Again Libya

27 Mar

Again Libya

It is that time

It is that time again

to call a spade a heart

Protecting the people of that desert country

by killing them

Doing so with righteous zeal

these faux servants of the UN

Humanist hawks and nostalgic imperialists

gather in a single tent

To once more break bread spill blood

Yes, but:

Qaddafi a genuine monster on the prowl

a demented killer

Addressing his tormented people as ‘rats and dogs’

Promising a hunt ‘alley by alley,

house by house, room by room’

Decreeing death for those fools

who dare snuff his candle

But war for whom? For what? Whose war?

For the clouds above

and their shadows below

For those who breakfast on oil

For surly arms dealers with mean grins

this war pleases merchants of death

As surely giant purchase orders will follow

Almost as the guns fall silent

The ‘rebels’ cheer the advent of missiles

but who are the rebels

Even their flags seem ill-chosen, evoking a lost past

Their struggle seems real, their bravery real

And yet does it matter– it is no longer their war

It has become our war to win lose or draw

They asked for this happening perhaps unknowingly

Didn’t they? Didn’t we?

As night falls Mars keeps smiling

Unlike some gloom at the Pentagon

where past lost wars are less easily forgotten

And yet these sullen military faces cannot bring peace

nor even rouse their tasered citizenry to dissent

Nor ban news channels glutted with agit-prop

at best a few wisely searching elsewhere for the real

Even sports or animal shows tell more truths these days

III..27…2011

Qaddafi, Moral Interventionism, Libya, and the Arab Revolutionary Moment

20 Mar

Qaddafi, Moral Interventionism, Libya, and the Arab Revolutionary Moment

Long ago Qaddafi forfeited the domestic legitimacy of his rule, creating the moral and political conditions for an appropriate revolutionary challenge. Recently he has confirmed this assessment by referring to the disaffected portion of his own citizenry as ‘rats and dogs’ or ‘cockroaches,’ employing the bloodthirsty and vengeful language of a demented tyrant. Such a tragically criminal imposition of political abuse on the Libyan experience is a painful reality that exists beyond any reasonable doubt, but does it validate a UN authorized military intervention carried out by a revived partnership of those old colonial partners, France and Britain, and their post-colonial American imperial overseer?

From a personal perspective, my hopes are with the Libyan rebels, despite their reliance on violence and the opaqueness  of their political identity.  As many credible exile Libyan voices attest, it would seem highly likely that a rebel victory would benefit the people of Libya and would be a step in the right direction for the region, especially the Arab world, but does this entail supporting Western-led military intervention even if it is backed by the United Nations? I believe not.

Let us begin with some unknowns and uncertainties. There is no coherent political identity that can be confidently ascribed to the various anti-Qaddafi

forces, loosely referred to as ‘rebels.’ Just who are they, whom do they represent, and what are their political aspirations? It is worth observing that unlike the other regional events of 2011 the Libyan rising did not last long as a popular movement of a spontaneous character, or unfold as a specific reaction to some horrific incident as in Tunisia. It seemed, although there is some ambiguity in the media reports, that the Libyan oppositional movement was armed and reliant on military force almost from the start, and that its political character seems more in the nature of a traditional insurrection against the established order than a popular revolution in the manner of Tahrir Square inspired by democratic values. This violent political reaction to Qaddafi’s regime seems fully justified as an expression of Libyan self-determination, and as suggested deserves encouragement from world public opinion, including support from such soft power instruments as boycott, divestment, and maybe sanctions. By and large, the international community did not resort to interventionary threats and actions in Libya until the domestic tide turned in favor of Tripoli, which means that the intervention was called upon to overcome the apparent growing likelihood that Qaddafi would reestablish order in his favor, and therefore this international intrusion on the conflict represents a coercive effort to restructure a country’s governing process from without.

The main pretext given for the intervention was the vulnerability of Libyan civilians to the wrath of the Qaddafi regime. But there was little evidence that such wrath extends beyond the regime’s expected defense of the established order, although admittedly being here undertaken in a brutal manner, which itself is not unusual in such situation where a government and its leadership is fighting for their survival. How is this Libyan response different in character than the tactics relied upon by the regimes in Yemen and Bahrain, and in the face of far less of a threat to the status quo, and even that taking the form of political resistance, not military action. In Libya the opposition forces relied on heavy weapons, while elsewhere in the region the people were in the streets in massive numbers, and mostly with no weapons, although in a few instances, with very primitive ones (stones, simple guns) that mainly were used in retaliation for regime violence.

It may have been the case that the immediate Libyan governmental response was predictably brutal and militarist, and that the rebel opposition felt that it had no choice. But it should have been clear from the experiences in Iraq and Afghanistan that military intervention against a hated and brutal regime is not the end of the story, and before the ending is reached violence cascades to heights far beyond what would have likely resulted had there been no intervention. In the process heavy casualties are inflicted and massive displacements occur causing immense suffering for the entrapped and innocent population. In effect, overall historical trends vindicate trust in the dynamics of self-determination despite the fact that short-term disillusioning disasters may and do occur from time to time. These trends similarly underscore the inherently problematic character of intervention, even given the purest of motivations, which rarely, if ever, exists in world politics on the side of intervening parties.

But it can be asked, what about Rwanda, Bosnia (especially, the massacre at Srebrenica)? Are not these instances where humanitarian intervention should have been undertaken and was not? And didn’t the NATO War in Kosovo demonstrate that humanitarian intervention does sometimes spare a vulnerable population from the ordeal of genocidal ethnic cleansing? With respect to Rwanda and Bosnia, the threat of genocidal behavior was clearly established, and could likely have been prevented by a relatively small-scale intervention, and should have been undertaken despite the uncertainties. The facts surrounding the alleged genocidal threat in Kosovo remain contested, but there was a plausible basis for taking it seriously given what had happened a few years earlier in Bosnia. But just as the Libyan rebels raise some suspicion by seeking Euro-American military intervention, so did the KLA in Kosovo engage in terrorist provocations that led to violent Serb responses, allegedly setting the stage in 1999 for NATO’s ‘coalition of the willing.’ NATO went ahead in Kosovo without the benefit of a Security Council mandate, as here, for military action ‘by all necessary means.’ But with respect to Libya there is no firm evidence of a genocidal intention on Qaddafi’s, no humanitarian catastrophe in the making, and not even clear indications of the extent of civilian casualties resulting from the fighting. We should be asking why did Russia signal its intention to veto such authorization in relation to Kosovo, but not with respect to Libya. Perhaps, the Russian sense of identification with Serb interests goes a long way to explain its opportunistic pattern of standing in the way on the earlier occasion when interventionary forces gathered a head of steam in the late 1990s, while standing aside in 2011 in deference to the Euro-American juggernaut.

