Northern Ireland and the Israel/Palestine ‘Peace Process’

22 Dec

Richard HaassUnknown-1UK flagIrish flag

            I visited Belfast the last few days during some negotiations about unresolved problems between Unionist and Republican (or Nationalist) political parties, I was struck by the absolute dependence for any kind of credibility of this process upon the unblemished perceived neutrality of the mediating third party. It would have been so totally unacceptable to rely on Ireland or Britain to play such a role, and the mere suggestion of such a partisan intermediary would have occasioned ridicule by the opposing party, confirming suspicions that its intention must have been to scuttle the proposed negotiations. In the background of such a reflection is the constructive role played by the United States more than a decade ago when it actively encouraged a process of reconciliation through a historic abandonment of violence by the antagonists. That peace process was based on the justly celebrated Good Friday Agreement that brought the people of Northern Ireland a welcome measure of relief from the so-called ‘Time of Troubles’ even if the underlying antagonisms remain poignantly alive in the everyday realities of Belfast, as well as some lingering inclination toward violence among those extremist remnants of the struggle on both sides that reject all moves toward accommodation. The underlying tension remains as Republican sentiments favor a united Ireland while the Unionists Having continue to be British loyalists, deeply opposed to any moves toward a merger with the Republic of Ireland.

 Indyk Kerryimages

            The current round of negotiations going on in Belfast involve seemingly trivial issues: whether the flag of the United Kingdom will be flown from the Parliament and other government buildings on 18 official holidays or everyday and whether the Irish tricolor will be flown when leaders from the Republic of Ireland are visiting Belfast; the degree to which annual Unionist parades passing through Republican neighborhoods of the city will be regulated to avoid provocations; and how might the past be addressed so as to bring belated solace to those who have grievances, especially associated with deaths of family members that were never properly addressed by those in authority at the time.  Apparently, in recollection of the achievements attributed to George Mitchell, the distinguished American political figure who was principally associated with developing the proposals that produced the Good Friday Agreement, the present phase of an evolving accommodation process is being presided over by another notable American, Richard Haass. Haass is a former State Department official and current President of the Council on Foreign Relations, the influential establishment NGO in the foreign policy domain. In this setting the United States Government (as well as its leading citizens) is seen as an honest broker, and although the government is not now directly involved, an individual closely associated with the established order has been chosen and seems acceptable to the five Northern Ireland political parties participating in the negotiations. This effort to ensure the continuation of stability in Northern Ireland seems responsive to the natural order: that negotiations in circumstances of deep conflict do benefit from third-party mediation provided it is perceived to be non-partisan, neutral, and competent, and acts credibly and diligently as a check on the gridlock of partisanship.

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            The contrast of this experience in Northern Ireland with what has emerged during the past twenty years in the effort to resolve the Israel/Palestine conflict could not be more striking. The negotiating process between Israel and Palestine is generated by an avowedly partisan third party, the United States, which makes no effort to hide its commitment to safeguard Israeli state interests even if at the expense of Palestinian concerns. This critical assessment has been carefully documented in Rashid Khalidi’s authoritative Brokers of Deceit: How the U.S. Has Undermined Peace in the Middle East (2013). Beyond this taint, sand is repeatedly thrown in Palestinian eyes by White House gall in designating AIPAC related Special Envoys to oversee the negotiations as if it is primarily Israel that needs reassurances that its national interests will be protected in the process while Palestinian greater concerns do not require any such indication of protective sensitivity.

 

            How can we explain these contrasting American approaches in these two major conflict-resolving undertakings? Of course, the first line of explanation would be domestic politics in the United States. Although Irish Americans by and large have republican sympathies, Washington’s multiple bonds with the United Kingdom ensure a posture of impartiality would be struck from the perspective of national interests. The United States had most to gain in Ireland by being seen to help the parties move from a violent encounter to a political process in pursuing their rival goals. Such would also seem to be the case in Israel/Palestine but for the intrusion of domestic politics, especially in the form of the AIPAC lobbying leverage. Can anyone doubt that if the Palestinians had countervailing lobbying capabilities either the United States would be excluded as the diplomatic arbiter or it would do its best to appear impartial?

 

            There are other secondary explanatory factors. Especially since the 1967 War, it has been a matter of agreement with American policymaking circles, that Israel is a reliable strategic ally in the Middle East. Of course, interests my diverge from time to time, as seems recently to be the case in relation to interim agreement involving Iran’s nuclear weapons program, but overall the alliance patterns in the region put the United States and Israel on the same side: counter-terrorist operations and tactics, counter-proliferation, containment of Iran’s influence, opposition to the spread of political Islam, support for Saudi Arabia and conservative governments in the Gulf. Since 9/11, in particular, Israel has been a counter-terrorist mentor to the United States, and to others in the world, offering expert training and what it calls ‘combat-tested weaponry,’ which means tactics and weapons used by Israel in controlling over many years the hostile Palestinian population, especially Gaza.

 

            A third, weaker explanation is purported ideological affinity. Israel promotes itself, and this is endorsed by the United States, as the ‘sole democracy’ or ‘only genuine democracy’ in the Middle East. Despite the many contradictions associated with such an assertion, ranging from eyes closed when it comes to Saudi Arabia or the Egyptian coup to a wide-eyed refusal to notice the Israeli legalized pattern of discrimination against its 20% Palestinian minority. It has been persuasively suggested that part of the reason that Arab governments are reluctant to support the Palestinian struggle is the fear that its success would destabilize authoritarian regimes in the region. In this regard, it was the first intifada, back in 1987, that seems in retrospect to have been the most important antecedent cause of the 2011 Arab Spring. It is also notable that despite the profession of democratic values in the Middle East, Israel showed no regrets when the elected government in Egypt was overthrown by a military coup whose leadership then proceeded to criminalize those who had been chosen only a year earlier by the national electorate to run the country.

 

            These are weighty reasons when considered together, help us understand why the Oslo Framework and its Roadmap sequel, and the various negotiating sessions, have not produced an outcome that remotely resembles what might be fairly described as ‘a just and sustainable peace’ from a Palestinian perspective. Israel has evidently not perceived such a conflict-resolving outcome as being in its national interest, and has not been given any sufficient incentive by the United States or the UN to scale back its ambitions, which include continuous settlement expansion, control over the whole of Jerusalem, denial of Palestinian rights of return, appropriation of water and land resources, intrusive, one-sided, and excessive security demands, and an associated posture that opposes a viable Palestinian state ever coming into existence, and is even more opposed to give any credence to proposals for a single secular bi-national state. What is more, despite this unreasonable diplomatic posture, which attains plausibility only because of Israel’s disproportionate influence on the intermediary mechanisms and its own media savvy in projecting its priorities, Palestine and its leadership is mainly blamed for the failures of the ‘peace process’ to end the conflict by a mutually agreed solution. This is a particularly perverse perception given Israel’s extreme unreasonableness in relation to resolution of the conflict, the U.S. partisanship, and Palestine’s passivity in asserting its claims, grievances, and interests.

 

            Finally, we must ask why Palestinian leaders have been willing to give credibility for so long to a diplomatic process that seems to offer their national movement so little. The most direct answer is the lack of the power to say ‘no.’ This can be further elaborated by pointing to the lack of a preferable alternative. A further indication of Palestinian diplomatic dependence, is the degree to which the United States exerts pressure on Ramallah because it finds the management of this bridge to nowhere of the peace process to be useful, despite its many frustrations and failures, allows Washington to exhibit both a commitment to peace and to Israel. The American Secretary of State, John Kerry, has in recent months pressured the parties to resume peace talks, talking often of ‘painful concessions’ that both sides would have to make if the negotiations are to succeed. This misleading appeal to symmetry overlooks the gross disparity in position and capabilities of the two sides. Whether such a disparity is so great as to make it dubious to use the language of conflict is itself an open question. Would it not be more forthright and revealing to ask due to the degree of inequality, whether Palestine has any capability to say anything about the terms of a resolution other than ‘yes’ or ‘no’ to what Israel is prepared at any time to offer? In this sense it more closely resembles the end of a war in which there is a winner and loser except that here the loser at least retains the sovereign right to say ‘no.’ Also it needs to be observed, that this perception is deeply misleading because it overlooks what might be called ‘the other war,’ that is, the Legitimacy War that the Palestinians are winning, and given the history of decolonization, seems to have a good chance of controlling the political outcome of the struggle.

 

             Returning to the inter-governmental approach, it should also be noticed that the diplomacy does not take account of the historical background. Did not Palestine concede more than enough before the negotiations even began, accepting a frame for territorial proposals that seems content with 22% of historic Palestine, although this territory is less than half of what the UN partition plan proposed in 1947, and seemed then to be unfair given the ethnic demographics at the time? We should also take account of the relevance of the supposed basic UN policy against the acquisition of territory by the use of force, which would seem to mandate a rollback of Israeli territory at least to the 1947 UN proposals contained in General Assembly Resolution 181. The implication of Kerry’s painful concession rhetoric is that Israel would only be expected to remove some isolated settlements and outposts in the West Bank even though they were unlawful ever since established, and could retain the valuable land it has appropriated for the settlement blocs established since 1967 despite their existence being in flagrant violation of Article 49(6) of the Fourth Geneva Convention. In other words, Palestine is expected to give up fundamental rights while Israel is supposed to abandon some relatively minor unlawful aspects of its prolonged occupation of the West Bank and retain most of the ill-gotten gains.

 

            What do we learn from such an analysis?

(1)  Third-party intermediation only works if it is perceived to be non-partisan by both sides;

(2)   Partisan intermediation can only succeed if the stronger side is able to impose its vision of the future on the weaker side;

(3)   Analyzing the Palestine/Israel diplomacy underscores the relevance of (2), and should not be confused with its claimed character as an instance of (1);

(4)   Perhaps in the aftermath of a Palestinian victory in the Legitimacy War the sort of framework for constructive diplomacy achieved in Northern Ireland could be devised, but its credibility would depend on non-partisan intermediation.

             

The Palestinian National Movement Advances

19 Dec

             The advocacy of a Legitimacy War approach to the Palestinian National Movement for self-determination and a just peace is basically committed to Hegelian categories of conflict, shifting its energies away from Marxist forms of encounter based on material assessments of the balance of forces. Put less obscurely, the Palestinian shift toward Legitimacy Wars is a recognition that in this kind of conflict the decisive battles are generally not won by the side with the superior weaponry and technology but rather by the side that prevails in the realm of ideas and symbols of just cause, especially those bearing on nationalist claims of rights based on international law and universal standards of morality. Since the outcome of the colonial wars, the collapse of the Soviet empire, and the failure of Western interventions, the tide of history is flowing favorably for indigenous forces able to win control over these normative heights. This does not imply a renunciation of violence or a guaranty of victory, but it does signify a massive shift in the balance of forces in favor of the side that most successfully uses soft power instruments in conflict situations.

 

            Such a Hegelian view of historical process intends only to claim an altered emphasis, and does not imply a disregard of material circumstances. When Marx was active, his insights into the political economy of the day were brilliantly conceived, calling attention to the revolutionary vulnerabilities of industrial capitalism to a mobilized working class. Both Hegel and Marx, responsive to the alleged truth claims of science, purported to have discovered the laws governing change in the human condition, but only truly identified at most what were historical dispositions, and their claims of ‘determinism’ exaggerated what we are able to discern in the present about what will happen in the future. In the context of the Palestinian Legitimacy War there is only a sense that victory is likely to produce positive political results, but not a guaranty. The political outcome depends on many unknowable features of context, especially how the side losing a Legitimacy War responds.

 

            The battlefields of a Legitimacy War are mainly symbolic and non-territorial. Their relation of forces cannot be measured, but should not be understood only as a battle of ideas. It is rather the conversion of ideas into people power in various forms along with a downplaying of relative technological proficiency. In relation to the Palestinian struggle such soft power militancy is exhibited by such developments as the growth of the BDS Campaign, the decision by the Swarthmore Chapter of Hillel to defy institutional guidelines of its central body by allowing a forum to speakers critical of Israel, the decision of prominent Dutch companies to cut commercial ties with Israeli settlements because such relationships are understood to be problematic under international law, the decisions by the Association of Asian-American Studies and the American Studies Association to boycott Israeli academic institutions. In effect, a cascade of societal expressions of solidarity with the Palestinian quest for fundamental rights.           

 

           This surge of support for peace with justice has evoked a variety of dysfunctional Israeli responses, including vituperative dismissals and a variety of efforts to change the subject. Nothing is more suggestive of Israel’s loss of composure in this new atmosphere than the decision of its leaders, Netanyahu and Peres, to boycott the funeral of the globally sanctified figure of Nelson Mandela, presumably in retaliation for his frequent statements of support for the Palestinian struggle, and maybe for fear that Israel’s long record of collaboration with apartheid South Africa might finally be scrutinized in a transparent manner if they had showed up. Yet the symbolic impact of this deliberate disaffiliation from such a universal show of reverence for this beloved man has been lodged in the moral consciousness of humanity.

 

            Israel’s more calculated responses to these various developments in the Legitimacy War are revealing. For instance, a Foreign Ministry representative, Yigal Palmor, complains that the ASA endorsement of the boycott of Israel’s academic institutions is part of a campaign to delegitimize the Jewish state of Israel and that it is morally misdirected as it fails to target states with the world’s most horrendous human rights records. The first response is significantly deceptive: the ASA boycott, and indeed all related initiatives, have been directed at Israel’s policies, and do not question the legitimacy of the Israeli state, although elsewhere there are serious questions raised about the insistence by Israeli leaders that others acknowledge Israel as a Jewish state. Such a demand is oblivious to the human rights of the Palestinian minority that consists of more than 1.6 million persons who have been living in a societal environment that includes numerous discriminatory laws regulating their behavior.

 

            As for the contention that there is no idea of boycotting other states with horrendous human rights records, such an argument incorporates two kinds of misleading contentions—first, it deftly avoids the substantive accusations as to whether Israel’s treatment of Palestinians within the academic environment is as prejudicial as claimed by boycott advocates and whether the closeness of Israeli academicians and institutions to the military and political activities of the state is not sufficient grounds for singling out Israel. Add to this the failure of Israeli apologists to address the central ASA contention that singling out Israel is justified because of the existence of ‘significant’ American links to Israeli policies long violating fundamental Palestinian rights and contributing to violations of international law.

 

            Israel’s ambassador to the United States, Ron Dermer, weighed in with a familiar riposte, ‘why Israel?’ Dermer advanced the familiar claim that Israel is the only democracy in the region: why should the ASA “as its first boycott choose to boycott Israel, the sole democracy in the Middle East, in which academics are free to say what they want, write what they want and research what they want.” (NYT, Dec. 17, 2013) Such an argument is questionable and unconvincing for many reasons, including the increasingly dubious claim of Israel to deserve the mantle of democracy considering its own chosen identity as an ‘ethnocracy’ (to borrow the label recently affixed by the respected Jewish leader, Henry Seigman’s). Also, acknowledging the existence of scholarly freedoms in Israel is besides the point. It does not even attempt to respond to the ASA main contention of prejudicial treatment of Palestinians in its educational system and the degree of collaboration of Israeli academic institutions with the state in relation to unlawful occupation policies and activities and the formulation of military strategy.

 

            Harsh Israeli critique is combined with a dismissive attitude, claiming that the ASA boycott resolution, and indeed the wider BDS campaign, has had and will have no practical impact on Israel’s economic wellbeing and political stability, and that the resolution has no binding effect on even the members of the American Studies Association. What is at stake in such a debate is the meaning of ‘practical.’ Similar arguments were made in the context of the comparable campaign against apartheid South Africa and against those of us who favored boycott and sanctions in response to the barbarous policies of Pinochet’s Chile. In relation to both South Africa and Chile, the argument was also made that such acts of hostility only hurt the most vulnerable people in the targeted society rather than weaken its regime, although in both instances the most credible representatives of the people were unreservedly supporting maximum pressures deriving from external initiative of this character.

 

            I remember being told in the late 1970s in a private meeting of a small group with the then president of the World Bank. Robert McNamara, that loans to the Pinochet regime were justifiable as denying funds to Chile would adversely affect the poor without harming the government. McNamara was claiming to be deeply opposed to the behavior of the Pinochet policies, and upholding the continuity of the World Bank relationship to Chile solely on humanitarian grounds. This interpretation by McNamara did not seem credible at the time. It was directly contrary to what we were being told by several leading diplomats and economists who were prominent in the Allende government, and led us to arrange this private meeting with the objective of persuading the World Bank to suspend financial assistance to Chile given the horrendous behavior of the Pinochet government.

 

            The larger point here is not about the material impacts of such moves of disaffiliation and disapproval. We had no illusions that if the World Bank withheld a loan from Chile it would precipitate the collapse of the Pinochet regime. What we did believe, however, that such a step would strengthen the perception of delegitimacy, possibly influencing American foreign policy and certainly encouraging to the mounting opposition in Chile, but mainly important as a symbolic move. In a similar vein, we can reflect on why it is proper to celebrate the endorsement of this ASA resolution goes back to the essentially Hegelian nature of a Legitimacy War. A symbolic victory is not merely symbolic, although symbols should not be underestimated. The ASA outcome is part of a campaign to construct a new subjectivity surrounding the Israel/Palestine conflict. It is the sort of act that lends credibility to claims that a momentum is transforming the climate of opinion surrounding a conflict situation. Such a momentum is capable of breaking down a structure of oppression at any moment. Unlike a hard power encounter between arrayed military forces, the course of a Legitimacy War cannot be assessed in advance, partly because the defeats endured by the established order are intangible, will be denied up until an abrupt change of course. As Thoreau observed long ago, “It is not what you look at that matters, it’s what you see.”  Hard power realists who rule over the peoples of the world, imperiling our destiny, tend to be dangerously shortsighted when it comes to seeing the course and effects of Legitimacy Wars.

 

            Such a concealment of elite reassessment in South Africa seems relevant to notice. The transformative reassessment was kept secret until revealed in the startling announcement to the South African public of Nelson Mandela’s totally unexpected release from his Robben Island prison cell. It was a stunning reversal of strategy by the South African leadership. It seems appropriate in this context to recall Gandhi’s familiar comment about the cycle of struggle: “First they ignore you, then they laugh at you, then they fight you, and then you win.”

             Of course, this is not a time for optimism about reaching a just end to the long Palestinian quest for realization of their fundamental rights. It is a time when genuine hope becomes plausible thanks to Palestinian successes in waging a multi-front Legitimacy War. The eventual political outcome remains obscure, and depends heavily on whether and how interests are reassessed in Washington and Tel Aviv. Such a process of reassessment is certain to be shrouded in secrecy until it is crosses a threshold of decision, and only then will it be revealed. This will occasion many expert explanations of why it had to happen! Pundits are far more convincing when operating in a retrospective mode than when attempting to predict or prescribe.

Nelson Mandela’s Inspiration (Revised)

9 Dec

Prefatory Note: Thanks to my friend Nader Hashemi, I have added this important comment on the role of violence in emancipatory struggles for freedom that Nelson Mandela articulated after his release from prison in 1993; it is highly relevant to the demands by Israel that Palestinians renounce violence while Israel sustains a structure of occupation and oppression that includes nakba as process, that is, continuous dynamics of dispossession and dispersal of the oppressed and encroachment on their remaining rights via unlawful settlement, ethnic cleansing, discriminatory policies. What follows is an excerpt from an appearance by Mandela on Charlie Rose’s interview program:

Rose:              You have, at this moment, no reservation or indecision – along with the counsel that you’ve taken with your colleagues – that the decisions made by you and them are right for South Africa – the sacrifices, the toll, the price you’ve paid, the blood that’s been spilled was necessary, painful, but necessary?

