleansing’ in the setting of Bosnia, which is distinct from the judicially certified ‘genocide’ that shook the foundations of Rwanda in 1994.

 

            From a legal perspective it is not plausible to call these events in 1915 as genocide. After all, the word did not exist until coined by Rafael Lemkin in 1943, and the crime was not so delimited until the Genocide Convention came into force in 1951. Beyond this, and more telling than this technical observation, is the fact that the indictments at Nuremberg did not charge the surviving Nazi leaders with genocide, but convicted these Germans of ‘crimes against humanity’ for their connection with genocidal conduct, and even here only if the alleged criminal acts were associated with World War II, found by the tribunal to be an unlawful war, and thus a ‘crime against peace.’ If the Holocaust perpetrated against Jews and others did not seem to the Nuremberg tribunal to be a distinct crime, then it seems untenable to regard the Armenian tragedy as embodying the crime of genocide. When the UN expert body, the International Law Commission, put into words what was done at Nuremberg it explicitly affirmed the Roman dictum prohibiting retroactivity: no crime without law (nulla crimen sine lege).  Such a dictum touches on a fundamental component of justice to the effect that behavior, however detestable from moral and political points of view, is not a ‘crime’ until so designated in advance of the acts in question by a competent judicial body. This principle has never been contested, and it pertains to the genocide debate whenever attached to pre-1951 events, whether the Armenian experience or to the destruction of a variety of indigenous peoples in various parts of the world or to the barbarous institution of slavery.

 

            At the same time, if what took place in 1915 were to have occurred anytime after the Genocide Convention became effective, it would seem beyond any reasonable doubt to qualify as genocide. The International Court of Justice in the course of examining the Bosnian allegations of genocide, put the bar high by requiring written or documentary evidence of a clear intent by Serbian governmental leaders to commit the crime of genocide that was not available (except the particular incident involving the horrific massacre of several thousand Bosnian males at Srbrenica in 1995 was declared to be genocide). While such evidence was difficult to provide to the satisfaction of the World Court in relation to this notorious Bosnian experience of the 1990s partly as a result of a questionable arrangement with the ad hoc International Criminal Tribunal for former Yugoslavia not to release documentary evidence tying the Belgrade regime to the anti-Muslim cleansing operations in Bosnia, the situation with respect to Armenia is different. Unlike Bosnia, documentary evidence from the ruling Ottoman authorities does exist in sufficient quantity and quality to make a persuasive argument to the effect that ‘genocide’ took place in 1915, but because the events occurred 36 years before genocide formally became a crime such a showing is legally irrelevant.

 

            If this reasoning is accepted, it has important implications, including establishing some political space for bringing closure to the issue: Turkey could formally declare that if what happened to the Armenians in 1915 took place in the 1960s it would have been genocide, while those on the Armenian side could accept the idea that the 1915 massacres were not then genocide, but that their extent, character, and evidence would constitute genocide if taking place now, or anytime after 1951. The French move, if indeed it becomes law, is irresponsible in the extreme as it disallows the explorations of constructive ways that the violence and suffering of the past might be mitigated. As post-apartheid South Africa has illustrated, it might sometimes be politically and morally preferable for a victimized people to opt for ‘truth and reconciliation’ than to insist on the criminalization of past wrongs however heinous.

 

            It seems to me that such an approach would have mutual benefits. It would bring a conflict that has endured for decades nearer to closure. It would allow Armenians to regard their victimization as genocide from a political and moral perspective, while enabling Turkey to make such a concession without fearing such legal implications as Armenian demands for reparations and the recovery of lost property. Turkish good faith and remorse could be further expressed by appropriating funds for the establishment of a major museum of Armenian History and Culture in Ankara, by recognizing April 24th as a day of Armenian remembrance, and by encouraging honest historical inquiry into these horrific occurrences.

 

            Of course, such a politics of reconciliation can only have any hope of succeeding if there is a large display of good will and a sincere search by Turkish and Armenian leaders for positive relations between the two peoples. It is to be expected that extremists on both sides would strenuously object to such an accommodation. Admittedly, there would not be complete satisfaction even among that largely silent majority of Armenians and Turks who might welcome a pacifying development. What would be created is valuable– a new opening that would allow a more benevolent future to unfold for both peoples that could include a joint cathartic reexamination of the past. Such a development might add to the solemnity and dignity of the expected worldwide observances in 2015 of the 100th anniversary of these events and avoid these occasions from being little more than sad remembrances and shrill recriminations.  

 

Tags: , , , , , , ,

Libya After Muammar el-Qaddafi’s Execution

30 Oct

 

The death of the despised despot who ruled Libya for forty-two years naturally produced celebrations throughout the country. Muammar el-Qaddafi’s end was bloody and vindictive, but we should remember that his rants against his own people—and his violent repression of what was initially a peaceful uprising—invited a harsh popular response. Recalling W.H. Auden’s famous line, “Those to whom evil is done/do evil in return,” it is almost inevitable in the absence of strong moral and political discipline, which was not present, that when a leader refers to his opponents as “rats” and pledges to hunt them down house by house, the stage is set for the unacceptable kind of retribution that played out recently in Sirte where NATO air strikes leveled the city and anti-Qaddafi forces executed at least 53 Qaddafi loyalists. It is an ominous warning sign for the future that this massacre at Sirte along with the execution and burial of Qaddafi should have exhibited such vengeful and undisciplined behavior, raising renewed doubts about the character and approach of Transitional National Council leadership, although there still exist possibilities for redeeming this loss of confidence.

 

These unfortunate happenings make overall accountability for war crimes an early test of whether the TNC will yet prove capable of managing the formation of a political and morally acceptable governmental structure. Will the TNC undertake investigations of the alleged wrongdoings of its own forces in a manner that corresponds with international standards, or will such inquiry be avoided because such an international confidence-raising process would clearly internal factionalism in which any finger-pointing will seem like an encouragement of ethnic and tribal conflict? Will the TNC cooperate with the International Criminal Court to ensure that those charged with war crimes in the service of the Qaddafi regime will receive a fair trial? At the same time there is reason to view with a cynical eye the demands of self-righteous NGOs in the West that seem to expect from Libya what the liberal democratic regimes of the West refuse to do. It should be appreciated in this regard that the United States

goes to extraordinary lengths to exempt its soldiers and leaders from potential criminal accountability while it pushes hard to have its enemies subject to the harsh severity of international criminal law. Double standards pervade. As with so much that involves North Africa after the glories of the Arab Awakening, all roads to the future seem destined to have many twists and turns, as well as treacherous potholes.

 

 

The leadership vacuum in Libya is not likely to be filled anytime

soon. We don’t know whether tribal or regional loyalties will emerge as primary political identities now that the great unifier—hostility to

the Qaddafi regime—can no longer suppress antagonistic goals and ambitions. The TNC lent international credibility to the anti-Qaddafi forces, but much of the fighting in the last stages of the struggle was under the control of semiautonomous militia commanders that seemed a law unto themselves. We will soon learn whether the TNC can sufficiently represent the collective will of Libyans during the interim process that is needed before establishing an elected government able to draft a new constitution. Its first attempt to establish a new unity was premised on a call to implement political Islam. The Chairman of the TNC, Mustafa Adbel-Jalil, made the following strong assertion along these lines at the victory celebration in Benghazi: “We are an Islamic country. We take the Islamic religion

as the core of our new government. The constitution will be based on our Islamic religion.”

 

Some pessimists have contended that Libya’s future is prefigured by

the chaotic violence that befell Somalia after the overthrow of

dictator Mohamed Siad Barre in 1991, a tragic set of national circumstances that have persisted ever since. But on a more hopeful note, it is worth observing that the fall of Qaddafi—unlike that of Hosni Mubarak, whose overthrow has not yet altered

the power structure in Egypt—gives the victorious Libyan opposition a

seemingly clean slate that could be more receptive to genuine democratic nation-building if such a political will emerges. Libyans have given themselves this opportunity that rarely comes along in history to achieve a real revolutionary transformation of their political, economic and cultural life. Thus, it could turn out paradoxically to be helpful, rather than an impediment, to observe that Qaddafi left no institutional infrastructure behind upon which to construct a modern state. What has happened in Libya, unlike Egypt, is for better or worse a total regime change.

 

Libya starts out on this new path with some additional major advantages, most obviously oil and a relatively

small population. An important test in the months ahead will be the

extent to which the new leadership restores normalcy to the economy without mortgaging the national wealth to foreign predators, corporate, financial, and governmental. Of course, in the background is the sense that NATO was integral to the overthrow of Qaddafi and may expect more than a thank-you note. Already there are media murmurs about great business opportunities for the West in the new Libya, including the challenge of rebuilding what NATO destroyed, which seems like a disturbing vindication of Naomi Klein’s groundbreaking book, The Shock Docrtrine, a devastating critique of the contemporary logic of the neoliberal world economy.

 

Considering Libyan experience from an international perspective raises several additional concerns. The public appraisal of NATO’s intervention will be mainly shaped by whether Libya emerges as a stable, democratic, and equitable nation. This will not be knowable for years, but aspects of the intervention already make Libya a troubling precedent no matter what the future of the country. The UN Security Council, which authorized the use of force by way of an application of the recently affirmed principle known as “responsibility to protect” or R2P. The five abstaining states were either duped or complacent,

and likely both. The authorizing Security Council Resolution 1973 was broadly framed by reference to establishing a no-fly zone by all necessary means, with the justification for force at the time associated with protecting the population of Benghazi from an imminent massacre. Yet this restricted mandate was disregarded almost from the outset. NATO forces were obviously far less committed to their assigned protective role than to making sure that the balance of forces in the struggle for the future of Libya would be tipped in the direction of the insurrection. If this intention had been clear at the outset, it is almost certain that Russia and China would have vetoed the UN resolution. During the debate these two states expressed their grave misgivings and suspicions about encroaching on Libya’s sovereignty, and were joined in the expression of such doubts by India, Brazil and Germany who also came to abstaining when it came to voting in the Security Council. If NATO’s broader intention was manifest Chinese and Russian vetoes were a virtual certainty.

 

Of course, there was a dilemma present. If NATO had disclosed its goals there would have been no UNSC authorization, and the Benghazi massacre would have appeared to be a humanitarian catastrophe invited by UN inaction. If NATO had circumscribed its intervention in the manner agreed upon, then a lengthy civil war might have followed, and also brought about a humanitarian disaster for the people of Libya. The perils of intervention have to be balanced against the perils of noninternvention in each instance, but if some tasks of global governance entrusted to the United Nations are to evolve in a constitutionally responsible way, then the minimum to expect is an honest disclosure of intent by member states pushing for intervention, a vigilant monitoring by the authorizing UN organ of any use of force, and a scrupulous regard by implementing actors for the limits imposed on a mandate to use force.

 

From these perspectives, it is extremely disturbing that a restricted UN mandate was totally ignored, and that the Security Council did not even bother reconsider the original mandate or censure NATO for unilaterally expanding the scope and nature of its military role. By ignoring the UN’s limits, NATO may have diminished the prospects for future legitimate uses of the R2P principle, and whether this is good or bad is difficult to say in the abstract.

 

There are several dimensions of this concern. To begin with, the UN Charter was drafted to minimize the legitimate role of force in world politics, making war a last resort, and then only in strict circumstances of self-defense. To this is added the secondary undertaking of the Charter, which is to assure that the UN itself is bound by Article 2(7) to refrain from intervening in matters essentially within the domestic jurisdiction of states unless under exceptional conditions it is decided as necessary to maintain international peace and security. The NATO intervention seems impossible to reconcile with either of these two core principles of the UN Charter, which is the constitutional framework that is supposed to guide the behavior of the UN. It is true that these principles have been eroded by practice since their enactment in 1945. Human rights has become such a strong dimension of world order as to take precedence over sovereign rights in certain situations of extreme abuse, which helps explain the rise of the R2P norm over the last decade, especially in the aftermath of the controversial NATO Kosovo War of 1999. Despite these developments the Charter still provides the operative guidelines for uses of force. In this regard, it might have been legally and morally acceptable, given the circumstance prevailing in Libya when the authorizing resolution was adopted on March 17, 2011, to mount a narrowly conceived protective mission—although it is worth noting that even at the moment of approval, there was widespread skepticism at the UN, either because some members distrusted the pro-interventionist reassurances of the United States and its European partners or anticipated that pressures on the ground would likely produce mission creep as the locus of the violence shifted beyond Benghazi.

 

The Libya experience raises deeper questions about reliance on the R2P norm as a basis of principled UN action on behalf of a vulnerable people endangered by abusive behavior of their own government. Some doubts already existed about the selectivity of the Libyan application of the norm, especially given the UN’s failure to lift a finger on behalf of the beleaguered civilian population of Gaza, which has suffered under a long and punitive Israeli blockade, with the UN even supporting the Israeli position when the blockade was being challenged by civil society activists seeking to deliver humanitarian assistance directly to the people of Gaza. But aside from this glaring example of double standards, there is also the widespread sense that in Libya, R2P was quickly, and without serious debate, transformed into an opportunity to destroy and oust, with an as yet undetermined array of harmful consequences.

 

If such protective undertakings are to achieve credibility in the

future, they must become detached from geopolitics and operationalized according to a robust regime of law that treats equals equally. Perhaps the most practical mechanism for reaching these presently unattainable goals would be the establishment of a UN Emergency Force that could only be activated by a two-thirds vote in either the Security Council or General Assembly, and not ever be subject to veto. Such a force would need to be funded independently of national governments, possibly by imposing a tax on international air flights or currency transactions. However sensible, such an arrangement will not be easy to bring into being, precisely because its existence would threaten current geopolitical prerogatives that depend on self-interested motivations of leading states. And even this recommended UNEF framework could be manipulated. But at least if it existed there would be a greater prospect that authorizing guidelines for humanitarian uses of force under UN auspices would be respected, that compliance would be supervised, and that more consistent practice would replace the current brand of humanitarian diplomacy that is deformed by the prevalence of double standards.

 

Against such a background, we can only wish that the Libyans will defy pessimistic expectations, and manage to establish a viable and independent democratic state that is respectful of human rights and energetic in its efforts at reconstruction, without becoming overly

hospitable to foreign investors and companies. After such a

devastating air campaign of some 20,000 sorties, the NATO countries should have the decency to stand aside and respect the Libyans’ inalienable right of self-determination. It is a sad commentary on the global setting that to set forth these hopes for the future of Libya and its long suffering population seems like an utopian indulgence!

 

Tags: , , , , , , ,

UN Report on Human Rights Situation in Occupied Palestine, UN Doc. A/66/358

22 Oct

I am making available here my latest report to the UNGA in my role as Special Rapporteur on Occupied Palestine. Because of translation requirements within the UN the early deadline for submission of the text means that recent developments are omitted, including the issuance of the Palmer Report on the flotilla incident of 31 May 2010, the statehood bid put forward by the PLO/PA in the historic speech of Mahmoud Abbas on 23 September 2011, and the very recent prisoner exchange that freed over 1000 Palestinians and the Israeli soldier, Gilad Shalit, but has left over 5,000 Palestinians in captivity. These issues are dealt with briefly in my oral presentation to the Third Committee of the General Assembly on 20 October 2011, and I will put here an edited version of that text in a few days.