One of the mysteries surrounding UN support for the Libyan intervention is why China and Russia expressed their opposition by abstaining rather than using their veto, why South Africa voted with the majority, and why Germany, India, and Brazil were content to abstain, yet seeming to express reservations sufficient to produce ‘no’ votes, which would have deprived the interventionist side of the nine affirmative votes that they needed to obtain authorization. Often the veto is used promiscuously, as recently by the United States, to shield Israel from condemnation for their settlement policy, but here the veto was not used when it could have served positive purposes, preventing a non-defensive and destructive military action that seems imprudent and almost certain in the future to be regarded as an unfortunate precedent.

The internal American debate on the use of force was more complex than usual, and cut across party lines. Three positions are worth distinguishing: realists, moral interventionists, moral and legal anti-interventionists. The realists, who usually carry the day when controversial military issues arise in foreign policy debates, on this occasion warned against the intervention, saying it was too uncertain in its effects and costs, that the U.S. was already overstretched in its overseas commitments, and that there were few American strategic interests involved. The moral interventionists, who were in control during the Bush II years, triumphantly reemerged in the company of hawkish Democrats such as Hilary Clinton and Joseph Biden, prevailing in the shaping of policy partly thanks to the push from London and Paris, the acquiescence of the Arab neighbors, and the loss of will on the part of Moscow and Beijing. It is hard to find a war that Republicans will not endorse, especially if the enemy can be personalized as anti-American and demonized as Qaddafi has been, and it always helps to have some oil in the ground! The anti-interventionists, who are generally reluctant about reliance on force in foreign policy except for self-defense, and additionally have doubts about the effectiveness of hard power tactics, especially under Western auspices. These opponents of intervention against Qaddafi were outmaneuvered, especially at the United Nations and in the sensationalist media that confused the Qaddafi horror show for no brainer/slam dunk reasoning on the question of intervention, treating it almost exclusively as a question of ‘how,’ rather than ‘whether,’ and once again failing to fulfill their role in a democratic society by giving no attention to the full spectrum of viewpoints, including the anti-intervention position.

Finally, there arises the question of the UN authorization itself by way of Security Council Resolution 1373. The way international law is generally understood, there is no doubt that the Security Council vote, however questionable on moral and political grounds and in relation to the Charter text and values, resolves the legal issue within the UN system. An earlier World Court decision, ironically involving Libya, concluded that even when the UN Security Council contravenes relevant norms of international law, its decisions are binding and authoritative. Here, the Security Council has reached a decision supportive of military intervention that is legal, but in my judgment not legitimate, being neither politically prudent nor morally acceptable. The states that abstained acted irresponsibly, or put differently, did not uphold either the spirit or letter of the Charter. The Charter in Article 2(7) establishes a prohibition on UN authority to intervene in matters ‘essentially within the domestic jurisdiction’ of member states unless there is a genuine issue of international peace and security present.  Here there was not the basis for an exception to non-intervention as even the claim was supposedly motivated solely to protect the civilian population of eastern Libya, and hence was squarely within the domestic jurisdiction of Libya.

Besides, the claim to intervene as stated was patently misleading and disingenuous as the obvious goals, as became manifest from the scale and nature of military action as soon as the operation commenced. The actual goals of the intervention were minimally to protect the armed rebels from being defeated, and possibly destroyed, and maximally, to achieve a regime change resulting in a new governing leadership for Libya that was friendly to the West, including buying fully into its liberal economic geopolitical policy compass. The missile attacks in the vicinity of Tripoli, especially the early missile hits on the Qaddafi compound are unmistakable signatures of this wider intention. As the Gulf War in 1991 demonstrated, once the Security Council authorizes military action of an unspecified character, it gives up any further responsibility for or effort to maintain operational control and accountability.

Using a slightly altered language, the UN Charter embedded a social contract with its membership that privileged the politics of self-determination and was heavily weighted against the politics of intervention. Neither position is absolute, but what seems to have happened with respect to Libya is that intervention was privileged and self-determination cast aside. It is an instance of normatively dubious practice trumping the legal/moral ethos of containing geopolitical discretion in relation to obligatory rules governing the use of force and the duty of non-intervention.  We do not know yet what will happen in Libya, but we already know enough to oppose such a precedent that exhibits so many unfortunate characteristics.  It is time to restore the global social contract between territorial sovereign states and the organized international community, which not only corresponds with the outlawry of aggressive war but also reflects the movement of history in support of the soft power struggles of the non-Western peoples of the world.

If ordinary citizens were allowed to have foreign policy doctrines mine would be this: without high levels of confidence in a proposed course of military action, the UN should never agree to allow states to engage in violent action that kills people. And if this cautionary principle is ignored, governments should expect that their behavior would be widely viewed in the public as a species of international criminality, and the UN is likely to be regarded as more of a creature of politics than law and morality. For these reasons it would have been my preference to have had the abstainers in the Security Council voting against Resolution 1973. It is likely that the coalition of the willing would have gone forward in any event, but at least without the apparent UN seal of approval.


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Learning from Disaster? After Sendai

15 Mar

Learning from Disaster? After Sendai

After atomic bombs were dropped on Hiroshima and Nagasaki there was in the West, especially the United States, a short triumphal moment, crediting American science and military prowess with bringing victory over Japan and the avoidance of what was anticipated at the time to be a long and bloody conquest of the Japanese homeland. This official narrative of the devastating attacks on these Japanese cities has been contested by numerous reputable historians who argued that Japan had conveyed its readiness to surrender well before the bombs had been dropped, that the U.S. Government needed to launch the attacks to demonstrate to the Soviet Union that it had this super-weapon at its disposal, and that the attacks would help establish American supremacy in the Pacific without any need to share power with Moscow. But whatever historical interpretation is believed, the horror and indecency of the attacks is beyond controversy. This use of atomic bombs against defenseless densely populated cities remains the greatest single act of state terror in human history, and had it been committed by the losers in World War II surely the perpetrators would have been held criminally accountable and the weaponry forever prohibited. But history gives the winners in big wars considerable latitude to shape the future according to their own wishes, sometimes for the better, often for the worse.