Mandela:      nods

Rose:              Yes.

Mandela:      Absolutely. We are an organization which, from its foundation, committed itself to building a nation through peaceful, nonviolent, and disciplined struggle. We were forced to resort to arms by the regime, and the lesson of history is that for the masses of the people, the methods of political action which they use are determined by the oppressor himself. If the oppressor uses peaceful means, the oppressed would never resort to violence. It is when the oppressor – in addition to his repressive policies – uses violence, that the oppressed have no alternative but to retaliate by similar forms of action. And, therefore, the pains, the blood that was spilled, and the responsibility for that lies squarely on the shoulders of the regime.

Source: Interview with Charlie Rose, September 30, 1993

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Fifteen years ago I had the extraordinary pleasure of meeting Nelson Mandela in Cape Town while he was serving as President of South Africa. It was an odd occasion. I was a member of the International Commission on the Future of the Oceans, which was holding a meeting in South Africa. It happened that one of the vice chairs of the Commission was Kader Asmal, a cherished friend and a member of the first Mandela cabinet who himself played a major role in the writing of the South African Constition. Kader had arranged for Mandela to welcome the Commission to his country, and asked me if I would prepare some remarks on his behalf, which was for me an awesome assignment, but one that I undertook with trepidation, not at all confident that I could find the words to be of some slight help to this great man. Compounding my personal challenge, the Brazilian Vice Chair of our oceans commission who was supposed to give a response on behalf of the Commission became ill, and I was asked by our chair to respond to Mandela on behalf of the commission. I did have the thrill of hearing 90% of my text delivered by Mandela, which years later I remember much better than my eminently forgettable words of response to the President.

What moved me most, and has led me to make this rather narcissistic introduction, is the conversation after the event. Mandela thanked me for my efforts and proceeded then to talk with each of our 40 commission members, making a specific reference to circumstances of relevance and concern in each of their particular countries. He went from person to person with such grace and composure as I had never encountered before on the part of a public figure of renown. It was above all Mandela’s spiritual presence that created such a strong impression of moral radiance on the part of all of us fortunate enough to be in the room. I was reinforced in my guiding belief that political greatness presupposes a spiritual orientation toward the meaning of life, not necessarily expressed by way of a formal religious commitment, yet always implies living with an unconditional dedication to values and faith that transcend the practical, the immediate, and the material.

The political imaginary that accompanies such a life also has an integrity that challenges the proprieties and associated boundaries of conventional liberal thought. It is easy for almost everyone now to celebrate Mandela for his long struggle against South African apartheid that included 27 years in jail. It is less common to recall that as late as the 1980s leaders in Britain and the United States were condemning Mandela as ‘terrorist’ and ‘revolutionary’ who deserved to be indefinitely jailed, if not worse. It is even less often remembered that Mandela rejected early offers to obtain his release from prison if he would ‘renounce violence’ and call for an end to ‘armed struggle.’ Although Mandela is justly honored for his role in achieving a non-violent transition to multi-racial constitutionalism in South Africa, he was never willing to say that those who were oppressed must renounce whatever means was available to them to gain their freedom. Indeed, Mandela as leader of the African National Congress, endorsed the creation of its military wing, and at one stage was supportive of armed resistance to obtain liberation and overcome the racist crimes being committed by the apartheid regime on a massive and systematic basis.

The Palestinian people, in the midst of their seemingly endless ordeal, have particular reason to esteem the exemplary life and solidarity exhibited by Nelson Mandela for their cause. Mandela’s words reflected a deep intuition that what the Palestinians were seeking had a deep affinity with his own struggle: “We know too well that our freedom is incomplete without the freedom of the Palestinians.”

In Israel’s apartheid there exist a network of separated roads for Israeli settlers and the Palestinians, as well as a discriminatory dual legal administrative structure.

Mandela regarded Yasser Arafat as a ‘comrade in arms,’ identifying him as “one of the outstanding freedom fighters of his generation,” adding that “it is with great sadness that his and his people’s dream of a Palestinian state has not been realized.” By affirmations of Arafat, Castro, and even Qaddafi, Mandela made plain to the West in reaction to criticism, “Our enemies are not your enemies.” Such a voice of peace and justice that never submitted to Western liberal notions of good behavior was fully appreciated by Indian followers of Gandhi who regarded Mandela as a natural political heir to their national hero despite his more contextual views on the role of political violence. Like Gandhi, Mandela stood so firmly for dignity, independence, human development, and the end of colonial domination in all its manifold forms wherever it was to be found in the world.

It is also notable that Marwan Barghouti confined to an Israeli jail for five consecutive life sentences looked to Mandela for inspiration, writing an open letter from his prison cell not long ago. He wrote, “And from within my prison, I tell you that our freedom seems possible because you reached yours.”  Beyond this he hailed Mandela whose torch of freedom burned so brightly as to cast universal light: “You carried a promise far beyond the limits of your country’s borders, a promise that oppression and injustice will be vanquished, paving the way to freedom and peace..All sacrifices become bearable by the sole prospect that one day the Palestinian people will also be able to enjoy freedom.” Barghouti is for Palestinians their strongest symbol of collective identity in resistance and struggle, and a comparison to Mandela’s lifelong journey is inevitable, including Barghouti’s clear turn toward the embrace of militant forms of nonviolent resistance.

I believe that when Israel is ready for a sustainable and just peace it will signal this to itself, to the Palestinians, and to the world by releasing Barghouti from prison and by treating Hamas as a political actor with genuine grievances and aspirations that needs to be included in any diplomacy of accommodation that deserves the label of ‘peace process.’ Until that most welcome moment arrives, the Palestinian march toward victory in the ongoing Legitimacy War must be continued with renewed vitality and dedication.

Mandela’s journey, like that of Gandhi, was not without its major disappointments. To gain the political end of apartheid, Mandela deferred challenges to social and economic apartheid. Part of his legacy to South Africa is to carry forward this mission to free the great majority of the country from the many disadvantages and burdens of their still segregated, subordinated, and humiliating reality.

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Escaping The Abusive State: After Snowden

5 Dec

 

 

            The more contact one has with the modern state, even in those societies that have long constitutional traditions entrenching civil liberties, the more grounds there are for deep and growing concern. I suppose that the most dramatic exhibition of the dangers being posed as 2014 approaches, and we are reminded that this will be 30 years after 1984, are associated with Edward Snowden’s extraordinary disclosures of the global network of surveillance being operated by the National Security Agency in the United States (NSA).  Such a network presupposes that we are all, that is, every inhabitant on the planet to be regarded as worth investigating as potential terrorist threats, and along the way establishing a huge data bank of information that can be used for nefarious purposes at any point to disempower and subvert protest movements or even blackmail anyone seen to be obstructing projects dear to the government or any special interest group that has the government’s ear on matters it cares about.

 

            In important respects more disturbing than the Snowden revelations was the rabid response of the supposedly liberal government presided over by Barack Obama. No stone was left unturned, other than assassination or kidnapping, in the effort to gain physical custody over Snowden evidently with the intention of prosecuting him to the full extent of the law as an odious criminal offender. Foreign governments were badgered to cooperate in the pursuit, a plane carrying the Bolivian president was improperly denied access to the airspace of several European countries and forced to land in Vienna, because it was suspected of carrying Snowden. Such an enforcement dynamic completely overlooked the political nature of Snowden’s crimes, which have been uniformly regarded as placing an accused individual beyond the reach of extradition if outside of sovereign territory, which was definitely the case here, making Snowden legally unreachable even in the event that countries involved had extradition treaty arrangements for cooperative criminal law enforcement. Such treaties did not exist in relation to China and Russia, the countries where Snowden was physically present, and yet the United States persisted in its demands, and treated the Chinese and Russian governments as behaving in a hostile fashion of diplomatic relevance when they rejected the demands of the U.S. State Department to treat Snowden as a routine fugitive from criminal justice. Not so incidentally, the United States government has long shielded those accused of even violent crimes by foreign governments through reliance on this exception to extradition based on the political nature of the crime.

 

            Perhaps, the most troubling aspect of this still festering situation is the energy devoted to Snowden as the whistleblower, more derisively referred to as ‘a leaker,’ while ignoring implications for a humane and democratic future by treating everyone, everywhere as a potential enemy who would be spied upon to the extent technology allowed. There was some mild pushback by Congress, seeking clearer guidelines on the mandate of the NSA, and searching for the outer limits of the permissible encroachment on the privacy of individuals, governments, and economic entities. In the background is a well-grounded suspicion that part of the motivation for global surveillance is to assure a competitive edge for American property, trade, and investment interests, and to gain dirt on foreign diplomats and political leaders.

 

            Overlapping with the official fury directed at Snowden was the broader anger directed at whistleblowers whose disclosures sought to set off alarm bell. Those who had the temerity to disclose governmental criminal wrongdoing were themselves criminalized by a focus on their breach of  excessive classification restrictions. It should be clear, as highlighted by Daniel Ellsberg’s notable reflections on the release of the Pentagon Papers gathered in his book appropriately titled Secrets, that the excesses of governmental secrecy are joined at the hip to extravagant surveillance in what amounts to a perverse twinning relationship. The very government that refuses to accept restrictions on its invasions of the privacy of its citizens and people around the world, mounts unprecedented and simultaneous claims that it needs to operate without any accountability behind several high walls of secrecy.

 

            The experiences of Julian Assange and Chelsea Manning are of a piece with that of Edward Snowden: vindictive backlash, exaggerated security claims, and an arrogant refusal to gaze in the mirror. The Wikileaks/Manning disclosures revealed serious war crimes and governmental cover ups,  the existence of which make a strong case for violating pledges of secrecy that are relied upon to hide the ugly dimensions of what is involved in foreign policy, especially in relation military interventions carried out in such distant countries as Afghanistan and Iraq. Should not the American people have a write to know about state crimes committed in their name? Should not the peoples living in foreign countries have the right to know about such crimes that produce suffering and victimization in their supposedly sovereign countries? And when such disclosures do occur, should not the government have the decency to acknowledge its own wrongdoing, and thank the whistleblower and apologize to those who were victimized?

 

            My motivation in writing this piece was prompted by seemingly different more personal outrages associated with the behavior of the liberal state. In the first instance, I have been deeply moved by the continuing tragic saga of Lynne Stewart, a courageous American lawyer who has a long record of defending unpopular political and indigent clients, who has been allowed to languish for months in a Texas jail despite suffering from an acute form of terminal cancer. Her apparent crime that landed her in prison was to pass on information and private messages to the family of ‘the blind Sheik’ (Omar Abdel-Rahman) whom she was representing (alongside Ramsey Clark, the former U.S. Attorney General) in the terrorist conspiracy trial arising out of the earlier 1993 attack on the World Trade Center. What has been most shocking is that despite numerous recommendations from medical and prison officials to the effect that Stewart easily qualifies for ‘compassionate release’ from prison, a position even endorsed by judicial officials, she remains to this day cruelly confined because Charles Samuels,  Director of the Federal Bureau of Prisons,  has refused to sign off on her plea. This incarceration of Lynne Stewart is such an extreme instance of vicious and sadistic state behavior toward an honorable citizen that its full horror cannot be fully comprehended by a mere description of her experience. For Lynne Stewart’s story to be credibly portrayed will likely depend on some future artistic enactment as by film or fiction. As so often is true, such a descent into the domain of unspeakable evil can only be grasped if expressed through film or fiction.

 

            My immediate reason for writing in this manner has been an unfolding tale of apparently well-intentioned cruelty by the state that occurred recently in Great Britain. A 35 year old pregnant Italian woman, whose name cannot be disclosed under British criminal law, was visiting the UK a few months ago for the sake of job training course at Stansted Airport in Essex, not far from London. While there she apparently stopped taking medication for a preexisting bipolar condition, resulting in what has been described in the media as ‘a panic attack.’

 

Only then did a perfect storm engulf her life. Her disturbed condition was reported to British authorities under the Mental Health Act whose personnel stepped in and took over the case. In disputed testimony the woman was alleged to need to be constrained. Accordingly, she was transferred to a mental hospital where she was heavily sedated, during which time her baby was delivered by C-Section surgery without her consent, and even her knowledge as she was unconscious. Her lawyer contends that she at all times, including when suffering from mental distress, retained the capacity to give or withhold her consent from the procedure undertaken. If correct, a state-ordered invasive approach to her pregnancy was certainly improper, a violation of the most basic of reproductive rights. Even if she was not sufficiently stable to make an informed decision, it seemed at least necessary to refer such a question to a responsible process of assessment, which was not done as far as is known, or consult with a family member.

 

But the abusive behavior did not stop after the child was born. Quite incredibly, some reports contend that she was not even allowed to see her own baby, while others say she was allowed for two days to have her baby in the hospital room, but it was then summarily removed with the intent to sever her connection permanently. She returned to Italy where her health and mental stability were fully restored by resuming medication at which point she appealed to British courts to acquire custody of the child who had by this time been turned over to foster care. Her appeal was denied despite her Italian nationality, place of residence, and the evidence that she was a competent mother to children growing up under her parental supervision. She didn’t owe the slightest allegiance to Britain and yet her desire and capacity to handle the upbringing of her biological child was rejected by judicial fiat. In a secondary development, her former husband, the father of the child, who was living in America appealed to a British court to have the child brought up by his sister, the aunt of the child, who was certified to be a highly responsible person with excellent parental qualifications and a readiness to undertake the task. The request was denied by the British judge on the ground that there was no ‘blood’ link with the American relative, and that kinship was not sufficient. The result, to date, is the assignment of the baby to a foster home that has no familial connection whatsoever, denying the mother even visitation rights. I doubt that even the most absolutist monarchy would be as contemptuous of humane treatment as has been the behavior of this British welfare/judicial bureaucratic nightmare, an unfolding post-Kafka horror story.

 

            Even granting the well-intentioned innocence of government in relation to these problematic undertakings affecting this mother and child, it is one more distressing example of what happens to people when the government insists that it knows best what to do in situations of admitted social and ethical complexity.  In this instance, it is not acting beyond the law or above the law, but within the law. What took the place was decreed from start to finish by official institutions and administered by bureaucrats probably thinking that they were doing their job in a responsible fashion. As has been observed in some critical writing in the British print media, this story has come to light in part because the victim mother had the resources and composure to seek help from lawyers and friends, as well as the Italian government, and was perceived as a ‘European.’ If instead she was an unlawful immigrant or, worse, a Roma, it is likely that the public would never even have heard of these events, and the whole episode would have been kept within the black box of standard operating procedures when it came to handling the grievances of those among us who are unwanted and marginalized.

 

            In my view, these seemingly disparate occurrences are all expressions of the moral arrogance of the modern liberal state, and its failure to strike a decent balance between freedom and security.  There is no doubt that the recent challenges posed by extremist non-state actors do require adjustments in how government protects those resident within its borders, but the tendency to exaggerate the threat so as to instill sufficient fear in the population to justify the wide spectrum of responses that feature high defense spending, Guantanamo and Abu Ghraib at one end and Snowden and Manning at the other end is what should be an occasion for an entirely rational collective panic attack in democratic societies, showing healthy signs of deep attachment to the values and practices of freedom, and when there is instead relative quiet, it adds to concerns about a general mood of passivity, resignation, and even acquiescence in ‘the new authoritarianism,’ encouraging more of the same. Such patterns in the domain of national security is  reinforced by such gratuitous abuses as when harmless prisoners are deprived of contact with their loved ones when at death’s doorstep and a newborn child is removed forever from the love and care of a desiring mother for the sake of some misguided ideas of petty bureaucrats engaged in  ‘social services’ and ‘welfare.’ 

 

            We can and must do better, above all as citizens engaged in the protection of the sort of society we wish to live in; without civic activism of a militant character we can wave goodbye to the promise of genuine democracy.  

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Clashing Views of Political Reality: Chomsky versus Dershowitz

2 Dec

 

 

            My friend and former collaborator, Howard Friel, has written an intriguing book contrasting the worldviews and polemical styles of two Jewish American intellectuals with world class reputations, Noam Chomsky and Alan Dershowitz (Friel, Chomsky and Dershowitz: On Endless War and the End of Civil Liberties, Olive Branch Press, 2014). The book is much more than a comparison of two influential voices, one critical the other apologetic, with respect to the Israel/Palestine struggle and the subordination of private liberties to the purveyors of state-led security at home and abroad . Friel convincingly favors Chomsky’s approach both with respect to the substance of their fundamental disagreements and in relation to sharply contrasting styles of argument.

 

            Chomsky is depicted, accurately I believe, as someone consistently dedicated to evidenced based reasoning reinforced by an abiding respect for the relevance and authority of international law and morality. Chomsky has also been a tireless opponent of American imperialism and military intervention, and of oppressive regimes anywhere on the planet. He is also shown by Friel to be strongly supportive of endowing individuals whether citizens or not with maximal freedom from interference by the state. From such perspectives, the behavior of Israel and the United States are assessed by Chomsky to be betrayals of humane values and of the virtues of a constitutional democracy.

 

            In contrast, Dershowitz is presented, again accurately and on the basis of abundant documentation, as a dirty fighter with a readiness to twist the truth to serve his Zionist predilections, which include support for the post-9/11 drift toward authoritarian governance, and an outrageous willingness to play the anti-Semitic card even against someone of Chomsky’s extraordinary academic achievements in the field of linguistics and of global stature as the world’s leading public intellectual, who has an impeccable lifelong record of moral courage and fidelity to the truth. Dershowitz has devoted his destructive energies to derailing tenure appointments for critics of Israel and for using his leverage to badger publishers to refrain from taking on books, however meritorious, if they present either himself or Israel in what he views to be a negative light. 

 

            Friel illustrates the contrast between these talented and titanic antagonists by reference to the much publicized debate about Robert Faurisson, the French Holocaust denier. Chomsky signed a petition in 1979 that defended Faurisson’s freedom of expression, an act consistent with his overall long record of support for unrestricted academic freedom. Dershowitz abandons his own earlier allegiance to a similar approach, not only refusing to allow free speech to protect Faurisson, but lashing out to condemn Chomsky for his supposed show of support for Holocaust denial because he had the temerity to defend Faurisson’s right to say what he said. This is a typical tactic employed by Dershowitz, deliberately confusing a principled support for the right to hold and espouse ethically unacceptable views with an alleged identification and sympathy with the substance of the views being expressed. To contend that Chomsky is tacitly embracing Holocaust denial by supporting Faurisson was, as Friel conclusively shows, clearly defamatory, ignoring numerous occasions on which Chomsky has denounced the Nazi experience culminating in the Holocaust as a predominant historical instance of pure evil.  For Dershowitz to overlook such plain facts in relation to Chomsky on such an inflammatory matter is to show his true colors as a dirty fighter who has no inhibitions about smearing his opponents, however distinguished and honorable they happen to be, and no matter how clearly he must know better. Dershowitz must be assumed to realize that Chomsky’s entire life displays an abiding concern for the ethical treatment of ‘the other,’ and to allege that somehow Chomsky is himself flirting with Holocaust denial is the most irresponsible slander and ironically, an unforgiveable abuse by Dershowitz of the freedom of expression, which transgresses civility if not the law. Civil discourse and public reason in a democratic society depend on the overall willingness of individuals to show self-discipline, and avoid exploiting the opportunities for defamation that the law allows in commentary on so-called public figures.