***************

United Nations

General Assembly

Sixty-sixth session

Item 69 (c) of the provisional agenda*

Promotion and protection of human rights: human rights situations and reports of special rapporteurs and representatives

A/66/358

Situation of human rights in the Palestinian territories occupied since 1967

Note by the Secretary-General

The Secretary-General has the honour to transmit to the members of the General Assembly the report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Richard Falk, submitted in accordance with Human Rights Council resolution 5/1.

* A/66/150.

11-49552 (E) 290911

*1149552*

Distr.: General 13 September 2011

Original: English

A/66/358

Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967

Summary

The present report, submitted pursuant to Human Rights Council resolution 5/1, gives particular attention to the right of Palestinians to self-determination, the situation of Palestinian prisoners detained by Israel, Israeli settlements in the occupied Palestinian territories, violence by Israeli settlers against Palestinians and their properties, the especially vulnerable situation of children in the occupied Palestinian territories, and the impact of the blockade by Israel on Gaza.

Contents

I. Introduction…………………………………………………………. 3 II. Issuesofnon-implementation…………………………………………….. 3 III. Palestinianself-determination ……………………………………………. 5 IV. Protectionofthecivilianpopulationlivingunderoccupation……………………… 7 V. Detentionandimprisonment……………………………………………… 9 VI. Israelisettlements…………………………………………………….. 10 VII. Palestinian children, human rights and international humanitarian law . . . . . . . . . . . . . . . . . . . 13 VIII. Recommendations…………………………………………………….. 19

2

11-49552

Page

11-49552

3

I. Introduction

1. The Special Rapporteur has continued to be unable to obtain cooperation from Israel in the discharge of his obligations under the mandate. He continues to believe that Israel is not fulfilling its duties as a United Nations Member State in this regard. The Special Rapporteur recalls that when he made an attempt to enter Israel on 14 December 2008, in pursuance of his mandate, he was detained in a prison facility near the airport, denied entry and expelled. Because there is no regularized access to the West Bank, including East Jerusalem, except by way of Ben Gurion Airport in Tel Aviv and Israeli-controlled crossings from Jordan, there exist no means to visit these areas of the occupied Palestinian territories in the manner that was possible for his predecessors.

2. The changed circumstances in Egypt have created a prospect of access to Gaza by way of the Rafah Crossing, which Egyptian officials have indicated will be kept open for both the entry and exit of persons. In an encouraging related development, the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of Occupied Territories was able to gain entry to Gaza for the first time in its 43 years of existence.

3. On this basis, a mission under the mandate of the Special Rapporteur was planned to take place between 25 April and 3 May 2011. Unfortunately, the Special Rapporteur was forced to cancel the visit to Gaza owing to a determination by the United Nations on the prevailing security situation during the period. He plans to make another attempt to visit Gaza. Despite this inability to visit the occupied Palestinian territories during the trip, the Special Rapporteur proceeded with the mission to Egypt and Jordan, where he met with Government officials, academics, representatives of civil society organizations and United Nations agencies, human rights defenders and journalists familiar with conditions in the occupied Palestinian territories. Although the visit covered the full range of human rights issues raised by the continuing occupation by Israel, the Special Rapporteur’s particular focus was on how prolonged occupation, the blockade of Gaza and long-term refugee status encroach upon the human rights of children. Those concerns will be given special emphasis in the present report. The mission did provide valuable information that informs all sections of the report, although it remains an inadequate substitute for first-hand visits to the occupied Palestinian territories.

II. Issues of non-implementation

4. As usual, there are many more serious human rights concerns associated with the occupation by Israel than can be addressed in this report, which is subject to United Nations guidelines as to a maximum number of words. In order to avoid the impression that earlier concerns no longer persist, the Special Rapporteur stresses that there are continuing violations of international humanitarian law and human rights law arising, inter alia, from the issues discussed below.

5. The recommendations of the report of the United Nations Fact-Finding Mission on the Gaza Conflict1 (the “Goldstone Report”) have not been implemented, despite

__________________

1 A/HRC/12/48.

A/66/358

A/66/358

4

11-49552

follow-up reports by the Committee of Independent Experts.2 The reports of the Committee of Independent Experts took particular note of the failure by Israel to conduct investigations of alleged war crimes in a manner that accords with international standards.

6. The findings and recommendations of the Human Rights Council-mandated fact-finding mission on the incident of the humanitarian flotilla of 31 May 2010,3 involving naval attacks by Israel in international waters, which resulted in the death of nine peace activists on the Turkish vessel Mavi Marmara, have not yet led to appropriate action.4 It is observed that the failure to follow through on initiatives recommended by competent international experts under the auspices of the United Nations contributes to a lack of accountability for serious allegations of war crimes and human rights violations. The failure is particularly unfortunate given its impact on those living for many years under a regime of belligerent occupation, which has systematically deprived them of the normal rights and remedies associated with a law-abiding society. Without committed and capable international protection, those living under prolonged occupation are exposed to excesses and abuses perpetrated by the occupier, as the realities of the occupied Palestinian territories confirm in numerous ways.

7. Concern about non-implementation was underscored by the repudiation by Israel of the near-unanimous advisory opinion of the International Court of Justice in 2004 relating to the construction of the separation Wall in the occupied Palestinian territories.5 This authoritative judicial interpretation of the international obligations of Israel, which was endorsed by the General Assembly in its resolution ES-10/15, has been repudiated by Israel without generating any result-oriented international reaction. Although advisory opinions are non-binding in a formal sense, they have important legal effects because they provide an authoritative interpretation of the issues at stake, which is based on legal reasoning by the world’s highest judicial body concerned with international law.6 The advisory opinion is particularly notable in the present instance, since the vote in the Court was 14 to 1— a rare display of consensus among judges drawn from the world’s major legal systems and cultural backgrounds. It is worth noting that even the dissenting judge was in substantial agreement with much of the legal reasoning in the advisory opinion, making the conclusions virtually unanimous. While rejecting the authority of international assessments of illegality, the Government of Israel has agreed to comply with Israeli law to the extent applicable to the construction of the Wall. Yet in practice Israel has been slow to comply with relevant Israeli judicial decisions ordering the removal and relocation of segments of the Wall. In some instances these judicial directives have been ignored for several years, imposing acute suffering on Palestinian communities that are isolated or cut off

__________________

2 A/HRC/15/50 and A/HRC/16/24. 3 See A/HRC/15/21; see also A/HRC/16/73 and A/HRC/17/47. 4 It is noted that the panel appointed by the Secretary-General to investigate these same events

postponed the release of its report until late-August 2011. 5 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,

Advisory Opinion, I.C.J. Reports 2004 (see also A/ES-10/273 and Corr.1). The International Court of Justice concluded in its advisory opinion that the Fourth Geneva Convention was applicable in the Palestinian territories, which before the 1967 conflict lay to the east of the Green Line and which, during that conflict, were occupied by Israel.

6 See Bekkar, “The United Nations General Assembly Requests a World Court Advisory Opinion on Israel’s Separation Barrier”, Insights, December 2003.

11-49552

5

from agricultural land.7 Weekly demonstrations against the Wall have continued, especially in Palestinian villages near Nablus, most prominently in the villages of Ni’lin and Bil’in. As with other issues of violations of international law by Israel, there continues to be a lack of will within the United Nations, and especially among its Member States, to challenge the existence and continuing construction of the Wall, which intrudes so negatively on the lives of many Palestinians living under occupation in the West Bank, especially East Jerusalem.

8. There are two conjoined issues present: the refusal of Israel to adhere to its obligations under international law in administering the occupied Palestinian territories, and the failure of the United Nations to take effective steps in response to such persistent, flagrant and systematic violations of the basic human rights of the Palestinians living under occupation. Yet such steps would seem to be given increased prominence in the light of the adoption of the responsibility to protect doctrine by the Security Council (resolution 1674 (2006)), and its recent application by way of Security Council resolution 1973 (2011) mandating the protection of civilians in Libya.

9. It is worth recalling the language of mutuality and rights emphasized in the Balfour Declaration of 2 November 1917, which underpins the founding of Israel, even now, almost a century after it was issued: “… it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine”. This explicit acknowledgement of support in the contested declaration for the establishment of what was then called “a national home for the Jewish people” is the foundation of the claim of right relied upon in the establishment of the State of Israel, and its recognition and admission to membership by the United Nations in 1948. Although the Balfour Declaration was a colonialist overriding of the right of self-determination that was later recognized in international law, its insistence on showing respect for the reciprocal rights of the non-Jewish communities affected, particularly the Palestinians, should continue to provide political and moral guidance in the search for a peaceful and just solution to the conflict.

III. Palestinian self-determination

10. As has been stressed in prior reports, of all the human rights at stake due to the prolonged occupation by Israel of Palestinian territory, the most fundamental is the right of self-determination. This right inheres in the Palestinian people, as much as any other people in the world. However, the fulfilment of this right has been denied by Israel in the occupied Palestinian territories since 1967. Further, various developments in the course of the occupation have entailed encroachments that diminish the scope of self-determination even further than what was envisioned by the historic Palestinian acceptance of the territorial dimension of a two-State solution to the conflict, by way of the 1988 decision of the Palestine National Council, which accepted the parameters of Security Council resolutions 267 (1969) and 338 (1973). It should be appreciated that such a territorial compromise represented a major

__________________

7 In June 2011 Israel began dismantling a section of the barrier near the West Bank village of Bil’in, in compliance with a decision of the High Court of Justice of Israel four years earlier. See Office for the Coordination of Humanitarian Affairs, “Protection of Civilians Weekly Report, 8-21 June 2011”, 24 June 2011. Available from http://unispal.un.org.

A/66/358

A/66/358

6

11-49552

concession by the Palestinian leadership, as it reduced to 22 per cent the approximately 45 per cent of historic Palestine apportioned by the United Nations as belonging to the Palestinians in General Assembly resolution 181 (II). This partition arrangement was rejected in 1947 by leaders of both the resident Palestinian population and the neighbouring Arab Governments at the time, because they deemed it unfair and unacceptable. Palestinian self-determination continues to be widely understood in the international community to be based on the establishment of a viable and contiguous State within the totality of the 1967 borders, subject to agreed small-scale adjustments and equivalent land swaps. This position was reaffirmed by President Obama of the United States of America in May 2011.8 Innumerable efforts, by way of direct negotiations between the parties, to transform this consensus into a solution have failed, contributing to intense disillusionment among the Palestinians and their leadership. It should be further observed that delay in finding a solution has continuously diminished Palestinian prospects for a viable State, especially because of Israeli settlement expansion, the construction of the Wall and the relating network of Israeli settler-only roads.

11. It is against this backdrop that several recent developments bearing on the intergovernmental pursuit of a peaceful and negotiated solution need to be considered, as they relate to the struggle for the protection and attainment of Palestinian rights under international law. A reconciliation or unity agreement between the Palestinian Authority and the de facto authorities in Gaza, signed at the end of April 2011, pledged the establishment of an interim Government tasked with arranging general elections at some future time throughout the Palestinian territory. This intra-Palestinian agreement has been criticized by the Governments of Israel and the United States as undermining prospects for direct negotiations because of objections to including representation of those belonging to a designated “terrorist organization”. At a meeting of the Middle East Quartet held in Washington, D.C. on 11 July 2011, there was a general call for resumed direct negotiations between Israel and the Palestinian side, but no agreement could be reached on preconditions for such negotiations.9 On several occasions, President Mahmoud Abbas has restated his position that negotiations would not be resumed without a complete stoppage of Israeli settlement expansion, including within East Jerusalem. It appears that there is no likelihood of this condition being met by the Government of Israel. On the contrary, accelerated expansions of settlements in the West Bank, including East Jerusalem, have been regularly announced during the past several months;10 and the announcement by President Abbas that the Palestinian Authority intends to approach the General Assembly with the purpose of achieving recognition of Palestinian statehood, based on the 1967 borders, and possibly also seek membership in the United Nations by way of the Security Council. Such a proposed diplomatic initiative is being presented as an alternative to direct negotiations and, for this reason, among

__________________

8 Barack Obama, President of the United States, “Remarks by the President on the Middle East and North Africa”, White House press conference, Washington, D.C., 19 May 2011. Available from http://www.whitehouse.gov/the-press-office/2011/05/19/remarks-president-middle-east-and- north-africa.

9 See Office of the Quartet Representative, “Quartet principals meet with Tony Blair in Washington, D.C., to promote direct negotiations”, 11 July 2011. Available from http://www.tonyblairoffice.org/quartet/news-entry/quartet-meet-in-washington-dc-to-promote-direct- negotiations/.

10 See A/66/364.

11-49552

7

others, it is being condemned as “unilateral” and vigorously opposed by the Governments of Israel and the United States.

IV. Protection of the civilian population living under occupation

12. It is unfortunately necessary to restate the basic obligations of Israel under international humanitarian law as the occupying Power of the West Bank, including East Jerusalem, and the Gaza Strip. These obligations are mainly set forth in the Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), to which Israel is party. Most pertinent is section III (arts. 47-78), which addresses issues associated with occupied territories. Of greater detail and more recent origin is the protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I), which entered into force in 1978, particularly part IV, which establishes the legal framework applicable to the civilian population. There are 171 States parties to Protocol I. While Israel is not a party to Protocol I, it is bound by the provisions of the Protocol because they have become embedded in international customary law, which does not require the explicit consent of a State to be binding. Other highly relevant international legal instruments pertaining to circumstances in the occupied Palestinian territories are the Convention on the Rights of the Child, with 197 States parties (including Israel) and the International Convention on the Suppression and Punishment of the Crime of Apartheid, with 107 States parties. It is not possible to consider in detail the applicability of these various legal instruments, so only a few salient features will be described.

13. One of the overarching objectives of international humanitarian law, whether in treaty or customary form, is to ensure that the civilian population is not made to suffer unduly from a belligerent occupation — which is assumed to be a temporary condition — and that the occupying Power does not take advantage of the occupation to secure benefits for its Government and society. The legal framework has been negotiated by States, in particular experienced diplomats and military advisers, and balances security considerations against those humanitarian objectives. With those considerations in mind, it can be observed that systematic abuse of civilians as individuals or in their community identity are particularly grave assaults on the international legal regime of occupation, which makes the Israeli settlement project in the West Bank, including East Jerusalem, of continuing concern, especially when coupled with ongoing efforts by Israel and the United States to alter the 1967 borders to incorporate Israeli settlement blocs, notwithstanding their almost universally acknowledged illegality.