Not only were these two cities of little military significance devastated beyond recognition, but additionally, inhabitants in a wide surrounding area were exposed to lethal doses of radioactivity causing for decades death, disease, acute anxiety, and birth defects. Beyond this, it was clear that such a technology would change the face of war and power, and would either be eliminated from the planet or others than the United States would insist on possession of the weaponry, and in fact, the five permanent member of the UN Security Council became the first five states to develop and possess nuclear weapons, and in later years, Israel, India, Pakistan, and North Korea have developed nuclear warheads of their own. As well, the technology was constantly improved at great cost, allowing long-distance delivery of nuclear warheads by guided missiles and payloads hundreds times greater than those primitive bombs used against Japan.

After Hiroshima and Nagasaki there were widespread expressions of concern about the future issued by political leaders and an array of moral authority figures.  Statesmen in the West talked about the necessity of nuclear disarmament as the only alternative to a future war that would destroy industrial civilization. Scientists and others in society spoke in apocalyptic terms about the future. It was a mood of ‘utopia or else,’ and ‘on the beach,’  a sense that unless a new form of governance emerged rapidly there would be no way to avoid a catastrophic future for the human species and for the earth itself.

But what happened? The bellicose realists prevailed, warning of the distrust of ‘the other,’ insisting that it would be ‘better to be dead than red,’ and that nothing fundamental changed, that as in the past, only a balance of power could prevent war and catastrophe. The new name for balance in the nuclear age was ‘deterrence,’ and it evolved into an innovative, yet dangerous, semi-cooperative security posture that was given the formal doctrinal label of ‘mutual assured destruction.’ This reality was more popularly, and sanely, known by its expressive acronym, MAD, or sometimes this reality was identified as ‘a balance of terror,’ both a precursor of 9/11 language and a reminded that states have always been the supreme terrorist actors.  The main form of learning that took place after the disasters of Hiroshima and Nagasaki was to normalize the weaponry, banish the memories, hope for the best, and try to prevent other states from acquiring it. The same realists, perhaps most prominently, John Mearsheimer, have even gone so far as to give their thanks to nuclear weaponry as ‘keepers of the peace’ during the Cold War.  With some plausibility these nuclearists insisted that best explanation for why the Soviet Union-United States rivalry did not result in World War III was their shared fear of nuclear devastation.  Such nuclear complacency was again in evidence when in the 1990s after the Soviet Union collapsed, there was a refusal to propose at that time the elimination of nuclear weaponry, and there were reliable reports that the U.S. Government actually used its diplomatic leverage to discourage any Russian disarmament initiatives that might expose the embarrassing extent of this post-deterrence, post-Cold War American attachment to nuclearism. This attachment has persisted, enjoys wide and deep bipartisan support in the United States, is shared with the leadership and citizenry of the other nuclear weapons states to varying degrees, and is joined at the hip to an anti-proliferation regime that hypocritically treats most states (Israel was a notable exception, and India a partial one) that aspire to have nuclear weapons of their own as criminal outlaws subject to military intervention. The counter-proliferation geopolitical regime has been superimposed upon the legal regime, and currently being used to threaten and coerce Iran in a manner that violates fundamental postulates of international law and the UN Charter.

Here is the lesson that applies to the present: the shock of the atomic attacks wears off in a few years, is unequivocally superseded by a restoration of normalcy surrounding the role of hard power whether nuclear or not. Because of evolving technology, this meant creating the conditions for repetition of the potential use of such weaponry at greater magnitudes of death and destruction. Such a pattern is accentuated, as here, if the subject-matter of disaster is clouded by the politics of the day that obscured the gross immorality and criminality of the historical use of the weapon, that ignored the fact that there are governmental forces associated with the military establishment that seek maximal hard power as an unconditional goal, and overlooked the extent to which these professional militarists are reinforced by paid cadres of scientists, defense intellectuals, and bureaucrats who build careers around the weaponry. This structure is, in turn, strongly reinforced in various ways by private sector profit-making opportunities, including a globally influential corporatized media. These conditions also apply with even less restraint across, undergirding the dirty business of international arms sales. At least with nuclear weapons the main political actors are much more prudent in their relations with one another than was the case in the pre-nuclear era of international relations, and have a shared and high priority incentive to keep the weaponry from falling into hostile hands.

We should also take account of the incredible ‘Faustian Bargain’ sold to the non-nuclear world: give up a nuclear weapons option and in exchange get an unlimited ‘pass’ to the ‘benefits’ of nuclear energy, and besides, the nuclear weapons states, while furtively winking to one another when negotiating the notorious Nonproliferation Treaty (1963) promised in good faith to pursue nuclear disarmament, and indeed general and complete disarmament. Of course, the bad half of the bargain has been fulfilled, although selectively, even in the face of the dire experiences of Three Mile Island (1979) and Chernobyl (1986), while the good half of the bargain (getting rid of the weaponry) never gave rise to even halfhearted nuclear disarmament proposals and negotiations (and instead the world settled irresponsibly for managerial fixes from time to time, negotiated arrangements known as ‘arms control’ measures that were designed to stabilize the nuclear rivalry of the U.S. and Soviet Union (now Russia) in mutually beneficial ways relating to financial burdens and risks. Such a contention has been recently confirmed by the presidential commitment to devote an additional $80 billion for the development of nuclear weapons before the U.S.  Senate could be persuaded to ratify the New START Treaty in late 2010, the latest arms control ruse that was falsely promoted by Washington as a step toward disarmament and denuclearization. There is nothing intrinsically wrong with arms control, it may usefully reduce risks and costs under certain circumstances, but it is definitely not disarmament, and should not presented as if it is.