 

            Dershowitz is primarily known, aside from his controversial notoriety as a trial lawyer in high profile criminal cases, as an unconditional defender of Israel against a wide range of responsible critics. He wrote a number of books and numerous articles with vicious attacks on such moral authority figures as Jimmy Carter and Archbishop Desmond Tutu, including his notorious tract The Case Against Israel’s Enemies: Exposing Jimmy Carter and Others Who Stand in the Way of Peace (2008). Even such mainstream and widely respected experts on world affairs as Stephen Walt and John Mearsheimer become targets of Dershowitz’s calumny because of their daring to write critically and persuasively about the destructive influence of the Israeli Lobby in relation to the prudent and rational pursuit of American national interests in the conduct of foreign policy in their book, The Israeli Lobby and U.S. Foreign Policy (2007).

 

            At this point, I should acknowledge that I am far from being a neutral observer. I have been accused on several occasions of being an ‘anti-Semite’ and ‘bigot’ by Dershowitz, primarily in relation to my role as UN Special Rapporteur on Occupied Palestine, but even in response to my endorsing blurb of Gilad Atzmon’s seminal challenge directed at liberal Zionist and Jewish thought in The Wandering Who? (2011). Similar insults were directed by Dershowitz at my predecessor as Special Rapporteur, John Dugard, a distinguished jurist from South Africa and as unbiased and balanced a champion of human rights and international law as I have ever known. Attacking the critics of Israel, especially those possessing strong academic and ethical credentials, is a nasty illustration of what I have called ‘the politics of deflection,’ that is, avoiding the substance of criticisms by denouncing the critics and their auspices with the intention of shifting the conversation. Such attacks are clearly intended to shut down criticism of Israel by subjecting to withering abuse anyone who dares to violate the Zionist taboo.

 

            Perhaps, the most important part of Friel’s engaging book is his depiction of Dershowitz’s advocacy of the ‘preventive state’ as overcoming an earlier essential postulate of liberal democracy, the presumption of innocence. In the preventive state that Dershowitz posits as necessary and hence desirable, we all become for the government legitimate objects of suspicion, and the higher goals of counter-terrorism. Such a line of analysis mandates the state to act preventively rather than reactively, and hence to employ the full coercive apparatus of the state to identify potential enemies of the state before they have the opportunity to act. For a more challenging rendition of this argument than offered by Dershowitz I strongly recommend reading Philip Bobbitt’s Terror and Consent: The Wars for the Twenty-first Century (2008). This reinterpretation of the balance between security and freedom reverses the traditional emphasis of the rule of law upon reactive forms of security, its logic being used to rationalize torture, as well as preventive detention of individuals and preventive warfare against states, non-state actors, and even individuals, perceived to pose future threats. Such rationalizations undermine the unconditional criminalization of torture and completely upend the UN Charter effort to confine the role of force in international relations by limiting its legal invocation to situations of self-defense against a prior armed attack by a state. The launching of the disastrous war against Iraq in 2003 was a clear international example of the preventive state in action as are the kill lists compiled weekly for drone attacks on individuals resident in foreign countries. Another facet of such a posture is embodied in the indefinite detention of numerous individuals in Guantanamo for years without charges and absent credible incriminating evidence.

 

            Of course, rigid legalism is not the alternative to a rejection of the preventive state, but an exaggeration of the terrorist threat is tantamount to willing the end of political democracy as it has evolved over the centuries. We have seen that even a supposedly liberal president, Barack Obama, has endorsed an authoritarian approach in numerous areas of governance including reliance on drone warfare and support for virtually limitless global networks of surveillance. The treatment of such whistleblowers as Chelsea Manning and Edward Snowden is also emblematic of the preventive state, directing public attention to the unlawful release of information while declining to acknowledge or remedy the crimes of state being exposed. Needless to say, Chomsky is acutely alert to these dangers, and has long stood for the maintenance, even the enhancement, of traditional liberties of the individual despite alleged security claims to the contrary.

 

            Friel has given us a brilliantly analyzed comparison of two vivid engaged and intelligent activists who personify the alternative scenarios available to the United States, the choice of which is of great consequence for the rest of the world. Only a determined advocate of unfreedom and injustice could fail to side with Chomsky in this debate about the political future of the planet. In this larger view, the Dershowitz defense of Israel against the most responsible of critics, is but an illustration of his broader alignment with repressive tendencies at home and abroad despite his feeble pretensions to the contrary.  Clearly Chomsky is the winner in this contest if fairly umpired, both in terms of coherence and acceptability of worldview, as well as the ethics of public discourse. Dershowitz, apparently propelled by the awkwardness of his convictions, seems always ready to adopt the Darth Vader tactics that Dick Cheney unabashedly favored, coyly acknowledging that it meant going to ‘the dark side.’

 

            Let me observe finally, and with due allowance made for my own stake in this effort to assess the comparative merits of style and substance on the part of these antagonistic titans, that Howard Friel has once again contributed a necessary book for all those dedicated to the pursuit of justice in relation to Israel/Palestine and more generally in international life.* A cardinal virtue of Friel’s approach is to recognize and explain the role of international law with respect to sustaining world peace and attaining global justice.  

 

* In this spirit I highly recommend Friel’s earlier expose of the Danish climate skeptic, Bjorn Lomborg, in his book The Lomborg Deception: Setting the Record Straight about Global Warming (2010) and of the mighty New York Times in The Record of the Paper: How the New York Times Misrepresents U.S. Foreign Policy (2004), of which I was the proud co-author.

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GAZA: The Unfolding Tragedy

30 Nov

GAZA: The Unfolding Humanitarian Catastrophe

This material below was distributed by John Whitbeck, distinguished American lawyer and author, living in Paris,and doing his best to keep a group concerned with world affairs informed about latest developments, especially inthe Middle East. I also add a slightly edited text of a message sent by Robert Stiver from Hawaii, who has exhibited consistent empathy for the suffering of the Palestinian people.My press release below, although far less emotional than the cri de coeur that Robert Stiver wrote, issues from the same place of urgent concern for the brave and resolute people of Gaza. I hope that Robert is wrong however when he ends with self-tormenting words of despair: “What to do, in the name of common justice?  I know not; it seems useless, all useless.” Such feelings of futility are quite understandable, but let us do all within our power to make sure that this unfolding catastrophe ENDS before its full tragic character is totally realized.

It hardly needs to be observed that the silence of the United Nations and the global media is a continuing disgrace, particularly given the pomp and circumstance of those mighty statesmen who self-righteously proclaim a new doctrine: ‘the responsibility to protect’ (R2P) those whose survival and dignity is at stake due to crimes of state or as a result of natural catastrophe.

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Cutting edge Middle East news analysis edited by Oliver Miles
 Web Arab News Digest
Gaza: a disgraceAccording to a BBC report military action in Gaza between Israel and Hamas has been limited since the serious fighting a year ago in which about 170 Palestinians and six Israelis died. But tension remains high, as also between Hamas and Egypt where northern Sinai has been the scene of much fighting. Meanwhile living conditions for 1.7 million Gazans remain atrocious.

Reuters reports that Turkey has pledged $850,000, $200,000 of which have already reached Gaza, to alleviate the fuel crisis which has closed Gaza’s only power station and a major sewage treatment plant, so that raw sewage is running in the streets. Fuel deliveries by the UN have started, and are reported to be promised by Qatar. The immediate cause of the fuel crisis is the destruction by Egypt of cross-border tunnels, and the longer term cause the Israeli blockade.

We thank John Whitbeck for an “Action Alert” from the Friends of Al-Aqsa (a UK NGO) drawing attention to the first item below, a UN report on action needed to avert a humanitarian crisis. He comments that the Action Alert refers to the “smuggling” of fuel and other basic necessities into Gaza through tunnels on the border between Egypt and Palestine. ‘This terminology is standard media usage in Israel and the West, intended to semantically criminalize the victims, but, as a matter of both law and common sense, I believe that the use of the word “smuggle” is totally inappropriate in these circumstances. “Smuggling” is an illegal activity, usually involving a violation of the laws of the importing state. Under whose applicable laws is importing basic necessities into Gaza illegal? Certainly not the laws of the importing state, Palestine, or the current de facto government of Gaza, as to which Israel insists that it has not been the occupying power (and, accordingly, has had no responsibilities or obligations) since it withdrew its illegal settlers, locked the gates and, effectively, threw away the keys. If there is an Egyptian law banning the export of basic necessities from Egypt, I am not aware of it. The provisioning of Gaza with the basic necessities of life should be characterized as humanitarian relief, those who prevent Gazans from receiving the basic necessities of life should be characterized as criminals and those who are aware of the situation and fail to speak out should be characterized as moral bankrupts.’

The second item below is a report published by Al Jazeera on the impact of Israeli drones over Gaza, particularly on children. The author is a British journalist resident in Nazareth, Israel.

Gaza fuel crisis: UN expert calls for urgent action to avert a humanitarian catastrophe

GENEVA (26 November 2013) – United Nations Special Rapporteur Richard Falk today called for urgent action to address the power shortage in occupied Palestine  that has left 1.7 million residents of the Gaza Strip in a dire situation. More than three weeks after the only power plant shut down due to a critical fuel shortage, power supply has been limited to six hours a day.

“The situation in Gaza is at a point of near catastrophe,” warned the independent expert charged by the UN Human Rights Council to monitor and report on the situation of human rights in the Palestinian territories occupied since 1967.

“The fuel shortage and power cuts have undermined an already precarious infrastructure, severely disrupting the provision of basic services, including health, water and sanitation,” he said. “The onset of winter is certain to make things even worse.”

Less than half of Gaza’s total power needs are being met and disruptions to specialized health services, such as kidney dialysis, operating theatres, blood banks, intensive care units and incubators are putting the lives of vulnerable patients in Gaza at risk.

Mr. Falk highlighted the plight of patients in Gaza unable to seek affordable specialized medical treatment in Egypt as a result of Egypt’s closure of the Rafah crossing in recent weeks. “The Israeli authorities have been more forthcoming in issuing permits to Gazans in need of urgent specialized treatment, but the high cost of medical treatment in Israel places it beyond the reach of most Gazans,” he noted.

For the past two weeks, approximately 3000 residents, including children, living in or near the Gazan neighbourhood of Az Zeitoun have been wading through raw sewage on the streets after the largest sewage treatment facility in area overflowed due to a power failure.

The Special Rapporteur stressed that other sewage treatment stations may soon also run out of petrol to fuel generators and result in more sewage overflowing onto the streets of Gaza. Medical experts have warned of the serious risk of disease, and even an epidemic

“Up to 40 per cent of Gaza’s population receives water only once every three days,” he noted. “In this situation of dire necessity those who can afford to do so, are shockingly buying unsafe water from unregulated water vendors and distributors.”

The human rights expert believes that the main trigger for the latest crisis is Egypt’s ongoing crackdown on the vast network of tunnels and fuel tanks near the southern border of Gaza, which allowed Gaza to avoid some of the hardships associated with the Israeli blockade maintained since 2007.

“We mustn’t forget that the underlying cause of a lack of adequate medical facilities and specialized care in Gaza is a consequence of Israel’s illegal blockade,” Mr. Falk said.

The Special Rapporteur explained that, under present conditions, Israel has a special responsibility under international humanitarian law to take whatever measures are necessary to protect the civilian population of Gaza against this mounting threat to their wellbeing. “The failure to do so would be an aggravated instance of collective punishment, which is unconditionally prohibited by the 4th Geneva Convention,” Mr. Falk cautioned.

He also urged the governing authorities in Gaza to cooperate with the Palestinian Authority in a joint effort to ensure that desperately needed fuel becomes available to the residents of Gaza at the earliest hour.

“Israel must end its illegal blockade and exercise its core responsibility as the occupying Power to protect the civilian population,” the expert said.

Last Tuesday, an aid convoy carrying medicine, medical equipment and canned food was reportedly permitted to enter Gaza via the Rafah crossing for first time since June this year.

“Under these conditions of humanitarian emergency, the international community also has a responsibility to take special measures to safeguard the acutely vulnerable people of Gaza from impending tragedy,” the Special Rapporteur underscored.

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.

Gaza: Life and death under Israel’s drones

Drones buzzing overhead are a source of daily trauma for Palestinians in the occupied Gaza Strip.

Jonathan Cook: 28 Nov 2013

Jerusalem – There are many things to fear in Gaza: Attacks from Israel’s Apache helicopters and F-16 fighter jets, the coastal enclave’s growing isolation, the regular blackouts from power shortages, increasingly polluted drinking water and rivers of sewage flooding the streets.

Meanwhile, for most Palestinians in Gaza the anxiety-inducing soundtrack to their lives is the constant buzz of the remotely piloted aircraft – better known as “drones” – that hover in the skies above.

Drones are increasingly being used for surveillance and extra-judicial execution in parts of the Middle East, especially by the US, but in nowhere more than Gaza has the drone become a permanent fixture of life. More than 1.7 million Palestinians, confined by Israel to a small territory in one of the most densely populated areas in the world, are subject to near continual surveillance and intermittent death raining down from the sky.

There is little hope of escaping the zenana – an Arabic word referring to a wife’s relentless nagging that Gazans have adopted to describe the drone’s oppressive noise and their feelings about it. According to statistics compiled by human rights groups in Gaza, civilians are the chief casualties of what Israel refers to as “surgical” strikes from drones.

“When you hear the drones, you feel naked and vulnerable,” said Hamdi Shaqura, deputy director of the Palestinian Centre for Human Rights, based in Gaza City. “The buzz is the sound of death. There is no escape, nowhere is private. It is a reminder that, whatever Israel and the international community assert, the occupation has not ended. We are still living completely under Israeli control. They control the borders and the sea and they decide our fates from their position in the sky,” said Shaqura.

The Israeli military did not respond to Al Jazeera’s requests for comment.

Suffer the children

The sense of permanent exposure, coupled with the fear of being mistakenly targeted, has inflicted deep psychological scars on civilians, especially children, according to experts.

“There is a great sense of insecurity. Nowhere feels safe for the children, and they feel no one can offer them protection, not even their parents,” said Ahmed Tawahina, a psychologist running clinics in Gaza as part of the Community Mental Health Programme. “That traumatises both the children and parents, who feel they are failing in their most basic responsibility.”

Shaqura observed: “From a political perspective, there is a deep paradox. Israel says it needs security, but it demands it at the cost of our constant insecurity.”

There are no statistics that detail the effect of the drones on Palestinians in Gaza. Doctors admit it is impossible to separate the psychological toll inflicted by drones from other sources of damage to mental health, such as air strikes by F-16s, severe restrictions on movement and the economic insecurity caused by Israel’s blockade.

But field researchers working for Palestinian rights groups point out that the use of drones is intimately tied to these other sources of fear and anxiety. Drones fire missiles themselves, they guide attacks by F-16s or helicopters, and they patrol and oversee the borders.

A survey in medical journal The Lancet following Operation Cast Lead, Israel’s month-long attack on Gaza in winter 2008-09, found large percentages of children suffered from symptoms of psychological trauma: Fifty-eight percent permanently feared the dark; 43 percent reported regular nightmares; 37 percent wet the bed and 42 percent had crying attacks.

Tawahina described the sense of being constantly observed as a “form of psychological torture, which exhausts people’s mental and emotional resources. Among children at school, this can be seen in poor concentration and unruly behaviour.” The trauma for children is compounded by the fact that the drones also disrupt what should be their safest activity – watching TV at home. When a drone is operating nearby, it invariably interferes with satellite reception.

“”It doesn’t make headlines, but it is another example of how there is no escape from the drones. Parents want their children indoors, where it feels safer and where they’re less likely to hear the drones, but still the drone finds a way into their home. The children cannot even switch off from the traumas around them by watching TV because of the drones.”

Israel’s ‘major advantage’

Israel developed its first drones in the early 1980s, during its long occupation of south Lebanon, to gather aerial intelligence without exposing Israeli pilots to anti-aircraft missiles. Efraim Inbar, director of the Begin-Sadat Centre for Strategic Studies at Bar Ilan University, said drones help in situations where good, on-the-ground intelligence is lacking. “What the UAV gives you is eyes on the other side of the hill or over the border,” he said. “That provides Israel with a major advantage over its enemies.”

Other Israeli analysts have claimed that the use of drones, with their detailed intelligence-collecting abilities, is justified because they reduce the chances of errors and the likelihood of “collateral damage” – civilian deaths – during attacks.

But, according to Inbar, the drone is no better equipped than other aircraft for gathering intelligence or carrying out an execution.

“The advantage from Israel’s point of view is that using a drone for these tasks reduces the risk of endangering a pilot’s life or losing an expensive plane. That is why we are moving towards much greater use of these kinds of robots on the battlefield,” he said.

‘Mistakes can happen’

According to Gaza human rights group al-Mezan, Israel started using drones over the territory from the start of the second intifada in 2000, but only for surveillance.

Israel’s first extra-judicial executions using drones occurred in 2004, when two Palestinians were killed. But these operations greatly expanded after 2006, in the wake of Israel’s withdrawal of settlers and soldiers from Gaza and the rise to power of the Palestinian Islamic movement Hamas.

Drones, the front-line weapon in Israel’s surveillance operations and efforts to foil rocket attacks, killed more than 90 Palestinians in each of the years 2006 and 2007, according to al-Mezan. The figures soared during Operation Cast Lead and in its aftermath, with 461 Palestinians killed by drones in 2009. The number peaked again with 199 deaths in 2012, the year when Israel launched the eight-day Operation Pillar of Defence against Gaza.

Despite Israeli claims that the intelligence provided by drones makes it easier to target those Palestinians it has defined as “terrorists”, research shows civilians are the main victims. In the 2012 Pillar of Defence operation, 36 of the 162 Palestinians killed were a result of drone strikes, and a further 100 were injured by drones. Of those 36 killed, two-thirds were civilians.

Also revealing was a finding that, although drones were used in only five percent of air strikes, they accounted for 23 percent of the total deaths during Pillar of Defence. According to the Economist magazine, the assassination of Hamas leader Ahmed Jabari, which triggered that operation, was carried out using a Hermes 450 drone.

Palestinian fighters report that they have responded to the constant surveillance by living in hiding, rarely going outdoors and avoiding using phones or cars. It is a way of life not possible for most people in Gaza.

Gaza’s armed groups are reported to be trying to find a way to jam the drones’ navigation systems. In the meantime, Hamas has claimed it has shot down three drones, the latest this month, though Israel says all three crashed due to malfunctions.

Last week, on the anniversary of the launch of Pillar of Defence, an Israeli commander whose soldiers control the drones over Gaza from a base south of Tel Aviv told the Haaretz newspaper that “many” air strikes during the operation had involved drones. “Lt Col Shay” was quoted saying: “Ultimately, we are at war. As much as the IDF strives to carry out the most precise surgical strikes, mistakes can happen in the air or on the ground.”

Random death by drone

It is for this reason that drones have become increasingly associated with random death from the sky, said Samir Zaqout, a senior field researcher for Al-Mezan.