14. There are many other issues that illustrate the violation of the legal framework by the occupation policy of Israel. Examples include the annexation — and what even Israeli sources refer to as the “Judaization” — of East Jerusalem;11 the purported geographic expansion of the boundaries of the city of Jerusalem;12 the inability of more than 10,000 Palestinian children to be legally registered in East Jerusalem, thereby forcing Palestinian families to choose between staying together, at the risk of

__________________

11 See, for example, Nir Hasson, “The Orthodox Jews fighting the Judaization of East Jerusalem”, Haaretz (Tel Aviv), 24 June 2010. Available from http://www.haaretz.com/weekend/magazine/the- orthodox-jews-fighting-the-judaization-of-east-jerusalem-1.298113.

12 See Security Council resolutions 252 (1968), 446 (1979) and 478 (1980).

A/66/358

A/66/358

8

11-49552

losing their Jerusalem residency permits, or accepting an enforced separation from their family members;13 the appropriation of increasingly scarce water resources from aquifers in Gaza for use in Israel and by Israeli settlers; the imposition and enforcement of a blockade on the entire population of Gaza for a period of more than four years, which dramatically curtails basic rights to education, housing and health; the maintenance of a dual system of law and administration in the West Bank, which privileges Israeli settlers and openly discriminates against Palestinians; and the systematic abuse of Palestinians arrested and detained by Israeli security forces, including children of a young age.14

15. As well as the patterns of violations of international humanitarian law highlighted in the preceding paragraph, it is important from a moral perspective to take into account the dimension of time on the underlying psychological and physical health of the occupied people. As noted, belligerent occupation is assumed to be short-lived and conducted so as to leave a light footprint, modelled in modern times by the occupations of Germany and Japan after the Second World War, with the restoration of sovereign rights at the earliest practicable time and, above all, the diligent protection of civilians for as long as the occupation lasts. Here, without providing an explanation for the prolonged nature of the occupation, which has increasingly taken on annexationist dimensions, the duration of more than 44 years is a cause for independent and urgent concern and action. This concern is aggravated by the absence of any near-term foreseeable end to the occupation.

16. Israel has contended that its “disengagement” from Gaza in 2005 ended occupation of the Gaza Strip, and thus Israeli responsibilities there as the occupying Power. Such a contention is generally rejected in international law circles, given continuing Israeli control over Gaza’s border, airspace and territorial waters which, along with the blockade (severely curtailing the Gaza fishing industry), has generated a persistent human rights crisis. Even without threats of cross-border violence from Israel, the ordeal of living under confined, crowded, impoverished and utterly disempowered conditions for a period of many years is incompatible with the fundamental purpose of international law to protect the dignity and well-being of an occupied civilian population. Living under siege has a proven deleterious effect on children and young people.15 Among other privations, students are prevented from exercising their right to education outside the confines and limited opportunities available in the Gaza Strip. As stressed in previous reports, international humanitarian law needs to be re-examined to take into account the particular hardships for the civilian population arising from prolonged occupations, which call for special arrangements to allow civilians to have a decent life based on education, travel, employment and social normalcy. For three generations, to varying degrees the Palestinian people have been denied these components of human dignity. It is time for

__________________

13 Information received from the United Nations Relief and Works Agency for Palestinian Refugees in the Near East and the Office for the Coordination of Humanitarian Affairs during mission. See also Office for the Coordination of Humanitarian Affairs, Special Focus: East Jerusalem: Key Humanitarian Concerns, March 2011.

14 See, for example, Defence for Children International — Palestine Section, “In their own words: a report on the situation facing Palestinian children detained in the Israeli military court system”, February 2011. Available from http://www.dci-pal.org/English/Doc/Press/EASTJerusalem_ JANUARY2011.pdf.

15 See, for example, United Nations Children’s Fund, “UNICEF oPt monthly update, July-August 2011”. Available from http://www.unicef.org/oPt/UNICEF_MonthlyUpdate_July_and_ August2011.pdf.

11-49552

9

the United Nations, the International Committee of the Red Cross and key Member States to meet this challenge.

V. Detention and imprisonment

17. An issue of grave consequence from the perspective of human rights is the failure by Israel to uphold the basic rights — enumerated under international law — of persons it detains in the occupied Palestinian territories, many of whom are subsequently imprisoned in Israel. According to reports dated March 2009, there were 8,171 Palestinians being held in detention. Of these, 1,052 were held at the Ofer military base in the West Bank, south of Ramallah. The remaining 7,119 Palestinian prisoners and detainees are being held in confinement within the territory of Israel at the present time. The numbers of prisoners vary, but although the current total is slightly reduced, there are still thousands of Palestinians being held by Israel under conditions that violate international law. According to the non-governmental organization Addameer Prisoner Support and Human Rights Association, as at June 2011 Israel was holding 5,554 Palestinian political prisoners, of whom 229 were being held in administrative detention without having been convicted of any crime. Of the prisoners, 211 were children, of whom 39 were not even 16 years old.

18. The Israeli policy of transferring Palestinian prisoners to Israeli territory violates the obligations of Israel as the occupying Power. Article 76 of the Fourth Geneva Convention is unequivocal: “Protected persons accused of offenses shall be detained in the occupied country, and if convicted they shall serve their sentences therein.” That is not only a technical requirement; it also relates to the hardship experienced by someone imprisoned for a long time. Family members have almost no visitation rights, and those who are formally available are made essentially irrelevant due to the onerous permit and permission system imposed by Israel. Young Palestinian males are almost always denied access to Israel, and thus have almost no opportunity to visit their imprisoned relatives. A Palestinian prisoner often loses all contact with family members for years as a consequence.16

19. Article 74 of Protocol I, which is devoted to the special circumstances of “dispersed families”, imposes an obligation on Israel to “facilitate in every possible way the reunion of families dispersed as a result of armed conflicts”, and urges cooperation with humanitarian organizations seeking to arrange for more family connections under the difficult conditions of the occupation. Israel continues to violate this obligation.

20. There also exists the important unexplored issue of whether Palestinians who are members of armed resistance organizations should be entitled to prisoner of war status. The Geneva Convention relative to the Treatment of Prisoners of War seems applicable only if the occupied Palestinian territories can be considered to be a State, which could be one result of the conferral of statehood upon Palestine by the General Assembly, although given the extensive diplomatic recognition accorded to the

__________________

16 For useful exposition of the separation of prisoners from their families for long periods of time, producing great suffering, see discussion by Israeli lawyer Michael Sfard, “Devil’s Island: the transfer of Palestinian detainees into prisons within Israel”, in Threat: Palestinian Political Prisoners in Israel, Abeer Barker and Anat Matar, eds. (London: Pluto Press, 2011). This book contains a valuable overview of these problems, and results from a conference held in Israel, a tribute to Israeli democratic freedoms for its own citizens.

A/66/358

A/66/358

10

11-49552

Palestine Liberation Organization it can be argued that Palestine already enjoys the status of statehood.17

21. Additionally, it has been contended that, under Protocol I, members of Palestinian armed resistance groups could, in principle, be entitled to POW status without having to prove that they belong to a State, so long as the struggle is being carried on by an organized group fighting alien occupation in the exercise of their right of self-determination.18 If prisoner of war status should be accorded to those detained for security reasons, and found to belong to armed resistance militias, a whole range of protections that Israel has denied would come into play for Palestinians engaged in resistance since the start of the occupation.

VI. Israeli settlements

22. As has been stated many times in prior reports, but must not be forgotten, all Israeli settlement activity is unlawful. This assessment is based on the accepted interpretation of article 49(6) of the Fourth Geneva Convention: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” This obligation applies whether or not Palestine enjoys the status of a State. The language of the text here is far from perfect, as it lends itself to a claim by Israel that it is not deporting or transferring Israelis to the settlements, but at most facilitating voluntary decisions based on a range of religious and economic motivations. But the long-standing reality of subsidies from the Government of Israel that encourage settlers and settlements (for construction, water, electricity, schools and other purposes) makes clear the significance of State involvement. Israel continues to insist that the West Bank is “disputed” rather than “occupied” territory, and thus international humanitarian law is not de jure applicable, while Israel purported to annex East Jerusalem in 1967, and has since that time refused to treat it as “occupied”. The Government of Israel has recently sought a reaffirmation from President Obama of the United States of the April 2004 letter from then President George W. Bush to then Prime Minister Ariel Sharon conveying the expectation of the Government of the United States that the Israeli settlement blocs (“major Israeli populations centers” to the east of 1967 borders) would be incorporated into Israel, in whatever agreement resolving the conflict was negotiated in the future.19 Without exploring these issues in detail, there exists a strong international consensus, reinforced by innumerable Security Council and General Assembly resolutions as well as the 2004 International Court of Justice advisory opinion regarding the Wall, that the West Bank and East Jerusalem are “occupied”, and that international humanitarian law applies. Further, it seems clear that the letter on settlements by President Bush may have political weight, but from the perspective of Palestinian rights under international law the letter is irrelevant. The letter also violates basic

__________________

17 John Quigley, The Statehood of Palestine: International Law in the Middle East Conflict (Cambridge University Press, 2010).

18 The legal questions are usefully explored in Smadar Ben-Natan, “Are there prisoners in this war?” in Barker and Matar, Threat.

19 Letter from President Bush to Prime Minister Sharon, dated 14 April 2004. Available from http://georgewbush-whitehousearchives.gov/news/releases/2004/04/20040414-3.html. See also Ethan Bronner, “Netanyahu responds icily to Obama remarks”, New York Times, 19 May 2011. Available from http://www.nytimes.com/2011/05/20/world/middleeast/20mideast.html?_r=1.

11-49552

11

principles of equity in international customary law, which do not allow third parties to diminish the claims in law of parties without their participation and consent.20

23. In the context of the overall objectives of international humanitarian law to protect the rights of an occupied population, it is painfully evident that the establishment of more than 100 Israeli settlements with over 500,000 Israeli settlers, expropriating some of the best land and water resources, and moreover on the site of their proposed capital, flagrantly violates Palestinian rights and has a negative impact on Palestinian prospects for a viable, sovereign State. Yet political leaders from Europe and the United States consistently view settlement expansions by Israel as setbacks from the perspective of achieving a peaceful resolution to the underlying conflict. Foreign Secretary William Hague, of the United Kingdom of Great Britain and Northern Ireland, issued a press release on 5 April 2011 in response to an announcement by Israel of its intention to expand a major settlement in East Jerusalem, stating: “I condemn Israel’s decision to approve more than 900 settlement units in the East Jerusalem suburb of Gilo and the retrospective approval which has been given for construction in five West Bank settlements.”21 The leadership of the Palestinian Authority has repeatedly warned that without a total settlement freeze, it will not return to direct negotiations, and has explicitly linked its decision to seek recognition of Palestinian statehood at the United Nations to the Israeli policy on settlements.

24. It is also relevant to observe that strong demonstrations by Israeli civil society to protest skyrocketing housing costs inside Israel have produced new pressures on the Government of Israel to add to the supply of affordable housing, and one way to do this, it has been widely suggested in the Israeli media, is by expanding settlements.22 Whether this path will be taken by Israel is not yet evident, but the issue suggests that Israeli public opinion and some leaders view the settlements as a vital safety valve for explosive social and political pressures building up within Israel.

25. The United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) has noted that zoning restrictions in occupied East Jerusalem seriously undermine Palestinian development. Thirty-five per cent of the occupied Arab part of the city has been approved by Israeli authorities for Jewish Israeli settlements, while only 13 per cent of the Arab area is even potentially available for Palestinian construction.23

26. All in all, it is widely agreed that the prospects for ending the occupation of the West Bank, including East Jerusalem, are blocked by the continuing expansion of Israeli settlements. The longer this dynamic persists, the more tenuous becomes the possibility of actualizing the two-State option.

__________________

20 It is noted that even treaties, which are a stronger form of agreement than this exchange of letters by the respective leaders of Israel and the United States, cannot affect Palestinian rights under international law. Article 34 of the Vienna Convention on the Law of Treaties clearly affirms this principle: “A treaty does not create either obligations or rights for a third State without its consent.” Even should Palestine not be a State, it is certainly a party, and has been so regarded by all concerned Governments.

21 Statement available from http://www.fco.gov.uk/en/news/latest-news/?view=News&id=579904682. 22 See, for example, Martin Sherman, “Into the fray: come to the carnival, comrade!”, Jerusalem

Post, 8 May 2011. Available from http://www.jpost.com/Opinion/Columnists/Article.aspx?id=232543. 23 Information received from UNRWA and the Office for the Coordination of Humanitarian Affairs

during mission. See also Office for the Coordination of Humanitarian Affairs, Special Focus: East Jerusalem.

A/66/358

A/66/358

12

11-49552

A. Settler violence

27. There has been a serious increase in settler violence in 2011. The Office for the Coordination of Humanitarian Affairs reports a more than 50 per cent increase in incidents in the West Bank involving violence against Palestinians, documenting injuries to 178 Palestinians during the first half of 2011 as compared to 176 for the entire year of 2010.24 According to UNRWA, those injured in settler violence in just the first half of 2011 included 12 children. These specific injuries resulted from stone- throwing, assaults and shootings by Israeli settlers. Yet these incidents only tell part of the story. There are almost daily accounts of settler vandalism against Palestinian agricultural land and villages, with several incidents videotaped by individuals working with B’Tselem, the highly regarded Israeli human rights organization.25 There have been numerous reports of agricultural land and olive groves being burned, especially in the villages around Nablus.26 Also part of this disturbing set of developments is a pattern of passive support for settler activities exhibited by Israeli security forces and border police. It often takes the form of shooting tear gas and stun grenades at Palestinians while doing nothing to stop settler violence and vandalism, and has also been documented by B’Tselem video cameras.27 A further dimension to these activities is the frequent settler harassment of Palestinian children on their way to school — also not prevented by Israeli forces — which has reportedly discouraged many children and their families from attending school, thereby violating their right to education. In some areas, most consistently in Hebron where settler violence is frequent and severe, international civil society organizations such as Christian Peacemaker Teams and the Ecumenical Accompaniment Programme in Palestine and Israel have attempted to step into the breach, providing direct protection of young schoolchildren when Israeli forces do not meet their obligation to prevent settler violence.28 Overall, the failure by Israel to prevent and punish settler violence remains a serious and ongoing violation of its most fundamental obligation under international humanitarian law to protect a civilian population living under occupation, and to accord particular protection to children as specified in Protocol I, article 77.

B. The future of Israeli settlements

28. There have been several explanations given for this intensifying violence and harassment of Palestinian civilians: a reaction to a bloody incident in Itamar settlement in which five Israeli settlers were killed, including three children, while asleep at night;29 an effort by the religiously motivated settlers to encourage support

__________________

24 Information received from the Office for the Coordination of Humanitarian Affairs during mission.

25 Available from http://www.btselem.org/video/search/22. See also Muadi Nadder, ed., An Unjust Settlement: A Tale of Illegal Settlements in the West Bank (Geneva, Ecumenical Accompaniment Programme in Palestine and Israel, 2010).