It is with this background in mind that the unfolding Japanese multidimensional mega-tragedy must be understood and its effects on future policy discussed in a preliminary manner. This extraordinary disaster originated in a natural event that was itself beyond human reckoning and control. An earthquake of unimaginable fury, measuring an unprecedented 9.0 on the Richter Scale, unleashing a deadly tsunami that reached a height of 30 feet, and swept inland in the Sendai area of northern Japan to an incredible distance up to 6 kilometers. It is still too early to count finally the number of the dead, the injured, the property damage, and the overall human costs, but we know enough by now to realize that the impact is already colossal, and will continue to grow, that this is a terrible happening that will be permanently seared into the collective imagination of humanity, perhaps the more so, because it is the most visually recorded epic occurrence in all of history, with real time video recordings of its catastrophic  ‘moments of truth’ and sensationalist media reportage, especially via TV.

But this natural disaster that has been responsible for massive human suffering has been compounded by its nuclear dimension, the full measure of which remains uncertain at this point, although generating a deepening foreboding that is perhaps magnified by calming reassurances by the corporate managers of nuclear power in Japan (Tokyo Electric Power Company or TEPCO) who already had many blemishes on their safety record, as well as by political leaders, including Prime Minister Naoto Kan who understandably wants to avoid causing the Japanese public to shift from its impressive posture of traumatized, yet composed, witnessing to one of outright panic. There is also a lack of credibility based, especially, on a long record of false reassurances and cover ups by the Japanese nuclear industry, hiding and minimizing the effects of a 2007 earthquake in Japan, and actually lying about the extent of damage to a reactor at that time and on other occasions. What we need to understand is that the vulnerabilities of modern industrial society accentuate vulnerabilities that arise from extreme events in nature. There is no doubt that the huge earthquake/tsunami constellation of forces was responsible for great damage and societal distress, but the overall impact has been geometrically increased by this buying into the Faustian Bargain of nuclear energy, whose risks, if objectively assessed, were widely known for many years, yet effectively put to one side. It is the greedy profit-seekers, who minimize and suppress these risks, whether in the Gulf of Mexico or Fukushima or on Wall Street, and then scurry madly at the time of disaster to shift responsibilities to the victims that make me tremble as I contemplate the human future. These predatory forces are made more formidable because they have cajoled most politicians into complicity and have many allies in the media that overwhelm the publics of the world with steady doses of misinformation and tranquilizing promises of greater future care and protestations of societal need.

The reality of current nuclear dangers in Japan are far stronger than these words of reassurance that claim the risks to health are minimal because the radioactivity can even now be contained to avoid dangerous levels of contamination, although the latest reports indicate that already in nearby regions milk and spinach have tested as containing radiation above safe levels. A more trustworthy measure of the perceived rising dangers can be gathered from the continual official expansions of the evacuation zone around the six Fukushima Daiichi reactors from 3 km to 10 km, and more recently to 18 km, and more, coupled with the instructions to everyone caught in the region to stay indoors indefinitely, with windows and doors sealed. We can hope and pray that the four explosions that have so far taken place in the Fukushima Daiichi complex of reactors will not lead to further explosions or fires, and that a full meltdown in one or more of the reactors will not occur. Even without a meltdown the near certain venting of highly toxic radioactive steam to prevent unmanageable pressure from building up due to the boiling water in the reactor cores and spent fuel rods is likely to spread risks and harmful effects.  It is a policy dilemma that has become a living nightmare: either allow the heat to rise and confront the high probability of reactor meltdowns or vent the steam and subject large numbers of persons in the vicinity and beyond to radioactivity, especially should the wind shift southwards carrying the steam toward Tokyo or westward toward northern Japan or Korea.  In reactors 1, 2, and 3 are at risk of meltdowns, while with the shutdown reactors 4,5, and 6 pose the threat of fire releasing radioactive steam from the spent fuel rods.

We know that throughout Asia alone some 500 new reactors are either being built or have been planned and approved in the pre-Fukushima mood of energy worries, with as many as 150 destined for China alone. We know that nuclear power has been touted in the last several years as a major source of energy that is needed to deal with future energy requirements, a way of overcoming the challenge of ‘peak oil’ and of combating global warming by some decrease in carbon emissions. We know that the nuclear industry will contend that it knows how to build safe reactors in the future that will withstand even such ‘impossible’ events that have wrought such havoc in the Sendai region of Japan, while at the same time lobbying for insurance schemes to avoid such risks. Some critics of nuclear energy facilities in Japan and elsewhere had warned that these Fukushima reactors some built more than 40 years ago had become accident-prone and should no longer have been kept operational. Similar reactors are still operating around the world, including in the United States, with several near earthquake zones and close to large cities.And we know that governments will be under great pressure to renew the Faustian Bargain despite what should have been clear from the moment the bombs fell in 1945: This technology is far too unforgiving and lethal to be managed safely over time by human institutions, even if they were operated responsibly, which they are not. It is folly to persist, but it is foolhardy to expect the elites of the world to change course, despite this dramatic delivery of vivid reminders of human fallibility and culpability. We cannot hope to control the savageries of nature, although even these are being intensified by our refusal to take responsible steps to reduce greenhouse gas emissions, but we can, if the will existed, learn to live within prudent limits even if this comes to mean a less materially abundant and an altered and less consumerist life style. The failure to take seriously the precautionary principle as a guide to social planning is a gathering dark cloud menacing all of our futures. Some specialists, including Amory Lovins and Jeremy Rifkin have argued that a blend of conservation, energy efficiency, and safe energy sources would satisfy the energy cravings of modern society without life style adjustments. Others, including Thomas Homer-Dixon, advocate the development of new major energy sources, in his case, deep geothermal drilling to tap into the heated core deep below the surface of the earth. [Globe and Mail, March 17, 2011, Canada]

Let us fervently hope that this Sendai disaster will not take further turns for the worse, but that the warnings already embedded in such happenings, will awaken enough people to the dangers on this path of hyper-modernity so that a politics of limits can arise to challenge the prevailing politics of limitless growth and consumerist profligacy. Such a challenge must include the repudiation of a neoliberal worldview, insisting without compromise on an economics and a human-centered vision of development based on needs and people rather than on profit margins, capital efficiency, and macro-economic indicators. Advocacy of such a course is admittedly a long shot, but so is the deadly collectivized utopian realism of staying on the nuclear course, whether it be with weapons or reactors. This is what Sendai should teach all of us!  But will it?