“We know from the footage taken by drones that Israel can see what is happening below in the finest detail. And yet women and children keep being killed in drone attacks. Why the continual mistakes? The answer, I think, is that these aren’t mistakes. The message Israel wants to send us is that there is no protection whether you are a civilian or fighter. They want us afraid and to make us turn on the resistance [Palestinian fighters].”

Zaqout also points to a more recent use of drones – what has come to be known as “roof-knocking”. This is when a drone fires small missiles at the roof of a building to warn the inhabitants to evacuate – a practice Israel developed during Operation Cast Lead three years earlier, to allay international concerns about its repeated levellings of buildings with civilians inside.

In Pillar of Defence in 2012, 33 buildings were targeted by roof-knocking.

Israel says it provides 10 minutes’ warning from a roof-knock to an air strike, but, in practice, families find they often have much less time. This, said Zaqout, puts large families in great danger as they usually send their members out in small groups to be sure they will not be attacked as they move onto the streets.

One notorious case occurred during Cast Lead, when six members of the Salha family, all women and children, were killed when their home was shelled moments after a roof-knocking. The father, Fayez Salha, who survived, lost a case for damages in Israel’s Supreme Court last February and was ordered to pay costs after the judges ruled that the attack was legitimate because it occurred as part of a military operation.

A US citizen who has lived long-term in Gaza, who wished not be named for fear of reprisals from Israel, said she often heard the drones at night when the street noise dies down, or as they hover above her while out walking. “The sound is like the buzz of a mosquito, although there is one type of drone that sometimes comes into view that is silent,” she said.

She added that she knew of families that, before moving into a new apartment building, checked to see whether it housed a fighter or a relative of a fighter, for fear that the building may be attacked by Israel.

Shaqura said the drones inevitably affect one’s day-to-day behaviour. He said he was jogging early one morning while a drone hovered overhead.

“I got 100 metres from my front door when I started to feel overwhelmed with fear. I realised that my tracksuit was black, the same colour as many of the fighters’ uniforms. I read in my work too many reports of civilians being killed by drones not to see the danger. So I hurried back home.”
 

 

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Robert Stiver’s message:

“I seethe with helpless indignation and rage at the despicable members of the “human” race, including me, who (i) perpetrate and (ii) allow this unspeakable tragedy to continue, always worsening, most often vindictive, all too often indifferent to the hapless-victims aspects of it.  And I must admit that I am as outraged at the God who, via the vaunted “free will” He is credited with giving us, has not yet found “His time” to intervene and put paid to this unending stain on humanity — a stain that, in my 20th-21st Century view, begins and ends with militant/political Zionism and its ever-present worldwide practitioners.

Sadly – how sadly – the Palestinian Authority and the quisling Fateh are in lockstep, fellow travelers with this miasma of shame and inhumanity.  Hamas and Fateh must overcome the USraeli “divide and rule” tactics and link arms as a solid force of resistance to the illegal occupation of their homeland.  Today, that must be the number one priority!

……..

And thanks to Turkey and Qatar for having the scruples to toss a few coins to the suffering masses, perhaps alleviating but by no means solving their torment…as I am mystified that they don’t join hands, trek to Geneva or NYCity and demand a white-hot emergency meeting of the UNSC in demand that international law and countless supportive UNSC resolutions be enforced.  Failing any action there, a certainty because of the US’ enabling of pure evil, the Turkish-Qatari reps should trek to the UNGA and orchestrate a (I’ve forgotten the term…”Uniting for Peace”) proper response and accompanying action.  The “response” would be overwhelming – on the order of 150 pro, 5 opposed.  Why cannot this scenario take place?

Let us pity – we have nothing else to offer – the brave, beleaguered residents of Gaza.  Our pity should be informed by mental images of the children there, slogging through a toxic mix of urine and feces, facing epidemics of pestilence ready to strike at any moment, lacking hope for any surcease of their everyday misery and for a future of human rights, normality and dignity — victims of a deliberately vicious, internationally illegal collective persecution (not “mere” punishment…persecution) of them and their families.

Today/29th is the International Day of Solidarity with the Palestinian People.  Where is the solidarity?

What to do, in the name of common justice?  I know not; it seems useless, all useless…”

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Two Forms of Lethal Polarization

17 Nov

Two Forms of Lethal Polarization: Egypt and Turkey

 

            There is a temptation to suggest that political life in Turkey and Egypt are both being victimized by a similar deepening of polarization between Islamic and secular orientations, and to some extent this is true, but it is also misleading. Turkey continues to be victimized by such a polarization, especially during the eleven years that the Justice & Development Party (AKP) has governed the country, and arguably more so in the last period. In Egypt, so describing the polarization is far less descriptive of the far more lethal form of unfolding that its political cleavage has taken. It has become an overt struggle for the control of the political destiny of the country being waged between the Egyptian armed forces and the Muslim Brotherhood, the two organized political forces capable of projecting their influence throughout the entire country, including rural areas.  This bitter struggle in Egypt engages religious orientations on both sides, and even the military leadership and upper echelons of the armed forces are observant Muslims, and in some cases extremely devout adherents of Salafi belief and practice.  

 

            In effect, at this point, there is not a distinctly secular side that can be associated with post-coup Egyptian leadership under the caretaker aegis of the armed forces, although clearly most of the liberal secular urban elite and many of the left activists sided with the military moves, at least initially. Recent reports suggest more and more defections, although the price for making such a change of heart public can be high. For General el-Sisi the essence of the conflict seems to be between what is irresponsibly alleged to be a ‘terrorist’ opposition on the one side, which has been broadened somewhat to extend beyond the Muslim Brotherhood to whomever dares question the tactics or intentions of the new leadership, and political forces supposedly committed to a democratic future for the country on the other. If the core of the opposition can be effectively portrayed as terrorists in this post-9/11 world, then the criminalization of their activities and organization, and the neglect of their rights will seem prudent to many, and even a necessary ingredient of national security.

 

            The Egyptian state controlled media, along with the mainstream media in the West, has allowed the Egyptian post-coup leadership to so far get away, literally, with murder! This sort of distorted presentation of the conflict has been also indirectly endorsed by governments, and has somewhat surprisingly achieved strong backing throughout the Arab world with a few notable exception. Among the grossest distortions are the unchallenged depiction of the Muslim Brotherhood as purveyors of violence, given that the organization has renounced violence after 1978, and generally maintained such a posture despite decades of suppression and provocation by Mubarak government, and more recently by the forces arrayed against it. It should also be appreciated that Morsi’s clear counsel to his followers from the time of the coup was to insist on the legitimacy of the elected government and to resist the claims of the post-coup leadership, but to do so nonviolently.

 

            It is important to understand that neither the Egyptian or Turkish experiences of polarization are symmetrical processes. In each instance, the side that is fairly beaten by democratic procedures, especially elections, refuses to accept the implications of political defeat. Rather than form a responsible opposition, with an alternative political program, such an embittered opposition has recourse to extra-constitutional means to regain power, and strives to establish a justification for such extremist advocacy and initiatives by demonizing its adversary, especially the person of the leader.

In contrast, the side that enjoys democratic legitimacy relies on its right to govern, and sometimes on its performance, to justify the retention of governing authority. There is no doubt that Morsi was in a radically different position that Erdogan after his narrow electoral victory in 2012—having an economy on a downward slippery slope, a public with high post-Mubarak expectations of a change for the better, and a complete lack of governing experience.

 

            This phenomenon of polarization is becoming more widespread, an expression of growing alienation within societies as a response to disappointments with traditional political parties and their leaders at the national level. As dissatisfaction and frustrations with prevailing forms of governance grows in many countries, the opposition becomes ever more embittered, and tends to blame the elected leader with venomous rhetoric. Often such excessive attacks provoke a response from the government that further discredits the leader in the eyes of the opposition, widening the gap between those governing and those in the opposition. If the angered opposition senses that it is unable to win at the ballot box, it will be tempted to mobilize a populist politics in the street, and sometimes manages to enlist those parts of government bureaucracy (often the judiciary and security forces) that are aligned openly or secretly with efforts to create crises of legitimacy and governance.

 

            From such a combustible mix, explosive possibilities are possible on both sides, ranging from coups to various authoritarian abandonment of democratic procedures. Each side produces a self-serving narrative of national survival that shifts the blame entirely to its political enemy. There is no effort at dialogue, which is essential for the political health of a democratic society beset by serious challenges and policy disagreements. This does not mean that the two sides are equally persuasive, but it does suggest there are few informed and judicious voices that can be heard above the noise of the fray.

 

            Outsiders also complicate the scene, whether they favor the government or the opposition. The originality of each national situation needs to be taken into account. There are many variables, including history, culture, geography, stage of development, economic performance, levels of unemployment and poverty, quality of governance, role of violence, respect for human rights and the rule of law, degrees of corruption. And yet at the same time, there are patterns and transnational similarities that make certain regional generalizations illuminating.

 

            The comparison of Turkey and Egypt is suggestive of this broader regional, and indeed global, pattern of polarization that is undermining political discourse in more and more countries. The Turkish political scene is still very much shaped by the lingering socially constructed and politically maintained legacy of Kemal Ataturk, and his radical modernization project that sought a total eclipse of Turkey’s Ottoman past. This endeavor, although highly influential, never completely succeeded in creating a post-Islamic normative order in the country, although it did manage to produce a highly secularized and Europeanized upper middle class in the main cities in western Turkey that fiercely, with its own unacknowledged religious intensity, clings rather sadly to the outmoded Kemalist legacy as the only usable past.

 

            In Ataturk’s defense as a historical figure, it should be remembered that the challenges facing Turkey after World War I were primarily to create a strong unified state out of the ruins of the Ottoman Empire while withstanding European imperial ambitions that were rampant elsewhere in the region. The Turkish defeat of colonial ambitions was spectacular, but it led to a dysfunctional form of hyper-nationalism that had three prominent features: the attempted erasure of minority identities, a discriminatory insistence on the privatization of religious values and beliefs that particularly victimized Turkish women, and a deferential mimicry of Europe, especially France, in its construction of a secular polity.

 

            Each of these undertakings over time generated strong forms resistance that could never be fully overcome: minority identities were not extinguished, especially for the large and diverse Kurdish minority, Islamic political orientations did not disappear and kept seeking limited acceptance in public space, and the European model never won the allegiance of the Turkish masses. What did occur in Turkey until the end of the twentieth century was political domination by secular elites relying on the mantle of Kemalist legitimacy, with power bases in the main cities, and total control of the bureaucratic structures of Turkish governance, including a crucial alliance between the civilian secular leadership and the armed forces, which included the increasing private sector interests and market activity of the military. As a left challenge of a Marxist character emerged after World War II, secular control was sustained by a series of military coups to make sure that capitalist ideology was not frontally challenged. The Cold War pushed Turkey to adopt an anti-Communist foreign policy of a distinctly Western direction. In the NATO context Turkey was made responsible for the vital Southern flank of NATO, and seemed to follow without dissent the geopolitical line taken in Washington.

 

            What happened next after the Cold War ended was a growing populist rejection of the societal structures of Kemalist Turkey without mounting any direct and explicit challenge to the legacy. It was merely circumvented and adapted to a new set of conditions and social priorities. The ascent of the AKP in the 2002 elections, a result that was reinforced by larger victories in 2007 and 2011, achieved a sea change in the tone and substance of state/society relations in Turkey. It came about in stages, and may yet be reversed when new elections are held in 2015. There was Kemalist resistance from the outset, fears that Turkey was supposedly on its way to becoming ‘a second Iran.’ When that fear failed to materialize or to erode pro-AKP support there occurred a variety of coup plots that never came to fruition, largely because the neoliberal economy was flourishing, the AKP was cautious and pragmatic in its early years of leadership, the secularist ‘deep state’ remaining a brake on governance by the elected leaders, and the West, especially the United States was eager at the time to show the Islamic world that it could have a positive relationship with a government that did not hide the devout Muslim convictions of its principal leaders.

 

            The dynamics of polarization are such that when electoral prospects of the opposition are perceived to diminish, the opposition, especially if it had earlier controlled the state for a long period, grows angry and impatient with the workings of constitutional democracy even if it had earlier based its own legitimacy to govern upon the outcome of elections. Now in an altered political climate such a displaced opposition explores other ways to regain control of the state, itself now opting for populist forms of protest and democratic accountability that it had earlier ruthlessly suppressed.

 

            In the Turkish case, the opposition tactics along these lines were surprisingly unsuccessful in the first decade of the 21st century, although the avoidance of a coup may have been based on a number of unstable contingencies.  Such frustration over a ten year period, even as accompanied by impressive economic growth statistics and diplomatic prominence, did not lead the old Kemalist forces to acquiesce in the new political order, but only made the opposition enraged. Instead, these intensified frustrations, bringing anti-AKP resentment to a fever pitch, directed especially at its charismatic, populist, impulsive, and provocative Prime Minister, Recep Tayyip Erdogan, a man who evokes the strongest passions of love and hate. Erdogan serves as a cynosure of why democracy is at risk from above and below in Turkey. The government has ample grounds to feel threatened by the tactics, extremism, invective, and hostility of the opposition, which does not even bother to hide its contempt for democratic procedures in its quest for a return to the control of governance. In turn, the leadership, especially the sort of highly unpredictable emotional politics practiced by Erdogan, strays itself from democratic procedures partly as an understandable defensive reflex, has grounds to view the opposition as illegitimate, including its most vituperative media critics, which can easily slide into the embrace of a kind of defensive authoritarianism.

 

            The Egyptian descent into the vortex of hyper-polarization has certain resemblances to the Turkish experience, but also significant differences other than the relationship of contending forces to the poles of religion and secularism. In effect, secularism isn’t really a pole in Egypt, but at most one of the constituencies mobilized in the pre-coup period by anti-Morsi forces, many of whom might not have even realized that by opposing being governed by the Muslim Brotherhood, they were opting for the restoration of a brutal regime of the sort that had governed Egypt for three decades under Mubarak, which had seemed to have alienated virtually the whole of the country during the excitement of the January 25th movement in 2011. At that time, the armed forces were seen as standing aside while the people cast off a cruel and corrupt dictatorship that had reduced the Egyptian masses to a condition of subjugation and collective misery. In retrospect, this was an optical illusion created because the armed forces seemed willing to let Mubarak go to avoid having the next leader being his possibly reformist son, but was not at all ready to transform the governing process of the country despite the overwhelming mandate to do just that. It now seems clear that the Egyptian military would struggle against any political developments that threatened control of their budget, regulation of their business activities, and restriction of their discretion to manage the security policies of the Egyptian state (in collaboration with internal police and intelligence forces).

 

            Against this background, including the structural problems generated by Mubarak’s neoliberal approach to development, the Muslim Brotherhood would have been wise to abide by their initial public pledge to not field a candidate for the presidency and to limit their electoral ambitions in parliament and the constitution-forming process. Possibly, sensing their popularity as a transitory opportunity in a fluid situation, and maybe deceptively encouraged by the Supreme Council of the Armed Forces, the MB leadership thought it was entitled to compete for leadership to the full extent of its popularity. Its years of community organizing and welfare services paid off in parliamentary results far in excess of what had been predicted. There seemed to be a mandate to lead the country, but there also seemed to a series of insurmountable challenges that were unlikely to be met whoever gained controlled of the government.

 

            When it became clear that the MB was stronger than expected, and that it would not limit its goals as earlier announced, much of the liberal anti-Mubarak opposition registered a reaction of panic. Reflections on the prospect of living under a MB government induced many Egyptians to swing back to the Mubarak side, leading Ahmed Shafik, a fulool mainstay, to win almost 50% of the vote in the presidential runoff election in June 2012. It was a defeat, but considering the near zero support for the old established order in the heady days of Tahrir Square, this result suggested a dramatic reversal of political mood at least in the main urban centers of Egypt. That near victory of Shafik should have been interpreted as a signal that counter-revolutionary tremors would soon begin to shake the foundations of political stability in Egypt.  Polarization took multiple forms in the ensuing months, with Morsi faltering as a leader partly for failures of his own making, and the opposition stridently insisting that things were out of control, allegedly worse than in the most unpopular Mubarak times. There was also evidence that to mobilize the populace well orchestrated efforts were made to create fuel shortages and price hikes in food prices, impacting negatively on the image of Morsi as someone who could lead post-Mubarak Egypt into better times. The outcome, perhaps exaggerated in the media, was a huge mobilization of anti-Morsi forces that produced the largest public demonstrations in Egyptian history, and set the stage for the July 3rd takeover, with its blank check given to the armed forces to do whatever it wanted to do, including if necessary the elimination of the MB (at least 30% of the populace) from the political scene. What followed was a series of massacres and abuses of state power on a scale that would have shocked the conscience of humanity if it had been reported to the world in an honest and responsible fashion. Instead, what appear to be a series of thinly disguised Crimes Against Humanity of a severe character were swept under the rug of world public opinion, and the new regime received financial and diplomatic support and many diverse wishes for success.

 

            This then is the final point. When a polarized opposition resorts to unlawful means to regain or seize power, the nature of the regional and global response can be critical to its success or failure. There were strong geopolitical incentives for welcoming the Egyptian coup, and thus not complain too much about its bloody aftermath. There are less clear reasons to favor the defeat of the AKP government in Turkey, especially given its role in NATO and the world economy, as well as the absence of a responsible and credible opposition, and yet there are regional and global actors that would greet the fall of the AKP with a smile of satisfaction.

 

            I am arguing that theses instances of polarization amount to a deadly virus that attacks the body politic in countries with weak constitutional traditions, especially if such societies are beset by economic disappointment and significant regional and global hostility due to ideological and political tensions. So far, Turkey has an immune system strong enough to neutralize the virus, while Egypt having virtually no protection against such a virus has succumbed. If there is hope for a brighter Egyptian future, then it will become evident in the months ahead as the Egyptian body politic seeks belatedly to destroy the virus that is threatening the quality of life in the society. For Turkey the future remains clouded in comparable uncertainty, and it may be, that the polarized alienation combined with the mistakes associated with too long a tenure in office will yet lead to the democratic downfall of Erdogan and the AKP.

 

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Invisible Horizons of a Just Palestine/Israel Future

4 Nov

I spent last week at the United Nations, meeting with ambassadors of countries in the Middle East and presenting my final report to the Third Committee of the General Assembly as my term as Special Rapporteur for Occupied Palestine comes to an end. My report emphasized issues relating to corporate responsibility of those companies and banks that are engaged in business relationships with the settlements. Such an emphasis seemed to strike a responsive note with many delegations as a tangible way of expressing displeasure with Israel’s continuing defiance of its international law obligations, especially in relation to the unlawful settlements being provocatively expanded in the West Bank and East Jerusalem at the very moment that the resumption of direct negotiations between the Palestine Authority and the Government of Israel is being heralded as a promising development.

There are two reasons why the corporate responsibility issue seems to be an important tactic of consciousness raising and norm implementation at this stage: (1) it is a start down the slippery slope of enforcement after decades of UN initiatives confined to seemingly futile rhetorical affirmations of Israeli obligations under international law, accompanied by the hope that an enforcement momentum with UN backing is underway; (2) it is an expression of tacit support for the growing global movement of solidarity with the struggle of the Palestinian people for a just and sustainable peace agreement, and specifically, it reinforces the claims of the robust BDS Campaign that has itself scored several notable victories in recent months.