26 Information received from UNRWA and the Office for the Coordination of Humanitarian Affairs during mission.

27 See, for example, http://www.btselem.org/video-channel/east-jerusalem-six-voices. 28 See Muadi Nadder, ed., An Unjust Settlement: A Tale of Illegal Settlements in the West Bank

(Geneva, Ecumenical Accompaniment Programme in Palestine and Israel, 2010). 29 See “Terror attack in Itamar: 5 family members murdered”, Jerusalem Post, 12 March 2011.

Available from http://www.jpost.com/NationalNews/Article.aspx?id=211780.

11-49552

13

by the Government of Israel for a policy of ethnic cleansing, especially in East Jerusalem, and their claim of biblical birthright to the entire West Bank;30 and a signal to the Government that any future anti-settler moves by Tel Aviv, such as closing settler outposts established without official permission, would be met with what settlers themselves call “price tag” reprisals against Palestinians and their properties.31 Maher Ghoneim, the Palestinian Authority Minister charged with monitoring settlement activity, declared: “This is a government of settlers and its program is one of settlement. This naturally encourages this arrogance and these attacks.”32 Israeli political leaders refer to the West Bank as “Judea and Samaria”, indirectly reinforcing the insistence by religious Israeli settlers that this territory should as a whole be incorporated into or annexed by Israel, and that it is the Palestinians who are the usurpers of the historic and religious entitlements of Jewish settlers.

29. It may be that the increased violence by Israeli settlers reflects the fact that the clash between settler and Palestinian visions of the future is reaching a climax. Nabil Abu Rudaineh, a spokesperson for the Palestinian Authority, was quoted as saying on 8 July 2011 “that all the settlements are illegitimate and must be removed”.33 Yet in this same period, settler leaders insist that not one settler will leave the West Bank regardless of what the Government of Israel agrees to do.

30. In recent months such polarizing views of future relationships have been articulated, ranging from the extremes of unconditional settlement expulsion as a component of withdrawal by Israel and the end of occupation to the complete incorporation of the West Bank into Israel proper, as a “Greater Israel” one-State alternative to the two-State proposal. Obviously, the outcome of such a debate has a direct bearing on whether the Palestinian right of self-determination will be recognized as integral to the dynamics of conflict resolution.

VII. Palestinian children, human rights and international humanitarian law

31. During the planned mission of the Special Rapporteur to Gaza that was redirected to Cairo and Amman, in a series of meetings with representatives of the Palestinian Authority, United Nations agencies with responsibilities in the occupied Palestinian territory and a range of human rights non-governmental organizations, particular attention was paid to the impact of prolonged occupation on the rights and well-being of Palestinian children. The results of these inquiries, reinforced by a variety of secondary sources, were disturbing for three principal reasons:

(a) The very fact of prolonged occupation exerts a constraining burden on civilians. Yet this impact is heavier on children, whose development is deformed by

__________________

30 See, generally, B’Tselem, “By hook and by crook: Israeli settlement policy in the West Bank”, July 2010; and B’Tselem, “Dispossession and exploitation: Israel’s policy in the Jordan Valley and northern Dead Sea”, May 2011. Available from http://www.btselem.org/publications.

31 See, for example, YNet, “Settlers: We’re launching ‘price tag’ policy across the West Bank”, 4 December 2008. Available from http://www.ynetnews.com/articles/0,7340,L-3633599,00.html. 32 Tom Perry, “In West Bank, settler violence seen on the rise”, Reuters, 14 July 2011. Available

from http://uk.mobile.reuters.com/article/worldNews/idUKTRE76D30220110714. 33 “EU: New settlement building units are obstacle to peace”, Jerusalem Post, 19 July 2011.

Available from http://www.jpost.com/DiplomacyAndPolitics/Article.aspx?id=230096.

A/66/358

A/66/358

14

11-49552

pervasive deprivations affecting health, education and overall security. The insecurity of Palestinian children is aggravated in the West Bank, including East Jerusalem, by settler violence and night-time raids by Israeli occupation forces, house demolitions, threatened expulsions and a host of other practices, and in Gaza by the blockade and by traumatizing periodic violent incursions and sonic booms resulting from airplane overflights, as well as the still unrepaired destruction of refugee camps, residential communities and public buildings by Israeli forces during Operation “Cast Lead”;

(b) The available evidence suggests a pattern of increasing abuse, not just by the continued hardships of occupation, but by specific policies that entail more serious and systematic violations of the rights of children guaranteed by the norms of international humanitarian law;

(c) The testimony of experts on child development agrees that children suffer more from violations than adults, and the protection of their rights should be of particular concern to the international community. Writing on the impact of home demolitions, an UNRWA report of 12 June 2011 notes: “The impact of home demolitions on children can be particularly devastating. Many children affected by demolitions show signs of post-traumatic stress disorder, depression and anxiety.”34

32. The treatment of Palestinian children is ultimately related to the quest for a solution to the conflict that brings peace to both peoples and recognizes fundamental rights. As Gandhi famously said: “If we are to teach real peace in this world … we shall have to begin with the children.” From the evidence available and what was learned on the mission, an intention to achieve a sustainable peace in the conflict would give immediate priority to respect for the rights of Palestinian children, including enabling their normal and positive development despite the constraints of occupation.

33. To illustrate patterns of deprivation, this report discusses arrest and detention procedures relating to children in the West Bank and East Jerusalem and the damaging impact on children’s health arising from unsafe water in Gaza.

A. Arrest and detention procedures for Palestinian children

34. In the Convention on the Rights of the Child, the most widely ratified of all international legal treaties, a detailed framework is set forth of the special protection that parties are legally obligated to provide for children. This encompasses children living under belligerent occupation. Article 3 (1) of the Convention expresses the general approach taken in the Convention, and hence is now embodied in international human rights law: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Article 38 (1) declares: “States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child.” Article 40 specifies the obligatory steps regarding criminal charges brought against children in keeping with the mandate of article 40 (1) that the child be “treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the

__________________

34 UNRWA, “Demolition watch”, 12 June 2011. Available from http://reliefweb.int/sites/ reliefweb.int/files/resources/Full_Report_1154.pdf.

11-49552

15

child’s age and the desirability of promoting a child’s reintegration and the child’s assuming a constructive role in society”. This approach reflects the general directive of article 77 (1) of Protocol I: “Children shall be the object of special respect.” It is against this background that the pattern of deleterious treatment of Palestinian children living under occupation, as confirmed by many testimonies received during the Special Rapporteur’s mission and published reports of respected NGOs, confirms continuing violations by Israel of international law, in particular international humanitarian law.

35. Many of the arrests of Palestinian children arise out of allegations of stone- throwing aimed at settlers or Israeli security personnel in the West Bank.35 Those accused, unlike Israeli children in the West Bank, are subject to Israeli military law, which offers far fewer protections for minors than are present in Israeli criminal law. Most relevantly, in military law there is an absence of protective provisions regarding the presence of a parent during interrogation, the hours that the interrogation must be conducted or respect for the dignity of the child during the arrest process. The arrest procedures documented by United Nations agencies and reliable human rights organizations include arrests in the middle of the night without prior notification, removal of the child from parents for questioning, abusive treatment in detention and conviction procedures that appear to preclude findings of not guilty. During our mission we were frequently told that these arrest procedures seemed systematically intended to frighten and humiliate those arrested, and to turn them towards collaborating by identifying protest leaders in demonstrations and refraining from anti-occupation activities in the future.

36. In the period between 2005 and 2010, 835 children were prosecuted for stone- throwing, of which 34 were 12 or 13 years old, 255 were 14 or 15, and 546 were 16 or 17.36 Since 2007 the number prosecuted has risen each year. The length of the sentences did take into account the age of the accused, varying from more than a year for older children to a few weeks for younger ones. Israel did establish a youth military court in 2010, and so far its sentences for children in the 12 or 13 year-old category have been lighter, with the longest sentence imposed being nine days, which is far less than in earlier years. The very existence of a military court for children is inconsistent with international humanitarian law’s fundamental commitment to uphold, pursuant to article 40 (1) of the Convention on the Rights of the Child, “a child’s sense of dignity and worth”. B’Tselem has expressed its main finding on this topic as follows: “The present report indicates that the rights of minors are severely violated, that the military law almost completely fails to protect their rights, and that the few rights granted by law are not implemented.”36 Among the serious results of this way of handling Palestinian youth accused of transgressions is the denial of their educational possibilities while in custody or prison, and the disallowance of their ties with families, which go against international legal standards. This abuse also inflicts fear and suffering on parents and other family members who witness the arrest procedures and are not even informed about where their child is being held in custody.

__________________

35 See, generally, B’Tselem, “No minor matter: violation of the rights of Palestinian minors arrested by Israel on suspicion of stone-throwing”, July 2011; and B’Tselem, “Caution: children ahead: the illegal behavior of the police towards minors in Silwan suspected of stone-throwing”, December 2010. Available from http://www.btselem.org/publications.

36 B’Tselem, “No minor matter: violation of the rights of Palestinian minors arrested by Israel on suspicion of stone-throwing”, July 2011.

A/66/358

A/66/358

16

11-49552

37. There is abundant anecdotal evidence of child abuse associated with interrogations and arrests of children.37 The United Nations Children’s Fund occupied Palestinian territory child protection programme contains a summary that overlaps and confirms other reputable descriptions, saying that reports of interrogations are widespread and include fingerprinting, blood tests, humiliation, using dogs to frighten the children, forcing parents into the streets on their knees, arresting boys and girls and bringing elderly women and invalids for interrogation. The same source tells of extreme instances in the village of Awarta. One three-year-old girl was reportedly taken outside her home at 3 a.m. and threatened at gunpoint. She was told she would be shot and her family home destroyed unless she reported on the whereabouts of her brother. Now, her mother explained, she can’t sleep through the night and is bedwetting. One nine-year-old girl reportedly tried to follow her father when he was arrested and she was grabbed by the neck and is still having pain and is afraid to go outside. 38

38. A report of the Association for Civil Rights in Israel details how the Israeli Youth Law is often violated in the arrest and interrogation of Palestinian children in East Jerusalem. The report is specific in its allegations:

Children have been detained for hours on end, handcuffed, they have been threatened during interrogations, screamed at, and coerced by any means into revealing information about the incidents taking place in their neighbourhood. In this context it is important to emphasize that the younger the child is, the greater the chance that he will experience trauma and psychological damage from such treatment.39

Expansion of Israeli settlements in East Jerusalem is coordinated with private security guards, who operate with even less constraint towards Palestinian children than Israeli police. This reliance on security guards is especially prevalent in the Silwan neighbourhood, where settler ambitions have collided sharply with the security of long-term Palestinian residents. According to Sahar Francis, General-Director of Addameer Prisoner Support and Human Rights Association, the arrests of children are intended to intimidate and scare youth so as to discourage “political activism more generally”,40 raising questions as to a specific denial by Israel of the affirmation by the General Assembly of a right of resistance to unlawful occupation policies.

39. It is little wonder in view of such incidents that both Médecins Sans Frontières and UNICEF have recently said that the number of children suffering from stress disorder has greatly increased.41 Colonel Desmond Travers, a member of the United Nations Fact-Finding Mission on the Gaza Conflict (whose report is generally known as the “Goldstone Report”) said in a recent interview: “If the British had behaved toward children who threw stones at them in the manner that is the norm on the West Bank for Israeli security forces — whereby children are rounded up in the evening

__________________

37 See, for example, Defence for Children International — Palestine Section, “In their own words”. 38 Ibid., “Awarta update”, 18 April 2011. 39 Association for Civil Rights in Israel, “Violations of the ‘Youth Law (Adjudication, Punishment

Methods of Treatment) — 1971’ by the Israeli police in East Jerusalem”, March 2011. Available

from http://www.acri.org.il/en/?p=2428. 40 J. Kestler-D’Amours, “The tactic of arresting Palestinian children”, Al Jazeera, 8 July 2011. 41 See “Trauma of Palestinian children increasing, say health groups”, Electronic Intifada, 27 July

2011. Available from http://electronicintifada.net/content/trauma-palestinian-children-increasing- say-health-groups/10212.

11-49552

17

and taken to places of detention, hooded, beaten, and in some cases tortured — the Northern Ireland problem would not be resolved today. It would be still a place of conflagration.”42

40. In response to this pattern of abuse the above-referenced B’Tselem report recommends the following guidelines:

1. Set the age of minority in the military legislation to conform with the age of minority in Israel and the rest of the world immediately;

2. Prohibit night arrests of minors;

3. Restrict interrogations to daytime hours, with parents present, and give minors the opportunity to consult with an attorney in an orderly manner that respects the minors’ rights;

4. Prohibit the imprisonment of minors under the age of 14;

5. Promote alternatives to detention and find solutions offering alternatives to imprisonment;

6. Establish educational programmes in all prisons and offer study opportunities in all subjects to minimize the harm to the minors’ studies while they are detained and imprisoned;

7. Facilitate the issuing of permits to visit minors who are detained and imprisoned.36

B. Gaza blockade, collective punishment and Palestinian children

41. As emphasized throughout the report, children are the most vulnerable and most acute victims of Israeli violations of the provisions of international humanitarian law that are designed to protect an occupied civilian population. With the blockade of Gaza now extended beyond 4 years, and the overall occupation more than 44 years, the impact of those violations is exponentially increased. UNRWA, which normally avoids drawing conclusions as to the character of the occupation, issued a press release on 14 July 2011 expressing its heightened concern and calling attention to the plight of Gaza’s children, stating: “Today, there is a crisis in every aspect of life in Gaza. In education we need to build 100 new schools in three years for these children.”43 UNRWA spokesman Chris Gunness has noted that “the abject poor living on just over 1 dollar a day has tripled to 300,000 since the blockade was imposed and with many reconstruction projects still awaiting approval, the future looks bleak”.44 With more than half the population of Gaza under the age of 18, those facing that bleak future are overwhelmingly children. UNRWA recalls the condemnation by the International Committee of the Red Cross of the blockade as “collective punishment in clear violation of international humanitarian law” and calls on the international

__________________

42 Philip Weiss, “Col. Travers: Israel’s treatment of Palestinian children shows that it does not seek peace”, 11 July 2011. Available from http://mondoweiss.net/2011/07/col-travers-Israels-treatment- of-palestinian-children-shows-that-it-does-not-seek-peace.html.

43 UNRWA, “A goal for Gaza: at 2011 Summer Games, 2,011 children set football world record”, 14 July 2011. Available from http://unispal.un.org/UNISPAL.NSF/0/E014A7DE55B9E6B0852578 CD0065C530.

44 UNRWA, “Gaza blockade anniversary report”, 13 June 2011. Available from http://www.unrwa.org/ etemplate.php?id=1007.

A/66/358

A/66/358

18

11-49552

community “to ensure that repeated appeals by States and international organizations to lift the closure are finally heeded”. It ends with this appeal: “We endorse these calls for accountability, because we need to lift the blockade and give the kids of Gaza a chance to fulfil their true potential.”43 As an aspect of the multidimensional crisis facing Gaza, UNRWA itself is experiencing a funding crisis that already is impinging on its capacity to continue even at present levels to provide for the 80 per cent of the Gazan population that is currently dependent on international assistance for subsistence, and lacks the resources to meet the additional needs of Gaza’s families, which of course encompasses the children.