III..15…2011 (updated III..20…2011)


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A SHORT POSTSCRIPT TO “WILL WE EVER LEARN? CONTRA INTERVENTION”

8 Mar

A SHORT POSTSCRIPT TO “WILL WE EVER LEARN? CONTRA INTERVENTION”

Since my blog was posted several responses and developments lead me to think further about the essential issues, but not to change course.

It has been suggested that, perhaps, a no fly zone would enable the rebel forces to deal more effectively with the foreign militias being relied upon by the Qaddafi regime to do much of its dirty work. It is difficult to know how a particular version of the no fly zone would impact on the battlefield. We are

speculating on the basis of radical uncertainty, and in such circumstances, it is almost always better to refrain from coercive action than to engage in it. Furthermore, there is a wide spectra of no fly zone scenarios depending on the governments who are taking such an initiative, its degree of dependence on correlated air strikes, and the options available to the rebels and Qaddafi to either take advantage of its effect or to circumvent them. For instance, it is politically more palatable to have a no fly zone established and administered under the auspices of the Arab League or as has been proposed, a joint Egypt/Turkey undertaking than to have it done by NATO or a United States-led ‘coalition of the willing.’ The UN as sponsor is out of the question given Russian opposition, and Chinese reluctance. At the same time, given the logistical and technological demands, it is more likely that the effectiveness of a no fly zone would be greater under NATO/U.S control. A failed no fly zone would embolden Libya, and likely improve his prospects to prevail in the internal struggle.

Furthermore, the tactics and character of the rebel movement seems dramatically different than the uprisings elsewhere in the region, particularly in Egypt and Tunisia. In Libya, the movement lacks the inspiring quality of nonviolence, human solidarity, and social/political demands for justice. It was violent from the outset, tribalist in spirit, recipient of weaponry from external actors, preoccupied with control over the oil-producing areas, indistinct in political outlook (a rebel segment flying the pre-Qaddafi flag of the Libyan monarchy), and uncertainly linked to private sector international oil interests. This looks more like a struggle for control of the state or possibly an effort to establish a secessionist second state if a stalemate emerges. Under this mix of circumstances one must be suspicious about the focus on Libya and the call for full consideration of military options. It would seem to be the case that if feasibility hurdles could be overcome, the political climate in the United States and Britain would support a large-scale intervention, possibly with Arab regional acquiescence. See illuminating analysis by Michel Chossudovsky, “Insurrection and Military Intervention: The US-NATO Attempted Coup d’Etat in Libya?” www.globalresearch.ca March 8, 2011.

With these considerations in mind, I think the case for nonintervention remains overwhelmingly persuasive from moral, legal, and political perspectives. Perhaps, the most compelling rationale for reaching such a conclusion was well stated by Roger Cohen: “But the deepest reason is the moral bankruptcy of the West with respect to the Arab world. Arabs have no need of U.S. or European soldiers as they seek the freedom that America and the European Union were content to deny them.” (NY Times, March 7, 2011) It is not often that I have the opportunity to quote approvingly from the New York Times when the subject-matter involves the Middle East, and so I want to make the most of it.

Perhaps, there is another way to exhibit the shabbiness of the argument being made on behalf of a protective no fly zone. Why no comparable proposal on behalf of the civilian population of Gaza trapped behind a merciless blockade for more than three years?

Aside from issues of nonintervention, always important, there is here the paramount relevance of support for dynamics of self-determination. This does not assure the triumph of justice in conflict situations. Qaddafi may win or the rebels may prevail, and prove as distastefully oppressive as the Qaddafi regime. On balance, what means most in the 21st century is to allow the peoples of the world make their own history. Western military paternalism and economic exploitation have been deservedly discredited.

As suggested, there is no way to seal the borders of territorial states. Neither pure noninterventionism nor insulated self-determination are ever possible given the porousness of borders and the interventionary incentives of a range of outsiders. There are various low profile ‘interventions’ taking place. Weapons are being supplied, perhaps, special forces are covertly present as advisors or even fighters. In this respect, the most that can be done is to oppose gross forms of overt governmental intervention, as well as limit assistance to governments, including the Tripoli regime, that violate the fundamental human rights of their own people. In this respect, sanctions are appropriate if authorized by the UN so long as not coupled with intervention, and take responsible account of competing moral, legal, and political claims.

Keep in mind that Libya has over 3.5% of the world’s oil reserves, which is twice the amount present in the United States. Without being an economic determinist, oil certainly helps explain the preferential treatment being given to insurrection in Libya!

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Will We Ever Learn? Kicking the Intervention Habit

7 Mar

Will We Ever Learn? Kicking the Intervention Habit


What is immediately striking about the bipartisan call in Washington for a no-fly zone and air strikes designed to help rebel forces in Libya is the absence of any concern with the relevance of international law or the authority of the United Nations. None in authority take the trouble to construct some kind of legal rationalization. The ‘realists’ in command, and echoed by the mainstream media, do not feel any need to provide even a legal fig leaf before embarking on aggressive warfare.


It should be obvious that a no-fly zone in Libyan airspace is an act of war, as would be, of course, contemplated air strikes on fortifications of the Qadaffi forces. The core legal obligation of the UN Charter requires member states to refrain from any use of force unless it can be justified as self-defense after a cross-border armed attack or mandated by a decision of the UN Security Council. Neither of these conditions authorizing a legal use of force is remotely present, and yet the discussion proceeds in the media and Washington circles as if the only questions worth discussing pertain to feasibility, costs, risks, and a possible backlash in the Arab world. The imperial mentality is not inclined to discuss the question of legality, much less show behavioral respect for the constraints embedded in international law.

Cannot it not be argued that in situations of humanitarian emergency ‘a state of exception’ exists allowing an intervention to be carried out by a coalition of the willing provided it doesn’t make the situation worse? Was not this the essential moral/political rationale for NATO’s Kosovo War in 1999, and didn’t that probably spare the majority Albanian population in Kosovo from a bloody episode of ethnic cleansing at the hands of the embattled Serb occupiers? Hard cases make bad precedents, as is well known. But even bad precedents need to find a justification in the circumstances of a new claimed situation of claimed exception, or else there would a strong reinforcement for the public impression that the powerful act as they will without even pausing to make a principled argument for a proposed departure from the normal legal regime of restraint.