My intention in this post is to put aside these issues and report upon my sense of the diplomatic mood at the UN in relation to the future of Israel/Palestine relations. There is a sharp disconnect between the public profession of support for the resumed peace negotiations as a positive development with a privately acknowledged skepticism as to what to expect. In this regard, there is a widespread realization that conditions are not ripe for productive diplomacy for the following reasons: the apparent refusal of Israel’s political leadership to endorse a political outcome that is capable of satisfying even minimal Palestinian aspirations; the settlement phenomenon as dooming any viable form of a ‘two-state’ solution; the lack of Palestinian unity as between the Palestinian Authority and Hamas undermining its representational and legitimacy status.

The most serious concern on the Palestinian side is whether protecting the interests and rights of the totality of the Palestinian people in a peace process can be achieved within the present diplomatic framework. We need to be constantly reminded that ‘the Palestinian people’ cannot be confined to those Palestinian living under Israeli occupation: refugees in neighboring countries; refugees confined within occupied Palestine, but demanding a right of return to their residence at the time of dispossession; the Palestinian minority living in Israel; and 4-5 million Palestinians who constitute the Palestinian diaspora and its underlying reality of enforced exile.

It was also clear that the Palestinian Authority is confronted by a severe dilemma: either to accept the inadequate proposals put forward by Israel and the United States or reject these proposals and be blamed once again by Tel Aviv and Washington for rejecting a peace offer. Only some Israeli anxiety that the Palestinians might actually accept the U.S. proposals might induce Israel to refuse, on its side, to accept what Washington proposes, and spare the Palestinians the embarrassment posed by the dilemma of swallowing or spitting. That is, Israel when forced to show its hand may actually be unwilling to allow any solution to the conflict based on Palestinian self-determination, even if heavily weighted in Israel’s facvor. In effect, within the diplomatic setting there strong doubts exist as to whether the present Israeli leadership would accept even a Palestinian statelet even if it were endowed with only nominal sovereignty. In effect, from a Palestinian perspective it seems inconceivable that anything positive could emerge from the present direct negotiations, and it is widely appreciated that the PA agreed take part only after being subjected to severe pressure from the White House and Secretary Kerry. In this sense, the best that Ramallah can hope for is damage control.

There were three attitudes present among the more thoughtful diplomats at the UN who have been dealing with the Palestinian situation for years, if not decades: the first attitude was to believe somehow that ‘miracles’ happen in politics, and that a two state solution was still possible; usually this outlook avoided the home of the devil, that is the place where details reside, and if pressed could not offer a scenario that explained how the settlements could be shrunk sufficiently to enable a genuine two-state solution to emerge from the current round of talks; the second attitude again opted to support the resumption of the direct talks because it was ‘doing something,’ which seemed preferable to ‘doing nothing,’ bolstering this rather vapid view with the sentiment ‘at least they are doing something’; the third attitude, more privately and confidentially conveyed, fancies itself to be the voice of realism in world politics, which is contemptuous of the advocacy of rights and justice in relation to Palestine; this view has concluded that Israel has prevailed, it has won, and all that the Palestinians can do is to accommodate an adverse outcome, acknowledging defeat, and hope that the Israelis will not push their advantage toward a third cycle of dispossession (the first two being 1948, 1967) in the form of ‘population transfer’ so as to address their one remaining serious anxiety—the fertility gap leading to a feared tension between professing democracy and retaining the primary Zionist claim of being a Jewish state, the so-called ‘demographic bomb.’

As I reject all three of these postures, I will not leave my position as Special Rapporteur with a sense that inter-governmental diplomacy and its imaginative horizons have much to offer the Palestinian people even by way of understanding evolving trends in the conflict, much less realizing their rights, above all, the right of self-determination. At the same time, despite this, I have increased my belief that the UN has a crucial role to play in relation to a positive future for the Palestinian people—reinforcing the legitimacy of seeking a rights based solution rather than settling for a power based outcome that is called peace in an elaborate international ceremony of deception, in all likelihood on the lawn of the White House. In this period the UN has been playing an important part in legitimating Palestinian grievances by continuously referencing international law, human rights, and international morality.

The Israelis (and officialdom in the United States) indicate their awareness of this UN role by repeatedly stressing their unconditional opposition to what is labeled to be ‘the delegitimation project,’ which is a subtle propagandistic shift from the actual demand to uphold Palestinian rights to the misleading and diversionary claim that Israel’s critics are trying to challenge Israel’s right to exist as a state sovereign state. To be sure, the Palestinians are waging, with success a Legitimacy War against Israel for control of the legal and moral high ground, but they are not at this stage questioning Israeli statehood, but only its refusal to respect international law as it relates to the fundamental rights of the Palestinian people.

Let us acknowledge a double reality. The UN is a geopolitical actor that is behaviorally manipulated by money and hard power on many fundamental issues, including Palestine/Israel; this stark acknowledgement severely restricts the effectiveness of the UN with regard to questions of justice. Fortunately, this is not the whole story. The UN is also a normative actor that articulates the grievances of peoples and governments, influences public discourse with respect to the global policy agenda, and has great and distinctive symbolic leverage in establishing the legitimacy of claims. In other words, the UN can say what is right, without being necessarily able to do what is right. This distinction summarizes the narratives of articulating the Palestinian claims and the justice of the Palestinian struggle without being able to overcome behavioral obstacles in the geopolitical domain that block their fulfillment.

What such a gap also emphasizes is that the political climate is not yet right for constructive inter-governmental negotiations, which would require both Israel and the United States to recalculate their priorities and to contemplate alternative future scenarios in a manner that is far more congruent with upholding the panoply of Palestinian rights. Such shifts in the political climate are underway, and are not just a matter of changing public opinion, but also mobilizing popular regional and global support for nonviolent tactics of opposition and resistance to the evolving status quo. The Arab Spring of 2011 initially raised expectations that such a mobilization would surge, but counter-revolutionary developments, political unrest, and economic panic have temporarily, at least, dampened such prospects, and have lowered the profile of the Palestinian struggle.

Despite such adverse developments in the Middle East from a Palestinian perspective, it remains possible to launch within the UN a broad campaign to promote corporate responsibility in relation to the settlements, which could gradually be extended to other unlawful Israeli activities (e.g. separation wall, blockade of Gaza, prison and arrest abuses, house demolitions). Such a course of action links efforts within the UN to implement international law with activism that is already well established within global civil society, being guided by Palestinian architects of 21st century nonviolent resistance. In effect, two disillusionments (armed struggle and international diplomacy) are coupled with a revised post-Oslo strategy giving the Palestinian struggle a new identity (nonviolent resistance, global solidarity campaign, and legitimacy warfare) with an increasing emancipatory potential.

Such an affirmation is the inverse of the ultra realist view mentioned above that the struggle is essentially over, and all that is left is for the Palestinians to admit defeat and for the Israelis to dictate the terms of ‘the peace treaty.’ While admitting that such a visionary worldview may be based on wishful thinking, it is also appropriate to point out that most political conflicts since the end of World War II have reflected the outcome of legitimacy wars more than the balance of hard power. Military superiority and geopolitical leverage were consistently frustrated during the era of colonial wars in the 1960s and 1970s. In this regard, it should be understood that the settler colonial enterprise being pursued by Israel is on the wrong side of history, and so contrary to appearances, there is reason to be hopeful about the Palestinian future and historical grounds not succumb to the dreary imaginings of those who claim the mantle of realism.

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SR UN Report on Occupied Palestine (18 September 2013)

25 Oct

(Prefatory Note: With apologies, I posted by accident my prior report this morning, which featured discussion of Gaza after the attacks of
November 2012; this September report to the Third Committee of the General Assembly resumes the emphasis on corporate responsibility
under international law for business dealing with unlawful Israeli settlements in the West Bank and East Jerusalem. It is part of
the effort under this mandate to encourage the United Nations to move from words to deeds, from a critical rhetoric to a pro-active
posture resolved to implement international law and uphold to the extent possible Palestinian rights in view of the failures of
inter-governmental diplomacy after several futile decades of diversionary initiatives.]

United Nations
General Assembly
A/68/376

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.
Distr.: General
10 September 2013
Original: English
Sixty-eighth session
Item 69 (c) of the provisional agenda*
Promotion and protection of human rights: human rights situations and reports of special rapporteurs
and representatives
13-46994 (E)
* A/68/150.
111013
*1346994*