42. What is said about Gaza is only a shade less true for the West Bank, including East Jerusalem, where the ordeal of prolonged occupation weighs heavily on the future prospects of children living in an atmosphere of fear and intimidation from birth onwards. Recent developments in Area C, which is 60 per cent of the West Bank, are in their own way as severe in their deprivation of rights as the situation in Gaza, especially in relation to the displacement and dispossession of Bedouin villages that have created a general atmosphere of fear and foreboding, especially among Bedouin children.45 According to UNRWA field staff with whom the Special Rapporteur met during the mission, the 155 herding communities left in Area C, which is fully controlled by Israel, include many Bedouin refugees now facing forcible displacement. Those communities, including many children now largely without regular access to schools, have dramatically deteriorated since 2000, with half the population having been forced out of the West Bank grazing areas, losing their herds and involuntarily ending up in small towns and villages. Part of this forced displacement and forced urbanization has been the result of an Israeli policy of systematic demolition of the traditional cistern-based water infrastructure essential for maintaining the Bedouin people’s nomadic and agricultural way of life, which the occupying Power contends is unlicensed, and thus subject to removal. Bedouin children, most of whose families have already been made refugees in the past, face the particularly difficult challenge of losing their homes and entire way of life as a result of this forced abandonment of their herding traditions, as well as being denied the protection of citizenship associated with upholding the dignity and rights of individuals.

C. Palestinian children’s health and polluted water in Gaza

43. Children are particularly vulnerable to the unsafe water conditions that exist in Gaza. It is estimated that 54 per cent of Gaza’s 1.6 million civilians are children under the age of 18, with 20 per cent of the total under 5 years of age. Within this youngest age group, nearly 300,000 children are at acute risk; this age group is most vulnerable to the effects of water-associated disease, accounting for 90 per cent of annual deaths due to diarrhoeal diseases, including cholera.46 Studies demonstrate that it is Gaza’s unsafe waters that account mainly for the differences in health and survival (child mortality) between children in Gaza and those in the West Bank. The study mentioned above clarifies this conclusion: Gaza’s sole water source is an

__________________

45 See Harriet Sherwood, “Bedouin children hope their West Bank school will be spared Israel’s bulldozers”, Guardian, 12 June 2011.

46 See UNICEF, “Protecting children from unsafe water in Gaza: strategy, action plan and project resources”, March 2011. Available from http://www.unicef.org/oPt/FINAL_Summary_Protecting_ Children_from_unsafe_Water_in_Gaza_4_March_2011.pdf.

11-49552

19

aquifer that is chemically contaminated with dangerous levels of chlorides, nitrates and other pollutants, some in excess of World Health Organization guidelines. Water scarcity aggravates the problem. Almost two thirds of Gazans surveyed indicated that their water is of bad quality due to its high salinity and water pollution, which is especially caused by wastewater contamination. The World Bank and Coastal Municipal Water Utility in Gaza stated that “only 5 to 10% of the aquifer is suitable for human consumption and … this supply could run out over the next five to 10 years without improved controls”.46

44. What is at stake with respect to water quality in Gaza is the right of the child to life and health. Exacerbating the crisis is the continuing impact of the unlawful blockade by Israel, which prevents the importation of tools and materials necessary to repair and restore the water purification system partially destroyed during Operation “Cast Lead”.

VIII. Recommendations

45. In the light of the above, the Special Rapporteur recommends that the Government of Israel take the following measures:

(a) Immediately adopt in policy and practice the guidelines of B’Tselem for the protection of Palestinian children living under occupation who are arrested or detained as a minimum basis for compliance with international humanitarian law and human rights standards under international law;

(b) Allow on an urgent basis entry to Gaza of materials needed for repair of water and electricity infrastructure so as to avoid further deterioration in the health of the civilian population, especially children, which is currently in critical condition;

(c) Develop and implement appropriate detention and imprisonment policies and practices for Palestinians, including fully observing the prohibition on transferring prisoners from occupied Palestinian territory to Israeli territory;

(d) Immediately lift the unlawful blockade of Gaza in view of its violative impact on all aspects of civilian life, its undermining of the basic rights of an occupied population and its grave impact on children.

46. The Special Rapporteur recommends that the General Assembly request that the International Court of Justice issue an advisory opinion on the legal status of prolonged occupation, as aggravated by prohibited transfers of large numbers of persons from the occupying Power and the imposition of a dual and discriminatory administrative and legal system in the West Bank, including East Jerusalem.

A/66/358


Tags: , , , , , , ,

Missing the Point Twice: International Law as Empire’s Sunday Suit

15 Oct


 

            In a recent speech at the Harvard Law School, John Brennan, President Obama’s chief advisor on counterterrorism and homeland security, boldly declared: “I’ve developed a profound appreciation for the role that our values, especially the rule of law, play in keeping our country safe.”  The most notable feature of the remarks that followed was the legal rationalization put forth for targeting killing of civilian terrorist suspects distant from ‘the hot battlefield’ even if not engaged in activities that could be reasonably viewed as posing an imminent threat to security of the United States.

 

In effect, post-9/11 American ideas of self-defense incorporate by stealth the Bush Doctrine of preemptive war used to justify aggression against Iraq in 2003, which had seemed discredited in international until quietly revived by the Obama presidency. The entire world is treated as part of the operational battlefield in the so-called ‘long war,’ and civilians, such as the religious ideologue Anwar al-Awlaki, killed on September 30, 2011 in a remote region of Yemen as if he was a soldier at war. This purported legalization of drone attacks carried out in foreign countries represents a unilateral extension of international law, as well as establishes a precedent that would not be tolerated if claimed by any country hostile to the United States. Involved here is the de facto amendment of the right of self-defense in a manner inconsistent with both the understanding embedded in Articles 2(4) and 51 of the UN Charter and of contemporary international law as interpreted by a majority in the International Court of Justice in the Nicaragua case decided in 1986. The United States now sets the new rules that override the old rules, and then limits their availability to others by restrictions based on geopolitical criteria of ‘friend’ and ‘enemy.’

 

            All that Brennan offered in support of such an imperial claim was the assurance that the United States is careful in the execution of these attacks, seeking to minimize the risk of mistaken identity and taking steps to ensure that the attacks take place in situations where the risks of unintended ‘collateral damage’ are reduced to the minimum. The credibility of this reassurance is insulated from inquiry by secrecy, a total lack of transparency that is supposedly justified by the need to protect intelligence sources. There is also no independent post-attack independent inquiry as to whether the targeted individual might have captured rather than executed, whether there existed a sufficient threat of involvement in dangerous activities to warrant such at attack, whether the government of the country involved gave its consent voluntarily, and whether there is or should be accountability for errors. Such a procedure can only be understood as an effort to establish a system of imperial global governance in relation to the use of force.  If this constitutes the way American ‘values’ deploy ‘the rule of law’ it would seem to reflect the most cynical reliance on ‘law’ as propaganda, while at the same time discarding the proper role of law as a constraint on violence. It is also relevant that the unusual amount of attention given to the al-Awlaki execution results from his American citizenship, which implies the regressive understanding of law that there are no grounds for a serious American concern if the target is non-American regardless of the innocence of the person or the fact that he or she are being killed in their homeland and citizenship. Such a world we are making for ourselves and others.

 

            In March of 2011, in a spirited address to the American Society of International Law, Harold Koh, Legal Advisor to the Secretary of State, also spoke glowingly about the commitment of the United States during the Obama presidency of “living our values by respecting the role of law.” He went on to explain that this mean “following universal standards, not double standards.”

These legalist sentiments were deemed by Koh to be so central to his argument as to be printed in bold lettering for emphasis.

 

What should strike any reasonably objective person is the crude hypocrisy of an American government official rejecting double standards while simultaneously engaging in political gymnastics to avoid acknowledging the unlawfulness of Israel’s behavior: the United States stands practically alone in the world in refusing to condemn Israeli settlements in occupied Palestine, in denying Palestinian statehood at the UN, in endorsing the collective punishment inflicted on the civilian population of Gaza for more than four years; in repudiating the recommendations of the Goldstone Report. Indeed, U.S. foreign policy toward Israel is the most glaring and punitive instance of double standards with respect to international law that exists in the world today.  But it far from the only example. Other prominent instances exist in many crucial domains of global policy: as with the nuclear weapons states that maintain arsenals of weapons without accepting restrictions on their use and non-nuclear pariah states that under the geopolitically managed NPT regime are threatened with military attack for supposedly seeking such weapons; as with the identity of those political leaders and military commanders who are prosecuted for international crimes and those who enjoy a condition of de facto impunity; and as to states that could be invaded by reliance on the norm of ‘responsibility to protect’ and those against which such action is inconceivable however much the territorial population is confronted by dire threats to its wellbeing and survival.

 

I am less shocked by the behavior of the United States, which reflects its grand strategy, than by this insistence on stretching the meaning of the most fundamental legal rules and principles to satisfy foreign policy priorities.

For esteemed international law figures such as Harold Koh, formerly a distinguished human rights scholar and dean of the Yale Law School, to make such bold assertions about the post-9/11 law, validating drone warfare, without even bothering to acknowledge doubts as to the wisdom and acceptability of such a course is to embrace jurisprudential nihilism in two senses—first, by undermining the authority of international law by showing that it can always be extended unilaterally to serve the interests of the powerful, and operates otherwise to discipline weak states; and secondly, by creating a precedent that will not be honored as ‘law’ if invoked by others- witness the hysterical reaction to the shaky claim that Iran was plotting the assassination of the Saudi Arabian ambassador to the United States. What is sauce for the geopolitical goose seems to be poison for the pariah gander!

 

            There are respectable reasons to suggest that international law of war and peace that has evolved over the centuries to deal with conflict among states, and as such needs to be revised to take account of non-state actors and networks, as well as in response to the global horizoning of many interactions in the world of the 21st century. But there are no respectable reasons to contend that dominant states can exercise a military option wherever they choose, and then have the temerity to call this behavior ‘lawful.’

 

Michael Rosen, an ideological apologist for the executions of Osama Bin Laden and Al-Awlaki, writing in The American, the magazine published by the American Enterprise Institute (the right-wing think tank) put his support for drone military activity this way: “But in the civilized world..increasingly.. targeted by Islamist terror, we must continue to return fire by robustly targeting the terror masters.” At least such an assertion

does not pretend to provide an international law justification, although it does stretch the U.S. Congress’s 2001 Authorization of the Use of Military Force, designed to reach those involved in the 9/11 attacks, to validate the execution Al-Awlaki who has never been accused of having any relationship to 9/11. It also most unacceptably sets up this long repudiated moral contrast between ‘the civilized world’ and the rest that has so often in modern times been used to justify violence by the West against the non-West. I had hoped that the collapse of colonialism would have at least discouraged the use of such a tasteless rhetoric of comparison.

 

            There is a final point. Living in a region that is subject to drone attacks as in the tribal areas of Waziristan is terrifying for the population as a whole. This ill-defined vulnerability helps explain the severe hostility to the United States that exists among the Pakistani people and led to a unanimous resolution adopted on May 14, 2011 by the Pakistan parliament demanding that the executive branch uphold Pakistan’s sovereignty by disallowing any future drone strikes on its territory, and if they continue to cut off NATO supplies destined for the Afghanistan War. Supporters of the resolution have sought implementation through the courts, and a Lahore judge has ordered Pakistan foreign minister to submit detailed responses to issues raised. It is one thing to assess the reasonableness and proportionality of a targeted killing, including by reference to collateral damage by reference to the person(s) targeted, but such an appraisal fails to take any account of the more pervasive and inevitable collateral damage caused by producing intense insecurity on the part of an utterly defenseless civilian population as a whole.  As far as I have seen this latter dimension of state terror associated with these new modalities of surveillance, intelligence operations, and robotic militarism never considers the psychological harm being done to the people of the targeted country. This raises issues bearing on the right to life as a fundamental right of all persons under international human rights law.

Tags: , , , , , , ,

Drone Attacks: American Citizens and Foreign Civilians

11 Oct


 

The execution of Anwar al-Awlaki, an American-Yemeni imam, by a drone attack in Yemen on September 30, 2011  has generated a lively debate among liberally minded lawyers in the United States because al-Awlaki was an American citizen. The implication in some of the discourse is that emphasizing the American citizenship of the victim is more likely to induce an American court to disallow abusive violence if the victim is a citizen, and there are Supreme Court precedents to back this up this interpretation of the relativity of rights based on nationality (e.g. Hamdi, Padilla cases).  Perhaps, understandably the courts are less likely to hide behind the Political Questions Doctrine to avoid passing judgment on foreign policy decisions, especially in the area of war and peace, if the target is an American citizen engaged in hostile actions overseas.

 

But what disturbs me about this distinction is the further implication that if the victim had not been a citizen there would be nothing worth discussing, that the U.S. Government claims the unreviewable right to unleash lethal violence against persons anywhere in the world (even if far from the ‘hot battlefields’ such as Afghanistan) if they are considered to be threats to American security, and the evidence for considering them to be a threat need even not be disclosed. Secrecy adds to this kind borderless violence that drone technology and counterterrorist doctrine and practice make the ugly new face of American imperial power in a variety of countries in Asia and Africa, and perhaps elsewhere.

 

In our globalized world do we as Americans really want to endow government officials with more discretion and less accountability when it comes to the overseas killing of foreigners than do in relation to Americans? Should we not oppose such discretion altogether, and rely totally upon cooperative law enforcement with the government of the territorial sovereign? In law, whatever is claimed, is tolerated, and so this precedent may have a most welcome blowback impact at a later point in time. In geopolitics, double standards abound, but this engenders violent resistance, and widespread fear, hatred, and extremism.

What bothers me most about this current public debate on the lawfulness of al-Awlaki’s execution is that it seems to reflect the same gross insensitivity to massive foreign civilian casualties inflicted in the course of America’s military interventions. Such insensitivity has been characteristic of the American way of dealing with these deadly side effects of its foreign military policy

eversince Vietnam, but also long before. Recall the bloodshed inflicted on Filipinos in Spanish American War of 1898, or upon the First Peoples of this country.

After leaving his position as Secretary of Defense during the crucial phases of the American involvement in the Vietnam War, McNamara repeatedly expressed his regrets for the loss of American lives during the Vietnam War, but without even mentioning the ten times greater Vietnamese losses. During the Iraq War Rumsfeld unapologetically told the media with his typical bluntness that Pentagon does not waste its time collecting data on Iraqi civilian casualties.

In a globalized world, such necrophilic nationalism strikes me as deeply offensive, as well as accounting for much of the growing hostility to the American role in the world.