With respect to Libya, we need to take account of the fact that the Qaddafi government, however distasteful on humanitarian grounds, remains the lawful diplomatic representative of a sovereign state, and any international use of force even by the UN, much less a state or group of states, would constitute an unlawful intervention in the internal affairs of a sovereign state, prohibited by Article 2(7) of the UN Charter unless expressly authorized by the Security Council as essential for the sake of international peace and security. Beyond this, there is no assurance that an intervention, if undertaken, would lessen the suffering of the Libyan people or bring to power a regime more respectful of human rights and dedicated to democratic participation.

The record of military intervention during the last several decades is one of almost unbroken failure if either the human costs or political outcomes are taken into proper account. Such interventionary experience in the Islamic world during the last fifty years makes it impossible to sustain the burden of persuasion that would be needed to justify an anti-regime intervention in Libya in some ethically and legally persuasive way.


 

 

 

 

 

There are also serious credibility concerns. As has been widely noted in recent weeks, the United States has had no second thoughts about supporting oppressive regimes throughout the region for decades, and is widely resented for this role by the various anti-regime movements. Qadaffi’s crimes against humanity were never a secret, and certainly widely known by European and American intelligence services. Even high profile liberal intellectuals in Britain and the United States welcomed invitations to Tripoli during the last several years, apparently without a blink of conscience, accepting consulting fees and shamelessly writing positive assessments that praised the softening authoritarianism in Libya. Perhaps, that is what Joseph Nye, one of the most prominent of these recent good will visitors to Tripoli, would call a private use of ‘smart power,’ commending Qadaffi for renouncing his anti-West posture, for making deals for oil and weapons, and most of all for abandoning what some now say was at most a phantom nuclear weapons program.

Some Beltway pundits are insisting on talk shows that the interventionists after faltering in the region want to get on the right side of history before it is too late. But what is the right side of history in Libya seems quite different than it is in Bahrain or Jordan, and for that matter throughout the region. History seems to flow according to the same river currents as does oil! Elsewhere, the effort is to restore stability with minimal concessions to the reformist demands, hoping to get away with a political touch up that is designed to convert the insurrectionists of yesterday into the bureaucrats of tomorrow.

Mahmoud Mamdani has taught us to distinguish ‘good Muslims’ from ‘bad Muslims,’ now we are being instructed to distinguish ‘good autocrats’ from ‘bad autocrats.’ By this definition, only the pro-regime elements in Libya and Iran qualify as bad autocrats, and their structures of must at least be shaken if they cannot be broken. What distinguishes these regimes? It does not seem to be that their degree of oppressiveness is more pervasive and severe than is the case for the others. Other considerations give more insight: access and pricing of oil, arms sales, security of Israel, relationship to the neoliberal world economy.

What I find most disturbing is that despite the failures of counterinsurgency thinking and practice, American foreign policy gurus continue to contemplate intervention in post-colonial societies without scruples or the slightest show of sensitivity to historical experience, not even the recognition that national resistance in the post-colonial world has consistently neutralized the advantages of superior hard power deployed by the intervening power. The most that has been heard is a whispered expression of concern by the relatively circumspect Secretary of Defense, Robert Gates, that it may not be prudent at this time for the United States to intervene in yet another Islamic country. The absence of any learning from Vietnam, Afghanistan, and Iraq is startling, underscored by the glorification of General David Petraeus who rose to military stardom soon after he was credited with refurbishing the army’s approach to counterinsurgency, which is the Pentagon jargon for pro-regime intervention. Major current illustrations are Afghanistan, Iraq, and several other places in the Middle East. Technically speaking, the proposed intervention in Libya is not an instance of counterinsurgency, but is rather a pro-insurgency intervention, as has also been the case with the covert destabilization efforts that continue in Iran.

It is easier to understand the professional resistance to learning from past failure on the part of military commanders as it is their life work, but the civilian politicians deserve not a whit of sympathy. Among the most ardent advocates of intervention in Libya are the last Republican presidential candidate, John McCain, the supposedly independent Joe Lieberman, and the Obama Democrat John Kerry. It seems that many of the Republicans focused on the deficit although cutting public expenditures punishes the poor at a time of widespread unemployment and home foreclosures would not mind ponying up countless billions to finance acts of war in Libya. There exists a worrying readiness to throw money and weapons at an overseas conflict, seemingly as to show that imperial geopolitics is not yet dead despite the growing evidence of American decline.

In the end, I suppose we have to hope that those more cautious imperial voices that base their opposition to intervention on feasibility concerns carry the day!

What I am mainly decrying here in the Libyan debate are three kinds of policy failure:

(1) the exclusion of international law and the United Nations from relevance to national debates about international uses of force;

(2) the absence of respect for the dynamics of self-determination in societies of the South;

(3) the refusal to heed the ethics and politics appropriate for a post-colonial world order that is being de-Westernized and is becoming increasingly multi-polar.


III.7.2011

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Commentary on Recent Developments: Interview Responses

2 Mar

The following Q & A interview consists of my responses to questions put to me by the outstanding Greek journalist, C. J. Polychroniou, and is being published in the Sunday edition of the Greek newspaper, Eleftherotypia, March 6, 2011.

1.   Various Arab leaders, from Egypt and Tunisia to Bahrain and Libya, have blamed either Islamic fundamentalist forces or Al-Qaeda for the uprisings, thus refusing to accept the uprisings as popular, secular revolutions.   An indication that the Arab leaderships are truly of of touch with reality in their own country or there is something indeed into their claims?