A/68/376
Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967
Summary
The present report develops arguments presented in the previous report of the Special Rapporteur to the sixty-seventh session of the General Assembly, which focused on businesses profiting from Israeli settlements and described the involvement of 13 businesses in the activities of Israel in the Occupied Palestinian Territory with reference to the United Nations Guiding Principles on Business and Human Rights. The present report delineates a model for legal analysis by focusing on two illustrative companies chosen for the specific ways in which their activities potentially implicate them in international crimes. The report also takes note of other issues, including the urgent matter of water and sanitation rights.
Contents
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Page
I. Introduction…………………………………………………………. 3
II. Methodology………………………………………………………… 5
III. Normativeframeworks…………………………………………………. 6
A. Internationalhumanitarianlaw ……………………………………….. 7
B. Internationalhumanrightslaw ……………………………………….. 8
C. Internationalcriminallaw …………………………………………… 9
D. Conclusionsonanormativeframework…………………………………. 12
IV. Casestudies…………………………………………………………. 13
A. DexiaGroup…………………………………………………….. 13
B. Re/MaxInternational………………………………………………. 18
C. Conclusionsoncasestudies………………………………………….. 20
V. WaterandsanitationintheWestBankandGazaStrip…………………………… 21
VI. Recommendations…………………………………………………….. 23
A/68/376
13-46994
3/24
I. Introduction
1. As in all earlier reports during his period as Special Rapporteur, the Special Rapporteur has been denied the benefits of cooperation with the Government of Israel, including permission to enter the territory of the State of Palestine. The Special Rapporteur did benefit from a mission to Gaza in December 2012, facilitated by the then-Government of Egypt via entry at the Rafah crossing. The visit was extremely valuable in providing direct access to those living under occupation. There is no substitute for this kind of direct experience on the ground in assessing allegations of violations of human rights by Israel as the Occupying Power. As the present report to the General Assembly is the final one of his tenure, the Special Rapporteur would like to stress the importance of not allowing this pattern of non-cooperation to become a precedent that will hamper the efforts of future Special Rapporteurs to be as effective as possible in investigating contentions relating to the human rights situation that prevails. It has been disappointing that more has not been done by the United Nations to induce compliance by Member States with their obligation under international law to cooperate with the Organization.
2. This mandate was established in 1993 when it was still appropriate to refer to the West Bank, East Jerusalem, and Gaza as “occupied territories”. To continue such usage at this time seems misleading. On 29 November 2012 the Palestinian presence within the United Nations system was upgraded by General Assembly resolution 67/19, conferring the status of non-member observer State. It thus seems more appropriate to refer to the territories administered by Israel as “Palestine” — but at the same time confirm the continuing responsibilities of Israel under international humanitarian law, in particular the Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), as the Occupying Power. Beyond the matter of status are issues of substance. The cumulative process of unlawful settlement building and expansion has reached a point where a partially irreversible process of creeping annexation has taken place, which needs to be recognized as such, that undermines the core assumption of “belligerent occupation” as a temporary reality. This alteration of the occupied territories over time has been perversely acknowledged, even provisionally validated, by the widely held assumption that Israeli “settlement blocs” will not be dismantled even in the event that a peace agreement is reached between the Palestinian Authority and Israel.
3. It is more crucial than ever to insist upon the responsibilities of Israel as the Occupying Power under international law. The Geneva Conventions and Additional Protocols I and II, as well as a large number of obligatory international human rights agreements, are indispensable in identifying and evaluating various allegations of practices relating to the administration by Israel of daily life in the West Bank, East Jerusalem and Gaza. This legal framework is important in evaluating such policies and practices as are associated with the construction of the wall on Palestinian land, the wrongful appropriation of Palestinian water resources, the confiscation of land, arrest and detention procedures, the violations of children’s rights, settler violence with the complicity of Israeli security forces, house demolitions and collective punishment via blockades, curfews and restricted movements. While all those policies and practices deserve international attention, the Special Rapporteur focuses some attention in the present report on the wrongful appropriation of water resources, which has been a somewhat neglected aspect of the Israeli occupation.
A/68/376
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4. The resumption of direct negotiations designed to resolve the conflict between Israel and Palestine calls particular attention at this time to an emphasis on protecting the rights of the Palestinian people during the course of a diplomatic process that, in the past 20 years, has excluded the relevance of international law. This is true, in particular, of the inalienable Palestinian right of self-determination that is not even mentioned in the Declaration of Principles on Interim Self-Government Arrangements of 1993. This mandate will have failed if the solution reached through diplomatic channels does not uphold the collective right of self-determination and the individual rights of those who have lived without rights under Israel military administration since 1967. There are also additional concerns associated with the population of Gaza, whose de facto governing authority since 2007 is not participating in the revived negotiations, raising questions as to whether the rights and interests of Palestinians in Gaza are being adequately represented.
5. The situation of the Gaza Strip is particularly troublesome, as its 1.7 million people have been compelled to live under a blockade since 2007. Gaza seems to be threatened with even greater hardships for its population as a result of recent developments in Egypt. While Israel is the Occupying Power and thus maintains legal obligations to Palestinians in Gaza, the population — for the time being — needs consistent access to and from Egypt by way of the Rafah crossing and also, in order to ensure its survival, needs access to the tunnel network that has been supplying Gaza with basic necessities. It should be recalled that a United Nations report issued a year ago, before the recent complicating developments, concluded that the habitability of the Gaza Strip was in doubt after 2020.1 During the mission of the Special Rapporteur, several experts on the threatened infrastructure of Gaza observed that even such a dire prediction was too optimistic, and that 2016 was a more realistic date. What is at stake in such a situation of extreme deprivation is a comprehensive assault on the social and economic rights of the people of Gaza, as embedded in the International Covenant on Economic, Social and Cultural Rights, to which Israel is a party. The maintenance of the blockade is a continuing violation of article 33 of the Fourth Geneva Convention, which unconditionally prohibits collective punishment.
6. The emphasis in the present report, as well as in the report submitted to the sixty-seventh session of the General Assembly, in 2012 (A/67/379), on issues of corporate responsibility and potential accountability in relation to Israeli settlements follows the recommendation of the fact-finding inquiry into settlements under the auspices of the Human Rights Council.2 It is also a reaction to the refusal of Israel to respect the obligation set forth in article 49 (6) of the Fourth Geneva Convention, which prohibits an Occupying Power from transferring citizens from its own territory to the occupied territory. This provision has been widely interpreted as extending explicitly to Israeli settlements that have been continuously established and expanded since 1967 in defiance of this consensus as to the bearing of international law. When compliance with international law cannot be achieved by either self-regulation or persuasion, then it is appropriate to rely on non-violent, coercive means to achieve compliance and thereby contribute to the protection of the rights of those being victimized, that is, Palestinians.
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1 United Nations country team, “Gaza in 2020: a liveable place?” (Jerusalem, Office of the United Nations Special Coordinator for the Middle East Peace Process, August 2012).
2 See A/HRC/22/63.
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7. Ever since the adoption of Security Council resolutions 242 (1967) and 338 (1973), there has been a widely shared agreement in the international community that the Israel/Palestine conflict can only be solved by the creation of a viable and independent Palestinian State that corresponds to the 1967 de facto borders, altered to a small degree by mutual agreement. There is no doubt that the territorial scope of self-determination for the Palestinian people according to this “two-State” scenario has been continually diminished owing to unlawful settlement activity. It has long been the responsibility of the international community, and especially the United Nations, to take steps to safeguard Palestinian territorial rights. The extent of the Israeli settlement archipelago is putting the very idea of creating a Palestinian sovereign State that is independent and viable in increasing jeopardy.
8. There are many forms of abuse that deserve urgent attention and censure. The Special Rapporteur would like to highlight three for priority attention: abuses by security personnel in the form of arrest and detention procedures involving excessive force and humiliation, including of children; settler violence directed at Palestinians, and extending to their property and communities; and complicity by Israel Defense Forces in relation to settler violence, taking the form of protecting settlers engaged in violent activities rather than apprehending them, while taking punitive measures against Palestinians being victimized by such activities and failing thereby to discharge their primary responsibility under the Fourth Geneva Convention. The Special Rapporteur, in collaboration with five other Special Rapporteurs, issued a press release in connection with the mistreatment and harassment of Issa Amro, a human rights defender in Hebron who participated in the Human Rights Council interactive session devoted to occupied Palestine in June 2013 and was then detained and beaten upon his return, apparently in retaliation.3
II. Methodology
9. It is almost universally accepted that the establishment and expansion of settlements in the West Bank and East Jerusalem violate international humanitarian law and international human rights law. In addition, the ongoing expansion of settlements has proven to be a key obstacle to peace talks and a negotiated settlement between the Israelis and the Palestinians.
10. To date, Israel has refused to comply with international law in relation to its settlement project, and United Nations efforts to induce compliance by censuring such activities have had no discernible effect. In the meantime, the settlements by their nature and expansion act as a quasi-permanent encroachment on fundamental Palestinian rights. It is against this background that the international legal responsibilities and potential implications for non-Israeli companies that profit from the settlement enterprise is approached.
11. The report of the Special Rapporteur to the sixty-seventh session of the General Assembly raised human rights issues arising from undertakings profiting from doing business with the settlements. It took note of the relevance of the United
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3 “Israel must stop harassment, intimidation and abusive treatment of rights defender Issa Amro”, 13 August 2013. Available from ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID= 13626&LangID=E.
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Nations Guiding Principles on Business and Human Rights4 and, for the sake of concreteness and illustration, described the involvement of 13 businesses in the activities of Israel in Palestine. The present report develops arguments presented in the previous report and sets forth a possible model for legal analysis by focusing on selected companies chosen for the specific ways in which their activities potentially implicate them in international law violations that appear to be in some instances international crimes. The report is presented with the hope that its legal analysis will encourage companies that currently profit from the settlements to change their policies. The Special Rapporteur has consistently conveyed readiness to work with officials of companies to ensure their compliance with principles of corporate responsibility. The primary wish of the Special Rapporteur is to induce voluntary action, and it is only in the event of the failure of this approach that recourse to more coercive initiatives such as boycotts, divestments and sanctions is recommended.
12. The present report is based on information requested and received from civil society actors, United Nations agencies, companies and corporations, non-State entities and other stakeholders. The Special Rapporteur offers a series of recommendations to encourage businesses profiting from the settlements of Israel to take prompt action to bring their activities into line with relevant international law and related rules and standards. The Special Rapporteur notes that, since finalizing the present report, he has brought its content to the attention of the businesses mentioned. The Special Rapporteur will request clarification and further information regarding the relevant contentions in the present report with the goal of achieving prompt and effective responses to his recommendations.
III. Normative frameworks
13. The present report seeks to bring the issue of corporate responsibly to the attention of that portion of the business community that has or might in the future have commercial relationships with the settlements. It has been firmly established that international law recognizes the legal personality of corporations.5 The analysis of corporate accountability will focus on relevant normative frameworks, including international humanitarian law, international human rights law and international criminal law. The establishment of settlements violates the duties of an Occupying Power according to international humanitarian law and infringes on the basic human rights of Palestinians. International criminal law creates individual criminal responsibility for the principal perpetrator as well as those who are accomplices in the commission of international crimes. The Special Rapporteur hopes that consideration of international criminal law can advance the debate on businesses and human rights, in particular because of the tangible judicial mechanisms that exist, for example the International Criminal Court and universal jurisdiction exercised by domestic courts, and in this way help guide business leaders in their decision-making. By explicating a model of legal analysis, the Special Rapporteur hopes that it will be used by and useful to other companies faced with these issues.
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4 A/HRC/17/31, annex.
5 See, for example, Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain),
Judgement of 5 February 1970, I.C.J. Reports, 1970, p. 246, and Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Preliminary Objections, I.C.J. Reports, 2007, para. 40.
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A. International humanitarian law
14. International humanitarian law applies to situations of armed conflict and occupation, as set out in common article 2 of the Geneva Conventions of 12 August 1949. The rules that govern belligerent occupation, in particular the Regulations concerning the Laws and Customs of War on Land of 1907 (Hague Regulations) and the Fourth Geneva Convention, are universally accepted as reflecting customary international law and therefore apply to Israel as an Occupying Power. This has been recognized and confirmed by the Security Council, the General Assembly and the Human Rights Council, as well as by the International Court of Justice in its advisory opinion of 2004 on the wall.6
15. The Fourth Geneva Convention prohibits an Occupying Power from transferring citizens from its own territory to the occupied territory. The prohibition has been widely accepted to include the voluntary settlement of citizens of the Occupying Power in occupied territory.7 The Hague Regulations prohibit an Occupying Power from undertaking permanent changes in the occupied area unless necessitated by military needs, or unless undertaken for the benefit of the local population. The prolonged nature of the 46-year occupation by Israel appears to be inconsistent with the accepted legal understanding that an occupation is temporary in nature. The Special Rapporteur has previously emphasized the limits of international humanitarian law in a context of prolonged occupation, especially for failing to capture the extent to which the permanent interests and well-being of the civilian population are infringed.8 The International Committee of the Red Cross (ICRC) Expert Meeting on occupation and other forms of administration of foreign territory discussed the absence in both the Hague Regulations and the Fourth Geneva Convention of limits on the duration of effective control over foreign territory and noted that many have argued that “prolonged occupation necessitates specific regulations for guiding responses to practical problems arising from long-term occupation”.9 The Special Rapporteur is of the view that such regulations are required, including steps to establish regimes of law and rights when an occupation lasts for more than five years.
16. Notwithstanding shortcomings in existing law to address prolonged occupation, the temporal focus and underlying conservationist aim of the law on occupation clearly establishes that the applicable legal framework renders the establishment and expansion of Israeli settlements as unconditionally illegal. The permanent changes deliberately made in the West Bank and East Jerusalem contradict the basic aim of international humanitarian law to preserve the rights of an occupied people.
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6 See Commission on Human Rights resolutions 6 (XXIV), 6 (XXV) and 2001/7; Human Rights Council resolutions 7/18, 10/18 and 19/17; Security Council resolutions 271 (1969), 446 (1979), 641 (1989), 681 (1990) and 799 (1992); and General Assembly resolutions 2546 (XXIV), ES-10/2, 36/147 C, 54/78, 58/97, ES-10/18 and 66/225; advisory opinion of the International Court of Justice on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory of 9 July 2004 (see A/ES-10/273 and Corr.1), paras. 109-113.
7 See Security Council resolution 446 (1979) and the advisory opinion of the International Court of Justice of 9 July 2004, para. 120.
8 See A/HRC/23/21.
9 See ICRC, “Occupation and other forms of administration of foreign territory: expert meeting”
(Geneva, 2012). Available from icrc.org/eng/assets/files/publications/icrc-002-4094.pdf.
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17. The obligations that derive from international humanitarian law bind not only States, but also non-State entities, as set out in the Geneva Conventions of 12 August 1949 and in Protocol II (relating to the protection of victims of non-international conflicts) and reaffirmed at the international military tribunals held at Nuremberg, Germany, and at Tokyo. Therefore, business corporations directly or indirectly involved in armed conflicts can be held responsible for violating international humanitarian law. According to the ICRC:
International humanitarian law does not just bind States, organized armed groups and soldiers — it binds all actors whose activities are closely linked to an armed conflict. Consequently, although States and organized armed groups bear the greatest responsibility for implementing international humanitarian law, a business enterprise carrying out activities that are closely linked to an armed conflict must also respect applicable rules of international humanitarian law.10
Accountability for international humanitarian law violations is illuminated by reference to international criminal law, a body of law that includes serious violations of international humanitarian law.
B. International human rights law
18. International human rights law imposes obligations on States to protect the rights of individuals and groups. The extraterritorial application of human rights has been endorsed by various forums.11 The establishment of Israeli settlements in occupied Palestine results in manifold violations of international human rights law. Among other violations, the settlements infringe upon the right of property, the right to equality, the right to a suitable standard of living and the right to freedom of movement.12 The settlements directly impede the responsibility of Israel to protect the human rights of the civilian Palestinian population.
19. The obligations imposed on States include a duty to protect against human rights abuses by third parties. States must take appropriate steps to prevent, investigate, punish and redress abuse by private actors. Moreover, standards have developed that extend the applicability of human rights law to non-State entities, including corporations.13 Consequently, the obligation of States and companies, and those who act on behalf of such entities, to respect international criminal law norms constitutes a core corporate social responsibility within the evolving legal framework for respecting human rights.
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10 ICRC, “Business and international humanitarian law” (2006). Available from icrc.org/eng/assets/files/other/icrc_002_0882.pdf.
11 See, for example, the advisory opinion of the International Court of Justice of 9 July 2004, paras. 109-113; The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, general comment No. 31 (CCPR/C/21/Rev.1/Add.13), paras. 15, 18; and the Public Commission to Examine the Maritime Incident of 31 May 2010 (the Turkel Commission), “Israel’s mechanisms for examining and investigating complaints and claims of violations of the laws of armed conflict according to international law” (February 2013), p. 64. Available from turkel-committee.gov.il/files/newDoc3/The%20Turkel%20Report%20for%20website.pdf.
12 See General Assembly resolution 2200 A (XXI), annex.
13 See, for example, the International Covenant on Civil and Political Rights; the International
Covenant on Social, Economic and Cultural Rights; and General Assembly resolution 60/147.
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20. Self-regulating mechanisms have been incorporated by many businesses to ensure compliance with ethical standards and international law.14 The United Nations is acting to bring human rights directly to bear on corporations through initiatives such as the Global Compact, which was launched by the Secretary-General in 2000. The Global Compact Initiative encourages businesses globally to promote voluntarily and show respect for 10 principles relating to human rights, labour standards, the environment and anti-corruption measures. Furthermore, in 2011 the Human Rights Council unanimously endorsed the Guiding Principles on Business and Human Rights, which provide guidance on the responsibilities of business enterprises, as well as the necessary measures to be taken by States arising from their existing human rights obligations.
21. The Guiding Principles on Business and Human Rights are pertinent as a framework for analysis because they “outline steps for States to foster business respect for human rights; provide a blueprint for companies to manage the risk of having an adverse impact on human rights; and offer a set of benchmarks for stakeholders to assess business respect for human rights”.15 A key concept in the Guiding Principles is due diligence, which outlines an ongoing process that a reasonable business needs to undertake to meet its responsibility to respect human rights. The Guiding Principles also outline the related obligations of States, which include respecting human rights (refrain from interfering with or curtailing the enjoyment of human rights), protecting human rights (protect individuals or groups against human rights abuses, including by business enterprises) and fulfilling human rights (positive action to facilitate the enjoyment of basic human rights).16 The Guiding Principles have been and will continue to be an authoritative point of reference for Governments and businesses concerned with human rights. In this connection, the Working Group on the issue of human rights and transnational corporations and other business enterprises has been established by the Human Rights Council.17 It has a central role in developing operational advice regarding the Guiding Principles, promoting and providing support for efforts to implement the Guiding Principles and making recommendations, conducting country visits and working in close cooperation with relevant United Nations bodies.
C. International criminal law
22. International criminal law establishes individual criminal responsibility over war crimes, crimes against humanity and acts of genocide. International crimes take into account the collective dimension of the offence, and that can aid in attributing aspects of a collective offence to individuals involved. Attribution of responsibility has extended to multinational corporations on account of their ability to perpetrate such violations. Corporations investing, doing business with or otherwise involved in Governments or groups active in conflict zones can find themselves in a situation
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14 See, for example, Organization for Economic Cooperation and Development, Guidelines for Multinational Enterprises, 2011 edition (Washington, D.C., 2011). Available from oecd.org/daf/inv/mne/oecdguidelinesformultinationalenterprises.htm.
15 See Office of the United Nations High Commissioner for Human Rights, “The corporate responsibility to respect human rights: an interpretive guide” (2012). Available from ohchr.org/Documents/Publications/HR.PUB.12.2_En.pdf.
16 A/HRC/17/31, annex, paras. 1-10.
17 See A/HRC/17/4.
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of committing or furthering the commission of an international crime. To date, international criminal complicity has only been imputed to natural persons.18 There is a need for caution when considering the extension of individual criminal responsibility to business managers or employees. Applying international criminal law to corporations is a developing area of international law.19
1. Ad hoc tribunals
23. The jurisprudence of the international ad hoc tribunals is pertinent to understanding the concept of complicity. The Furundzija case, heard before the International Criminal Tribunal for the Former Yugoslavia, provides the standard for establishing complicity in the form of aiding and abetting. The assistance given must have a substantial effect on the perpetration of the crime, and the person aiding or abetting must have knowledge that the assistance provided is contributing to the perpetration of a crime, even if he or she did not have a common design with the perpetrators.20 The Tribunal recently changed its approach to complicity in Prosecutor v. Mom􏰀ilo Periši􏰁, when it held that “specific direction” is now an element of aiding and abetting, although the degree to which this decision generates a precedent for similar litigation before other tribunals is unclear.21
2. International Criminal Court
24. Under article 25 (1) of the Rome Statute, the International Criminal Court has jurisdiction over natural persons. It does not have jurisdiction over legal entities. The Court could, however, adjudicate corporate involvement in international crimes by focusing on the individuals acting on behalf of a corporation. When a State becomes a party to the Rome Statute, it comes within the jurisdiction of the Statute with respect to the crimes set out in the Statute. The Court may exercise its jurisdiction in situations where the alleged perpetrator is a national of a State party or where the crime was committed in the territory of a State party. Also, a State not party to the Statute may decide to accept the jurisdiction of the Court, as set out in article 12 (3) of the Rome Statute. Palestine did so in January 2009, but the Prosecutor at the time stated that the Court only had jurisdiction over States and pointed to determinations of the General Assembly as a guide for determination of entities that qualify as States. It is unclear whether the subsequent granting of non-member observer State status to Palestine by the Assembly will change the status of Palestine before the Court.22 Israel is not a party to the Rome Statute.
25. The Rome Statute is the best source of authority with respect to the elements of complicity in international crimes. Article 25 (3) (c) and (d) outlines aiding and abetting liability, according to which any natural person who aids, abets or otherwise
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18 See, for example, United States of America v. Carl Krauch et al. (the I. G. Farben case), Judgement, 29, 30 July 1948, Trials of War Criminals before the Nuernberg Military Tribunals, United States Government Printing Office, 1952, vol. VIII.
19 See Antje K. D. Heyer, “Corporate complicity under international criminal law: a case for applying the Rome Statute to business behaviour”, Human Rights and International Legal Discourse, vol. 6 (2012).
20 International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Furundzija, case No. IT-95-17/1-T, Trial Chamber II, 10 December 1998, para. 249.
21 International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Mom􏰀ilo Periši􏰁, case No. IT-04-81-A, Appeals Chamber, 28 February 2013.
22 General Assembly resolution 67/19.
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assists in the commission or attempted commission of crimes articulated in the statute is individually responsible for such crimes. It consists of a two-pronged test: (1) substantial contribution to the crime; and (2) knowledge and purpose in facilitating or assisting a crime.
26. Therefore, the ability to attribute international criminal responsibility to corporations is not wide in scope. According to the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court, it must be attributed to an individual as opposed to a company, and that individual must have knowledge that their acts have causally contributed to the commission of an international crime. “Knowing assistance” (i.e., an awareness that one’s actions are assisting in the commission of a relevant crime) is required.
27. The Rome Statute prohibits “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies”.23 That information has long been available in the public domain, for example in official United Nations reports and resolutions, and would provide a compelling argument that corporations engaged in business activities with the settlements should by now be fully aware that Israeli settlements violate international law. The argument that requires development is the extent to which the corporation’s activities are causally connected to the international crimes being perpetrated. The International Criminal Tribunal for the Former Yugoslavia has introduced “specific direction”, indicating its belief that the activities in question should be specifically directed to assisting the commission of any crime. If one chooses to follow the Tribunal’s jurisprudence on complicity in relation to Israeli settlements, then questions relevant to some of the corporations discussed in the present and the previous report of the Special Rapporteur to the General Assembly would include the following: Does the provision of equipment or raw materials specifically directed towards the building of settlements and/or related infrastructure constitute a sufficient causal connection to the transfer of the Israeli civilian population to occupied Palestine? Does the provision of loans or similar financial transactions that are specifically directed towards the construction, renovation or purchase of settlements constitute such a connection? Does advertising, promoting the sale of and/or identifying buyers for a settlement constitute such a connection? Whether the Tribunal’s approach to complicity in the Periši􏰁 case will prove to be authoritative in other future cases is at this point an unknown.
28. What is clear is that prosecuting corporations for complicity at an international level offers a potential avenue for redress. Of course, jurisdictional requirements must be met. For example, the State from which the corporation and its employees are acting must be a party to the Rome Statute for the court to hear the case. The concept of complicity is not limited to international criminal law, however; other judicial mechanisms, such as national courts, could possibly prosecute corporations or their employees for involvement in international crimes.
3. Civil liability
29. Domestic law potentially provides an avenue for enforcing corporate liability for violations of international law. Civil liability is consistent with the principle of
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23 Article 8 (2) (b) (viii) of the Rome Statute prohibits a broader range of actions than article 49 (6) of the Fourth Geneva Convention.
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complementarity, which emphasizes the role of domestic legal regimes in the enforcement of international law. Corporate civil liability has the advantage of offering redress and compensation to the victims of the violation.24 Notwithstanding the recent lack of progress in domestic litigation on corporate complicity generally, including in relation to the settlements, it is established that corporations can be subject to civil liability for the wrongful conduct of corporate agents.25 Future cases will no doubt be heard on this issue before domestic courts.26 The United Nations High Commissioner for Human Rights has articulated several reasons why civil liability is an important mode of accountability for corporate complicity:
First, international law obligates States to provide an effective remedy for victims of human rights violations. Second, civil liability for corporations helps promote the international legal principle of ensuring accountability for human rights violators. Third, in accordance with the principle of complementarity, international law necessarily relies on domestic legal mechanisms to ensure the effective protection of human rights. Finally, civil liability for corporations that are complicit in gross human rights violations serves as an avenue for orderly redress of grievances. Absent effective legal mechanisms to provide remedies for victims of gross human rights violations, those victims are likely to resort to extralegal measures to obtain redress for perceived wrongs, thereby threatening the established legal and social order.27
4. Civil society tribunals
30. For educational purposes of dissemination about failures of compliance by Israel, there are also important contributions to public awareness made by civil society initiatives such as was achieved by the Russell Tribunal on Palestine at its session in London in 2010 devoted to corporate responsibility. Such initiatives could mount constructive forms of pressure to secure compliance with standards of corporate responsibility, if preferred modes of voluntary adherence fail to uphold legal and moral standards.28
D. Conclusions on a normative framework
31. It should be noted that neither criminal law nor the law of civil remedies requires that the principal actor be held liable before a secondary actor is prosecuted. The difficulty of holding Governments or armed groups accountable for serious violations of international law means that in most cases of alleged business
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24 International Commission of Jurists, Corporate Complicity and Legal Accountability, vol. 3 (Geneva, 2008), p. 4.
25 For recent litigation, see United States Supreme Court, Kiobel v. Royal Dutch Petroleum, 569 U.S. ____ (2013) for limitations of the Alien Tort Statute; the Dutch National Public Prosecutor’s Office dismissal of the case against Riwal; and the Court of Appeal of Versailles decision that ruled against civil liability for private French companies in the construction of a Jerusalem light rail tramway system, available from http://www.volokh.com/wp-content/uploads/ 2013/04/French-Ct-decision.pdf.
26 Corporations and other private legal persons can be prosecuted for genocide and crimes against humanity under article 213-3 of the French Penal Code and under the Canadian Crimes Against Humanity and War Crimes Act.
27 Brief of Amicus Curiae Navi Pillay, p. 3, in Kiobel v. Royal Dutch Petroleum.
28 See russelltribunalonpalestine.com/en/sessions/london-session.
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involvement in those violations the company will be prosecuted independently of the principal actor.29
32. Much of the legal analysis has culminated in a discussion of international criminal law and its concept of corporate complicity.30 The importance of complicity, however, transcends international criminal justice. It has been extended to respect for corporate social responsibility and human rights standards. The Guiding Principles on Business and Human Rights refer to international criminal law in its articulation of corporate complicity for human rights violations. Such initiatives contribute to translating international criminal responsibility standards into guidelines for companies on how to conduct their business in order to avoid responsibility for violations and abuses, for example through due diligence.
IV. Case studies