Against this background I would highly recommend reading John Tirman’s recent book, The Deaths of Others: The Fate of Civilians in America’s Wars, published by Oxford University Press in 2011. Tirman, the Executive Director of MIT’s Center of International Studies, graphically depicts this pattern that seems to combine denial with indifference. How few of us realize that in the Iraq War more than 1 million Iraqi civilians died, another 4.5 million were displaced (with about half becoming refugees), 1-2 million Iraqi women became widows, and 5 million children became orphans. These are startling figures, and do not even take account of the destruction of the Iraqi infrastructure that made much of the drinking water unsafe and made it impossible for many children to receive any education. It takes a dedicated student of foreign policy to gain familiarity with such grim statistics of these American wars. Our main media outlets are dutiful in sustaining denial and ignorance. Liberal self-censorship knows no limits when it comes to American foreign policy in either war/peace settings or when it comes to the Israel/Palestine conflict.

We need to recall, as well, that the Iraq War was a notorious ‘war of choice,’ a non-defensive war with no legal justification and no UN Security Council authorization. It should be remembered that the United States took the lead after World War II in punishing surviving German and Japanese civilian and military leaders for their role in waging wars of aggression, which were categorized as ‘Crimes Against Peace’ at Nuremberg and Tokyo.

Are we as a nation and a people incapable of acknowledging and atoning for wrongdoing on this scale? In effect, is it too late to restore democracy, and time to realize we are governed according to the lawless logic of a permanent state of emergency without even the integrity to acknowledge such a militarization of our governing process?

 

Reflections on the Abbas Statehood/Membership Speech to the UN General Assembly

29 Sep

            There is a natural disposition for supporters of the Palestinian struggle for self-determination to suppose that the Palestinian statehood bid must be a positive initiative because it has generated such a frantic Israel effort to have it rejected. Despite the high costs to American diplomacy in the Middle East at this time of regional tumult and uncertainty, the United States has committed itself to exercise its veto on Israel’s behalf if that turns out to be necessary. To avoid the humiliation of disregarding the overwhelming majority opinion of most governments in the world, the United States has rallied the former European colonial powers to stand by its side, while leaning on Bosnia and Colombia to abstain, thereby hoping to deny Palestine the nine votes it needs for a Security Council decision without technically casting a veto. On the side of Palestinian statehood one finds China, Russia, India, South Africa, Brazil, Lebanon, Nigeria, and Gabon, the leading countries of the South, the main peoples previously victimized by colonial rule. Is not a comparison of these geopolitical alignments sufficient by itself to resolve the issue of taking sides on such a litmus test of political identity? The old West versus the new South!

            Add to this the drama, eloquence, and forthrightness of Mahmoud Abbas’s historic speech of 23 September to the General Assembly that received standing ovations from many of the assembled delegates. Such a favorable reception was reinforced by its contrast with the ranting polemic delivered by the Israeli Prime Minister, Benjamin Netanyahu, who insulted the UN by calling it ‘the theater of the absurd’ while offering nothing of substance that might make even mildly credible his strident rhetoric claim to support ‘peace,’ ‘direct negotiations.’ and ‘a Palestinian state.’ The deviousness of Netanyahu was made manifest when a few days later the Israeli Government announced that it had approved 1,100 additional housing units in the major East Jerusalem settlement of Gilo. This was a bridge too far for even Hilary Clinton who called the move ‘counter-productive’ and Europeans regarded as deeply disappointing and confidence-destroying, so much so that Netanyahu was openly asked to reverse the decision. There are a variety of other indications that additional settlement expansion and ethnic cleansing initiatives will be forthcoming from Israel in the weeks ahead. Are not such expressions of Israeli defiance that embarrasses even their most ardent governmental supporter enough reason by itself to justify a Security Council recommendation of Palestine statehood at this time? Would it not be worthwhile at this crucial moment to demonstrate the wide chasm separating increasing global support for the pursuit of justice on behalf of the Palestinian people from this domestically driven American reliance on its ultimate right of veto to block Palestinain aspirations? Would it not be well to remind Americans across the country, including even its captive Congress, that its own Declaration of Independence wisely counseled ‘a decent respect for the opinions of mankind’? If ever the use of the veto seems ill-advised and deeply illegitimate, it is in this instance, which the Obama Administration seems to acknowledge, or otherwise why would it use its leverage to induce allies and dependent states to go along with its opposition to Palestinian membership in the UN?

            Turning to the speech itself, the language of recognition may be more notable than the substance. Never before in an international forum had the voice of the Palestinian Authority spoke of Israel’s occupation policies so unabashedly–as ‘colonial,’ as involving ‘ethnic cleansing,’ as imposing an unlawful ‘annexation wall,’ as creating a new form of ‘apartheid.’ With admirable directness, Israel was accused of carrying out the occupation in a manner that violated fundamental rules of international humanitarian law, and cumulatively amounted to the commission of crimes against humanity.

             In the course of his speech Abbas tried hard to reassure the Palestinian diaspora on two matters of deep concern: that the Palestine Liberation Organization (PLO) will continue to represent the Palestinian people, who are the ultimate beneficiaries of the most fundamental of Palestinian rights at stake, the right of self-determination. The issue here is lost on almost all observers of the conflict, that the Palestinian Authority (PA) of which Abbas is president is a subsidiary body that was created by the PLO with a temporary mandate to administer Palestinian territory under occupation, and thus it was important to allay suspicions that the PLO was an intended casualty of the statehood bid so as to territorialize the conflict and give the Abbas and PA leadership complete representational control over the Palestinian role at the UN. The deep concern here relates to the adequacy of representation relating to the Palestinians living in refugee camps in neighboring Arab countries or in exile around the world. In the Palestinian National Council, 483 of its 669 members are drawn from Palestinians not living under occupation. President Abbas used the clearest possible language to reaffirm the position of the PLO just prior to enumerating the five conditions guiding his leadership role: “I confirm, on behalf of the PLO, the sole legitimate representative of the Palestinian people, which will remain so until the end of the conflict in all its aspects and until the resolution of the final status issues.”

            In the background of this representation issue is an anxiety that Palestinian refugee rights will be forgotten or marginalized in the course of striking a deal that is build around a ‘land for peace’ formula. Again Abbas inserted some reassuring language in his speech to the effect that peace will depend on “a just and agreed upon solution to the Palestine refugee issue in accordance with resolution 194,” which unconditionally affirmed a Palestinian right of return. Relevantly, Netanyahu in his speech alluded to the “fantasy of flooding Israel with millions of Palestinians,” which is his way of both dismissing the rights of Palestinian refugees, especially as derived from the massive dispossession of Palestinian in 1948, and insisting on the Palestinian recognition of Israel as ‘a Jewish state.’ This insistence combines  demographics with democracy, contending that ever since the promise of Lord Balfour on behalf of the British Government to a leader of the Zionist movement in 1917 there were continual acknowledgements that Israel was a Jewish state. Netanyahu made short shrift of the claims to dignity and equality of the 1.5 million Palestinians existing under an array of discriminatory burdens by saying merely that Israel treats its minorities in a manner that respects their human rights. It should be recalled that the Balfour Declaration, a notoriously colonial disposition, did not promise the Jewish people a state, but rather ‘a national home,’ and that it was to be established in a manner that did not interfere with the ‘civil and religious rights of existing non-Jewish communities in Palestine.’ Human rights and democracy have become significantly universalized during the last several decades. This development implies that the governing structures of society embodied in the state must renounce any claim of ethnic or religious particularity. Political legitimacy in the 21st century should not be accorded to any state that claims to be a Jewish state, an Islamic state, or a Christian state. Such statist neutrality should be set forth as an element of legitimate statehood by formal action at the United Nations. Such a declaration would impose a limit on the right of self-determination by denying to peoples the right to establish ethnic or religious states. In a globalizing world ethnic and religious diversity are present in every major state, and needs to be respected by unfurling a banner of equality that grants religious freedom to all faiths and allows collective identities to be expressed without prejudice.

            For some widely respected Palestinian activists and NGOs, these assurances were not enough. With the formidable intellectual support of Oxford professor, Guy Goodwin-Gill, the very idea of Palestinian statehood compromises the representational rights of diaspora Palestinians within UN arenas of decision, and potentially deforms future negotiations by according predominance to territorial priorities. Guy-Goodwin’s analysis was built around the general view that a state could never adequately represent people outside its borders. Given existing realities this would mean disenfranchising the Palestine refugee and exile population that comprises a majority of ‘the Palestinian people’ who are as a collectivity the holder of the overarching entitlement embodied in the right of self-determination. Such a view may be technically correct, and operationally prudent, but it overstates the clarity of the legal implications of Palestinian statehood and UN membership, while understating the degree to which what is being questioned are the psycho-political priorities of the current PA/PLO leadership.  To further strengthen and promote the unity of the Palestinian global solidarity movement it is crucial to continue to seek accommodation between territorial and non-territorial dimensions of the Palestinian struggle, and thus to minimize intra-Palestinian divergencies, including the ongoing rift with Hamas. Here again Abbas had some reassuring words to say about the future implementation of the reconciliation agreement reached between the PLO and Hamas in June, but the failure of Hamas to endorse the statehood/membership bid at this time raises doubts about whether cooperation between these two political tendencies of Palestinians living under occupation will be forthcoming in the future.

           There are, against this background, some further grounds for concern that result from gaps or disappointing formulations in the Abbas speech. One glaring gap was the failure to address the accountability issues associated with the non-implemented recommendations of the Goldstone Report arising out of war crimes allegations associated with massive attacks (Israeli code named ‘Operation Cast Lead”) on Gaza between 27 December 2008 and 18 January 2009.  In an important statement issued by the Palestinian Centre of Human Rights, jointly with several respected human rights NGOs, the PLO was given responsibility for doing their best to see that these recommendations for referral to the International Criminal Court be carried out.  In the words of the statement, “should the PLO choose not to pursue the accountability process initiated by the Report of the UN Fact-Finding Mission – at the expense of the Statehood initiative – this will amount to the prioritization of political processes over victims’ fundamental rights; indicating acceptance of the pervasive impunity that characterizes the situation in Israel and the occupied Palestinian territory.”

         Although implicit in the Abbas speech, the systematic refusal of Israel to comply with international law, was not accorded the emphasis in deserves. Given this reality, it was comic irony for Netanyahu to invoke international law in relation to the captivity of a single Israel soldier, Gilad Shalit; of course, international law should be observed in relation to every person, but when Israel subjects the whole of Gaza to a punitive blockade that has lasted for more than four years, imprisons thousands of Palestinians in conditions below international legal standards, and refuses to implement the near unanimous Advisory Opinion of the World Court on the unlawfulness of its annexation wall, it has lost all credibility to rely on international law on those few occasions when it works to its advantage.

           Even more disturbing, because so relevant to the present posture of the conflict, was the rather bland expression of willingness on the part of the PLO to resume direct negotiations provided that Israel imposes “a complete cessation of settlement activities.” As there is no chance that this condition will be met, it may not be so important for Abbas to question the value of direct negotiations given their repeated failure to move the parties any closer to peace during the past 18 years. In fact, Israel has cloaked settlement expansion, ethnic cleansing, and a variety of encroachments on what might have at one time become a viable Palestinian state, with the charade of periodic peace talks held under the non-neutral auspices of the United States. What Abbas could have done more effectively, given the unlikelihood of an affirmative Security Council recommendation on UN membership, is to couple the statehood/membership bid with the demand of a new framework for future negotiations that includes both Israeli commitments to abandon settlement expansion in East Jerusalem as well as the West Bank, and more importantly, selects a state or regional organization to provide non-partisan auspices for the talks. Such a demand would have made clear that the PLO/PA was no longer willing to play along with the Oslo game that has more than doubled the settler population and allowed Israel to invest in an expensive settler only infrastructure that is unlikely to be ever voluntarily dismantled. It is past time to declare the Oslo framework of direct negotiations as terminally ill, futile, and illegitimate, and incapable of drafting a roadmap that leads anywhere worth going! For the UN to be one of the four Quartet members, especially given the American hegemonic control over the diplomacy on the conflict, also warranted a harsh comment by Abbas.

          What the future holds is more uncertain than ever. The mainstream media has tended to criticize both Israel and the PA/PLO as if their respective behavior was equivalent. For instance, the Palestinian statehood/membership initiative is treated as equally provocative as the Israeli announced intention to expand the unlawful Gilo settlement. Such an attitude does belong in the theater of the absurd, equating a completely legal, arguably overdue plea to be given an upgraded status at the UN with a criminal encroachment on basic Palestinian rights associated with territory under occupation, as recognized by Article 49(6) of the Fourth Geneva Convention.

           Whether Israel will follow through on its threats to ‘punish’ the PA for undertaking this completely legal initiative remains to be seen. Already there is troublesome indications of widespread settler violence in the West Bank that is either unopposed or backed by Israeli military and security units. As has been observed by the Israeli president, Shimon Peres, Israel will never have a more moderate partner for peace than the Ramallah leadership, and if it undermines its viability it will be demonstrating once again that it has lost its capacity to promote its national interests. It has showed this aspect of decline most dramatically by picking a fight with a resurgent Turkey, and then missing one opportunity after another to repair the damage, which is what Ankara earlier had hoped would happen. As regional developments move toward greater support for the Palestinian struggle, Israel is allowing what might have been a historic opportunity for a sustainable peace to slip away. An acute problem with extremism, whether of the Likud or Tea Party variety, is that it subordinates interests and rationality to the dictates of an obsessive and emotive vision that is incapable of calculating the balance of gains and losses in conflict situations, being preoccupied with all or nothing outcomes, which is the antithesis of diplomacy. This is a path that inevitably produces acute human suffering and often leads to disaster. It is time for Israelis to abandon such a path for their own sake and the sake of others!

Tags: , , , , , , ,

The Tet Offensive in the Rear View Mirror of the Afghanistan War: Disengaging from Problematic Interventions

24 Aug

Prefatory Note: A few days ago I published an earlier version of this article in Al Jazeera English, but have revised it to take account of the developments in Libya of the last several days, as well as some comments about the criminality of prior Taliban rule in Afghanistan. The essential points remain that foreign military intervention, even with a UN mandate, is costly, unclear in its impact on human rights, and likely to interfere with political dynamics governed by the play of internal forces and the logic of national self-determination.

************

On January 31, 1968 the combined forces of North Vietnam (DRV or Democratic Force of Vietnam) and the NLF (National Liberation Front) launched a spectacular series of attacks throughout the contested territory of South Vietnam. As many as 100 Vietnamese cities and towns were simultaneously attacked, 36 of 44 provincial capitals were captured, and the once impregnable American Embassy complex in Saigon was penetrated and several guards killed. These attacks were all repelled in a few days, with the Vietnamese taking huge losses, 37,500 estimated deaths, which came on top of 90,000 lost soldiers in the preceding months. The American commander, General Westmoreland, had confidently predicted prior to the Tet Offensive that the NLF would never be able to replace such losses, and victory for the United States in the Vietnam War was near at hand.