Such allegations by these embattled dictatorial leaders have no basis in fact as far as I can tell, and seem to be a grasping at straws while straining to survive in the midst of a political maelstrom. Such irresponsible allegations seem to be rather desperate reminders to the West, especially to Washington, that these Arab autocrats have been loyal servants for many years, that it should be appreciated that they are the enemy of the American number one enemy (Al Qaeda), and that these regimes should therefore be treated as trusted friends, and repression of the protestors welcomed. Such pleas are seeking to convey a sense that these uprisings if allowed to succeed will be damaging to Western and American interests, bringing hostile elements into political control of the respective governments, and replacing compliant current officialdom with more antagonistic leaders. Of course, each country is different in its particulars. Mubarak could reasonably pretend to have been serving Western interests during his 31 years of rule, and has long been supported and free from critical scrutiny because of this. Qaddafi, in contrast, until recently was seen by the West as a dangerously hostile presence in the region, a supporter of radical anti-Western political action. He made himself acceptable as a trading partner some years ago when he appeared to cave in geopolitically, abandoning Libya’s nuclear program and renouncing support for terrorist causes. It is almost forgotten that the Bush presidency in the period after its invasion of Iraq in 2003 claimed as a major diplomatic success this dramatic shift in Libya, suggesting that its efforts at ‘democracy promotion’ were bearing fruit.

Looking at the issue more objectively it seems clear that the rise of these democratic popular forces throughout the Arab World is taking place in spite of the Al Qaeda reality in the background rather than as a result of it. As is well known, even the Muslim Brotherhood in Egypt has an intensely antagonistic relationship with Al Qaeda, and has developed during the last decade a nonviolent and low profile political program that points in a moderate direction. Also, the experience of political Islam in Iran over the past 30 years seems to have influenced other Muslim oriented activists in the region to look to Turkey, not Iran or Al Qaeda, for inspiration. Turkey offers the region an encouraging model of achieving democratic gains and protecting human rights while promoting more equitable, yet successful, forms of economic development that have also seemingly managed to avoid major corruption. What enraged the Arab publics was a lethal mixture of authoritarian rule and gross corruption resting on a pure embrace of neoliberal policies that combined repression with material hardship. Such a pattern of economic growth confers almost all of its benefits on the ruler’s family and entourage, making positive GNP growth a cruel joke for the public as a whole.

2.   After the fall of Mubarak and Ben Ali in Egypt and Tunisia, respectively, the rest of the Arab dictators and monarchs seem to have concluded that using force to remain in power is their preferred option. Is this a viable strategy without suppport from the US and Europe?

It is difficult at this stage to tell whether reliance on force will work or not, and if so where, and to what extent it has been encouraged or at least tolerated by Washington and Europe. Of course, Libya is a special case in at least two senses: (1) the U.S. would not mind seeing the Qadaffi regime collapse, and take its chances with whatever comes next; (2) the Qaddafi response seems to rely on a more vicious and widespread use of force than has been used elsewhere in this period, and includes deploying high technology weaponry against initially unarmed demonstrators that seems to be leading toward widespread and bloody civil strife in the country. Elsewhere in the region, and especially, Bahrain because of oil, it is more likely that the U.S. would like to see the regime survive, using force if necessary to quell protests. Iran, although not an Arab country, is the extreme instance in the opposite direction. The U.S. seeks to mobilize opposition and stiffen sanctions in response to uses of force by the Tehran regime, and encourages oppositional activity by covert means, openly favoring a regime change. Iran’s experience is in many respects different that that in the Arab countries, but the internal confrontations in Iran have much in common with the recent uprisings in Tunisia and Egypt, given the goals of the Green Revolution and the resistance of the regime.

One generalization that has not yet been fully tested as yet is whether, as now seems to be the case, the monarchies in the region have more political space available to reach accommodations with opposition movements than do the secular regimes of the sort that existed in Egypt and Tunisia. The monarchies are perceived as less corrupt, more legitimate in terms of the political culture, and their leaders regarded as less usurpers than royal autocrats who have abused their role as rulers, but who can recover considerable popular respect if genuine reforms take place, granting more freedom and seeking greater economic justice.

3.   Should the UN or even NATO use force to get Gaddafi out of the picture, or best to reach an agreement with him and have him disappear in some remore corner of the globe?

I am opposed to military intervention for several reasons. It will tend to support Qaddafi’s claim that he is the victim of foreign subversion, either in the form of colonialism or Muslim fundamentalism. It would also fuel suspicions that the West will intervene where oil is at stake as in Kuwait, Iraq, or Libya, and invokes humanitarian issues as a cover for imperial goals. Intervention would likely generate more violence and suffering for the Libyan people by intensifying the military dimensions of the conflict. A humanitarian intervention could not likely be carried out in an effective manner in the short run, especially as American capabilities are stretched thin, and the Tripoli regime has the means to offer stiff resistance. If the UN had a protective force in being under its authority, then maybe a protective emergency mission could be undertaken, but even this would be risky. NATO acting beyond Europe, as in Afghanistan, creates the impression of post-colonial imperial ambitions, and should not be seriously considered. Overall in the post-colonial era, especially lacking a clear UN mandate, it is best to show respect for the dynamics of self-determination even in situations where vulnerable elements of the population is at risk, at least to the extent of refraining from military intervention.

Whether Qadaffi can be enticed to leave for comfortable exile in the manner of Ben Ali is an open question. So far, he has seemed to resist such a suggestion, preferring to die together with his family in Libya, casting himself and sons in the role of martyrs. All in all, none of the available options seem promising at this time. Some of the deficiencies of the current structure of world order are exposed: intervention is unacceptable, but so is being a helpless spectator as a humanitarian catastrophe of these proportions unfolds. Imaginative diplomacy that emphasizes soft power tactics and brings to bear civil society influences may turn out to be most effective and least costly.

4. You’ve been involved with developments in the region for many decades. What explains the sudden explosion of public anger throughout the Arab world?

It is too early to offer much commentary about the future of the Middle East. The coming months will tell us whether these uprisings are reformist or revolutionary in content. So far, the trajectory seems decidedly reformist, taking the form of either forcing the leaders out as in Tunisia and Egypt, or by inducing the existing regime to seek to regain stability by meeting some core demands of the populace as in Jordan, Yemen, Algeria, Morocco, Oman, and Bahrain. To be revolutionary, the political changes would have to be complemented by a partial rejection of neoliberal economic orientation, and that doesn’t seem likely without further radicalization of the uprisings. At this point the question is whether the political reforms will be deeper than cosmetic, establishing a genuinely democratic governance structure including independent political parties, a constitutionally functioning judiciary, an accountable bureaucracy, human rights, and a media free to criticize without risk. How these reformist governing structures will deal with jobs, food security, and general conditions of poverty and inequality remains to be seen, and will have a big bearing on whether the post-autocratic leaders gain political legitimacy and public acceptance.