33. As noted in the previous report of the Special Rapporteur on this issue, there is a wide range of businesses operating in the settlements. The Special Rapporteur surveyed 13 businesses, including several that were Israeli and others that were international. Some businesses were connected with the occupation generally and others with the settlements in particular. In the present report the Special Rapporteur focuses on two discrete areas that relate to settlements. The first area is banking institutions involved in financial transactions, such as loans to construct or purchase Israeli settlements. The company that the Special Rapporteur discusses is the Dexia Group, a European banking group. This builds upon the analysis by the Special Rapporteur of the Dexia Group in the previous report. The second area that the Special Rapporteur draws attention to is real estate companies that advertise and sell properties in settlements. The activities of Re/Max International, a company based in the United States of America, are the focus of analysis in the present report. The case studies aim to determine whether the Dexia Group and Re/Max International, through providing loans and mortgages and through advertising and selling properties in settlements, provide knowing assistance that amounts to aiding in the commission of international crimes associated with transferring the citizens of the Occupying Power to the occupied territory. The Special Rapporteur reiterates that the businesses highlighted are illustrative examples. There are other companies that profit from Israeli settlement activities, both in the economic service areas in which the Dexia Group and Re/Max International are working and in other areas involving goods and services.
A. Dexia Group
34. The Dexia Group carries out activities in the fields of retail and commercial banking, public and wholesale banking, asset management and investor services. The Special Rapporteur previously reported on the activities of Dexia Israel Bank
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29 International Commission of Jurists, Corporate Complicity and Legal Accountability, vol. 1 (Geneva, 2008), p. 18.
30 Word constraints limited the present analysis on corporate responsibility to business activities connected to the settlements; however, the analysis could potentially be extended to all aspects of the occupation.
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Limited (Dexia Israel), of which the Dexia Group is the majority shareholder, such as providing loans to Israelis living in settlements on the West Bank.
35. Since the previous report of the Special Rapporteur, the Dexia Group has continued to implement its revised orderly resolution plan, which was established as a result of the European sovereign debt crisis. In January 2013, Belgium, France and Luxembourg signed a tripartite liquidity guarantee agreement in favour of Dexia Crédit Local. The Dexia Group is now 94 per cent owned by Belgium and France (50.02 per cent Belgium and 44.38 per cent France).31 In 2012, the Dexia Group stated that it planned to sell Dexia Israel and that the sale should be completed within 12 months, following a definitive decision on the various legal actions taken against Dexia Israel and Dexia Crédit Local as a shareholder.32 A press release in May 2013 stated that there have been no new material developments in relation to this matter, and a mid-year report stated that legal proceedings between minority shareholders and Dexia Israel continue, but no mention was made of its banking activities.33
36. The Special Rapporteur previously noted that the Dexia Group was a member of the Global Compact Initiative and that it failed to communicate, in early 2012, on progress made in implementing the standards set by the Compact. The Special Rapporteur has learned that, in April 2013, the Dexia Group withdrew from the Compact, which seems to be a disturbing development from the perspective of securing compliance with the Compact guidelines.34
37. For several years the former and current presidents of the Dexia Group (Jean-Luc Dehaene and Karel De Boeck) have stated that no new contracts have been granted in relation to the settlements. The Belgian movement for international solidarity (Intal) questions the accuracy of this position. Intal’s research indicates that new loans to construct and expand settlements continue to be granted, bringing the total amount of loans to €35 million.35 According to Intal, in November 2012 Dexia Israel made a positive financial audit for the Elkanah and Karnai Shomron settlements and Dexia Israel continues to provide services for settlement development. For example, Ariel and Kedumim settlements can open accounts with Dexia Israel to receive Israel National Lottery (Mifal HaPais) grants.36 Mifal HaPais uses its lottery revenue to support various public projects in the field of health, education and the arts. The settlements are considered one such public project and they receive lottery grants which are transferred through Dexia Israel. Who Profits, an Israeli non-governmental organization, has also conducted research on Dexia Israel. According to their research, Mifal HaPais provided grants in 2012 to Israeli local municipalities and regional councils that were specifically intended
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31 Dexia Group press release, 3 July 2013. Available from dexia.com/EN/journalist/press_releases/ Documents/20130703_CP_Dexia_emission_dette_garantie_EN.pdf.
32 Dexia Group, “Annual report 2012” (Brussels, 2012), p. 76. Available from dexia.com/EN/ shareholder_investor/individual_shareholders/publications/Documents/RA_2012_EN.pdf.
33 Dexia Group press release, 8 May 2013. Available from dexia.com/EN/journalist/ press_releases/Documents/20130508_CP_resultats_1T_EN.pdf; Dexia Group press release, 7 August 2013. Available from http://hugin.info/152020/R/1721538/574033.pdf.
34 See unglobalcompact.org/participant/2887-Dexia-Group.
35 See intal.be/files/20101121_written_statement_RToP_Dexia_-_mario_franssen.pdf and
intal.be/fr/article/dexia-et-son-principal-actionnaire-la-belgique-se-portent-garant-pour-couvrir-
un-projet-de-l.
36 See intal.be/files/20101121_written_statement_RToP_Dexia_-_mario_franssen.pdf.
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to support the construction of settlement facilities, such as schools and community centres, all of which were transferred through Dexia Israel.37 It should be noted that Dexia Israel’s activities have also included managing personal bank accounts and mortgage loans for home buyers.38
38. Can the Dexia Group be held accountable for mortgages and loans granted by Dexia Israel to Israeli settlements? As a subsidiary of the Dexia Group (the Dexia Group owns 100 per cent of Dexia Crédit Local, which in turn owns 65 per cent of Dexia Israel), there is a strong basis for imputing the activities of Dexia Israel to the Dexia Group. The methodology of the legal analysis set out above will be applied to this case study in order to assess the grounds for making such an argument. Although that analysis focused on corporations generally, it appears to be accepted that providers of financial services can also be held criminally liable for aiding and abetting crimes. The International Commission of Jurists stated that:
The criminal liability of a financier will depend on what he or she knows about how his or her services and loans will be utilised and the degree to which these services actually affect the commission of a crime. Criminal liability may be less likely for a lender or financier who supports a general project or organisation as opposed to the financier who knowingly facilitates specific criminal activities through funding them or dealing with proceeds of the crimes.39
1. International humanitarian law
39. Dexia Israel’s transactions with Israeli settlements render the Dexia Group a business corporation involved in the occupation of Palestine, and it can therefore be held responsible for violating international humanitarian law. Settlements are illegal because of the fact that they are built on occupied land. They are closely linked to the ongoing conflict and the belligerent occupation. Dexia Israel’s activities facilitate the growth of settlements, which demonstrates that the majority shareholder Dexia Group is complicit in violating international humanitarian law because, by transferring members of the Israeli population into occupied Palestine, Israel is violating article 49 (6) of the Fourth Geneva Convention, which, owing to its scale and intentionality, is a prima facie war crime.
40. Moreover, as States parties to the Geneva Conventions, Belgium and France are obligated to respect and ensure respect for the Conventions. At present, they are majority shareholders in a company that provides loans and mortgages to settlements in occupied Palestine and, in this connection, are violating their obligation to ensure respect for the Conventions.
2. International human rights Law
41. Dexia Israel, through its transactions with settlements, is aiding and abetting human rights infringements on the right of property, the right to equality, the right to a suitable standard of living and the right to freedom of movement, among other
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37 Who Profits research paper submitted to the Special Rapporteur, July 2013.
38 Who Profits, “Financing the Israeli occupation” (2010). Available from whoprofits.org/content/
financing-israeli-occupation.
39 International Commission of Jurists, Corporate Complicity and Legal Accountability, vol. 2
(Geneva, 2008), pp. 39-40.
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human rights. The Guiding Principles on Business and Human Rights consider the relevance of complicity to its concept of due diligence: “questions of complicity may arise when a business enterprise contributes to, or is seen as contributing to, adverse human rights impacts caused by other parties”.40 As a majority shareholder, liability extends to the Dexia Group. Belgium and France are also under a responsibility to take steps to prevent and punish the activities of private actors within the Dexia Group that have violated the law.16 Moreover, as owners of the Dexia Group, Belgium and France have an explicit duty to take appropriate action in the face of human rights abuses, including activities of its subsidiary, Dexia Israel, that support the growth of settlements. By failing to do so, these States are not fulfilling their duties under human rights treaties, such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. This duty is recognized by the Guiding Principles, which highlight that, when a State controls a company, its violations may also constitute a violation of the State’s own international law obligations.41 If a State owns or controls a business, it has the direct means of ensuring that policies, legislation and regulations that respect human rights are implemented.42
42. Self-regulating mechanisms within corporations are relevant to assessing responsibility for potential human rights violations.43 It is regrettable that the Dexia Group has withdrawn from the Global Compact. The observation of the Special Rapporteur in his previous report that the Dexia Group was not up to date on its reporting requirements was intended to encourage compliance, but indications suggest that the Dexia Group has unfortunately chosen to follow an opposite course of action.
3. International criminal law
43. Individual criminal responsibility for the activities of Dexia Israel potentially extends to individual employees of the Dexia Group. Both Belgium and France are States parties to the Rome Statute, rendering their nationals within the jurisdiction of the International Criminal Court. Therefore, charges could be presented against Dexia Group employees for complicity in the war crime of establishing settlements in the occupied territory of Palestine. Take for example Dexia Israel’s proposal to grant a loan of 2.5 million new Israeli shekels to Ariel settlement. Ariel is one of the oldest and most prominent settlements in the West Bank. If Dexia Israel is providing mortgage loans for homebuyers in Ariel or to the regional council, or facilitating grants allocated by Mifal HaPais, these types of assistance directly contribute to the settlement’s growth, and therefore materially facilitate the transfer of Israeli citizens to occupied territory. Based on information available to the Special Rapporteur, there is a reasonable basis for concluding that Dexia Israel’s activities provide the financial assistance for the construction, sustainability and maintenance of settlements such as Ariel and Kedumim. It can be reliably presupposed that Dexia Israel is fully aware of the activities for which it provides financial support, and therefore knowingly assists in the establishment and maintenance of settlements. In turn, it can be assumed that, by owning 65 per cent of the bank, the Dexia Group has
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40 A/HRC/17/31, annex, para. 17.
41 A/HRC/17/31, annex, para. 4.
42 Office of the United Nations High Commissioner for Human Rights, “The corporate responsibility
to respect human rights: an interpretive guide”, p. 22; see also A/HRC/17/31, annex, para. 14.
43 A/HRC/17/31, annex, paras. 15 and 16.
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knowledge of the loans its subsidiary grants, and therefore individual criminal responsibility can be attributed to employees in the Dexia Group who have knowledge of the activities of their subsidiary in Israel.
4. State responsibility
44. In addition to individual criminal responsibility, the question of State responsibility is relevant to this analysis. When a State commits an internationally wrongful act (complicity in a war crime), it is obligated to cease the act and make appropriate assurances not to repeat it. In this case, it would appear that Belgium and France must ensure that Dexia Israel stops providing loans and ceases the transfer of Government grants to settlements and settlement-related activities. Further, the State must make full reparation for the injury caused by its past wrongful acts. In this case, Belgium and France could be responsible for reparations to Palestinians adversely affected by settlements that received loans and mortgages from Dexia Israel. Reparation can take the forms of restitution, compensation and satisfaction. The fact that the Dexia Group is now State-owned means that State responsibility and individual criminal responsibility are potential modes of liability. Considering the concern and objections that have been voiced by the European Union about Israeli settlement activity, political and civil society pressure on the Governments of Belgium and France to sell its shares in Dexia Israel may be the most appropriate step to take if compliance is to be belatedly achieved.44
5. Civil liability
45. Domestic courts have been faced with litigation against financial institutions, albeit resulting in different verdicts.45 In most jurisdictions it must be proven that the banks knew about the criminal activity of the borrower they were financing and could foresee the effects of the loan and the harmful consequences resulting from the transaction.46 Civil liability could therefore be potentially imposed on the Dexia Group as an institution, on individuals within the corporation, and/or on Belgium and/or France as owners. The recent Court of Versailles decision on the Jerusalem light rail indicates that, in France at least, civil liability may be difficult to establish in a judicial setting. However, the judicial record of past receptivity by Belgium to universal jurisdiction suggests it may be more ready to respond sympathetically to such an initiative.47
46. In relation to civil liability, certain financial entities have demonstrated an increasing awareness of corporate social responsibility and the potential legal
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44 See European Union, “Statement by the Spokesperson of the High Representative Catherine Ashton on renewed plans for Israeli settlements in and around East Jerusalem”, 31 May 2013. Available from consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/foraff/137350.pdf.
45 See, for example, South African Apartheid Litigation, 617 F. Supp. 2d 228, 260-262 (S.D.N.Y. 2009) and Almog v. Arab Bank, 471 F. Supp. 2d at 257 (E.D.N.Y. 2007).
46 See Juan Pablo Bohoslavsky and Veerle Openhaffen, “The past and present of corporate complicity: financing the Argentinean dictatorship”, Harvard Human Rights Journal, vol. 23 (2010).
47 It should be noted that, as a result of issues raised by the Sharon case (La Cour de Cassation,
24 September 2003), which was before the Cour de Cassation at the time, legislators in Belgium made changes to the Amendment to the Law of June 16, 1993, Concerning the Punishment of Grave Breaches of Humanitarian Law (5 August 2003), requiring a direct Belgian link for a case to be heard before the courts.
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ramifications relating to Israeli settlements. The Norwegian Government Pension Fund Global excluded the construction company Shikun & Binui because of its involvement in the construction of settlements. The Ethical Council of four of the largest pension funds in Sweden excluded Elbit Systems because of its involvement in the construction and maintenance of the wall. The New Zealand Government Superannuation Fund divested from Elbit Systems, Africa-Israel Investments Limited and its subsidiary Danya Cebus, and Shikun & Binui because of their participation in either the construction of settlements or the wall.48
47. Investment committees have recommended that large European banks refuse to extend financial assistance to Israeli companies that manufacture, build or sell products in Palestine and to banks that grant mortgages to builders or buyers of housing therein. The Dexia Group would fall within the latter category. According to Haaretz, the recommendations have been put on hold following pressure from Israel exerted in the context of a diplomatic initiative led by the United States.49 Nonetheless, the recommendations, the response by the Government of Israel and related reporting in the Israeli press indicate that financial institutions are increasingly concerned about their legal and moral responsibilities associated with any dealings involving the settlements.
B. Re/Max International
48. Re/Max International is a privately held real estate company in the United States that has an international network of franchisee-owned and operated offices. Re/Max International receives 1 per cent of the revenue of sales and a flat fee per associate.50 Re/Max International franchises its international brand name affiliation and recognition, start-up training, ongoing training, technological resources, and advertising and marketing support.51 Re/Max Israel is itself a franchise of Re/Max International. It opened in 1995 and has more than 100 branches, including in settlements on the West Bank. Israeli branches advertise properties and execute sales of settlement homes in the West Bank.52 The Re/Max Israel franchise office in Jerusalem, called Re/Max Vision, targets international clients who may be interested in purchasing a home in or around Jerusalem.53 Re/Max International promotes the same properties on its website. A search of its website in June 2013 indicated that there were 51 residential properties advertised in 9 settlements.54
49. Can Re/Max International be held accountable for settlement properties sold by Re/Max Israel? By providing international brand name affiliation and recognition, start-up training, ongoing training, technological resources, and advertising and
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48 Jan Willem van Gelder, Barbara Kuepper and Ewoud Nijhof, “Dutch economic links with the occupation”, research paper prepared for Cordaid (Amsterdam, Profundo, 2013), p. 17. Available from cordaid.org/media/publications/Report_Dutch_economic_links_with_the_occupation_ 1.pdf; see also Norwegian People’s Aid, “Dangerous liaisons: Norwegian ties to the Israeli occupation” (2012). Available from npaid.org/Media/20_Files/Om-oss/Annual-reports/ Dangerous-liaisons.
49 “Danger ahead: an Israel boycott”, editorial, Haaretz, 14 July 2013.
50 See remax-franchise.com/fs/home/general_content/faqs.
51 See remax-franchise.com/fs/helping-you-succeed/training-and-support.
52 See remax-israel.com/OfficeProfile.aspx?OfficeID=5012.
53 See remax-capital.com/new/html/project_2_about.php.
54 Http://global.remax.com.
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marketing, as well as by profiting from such sales, Re/Max International has constant interaction and influence over its franchises. Similar to the Dexia Group case study, the methodology used in the legal analysis set out below will be applied in order to assess the legal plausibility of such a case.
1. International humanitarian law
50. Promoting the sale of (for example by advertising) or selling property on or as part of a settlement contributes to the commission of the international crime of transferring citizens of the Occupying Power onto occupied territory. In fact, advertising and selling such properties to citizens of the Occupying Power constitute instances par excellence of participating in such transfers.
2. International human rights law
51. The responsibility to respect human rights requires businesses to avoid contributing to adverse human rights impacts and to mitigate such impacts when linked to their operations.55 Re/Max International, through selling properties on Palestinian land, is directly contributing to adverse human rights impacts, such as the restrictions on freedom of movement that obstruct Palestinians’ access to land, which is often used for agricultural purposes, and arbitrary and unlawful interference with Palestinians’ privacy, family and home.56 States parties to the International Covenant on Civil and Political Rights are obliged to regulate the conduct of private groups and ensure that such conduct will not result in violating human rights and, where it does, ensure that effective remedies are available.
52. Re/Max International’s code of ethics states that “its affiliates shall undertake to eliminate any practice by real estate professionals in their community which could be damaging to the public”.57 The statement reveals two things. First, if the Palestinian population is considered to be part of the public in Israel (given that Israel effectively controls the population) then the establishment of settlements is clearly damaging to that sector of the public. Second, the code of ethics extends to the “affiliates” of Re/Max International, which form part of its “community”, therefore reconfirming the connection between the global company and its local franchises.
3. International criminal law
53. Neither the United States nor Israel are States parties to the Rome Statute. That makes it difficult to bring a case of complicity against a Re/Max International employee, except if the employee is a national of a party to the Rome Statute. In terms of the causal connection between Re/Max International and its franchises, the fact that it advertises on its website the sale of the properties in settlements demonstrates that it knows about such sales and draws a 1 per cent profit from each sale. Again, by providing international brand name affiliation and recognition, start-up training, ongoing training, technological resources, and advertising and marketing, Re/Max International has an ongoing interaction and influence over its franchises. The Special Rapporteur believes that a strong case could be made that this amounts to knowing assistance in the commission of a crime. Further, the explicit connection of
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55 A/HRC/17/31, annex, para. 13.
56 See General Assembly resolution 2200 A (XXI), annex, articles 12 and 17 and the individual
complaint by the Norwegian Refugee Council to the Human Rights Committee, 28 February 2013. 57 See, for example, remax-fun.at/?id=qualitaeten&lang=en.
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individual salespersons to the promotion and sale of homes in Israeli settlements greatly increases prospects for holding individuals accountable for such crimes.
4. Civil liability
54. Civil liability for corporate complicity may prove a difficult avenue for redress in this case. The United States Supreme Court decision on Kiobel v. Royal Dutch Petroleum Co. presents a challenge to litigation against corporations through the Alien Tort Statute, which had been a valuable mechanism to hold corporations accountable for violating international law.58 This would make it difficult to bring a case of corporate complicity against Re/Max International in the United States. Nonetheless, civil liability could be prosecuted against individuals within Re/Max International for their role in knowingly assisting in the commission of a crime by providing advertising and other administrative support to Re/Max Israel’s property sales in the West Bank, including East Jerusalem. Furthermore, the Guiding Principles on Business and Human Rights emphasize that States must take appropriate steps to ensure that effective remedy is available through judicial, administrative and legislative means.59
55. Real estate agents who promote and/or sell properties in settlements in Palestine to citizens of the Occupying Power may be held liable for complicity in the crime of promoting settlement activity in occupied territory. While the present case study examined Re/Max International, the same analysis would apply to other real estate agencies. The unavailability of civil relief in United States court at the present time does not establish that such a remedy might not be available in other national legal systems.
C. Conclusions on case studies
56. The present report proposed a model for legal analysis by focusing on two companies chosen for the particular ways in which their activities potentially implicate them in international crimes. The legal model can be applied to other situations and other companies. The Special Rapporteur stresses again that the companies discussed herein are illustrative examples; however, some conclusions can be drawn about the case studies.
57. Financial institutions and real estate agents may be held accountable for their involvement with settlements in occupied Palestine. Pressure by the international community to uphold international law is no longer limited to States as the primary duty-bearers. Companies, individuals and groups can be implicated for behaviour that contributes to wrongful acts. The Dexia Group and Re/Max International, in different ways, assist in the growth of settlements: the Dexia Group by providing financial services connected to the settlements, and Re/Max International by selling settlement properties. In terms of assessing the causal connection to the policy and practice by Israel of transferring its citizens to Palestine, this must largely be based on the connection between the global companies and the settlement activity. Do the activities of the global companies directly contribute to the violations of international
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58 The Alien Tort Statute is a legal instrument that enables plaintiffs to sue persons, including foreigners, who acted outside United States territory for breaches of international law before United States district courts.
59 A/HRC/17/31, annex, paras. 25 and 26.
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law that the settlements constitute? Voluntarily playing a causal role in the commission of a crime can in certain instances be enough to make them accomplices to that crime.
V. Water and sanitation in the West Bank and Gaza Strip
58. During the mission of the Special Rapporteur to the Gaza Strip in December 2012, a number of interlocutors raised serious concerns about the lack of clean water and adequate sanitation facilities in the Gaza Strip. Some of those issues were briefly touched upon in the previous report of the Special Rapporteur to the Human Rights Council.8 In the context of the near exclusive control by Israel over all underground and surface water resources in Palestine, the Special Rapporteur reiterates his concerns regarding the occupation-induced water and sanitation crisis.
The situation in the Gaza Strip
59. In the Gaza Strip, 90 per cent of water in the underlying coastal aquifer beneath the Gaza Strip is unfit for human consumption as a result of pollution caused by raw sewage and rising seawater infiltration. In 2012, the United Nations reported that the coastal aquifer on which the Gaza Strip is almost completely reliant could become unusable as early as 2016, with the deterioration becoming irreversible by 2020. Polluted tap water has forced many families to buy expensive water from external vendors or to rely on desalinated water supplied by the Coastal Municipalities Water Utility, putting an unreasonable burden on average household incomes, which are already struggling at or below subsistence levels. Under these circumstances, most Gazans consume an average of 70 to 90 litres per person per day, which is well below the global standard set by the World Health Organization.1
60. The Israeli blockade of Gaza has exacerbated water scarcity and lack of adequate sanitation facilities. Delays and restrictions on the entry of materials through the Israeli-controlled Kerem Shalom crossing have stalled a number of water and sanitation infrastructure projects. Furthermore, Israel not only extracts a disproportionate share of the water from the coastal aquifer for its own benefit but also blocks the Gazan population from accessing water from the Wadi Gaza, a natural stream that originates in the Hebron Mountains and flows to the Mediterranean Sea.
61. Water scarcity in Gaza has been worsened by the repeated destruction of water and sanitation infrastructure in the course of Israeli military operations.60 Israel has destroyed at least 306 wells in the Access Restricted Areas of Gaza since 2005.61 In this context, the Special Rapporteur strongly condemns the targeting of water and sanitation facilities during Israeli military operations, which cannot be justified as a military necessity, and cannot be explained as a consequence of accidents.
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60 See A/HRC/22/35/Add.1.
61 Emergency Water and Sanitation-Hygiene Group, “Fact sheet 13: Water and sanitation in the
Access Restricted Areas of the Gaza Strip” (December 2012). Available from ewash.org/files/ library/factsheet%20jan%2021[1].pdf.
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The situation in the West Bank
62. Palestinians in the West Bank are denied their rightful share of water from the underground mountain aquifer and prevented from accessing water from the Jordan River, which are both classified as shared water resources and thus must be shared equitably under customary international law.62 An estimated 500,000 Israeli settlers in the West Bank and East Jerusalem enjoy approximately six times the amount of water used by the Palestinian population of 2.6 million.63 Israeli settlers enjoy ample amounts of water channelled directly to the settlements, which allows settlers to irrigate agricultural land and grow water-intensive crops. In contrast, Palestinian farmers depend largely on water supplies transported in tankers or collected by water cisterns, raising agricultural costs and restricting most Palestinian agriculture to unprofitable small-scale operations growing rain-fed crops, which on average is 15 times less profitable than irrigated crops. In this context, only 6.8 per cent of land cultivated by Palestinians in the West Bank is irrigated.64
63. The unequal distribution of water resources has been sustained by the Joint Water Committee, which was established as part of the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip. Mandated to grant permits for the drilling and rehabilitation of wells and sewage systems, the Committee is also responsible for setting water extraction quotas. The veto power of Israel on decision-making by the Committee has enabled it to constrain the development of water infrastructure for Palestinian communities, particularly in Area C of the West Bank. In addition, all Palestinian water projects located in Area C need to obtain approval from the Israeli Civil Administration. The Special Rapporteur finds it alarming that from 1995 to 2008, the Committee approved Israeli proposals for 3 wells and 108 supply networks and rejected only 1 of 24 proposed wastewater projects, while during the same period it approved only half of all Palestinian proposals for wells.63
64. The loss of scarce Palestinian water resources occurs not only through demolitions undertaken by Israeli authorities of “illegal” water collection facilities, including wells and water collection tanks, but also as a result of deep-water drilling activities by Israeli water companies. The Special Rapporteur is also concerned by acts of violence by settlers in the vicinity of Palestinian communities; there are several reports of Palestinian springs being taken over by settlers and fenced off.65
65. Israel systematically blocks the development of the Palestinian wastewater and sanitation sector through bureaucratic constraints imposed by the Joint Water Committee and the Israeli Civil Administration. Between 1995 and 2011, only 4 out of 30 Palestinian wastewater treatment plant proposals were approved by the Committee and their construction has been repeatedly delayed. It is of serious
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62 Palestinian Water Authority, “Palestinian water sector: status summary report”, report prepared for the meeting of the Ad Hoc Liaison Committee (September 2012). Available from http://reliefweb.int/sites/reliefweb.int/files/resources/Water%2520summary%2520for%2520AH LC%2520report%2520FINAL.pdf.
63 Elizabeth Koek, Water for One People Only: Discriminatory Access and “Water-Apartheid” in the OPT (Ramallah, Al-Haq, 2013).
64 Emergency Water and Sanitation-Hygiene Group, “Fact sheet 14: Water for agriculture in the West Bank” (March 2013). Available from ewash.org/files/library/WB%20factsheet%20 fianl%20march%209[1].pdf.
65 See A/HRC/22/63 and Oxfam, On the Brink: Israeli Settlements and Their Impact on Palestinians in the Jordan Valley (Oxford, 2012).
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concern to the Special Rapporteur that there is only one functioning Palestinian wastewater treatment plant in the West Bank, which has the capacity to treat less than 3 per cent of sewage.62
66. Meanwhile, Israeli authorities profit from the occupation-induced crisis by treating up to 21 per cent of Palestinian sewage in facilities established inside Israel and paid for by Palestinian tax revenues withheld by Israel. The treated wastewater is then reused for the exclusive benefit of the Israeli agricultural sector.62 The difficulties experienced by Palestinian communities in securing sewage treatment facilities contrasts with the wastewater treatment plants servicing the settlements, which makes a mockery of the relevance of international humanitarian law in the protection of an occupied people.
The Palestinian right to water and development
67. Considering the unlawful policies and practices of Israel that induce a water and sanitation crisis in occupied Palestine, the Special Rapporteur stresses that the Palestinian Authority has neither been able to uphold Palestinian water rights nor embrace the right to development of water and sanitation facilities.66 Support from the international donor community for ad hoc solutions, such as financing desalination plants and sanitation facilities to meet the immediate needs of the Palestinian population, must go hand in hand with pressure exerted on Israeli authorities to put an end to its discriminatory policies. In sum, the discriminatory pattern disclosed is aggravated by the fact that while the Palestinians are being denied their rights to resources situated within Palestine, settlements have been the beneficiaries of these Israeli policies. In effect, illegality is compounded by illegality, with the result being impending threats of de-development hanging over the Palestinian future in the Gaza Strip, and to a lesser degree in the West Bank.
VI. Recommendations
68. If current diplomacy fails to produce a solution to the underlying conflict, the Special Rapporteur recommends that the General Assembly request an advisory opinion from the International Court of Justice as to the legal consequences of the prolonged occupation of Palestine.
69. The Special Rapporteur recommends that the Government of Israel cease expanding and creating settlements in occupied Palestine, start dismantling existing settlements and returning its citizens to the Israeli side of the Green Line and provide appropriate reparations for the damage due to settlement and related activity since 1967.
70. The Special Rapporteur recommends that the Government of Israel inform Israeli businesses that are franchises and subsidiaries of global companies that profit from activity with the settlements of their corporate
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66 The International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of All Forms of Discrimination against Women; the Convention on the Rights of the Child; and the Convention on the Rights of Persons with Disabilities entail obligations for States parties in relation to access to safe drinking water and sanitation. Israel has ratified the aforementioned Conventions except for the Convention on the Rights of Persons with Disabilities, to which Israel is a signatory.
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responsibilities and the international legal ramifications of such business activities, in particular concerning potential liability for corporate complicity in overseas domestic courts.
71. The Special Rapporteur recommends that Belgium and France compensate Palestinians who have been directly affected by the settlements to which Dexia Israel has provided mortgages or administered grants.
72. The Special Rapporteur recommends that copies of the present report be forwarded to Robert de Metz (Chair of the Board of the Dexia Group) and David Liniger (Chair and founder of Re/Max International). It is strongly recommended that each of these two companies undertake a prompt review so as to bring it, its affiliates and its employees’ policies and practices into full compliance with the laws and standards mentioned in the present report.
73. The Special Rapporteur recommends that the Dexia Group and Re/Max International should agree to comply with and adopt clear guidelines for future corporate social responsibility based on the Guiding Principles on Business and Human Rights.
74. The Special Rapporteur recommends that civil society in Belgium and France be urged to pressure their Governments to sell their shares in the Dexia Group and encourages civil society to demand that all businesses cease their activities that relate to the settlements and henceforth insist that companies act in accordance with the Guiding Principles on Business and Human Rights.
75. The Special Rapporteur recommends that all companies with relations to the settlements comparable to those of the Dexia Group and Re/Max International review their arrangements with an eye towards respect for international law and the Guiding Principles on Business and Human Rights.
76. The Special Rapporteur recommends that Israel immediately end its discriminatory policies and practices that serve to deny Palestinians their rightful share of water resources in the West Bank and the Gaza Strip. In particular, Israel must cease the demolition of water collection facilities, including wells and water tanks, on the pretext that they operate without valid permits.
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Malala and Eartha Kitt: Words that Matter