 

            During the Tet Offensive the American losses were announced as 2,500. This ratio of comparative deaths, and the fact that the DRV/NLF could not maintain their presence in any of the urban areas that they briefly controlled, led Westmoreland and counterinsurgency experts to claim a military victory for the American side. Add to this the evidence that the Vietnamese objective of these coordinated attacks on the points of Saigon’s governmental control in Vietnam was not primarily to kill or even to seize control of the country but to inspire popular uprisings by the people of Vietnam, and these hopes of Hanoi never materialized anywhere in the country.  This ‘defeat’ was acknowledged by the DRV commander General Tran Do who confirmed that the purpose of the Tet Offensive had been to stimulate a spontaneous uprising among the Vietnamese population against the continuing American military occupation of their country. This convergent perception of the Tet Offensive by both sides seemed authoritative, and yet, and this is my point, yet it proved to be politically irrelevant. General Do’s words uttered after the fact emphasize the secondary objective of the Tet Offensive: “In all honesty, we didn’t achieve our main objective, which was to spur uprisings throughout the South. Still, we inflicted heavy casualties on the Americans, and their puppets, and this was a big gain for us.”

 

            But what made these American casualties so important was not the loss of life. What made these death so deeply disturbing was their unsettling impact on both backers and opponents of the war in Washington, the backers because their belief that victory was at hand was shattered and the critics because the lies emanating from Washington had been finally exposed. If General Westmoreland was not deceived or lying the American casualties sustained during the Tet Offensive could not have happened given the supposed decimation of the Vietnamese enemy. If these expectations of an imminent victory had not been discredited by the Tet Offensive, the dramatic event would have been coolly diagnosed as a desperate lost gamble by the Vietnamese, and rather than turning attention to an exit strategy would have led to an intensified effort to achieve total victory on behalf of the Vietnamese regime in Saigon that had welcomed the American intervention.

           It was the shock effect on the American mood about the war that transformed the Tet Offensive into a big victory for the Vietnamese regardless of what their intentions for the mission had been or the unacceptable level of losses sustained.  The scale, scope, and surprise of the Tet Offensive had an immediate traumatic impact on American public opinion and related Congressional support for continuing the Vietnam War. The Vietnamese military leadership was also slow to appreciate the real importance of Tet. As General Do put it,  “As for making an impact in the United States, it had not been our intention—but it turned out to be a fortunate result.” The Tet Offensive was interpreted by all sectors of opinion on the war as opening a ‘credibility gap’ between the government and the citizenry. This gap consisted of the space separating the excessively optimistic assessments relied upon by the White House to quiet opposition to a growingly unpopular war from the reassurances being given to the increasingly restive backers of the war. The Tet Offensive conclusively demonstrated to the vast majority of the American people that the prior claim by Washington that the Vietnamese adversary was abjectly knocking on the door of defeat, on the verge of surrender or collapse, was far removed from the truth. The Tet Offensive had such an unsettling effect on the American body politic that the incumbent president and assumed candidate for reelection in 1968, Lyndon Johnson, acknowledging his failure to achieve victory in the Vietnam War abruptly withdrew from the presidential race, declared a pause in the bombing of North Vietnam allegedly to give diplomacy a chance to end the war through negotiations, and firmly rejected a request from U.S. commanders in Vietnam for a troop surge.

 

          It is true the war dragged on for several more years with heavy casualties on both sides, but the Tet Offensive radically altered the American goal from ‘victory’ to ‘peace with honor,’ that is, ‘defeat in disguise.’ At the time Henry Kissinger, the foreign policy architect of the Nixon presidency, was only hoping for ‘a decent interval’ between the American withdrawal and the collapse of the client regime in Saigon. The subsequent Christmas bombing of Hanoi and the disastrous air attacks on the Cambodian countryside (that led directly to the Khmer Rouge genocidal takeover of the country) were part of the futile effort by the Nixon/Kissinger presidency to produce the token victory that they called ‘honor.’ Actually, when the war finally came to an end in 1975, the dominant image was of Vietnamese collaborators with the American intervention desperately seeking to escape from Vietnam by clamoring aboard a helicopter taking off from the roof of the U.S. embassy. Not honor but humiliation, chaos, and defeat became the end game for the United States in Vietnam, or put differently, the price paid with thousands of Vietnamese, Cambodian, and American lives to avoid wounding American pride and geopolitical standing was all in vain.

 

                To this day, counterinsurgency professionals in Washington think tanks and the Pentagon contend that the United States snatched defeat from the jaws of victory. This distorted reading of history partly explains why American policymakers have failed (and refused) to learn the defining lesson of the Vietnam War: the virtual impossibility in the early 21st century of turning military superiority on the battlefield enjoyed by an intervening party into a favorable political outcome against an adversary that effectively occupies the commanding heights of national self-determination. That is in this century the symbols of legitimacy count in the end for more than drone technology and the weaponry of destruction. This American and NATO learning disability has led directly to embarking upon subsequent legally and strategically problematic interventions, especially in the period since the 9/11 attacks of a decade ago: Afghanistan, Iraq, and Libya. Military superiority succumbs over time to the strong historical tides of the last seven decades favoring the forces aligned with the politics of self-determination. Among other explanations for this conclusion that cuts against the grain of political realism is this:  the intervening side gets tired of an unresolved struggle long before fatigue sets in for the side defending national territory. An Afghan aphorism expresses this insight: “You’ve got the watches, we’ve got the time.” Since 1945 nationalist endurance consistently outlasts and outwits geopolitical endurance, and by so doing eventually offsets the asymmetries of military capabilities.

 

          But my reason for recalling the Tet Offensive is less about this primary feature of conflict in our time, especially in the setting of what Mary Kaldor has usefully called ‘new wars,’ than it is to comment upon contradictory perceptions of victory and defeat. These conflicts tend to be resolved on political battlefields far from sites of military violence, although each struggle has its own story to narrate. What seems to count most in the end is a decisive shift in political perceptions on the home front of the intervening side.  Neither the successful response to the attacks in terms of casualties or restored control of the cities in South Vietnam, nor the failure of the attacks to be followed by popular uprisings by the Vietnamese people mattered so far as the historical significance of the Tet Offensive is concerned. It was also not relevant that the military appraisal made by both sides was wrong, although the Vietnamese side was less wrong as the spike in American casualties added strongly influenced the political reassessments of the conflict by the White House and caused widespread consternation among the American people that increased pressures to withdraw from the war.

 

              This recall of the Tet Offensive is not meant to be an exercise in historical memory or even in the differences between how the military thinks and how the political process in a liberal democracy works.  It is rather a frustrated commentary on the increasingly absurd refusal of the Obama presidency to acknowledge the American failure to defeat the Taliban and put the governmental structure in Kabul under pro-Western secular custody, the role confidently assigned years ago to Hamid Karzai.  As with Vietnam, the American public is continually being told by the military commanders and political leaders about how well things are going, and even when unexpected setbacks do take place, these are quickly dismissed as ‘one-off’ incidents that should not become occasions for reappraisal. There was a recent disappointment in some liberal establishment circles within the United States that were growing skeptical about continuing the intervention in Afghanistan when the execution of Osama Bin Laden in May was not followed by a credible and liberating claim from Washington of ‘mission accomplished,’ which would have positively reclaimed the notorious miscalculation by George W. Bush in the early months of the Iraq War. Such a claim would have played well throughout the American heartland, and probably given Obama a clear path to an electoral victory in 2012. Public opinion according to recent polls would applaud an accelerated withdrawal of NATO forces from Afghanistan: 59% of Americans would like to see all American troops taken out of Afghanistan immediately or within a year, while only 22% believe that the United States has sufficiently defined goals to make the war worthy of American military engagement.

                The American people have become generally opposed to foreign military intervention, although this attitude could quickly be reversed in the event that foreign extremists were able to inflict major damage on perceived American interests. According to Newsmax, August 11, 2011, only 24% of Americans support the U.S. military role in Libya, and 75% believe that the United States should not engage in overseas military action “unless the cause is vital to our national security.” It is obvious that for most Americans Libya was never seen as ‘vital,’ and the justification relied upon by the White House did not even pretend that ‘security’ was the rationale for military intervention, but invoked ‘humanitarism,’ which never qualifies in political arenas as a cause worth dying for. Of course, leaders will always argue that an intervention undertaken is vital, and could hardly do less, considering that lives of their citizens are put at risk. But what these poll results show is the common sense currently displayed by American public opinion: reject humanitarianism as an adequate basis for war making along with distrust of the post-facto security arguments put forth by elected leaders; healthy doubts about the self-serving claims of the military to be closing in on victory if only the public is patient and the leaders dispatch more troops. But such wars go on and on, however dysfunctional, the bodies pile up, and the political opposition is disregarded, and this despite what would have hoped was the cautionary influence exerted by the realization that the American empire teeters on the edge of financial disaster.

              True, after months of NATO bombing the anti-Qaddafi movement seems on the verge of victory. As with Kosovo in 1999, the Libyans seem overwhelmingly opposed to Qaddafi dictatorial rule and solicited the intervention. In these circumstances military intervention can succeed, but at a high price in terms of devastation and civilian collateral damage, especially in a casualty-safe war carried on from the air. Yet the outcome yet make clear, as the respected foreign policy expert on the UN and the Arab World Phyllis Bennis reminds us, whether it will be the Libyan people or the oil companies and NATO that benefit from the war and the destruction of the Qaddafi regime. We do already know, or at least should realize, that the whole NATO operation sets a bad precedent for the UN. Its authorization of the use of force back in March 2011 in Security Council Resolution 1973 was framed in terms of protecting civilians in imminent danger of massacre, but the NATO operation was carried out in such a manner as to achieve regime change by tipping the balance in what became an all out civil war. In this respect that guidelines in 1973 were so vague and loose as to be worthless or NATO exceeded the authority granted, despite the language of ‘all  necessary measures,’ and there was no effort to contain the military operations within the intended scope of 1973. In this latter regard, the five abstaining states (China, Russia, India, Brazil, and Germany ) are derelict in their failure to insist on adherence to the guidelines associated with civilian protection, which certainly did not extend to bombing the personal compound of Qaddafi or the state TV facilities.

              Several observations follow. During the Vietnam Era public opinion counted for more when the government was making its political calculations about continuing an unpopular war. Unquestionably, there has been a decline in democratic accountability in the United States with respect to war/peace issues. In part, this reflected the presence of a robust peace movement during the Vietnam War, which in turn arose as an angry response to the military draft that threatened the wellbeing of middle class America. Now there is no draft, the war is fought with professional soldiers, drones, and private contracting firms. Furthermore, the weaponry and tactics are designed to minimize American casualties relative to the destruction inflicted. Unfortunately, the lessons learned from a decade of warfare in Vietnam were not about whether to intervene in new wars but how. It may be that in place of international law and political prudence, both of which should rationally discourage interventions at odds with the logic of self-determination, the new source of restraint will derive from fiscal pressures to reduce defense spending. So far the militarist consensus in Washington has largely exempted the bloated U.S. defense budget from the knives of the cost cutters, who openly advocate socially regressive cost-cutting while calling for increases in defense spending. Even the more socially sensitive Obama democrats have largely continued to acquiesce in this willingness to treat the defense budget as non-discretionary, as well as proudly claiming to have increased military assistance to Israel. 

              When an American helicopter was shot down on August 6th, the 66th anniversary of the Hiroshima bombing, and all 30 persons aboard were killed, including 22 members of the Navy Seals Elite Unit, I hoped that this would administer a Tet-like shock. The Obama administration could have used the occasion to say that it was time to bring American troops home and end involvement in the struggle over the political future of Afghanistan. It is common knowledge by now that the Afghanistan War is being fought against the nationalist Taliban and on behalf of a corrupted and incompetent Kabul regime for the political control of the country. It should be understood that the prior period of Taliban rule exhibited fundamentalist rule in an unusually violent and harsh form that exposed the Afghan population to massacres and crimes against humanity. Whether today’s Taliban, a less centralized organization would repeat its crimes of the past unknown in advance, and does lead to reasonable disagreement about the best course of action, which seems to be the choice of what seems to be ‘the least worst option’ at the moment.

             The unresolved conflict in Afghanistan is a clear and complex instance of the sort of ‘new war’ that will not be decided once and for all on the battlefield by soldiers and weapons or through the anachronistic agency of foreign intervention. The strategic justifications advanced to justify the war—preventing a future sanctuary for a reconstituted Al Qaeda and avoiding the takeover of Pakistan by extremists– seem highly questionable. It is more plausible to promote such security goals by closing out a military intervention that fans the flames of anti-Americanism, gives extremism a good name in Pakistan, and exhibits once again the impotence of American imposed military solutions.

 

Such an analysis yields a single moral, legal, and prudential imperative: when foreign intervention is losing out to determined national resistance, leave the country quickly, stop the killing immediately, and declare victory with pomp and circumstance or leave in dignified silence acknowledging the uncertainties surrounding the future, especially as to whether the Afghans on their own can work out accommodations and whether the Taliban this time round is ready to compromise and is less dogmatic in its understanding of Islamic governance. At this stage of the conflict in Afghanistan these are the only outcomes within reach for the United States. Moving toward their embrace might also help avoid such misadventures in the future. This would require replacing the palace guard in Washington that has been calling the shots in American foreign policy for many years. I admit that a Beltway realist reading these musings would likely respond: “Dream on!” And that is the problem!

Tags: , , , , , , ,

Can Humanitarian Intervention ever be Humanitarian?

4 Aug


             Not since the debate about the Kosovo War of 1999 has there been such widespread discussion of humanitarian intervention, including the semantics of coupling ‘humanitarian’ with the word ‘intervention.’ At one extreme of this debate about language stands Gareth Evans, former Foreign Minister of Australia, who is a staunch advocate of displacing the discourse on ‘humanitarian intervention’ by relying on concept of ‘responsibility to protect’ (known as R2P). Evans was, in fact, co-chair of the International Commission on Intervention and State Sovereignty that came up a decade ago with the idea of R2P. This approach to intervention was skillfully marketed it to the international community, including the United Nations. Arguing the conceptual case for R2P, Evans writes, “[b]y changing the focus from the ‘right’ to ‘responsibility,’ and from ‘intervene’ to ‘protect,’ by making clear that there needed to be at much attention paid to prevention as to reaction and non-coercive measures, and by emphasizing that military coercion—which needed to be mandated by the UN Security Council—was an absolute last resort in civilian protection cases.’ [Evans, “Humanitarian intervention is only justified when…” Global Brief, Summer 2011, 60.]

 

Insisting that the coercive actions in the Ivory Coast and Libya show the benefits of this approach, as contrasted with the supposed failures of the 1990s to take action in Rwanda, Bosnia, and Kosovo, Evans feels so vindicated by recent events as to make the following plea: “So let us please lay ‘humanitarian intervention’ language to rest once and for all.” This raises three questions: should we? will we? does it really matter? My answer to the first two is ‘no,’ and to the third, ‘not much.’ My basic problem with the R2P approach is that it downplays the role of geopolitics in the diplomacy of both decisions to intervene and to not intervene. By hiding this fundamental element in the decision process behind a screen of moralizing language talking of R2P rather than humanitarian intervention invites misunderstanding, as well as encourages imperial ambitions. 

 

            At the other semantic extreme is Michael Walzer, who writing in Foreign Affairs, insists that the idea of humanitarianism has become a central feature of world politics in the early 21st century. He starts his article with some hyperbolic language to this effect: “Humanitarianism is probably the most important ‘ism’ in the world today, given the collapse of communism, the discrediting of neoliberalism, and general distrust of large-scale ideologies.” [“On Humanitarianism,” Foreign Affairs 90(No.4): 69-80.] I find such a sentiment to be so exaggerated as to defy reasoned discussion. One wonders has how such an incredible sentence escaped the scrutiny of the eagle-eyed editors of Foreign Affairs. Walzer appears to be suggesting that humanitarianism now eclipses realism and nationalism as an influential global force in the world of ideas and statecraft, which is not only farfetched and wrong, but especially surprising considering that Walzer is without question one of the world’s most respected and influential thinkers on the ethical dimensions of relations among sovereign states. His overall effort in the article is to demonstrate that this humanitarian impulse is a matter of duty for governments, and should not be treated as a species of charity, a potentially valuable distinction that becomes clear when he comes to discuss humanitarian intervention without even mentioning the R2P approach, presumably because it obscures rather than illuminates the underlying issues of choice.

 

            Walzer looks behind the semantics of intervention to appraise the responses to situations where populations are genuinely at risk. He faults the UN Security Council as having a dismal record in the past due to its failures “to rescue those in need of rescuing,” giving Rwanda  and Bosnia as examples. Walzer goes on to conclude that the “UN Security Council rarely acts effectively in crises, not only because of the veto power of its leading members but also because its members do not a strong sense of responsibility for global security, for the survival of minority peoples, for public health and environmental safety, or for general well-being. They pursue their own national interests while the world burns.” [75] This passage sounds to me like an old-fashioned reaffirmation, after all, of realism and nationalism, and is far more descriptively credible than Walzer’s assertion that humanitarianism is the recently emergent dominant ideology.

 

            Coming to specifics, Walzer understandably turns his attention to Libya

as having generated a new debate about humanitarian intervention. He summarily dismisses leftist suspicions about Western recourse to hard power solutions to international conflict situations, but also acknowledges that this NATO intervention does not seem to be succeeding in making good on its initial humanitarian claim. Nevertheless, he gives the intervenors a surprising clean bill of health as far as their intentions are concerned: “Their motives were and are humanitarian, but not sufficiently shaped by considerations of prudence and justice.” [77] Walzer is alive to the complexity of international political life that makes him skeptical about endorsing generalized solutions to such general problems as what to do about a menaced civilian population.  Instead he advocates a situational approach to gross civilian vulnerability. He argues that any state can serve as a humanitarian agent even without necessarily receiving permission from the international community for a use of non-defensive force. In Walzer’s words, “[t]here is no established procedure that will tell us the proper name of the agent.” He gives approval to several non-Western examples of humanitarian intervention: Vietnam in 1978 contra the Khmer Rouge in Cambodia, India in 1971 contra Pakistan in what was then East Pakistan and is now Bangladesh, and Tanzania in 1979 contra the bloody tyranny of Idi Amin in Uganda. These uses of force are endorsed as serving humanitarian ends even though they failed to receive any mandate to act from the Security Council and although in each instance, despite rescuing a vulnerable population, the predominant motivation to intervene seemed clearly non-humanitarian in character. In contrast, Walzer pushing to the outer limit his central thesis as to the rise of  humanitarian diplomacy writes “In these circumstances, decisions about intervention and aid will often have to be made unilaterally…The governing principle is, Whoever can, should,” [79] which is the second extraordinary statement made in his article.

 

Such a volitional framework governing interventionary initiatives negates, without even an explanatory comment, the essential effort of contemporary international law to prohibit all international uses of force that are neither instances of self-defense (as defined by the UN Charter in Article 51) nor authorized by the UN Security Council. In this respect, Walzer seems to be endorsing a kind of ethical anarchism as the best available means for achieving global justice in these situations. At this point he veers back to his confidence in the purity of geopolitical motives by contending that ‘what drives’ these uses of force “is not only humanitarian benevolence but also a strong sense of what justice requires.” [79] This is written as if imperial ambitions even if packaged as ‘grand strategy’ should not be a concern. What about the protection of vulnerable states that are victimized by geopolitical maneuvers associated with resources, markets, and congenial ideology? It might be well to recall that it was a notorious tactic of Hitler’s expansionist foreign policy to intervene or threaten to do so for the sake of protecting German minorities being allegedly abused in neighboring countries.

 

            Returning to a comparison of perspectives, Evans sets forth a series of guidelines that he believes will make it more likely that uses of force in these interventionary settings will be respectful of international law while at the same time recognizing the sensitivities in the post-colonial world about giving approval to military encroachments upon sovereign space, which are invariably of a North/South character if acted upon by the United Nations, that is, the North as agent of intervention, the South as the site where force is used. His five criteria are law-oriented, and deferential to the authority vested in the Security Council: (1) seriousness of the risk; (2) purposeful and discriminate use of force to end threat of harm; (3) force as a last resort; (4) proportionality of military means authorized with respect to the humanitarian goals of the mission; (5) the likely benefit of the contemplated use of force for those being protected. Since Evans, unlike Walzer’s willingness to live with unilateralism, seeks a consensual foundation for such uses of force, he insists that the final mandate for an R2P operation must be shaped within the five-part framework set forth and based on a formal Security Council authorization. Walzer argues more opportunistically, geopolitically naively, that states should be empowered to act even without proper authorization if they have the will and means to do so. His examples  of humanitarian interventions by non-Western states (Vietnam, India, Tanzania)were all neighbors of the target state, and at the time contested to varying degrees due to the play of geopolitical forces, not as a reflection of different levels of humanitarian urgency. In this regard, the strongest humanitarian argument was undoubtedly present in support of the Vietnam intervention in Cambodia to stop a massive genocide, but also the most controversial as it contravened the American policy at the time of placating China so as to increase pressure on the Soviet Union.  Acting under the umbrella of R2P is most likely to generate intense controversy when the United States acts with or without European backing (Iraq, Afghanistan, Kosovo, Libya), especially if the humanitarian claim seems marginal or as a cloak hiding strategic and imperial goals. Only in the Libyan debate did R2P figure prominently, and maybe led several of the members of the Security Council, including China and Russia, to abstain rather than to vote against SC Resolution that gave NATO the green light to commence its military campaign.

In this sense, Evans’ claims need to be taken seriously, but not because they represent a step forward, but rather because they weaken the overall effort of the UN and international law to minimize war and military options in international political life.

 

            What makes these discussions serious is their bearing on life and death issues for vulnerable peoples and their supposed benefactors. On the one side, Noam Chomsky is right to worry about ‘military humanism,’ which he depicts as the grand strategy of hegemonic political actors being cleverly disguised as global public works projects. In effect, humanitarianism is the pathetic fig leaf selected to hide the emperor’s nudity. Chomsky points to ‘double standards’ as proof positive that whatever the explanation given for a particular intervention by the United States or NATO, the claimed humanitarian motivation is window dressing, and not the primary consideration. He treats Western silence about decades of brutal Turkish suppression of the Kurdish movement for human rights as an illuminating example of geopolitical blinkering whenever it seems inconvenient to take action on behalf of a victimized minority. In my view, the most extreme instance of double standards involves the failure of the UN System or ‘a coalition of the willing’ to take any action protective of the Palestinian population enduring an oppressive occupation for more than forty-four years,

despite the direct UN and colonialist responsibility for the Palestinian ordeal.  

 

On the other side of this debate among progressives is Mary Kaldor who worries that without the intervention option dreadful atrocities would take place with even greater frequency. She supported intervention to protect the endangered Albanian population of Kosovo, fearing that otherwise the genocidal horrors of Bosnia would likely have been repeated, including even the risk of reenacting the grisly massacre of Srebrenica. At the same time, Kaldor was not indifferent to the risks of great power abuse, and tried, in the manner of Gareth Evan, to condition her endorsement of intervention with a framework of guidelines that if followed would make the restraints of international humanitarian law applicable and minimize the exploitative opportunities of intervening powers. This framework was embodied in the report of the Independent International Commission on Kosovo on which Kaldo was an influential member. That report also took account of the inability of the intervenors to win UN Security Council approval (in this instance, because of the expectation of Russian and Chinese vetoes). The report took the position that in situations of imminent humanitarian catastrophe it would be legitimate to intervene if the capabilities were available to exercise effective proportionate force, although unlawful given the UN Charter prohibition on all non-defensive claims to use force. It is, of course, not generally desirable to create exceptions to restraints that enjoy the status of fundamental rules of international law, but it can seem even more discrediting for the role of law in world affairs to be paralyzed in humanitarian emergencies by rigid rules and procedures that produce inaction, and expose vulnerable peoples to the ultimate abuse of genocide or severe crimes against humanity.

 

There is no right and wrong in such a debate. Both orientations are in touch with relevant realities, and there is no principled way to choose between such contradictory concerns beyond an assessment of risks, costs, and likely effects of intervention or inaction in each instance depending on its overall properties. Judgment here is necessarily operating in a domain of radical uncertainty, that is, nobody knows! This raises the crucial question, what to do when nobody knows? It is this unavoidable responsibility for a decision when the consequences are great and available knowledge is of only limited help that points to the difficulties of the human condition even putting to one side the distorting effects of greed, ambition, civilizational bias, and the maneuvers of geopolitics. The late great French philosophical presence, Jacque Derrida, explored this dilemma in many discourses that related freedom to responsibility, with some collateral damage to Enlightenment confidence in the role of reason in human affairs. For Derrida, making such decisions is an unavoidable ordeal that is embedded in what it means to be human, combining helplessness with urgency.

 

            I would suggest two lines of response. First, there are degrees of uncertainty, making some decisions more prudent and principled, although inevitably with the unclear contours with respect to envisioning outcomes given ‘the fog of war.’ In this regard everything is guesswork when it comes to composing a balance sheet of horrors. Still, it seems plausible to insist that Rwanda in 1994 was a lost opportunity spare many lives taken in a genocidal onslaught, a claim strengthened now and later by the preexisting presence of a UN peacekeeping force in the country, and the informed judgment of both the UN commander on the ground and many observers. General Roméo Dallaire indicated at the start of the crisis that 5,000 additional troops plus a protective mandate to act from the UN could have prevented most of the killings, estimated to be over 800,000. (Dallaire commanded the UN Assistance Mission for Rwanda; see also Linda Malvern, Conspiracy to Murder: The Rwandan Genocide, Verso, 1994.). From the perspective of prudence, the fate of minorities trapped in major states is almost always an unattractive option, although non-military initiatives of support and censure may have positive effects in some instances. It is unattractive because the costs would be high, the target state has major capabilities, the scale of an effective intervention would exceed the political will to protect a threatened minority, and most important, there would be a high risk of starting a general war.

 

The Libyan intervention in 2011 was falsely labeled and the mission authorized was light years away from the operational goals of the NATO operation. In effect, this amounts to a disguised form of an unlawful use of force, but coupled with a dereliction of duty on the part of the Security Council to ensure that the gap between its mandate and the actual operation was closed. Besides, those who are being protected, or more accurately, being helped in a struggle for control of the country, were a shadowy organization thrown together on the spot, lacking in cohesion, and almost from the outset having recourse to violence in a manner that violated the spirit and character of the inspiring Arab Spring popular movements in neighboring Tunisia and Egypt. At the same time, there was a humanitarian challenge, as the dictatorial leader, Col. Muammar Qaddafi, was delivering bloody rants and the civilian population, under siege in Benghazi, was definitely in a situation of imminent risk. Under these circumstances, a carefully delineated protective move under UN auspices could have been justified, but it would have depended on placing NATO troops in situations of potential danger. The kind of air campaign that has been waged by inflating and exceeding the actual UN mandate depicted in Security Council Resolution 1973 has been discrediting for UN peacekeeping and authority. It has been ineffectual in stopping the violence in Libya, and likely responsible for its spread. At the same time, so far the intervention has resulted in not a single NATO casualty (while causing a rather large number of Libyan civilian deaths). Whether the stalemate in the conflict will produce a negotiated compromise remains uncertain, but the shaping and execution of the intervention is suggestive of the inadequacy of either allowing the decisions and policies relating to humanitarian catastrophe to be made by governments on the basis of their own calculus or through reliance on a UN framework that is susceptible to major geopolitical manipulation.

 

There is a preferable, although imperfect, alternative that has been around for several years: the establishment of a UN Emergency Peace Force (UNEPF) capable of being activated through the joint authority of the Secretary-General and a super-majority of two-thirds of the membership of the UN Security Council in reaction to either a humanitarian catastrophe arising from political policies or conflict, or a natural disaster that exceeds the response capabilities of the national government. The UNEPF should ideally be funded through some kind of small global tax imposed on the sale of luxury goods, international travel, currency transactions in financial markets, or some combination. If this proves to be impractical, then voluntary contributions by non-permanent members of the UN Security Council would be acceptable. The whole idea would be, to the extent possible, to break the present links between ‘humanitarian interventions’ and geopolitics. The only means to do this would be through the creation of a maximally independent international agency for such undertakings that would engender confidence in its good faith and through its prudent tactics and effective operations. Unlike such delegated interventions as the Gulf War of 1991, the Kosovo War of 1999, and the Libyan War of 2011, UNEF would rely on tactics that were geared toward minimizing risks for a threatened population and would operate under the strict supervision of the mandating authorities while carrying out an interventionary or relief mission. UNEPF capabilities would be constructed from the ground up, with separate recruitment, training, doctrine, and command structure.

 

            This seems like such a sensible innovation for the benefit of humanity that it may seem puzzling why it has never gained significant political support from UN members, but it should not be. For decades global reformers have been advocating a UN tax (often named a ‘Tobin Tax’ after James Tobin, an Nobel economist who first floated such a proposal) and the kind of UNEPF recommended above (for instance, carefully outlined in a proposal developed by Robert Johansen in collaboration with other scholars, a prominent political scientist who has for years been associated with the Kroc Institute of International Peace Studies at Notre Dame). Such a practical solution to this daunting challenge is not on the table because it would weaken the leverage of geopolitical actors over the resolution of conflict situations. Reverting to the earlier discussion of Walzer, it is precisely because humanitarianism is marginal to the conduct of world politics that makes the UNEPF proposal seem utopian. In relation to Evans, geopolitical forces can accommodate his framework, which is probably well-intended, but provides intervening states with a rationalization for their desired uses of force without significantly interfering with the discretion to intervene and not to intervene. As the Libyan debate and decision confirms, geopolitics remains in control despite recourse to the framing of action by reference to R2P. If we want more principled and effective action in the future, it will require a great deal of pressure from global civil society in collaboration with middle powers, the sort of coalition that led to the surprising establishment of the International Criminal Court in 2002 over the opposition of such international stalwarts as the United States, China, Russia, and India.

 

Tags: , , , , , , ,

← Older Entries
Newer Entries →