22 Oct

Unknown-4Malala and Eartha Kitt: Words that Matter

There are two ways of responding to an invitation from an American  president. I recall that when Amory Lovins, the guru of market-oriented environmentalism, was asked about what was his main goal when invited to the White House to meet the president he responded self-assuredly: ‘To be invited back.” That is, be sure to say nothing that might so disturb the high and mighty to an extent that might jeopardize future invitations. A positive reading of such an approach would point out that Lovins was just being realistic. If he hoped to have any influence at all in the future he needed to confine his present advice to an areas situated well within the president’s comfort zone. A less charitable interpretation would assume that what mattered to Lovins was the thrill of access to such an august portal of power.

Never receiving such an invitation, I had a lesser experience, but experienced similar temptations, being invited by a kind of institutional miscalculation to be the banquet speaker at West Point at the end of an international week at this elite military academy in which the cadets and representatives from a couple of hundred colleges had been fed the government line by top officials at the Pentagon and State Department. The officer tasked with arranging the program decided that

it might be more interesting to have for once a speaker who had a more critical outlook on the U.S. role in the world. I was invited, and accepted with mixed feelings of being both co-opted and challenged. It turns out that the seductive part of the occasion was to find myself housed in a suite normally reserved for the president or Secretary of Defense; it was luxurious and so spacious that it took me some time to locate the bedroom, although I did almost immediately find the fridge stocked with beer and food. First things first. Anyway, after a momentary crisis of confidence, I decided that I should not give in to the lure of this splendid treatment. Despite some pangs of self-doubt, I went ahead and presented my prepared talk on “The Menace of American Militarism.”

The time was just after the end of the Vietnam War, and my remarks that evening were greeted with enthusiasm by the invited delegates from other colleges around the country who had endured a week of high level government propaganda, with mixed responses from the several hundred cadets who seemed divided in their reactions to what I had said, and with stony silence by the West Point faculty who evidently felt that I abused the occasion, and even at the social reception afterwards refused to talk with me or look in my direction. I suppose the justification in their view was that rudeness begets rudeness. Actually, I would have welcomed discussion of my essential contention that a permanent war footing since 1945 was hurting American society in ways difficult to overcome, creating a militarized political culture, but it was not to be. Sullen silence was their only response on that evening long ago.

The most dramatic moment at the talk occurred during the question period when a young female cadet stood up, and said some words to this effect,”[a]s I am persuaded by what you have said, would you advise me to resign my commission?” This was a challenge for which my text had no answers, nor was the audience ready for such drama. There was total silence in the vast hall. It is one thing to encourage a critical view of the role of the military in American and global society, it is another to encroach upon the life decisions of a young person whose future is being rather fundamentally called into question. Without knowing how best to respond, and I still don’t after all these years, I more or less threw the question back at her, saying “[o]n such matters, only you can decide how best to live your life.” I never discovered what happened to her, but do not feel ashamed of my response. And overall, I felt that my overall performance had kept the faith. To prove it, I was never invited back, and since that was the test I had set for myself when I accepted the invitation, I felt that the evening, awkward as it became, was not a personal failure. Whether I made some among the audience of young people think a bit differently about the country, and war/peace and security issues, I will never know.

It is against this background that I was struck a few days ago by the marvelous display of courage and composure by Malala Yousafzai who went to the White House, and media venues of great influence (The Daily Show, Diane Sawyer), to continue with her advocacy of the right of girls everywhere, but especially in her native Pakistan and Afghanistan, to receive an education, but also to link human security with the abandonment of war and violence. Malala was a kind of child marvel, apparently speaking in her neighborhood throughout the Swat Valley of such issues from the age of nine with astonishing fluency and intelligence. The fact that she was shot in the face by a Taliban extremist on her way home in a school bus a year ago gave her life and cause an immediate visibility around the world. When she rather miraculously recovered (the bullet grazing her brain) and resumed her campaign, there was an understandable admiration for a girl so young who was not only courageous, but had this burning passion for knowledge and education, but also was urging whoever would listen that war and violence could not lead humanity to a better future. Her advice: “Instead of sending guns, send pens, instead of sending tanks, send books.” “You are powerful when you have a pen because through a pen you can save lives and that’s the change we want to bring to our society.” It was a message that needed to be heard in Washington, and Malala was the ideal messenger! In fact, Washington was receptive to the education part of the message, but to the anti-war part, which it did its best to ignore.

When emerging from her meeting with the Obama family at the White House her statement was brilliantly crafted to catch the light of the occasion as well as to dispel its darkness:  “I thanked President Obama for U.S. work in supporting education in Pakistan and Afghanistan and for Syrian refugees. I also expressed my concerns that drone attacks are fueling terrorism. Innocent victims are killed in those acts, they lead to resentment among the Pakistani people. If we refocus on education it will make a big impact.” The White House also made a statement praising Malala for her commitment to education and courage, but pointedly overlooking that part of her comment devoted to drones. Such silence in view of such a challenge has an eerie quality.  Such a reaction from the president tried to make Malala stand for only a message about education, when in reality her real message was to connect education with peace and real security. Not since the great seer of Brazil, Paolo Friere, told of the emancipatory potential of teaching illiterate peasants how to read and write had someone so powerfully linked learning and empowerment (see Friere’s Pedagogy of the Oppressed for a transformative account of his work in the Brazilian countryside).

Of course, so long as Malala’s exploits validated an anti-Islamic and pro-American slant, it is a no brainer to celebrate her achievements, even lamenting the oversight by the Nobel Prize selection committee, and generally commend a campaign that wants to see girls everywhere empowered by education. The harder part is being able to listen to a critical comment that touches on a life and death issue such as the terror wrought by drones in Pakistan. In my view, for Obama to ignore that part of Malala’s message is to dishonor her visit, and exploit it for his own public relations purposes! It is somewhat odd that Obama failed to listen to Malala whole message. After all, only recently did the United States Government announce that it is ceasing drone attacks on Pakistan due to the adverse reactions among Pakistanis. Obama seemed able to listen to Medea Benjamin a few months  ago when she disrupted his drone talk at the National Defense University. Obama might have used this occasion to acknowledge that he was listening and heeding the cries of anguish coming from distant communities facing the terrorizing threats of drone warfare, but then again, I should know better. Our warrior presidents always seem afraid of appearing weak if they show the slightest compassion for the victims of our militarism, while proudly standing tall while weeping over the bodies of those victimized by the enemy as in relation to the recent.

Malala’s experience reminded me of another White House event 45 years earlier. Eartha Kitt, a beloved African American singer who whispered her sensual lyrics into the microphone, earning her the alluring label of ‘sex kitten,’ was invited to the White House as one of fifty prominent women to discuss the rise of urban crime among American youth with the President Lyndon Johnson’s wife, Ladybird. It was January 1968 at the height of the Vietnam War, which was casting a dark shadow over the LBJ’s presidency, so much so that he would shock the country a few months later by decreeing a bombing pause in the war and announcing his completely unexpected decision not to seek a second presidential term in office. When Eartha Kitt was given the opportunity to speak a few words she seized the moment, saying what any reasonably sensitive person well understood, that there were connections between sending young Americans off to risk death in a senseless war and the alarming drug/crime scene in the country’s cities. But for the mostly white and august women at this White House luncheon it was a shocker. The rest of the  guests, apparently without exception, were reported to react in “embarrassed silence” to what the NY Times condescendingly described as “an emotional tirade against the war.”  Worse yet, Ladybird Johnson was “stunned” and “in tears,” presumably realizing that her ‘do good’ luncheon had collapsed before the desert had even been served.  This smart Texas First Lady was personally bold and liberal, inviting popular cultural figures such as Eartha Kitt along with her more reliably loyal cohort to discuss a national issue. But what does Eartha Kitt do, but spoil the occasion by refusing to play along, and treat urban crime as some sort of domestic disorder that could be delinked from the Vietnam War. Such delinking was absurd, considering that it was the poor and minorities who were doing most of the fighting and dying in Vietnam.

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Eartha Kitt’s comments at the White House luncheon are worth recalling: “You send the best of the country off to be shot and maimed. They rebel in the streets. They take pot…and they will get high. They don’t want to go to school because they’re going to be snatched off from their mothers to be shot in Vietnam.” Perhaps, not the most eloquent statement, but it was authentic, replete with genuine feelings.  She was made to pay dearly for these words of truth telling. In a chilling aftermath, Eartha Kitt’s career came virtually to an end. Many contracts to appear at clubs were cancelled, few new opportunities for performances or recordings emerged, her career was severely damaged, if not destroyed. Nothing was forthcoming from the White House in her defense. To her credit, despite these cruel pressures and harsh backlash, Eartha Kitt never backed down, never apologized.

I connect Malala and Eartha Kitt in my mind because both seized the moment to speak truth to power, probably sensing that it meant they would never be invited back, and for Eartha Kitt it was worse than that. It seems almost certain that neither of these fearless women would have been invited in the first place if their intentions to speak out had been known in advance. America is a democracy so long as its dirty laundry is kept from public view, but when such obvious moral failures as the Vietnam War or drone attacks are exposed, the response from on high is one of shocked hurt, anger, or at best, silence and deflection. Revealingly, for Earth Kitt the response was vindictive, but for Malala it is likely to be one of moving on, ignoring the drone comment, and refocusing on the liberal part of her mission as a crusading advocate of education for women as a matter of right (while suppressing the more radical part that condemns warmaking and military intervention). Happily for the White House, the media played along, emphasizing how Malala giggled like a young and innocent adolescent when she met the queen in Buckingham Palace a few days later.

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