It is always difficult to assess after the fact what looked extremely unlikely until it happened. Tolstoy in the Second Epilogue of War and Peace asks why historians always get things wrong when they look toward the future. Tolstoy’s answer is that historians look at the surfaces of social action, whereas the dynamics of history are shaped by unanticipated explosions from below. In effect, the changes that we are witnessing in the Middle East were long brewing, both as anger and as resistance. The uprisings seemed spontaneous, but on further reflection, it is clear that both the rage and the resistance were preexisting conditions that had evolved during prior years. Rage and resistance came together in an extraordinary kind of political chemistry that was sparked by the suicide of a young street vendor in an interior Tunisian town, an event igniting a wildfire that spread quickly as the winds of protest carried the sparks of outrage throughout Tunisia, and then to neighboring countries where additional political suicides also fanned the flames of discontent. As with an earthquake, the risks can be noted beforehand, but the event is not predictable in time or exact place.

In the Arab world, few anticipated this kind of mass visible resistance ever occurring in any of the countries, much less in the region as a whole. There was a widespread realization of acute discontent among the peoples of these countries, but little expectation that these feeling would morph into a series of revolutionary challenges to the status quo. Even the Western intelligence agencies, despite their extensive activities throughout the region and their tendency to posit alternative scenarios, were caught by surprise. In the aftermath, we find lots of ‘learned’ explanations being suddenly forthcoming as pundits scrambled to regain their reputations as ‘experts’ on the region or country.

5.   You serve as a UN Special Rapporteur on the situation of human rights in the Palestinian territories. What impact, if any, will the Arab revolutions have on the Palestinian issue?

Without wanting to evasive, my answer here too is that it is hard to say at this stage. A realistic Israel, which is itself a kind of utopian expectation, would urgently be seeking a quick peace with the Palestinians by rushing to accept the Arab League Mecca Proposals of 2002. The Palestinian Authority has already clearly indicated its willingness to accept such a settlement as full satisfaction of their search for a Palestinian state. Despite the realist logic behind such positive developments, the situation is almost certain to remain dangerous frozen for the foreseeable future.

What we are likely to witness is more stalling by Israel, vigorously claiming an interest in direct peace negotiations, while feverishly acting to undermine any prospects of a successful and just outcome by continuing with its program of unlawful settlement expansion in the West Bank and ethnic cleansing of Palestinians in East Jerusalem. In the background is the daunting question of Palestinian representation. Gazans are not currently represented at all in international venues due to the Hamas/Fatah split. This is also true of Palestinians living as a discriminated minority in Israel nor of the several million Palestinians living in refugee camps of neighboring countries or in exile.

There are some unconfirmed reports that Netanyahu is about to offer the Palestinian Authority a Palestinian state on 40-50% of the West Bank (that is, less than 11% of the historic Palestine) as an interim solution, with permanent borders to be established at a later date. There are media reports that Netanyahu is considering this diplomatic move as a direct reaction to the regional development of the last two months. In some respects this possible Israeli offer corresponds to the Fayyad approach adopted by the PA Prime Minister. Whether such a step moves toward a just outcome of the Palestinian struggle is doubtful as it leaves many contested issues out in the cold, perhaps permanently: refugees, separation wall, Jerusalem, Gaza, water, permanent borders, status of Palestinian minority in Israel.

If these Arab revolutions do manage to achieve real governmental transformations in a democratizing direction, then regional pressures on Israel are likely to mount, including pressure to renegotiate the 1979 Peace Treaty with Egypt. At minimum, one would expect an end to the blockade of Gaza that has gone on for more than three years, a cruel and criminal form of collective punishment of the 1.5 million civilians living at near subsistence levels.

My main hope for the Palestinian struggle rests on the soft power initiatives embedded in the BDS (boycott, divestment, and sanctions) campaign that has been growing in strength around the world. With the greatly reduced reliance on hard power resistance, the Palestinian movement has increasingly the shape of what I call a Legitimacy War. Such a strategy resembles the anti-apartheid campaign that was so effectively globally waged against the South African racist regime In the late 1980s and early 1990s. While noting the similarities, there are also significant dissimilarities, and the analogy should be noted, but not pushed too far.

There is no doubt that the Palestinian quest for self-determination is the major symbolic global justice issue of our time, and it will not be easily resolved. Israel will have to drastically downgrade its ambitions, and accept either a genuinely viable and independent Palestinian state within 1967 borders (requiring dismantling most of the settlements, the separation wall, reconstituting the Palestinian presence in East Jerusalem, and compromise on the refugee issue) or give up on the existence of a Zionist Israel and agree to a bi-national secular single state for both peoples. Neither option seems remotely acceptable to the current Israeli leadership, meaning that in all probability the conflict will in go on for many more years with continuing tragic results, especially for the Palestinians.

What is Winning? The Next Phase for the Revolutionary Uprisings

24 Feb


Early in the Tunisian and Egyptian uprisings it seemed that winning was understood by the massed demonstrators to mean getting rid of the hated leader, of Ben Ali in the Tunisian case, and Mubarak in the Egyptian. But as the process deepened it make clear that more was being demanded and expected, and that this had to do with restoring the material and spiritual dignity of life in all its aspects.

Without any assurance as to what ‘winning’ means in the setting of the extraordinary revolutionary uprisings that are continuing to rock the established order throughout the Arab world, it is likely to mean different things in the various countries currently in turmoil. But at the very least winning has so far meant challenging by determined and incredibly brave nonviolence the oppressive established order. This victory over long reigns of fear-induced pacification is itself a great transformative moment in 21st century history no matter what happens in the months ahead.

As Chandra Muzaffar, the widely respected Malaysian scholar who  religion and justice, compelling argues, the replacement of the old order by electoral democracy, while impressive as an accomplishment given the dictatorial rule of the past in these countries, will not be nearly enough to vindicate the sacrifices of the protestors. It is significantly better than those worst case scenarios that insist that the future will bring dismal varieties of ‘Mubarakism without Mubarak,’ which would change the faces and names of the rulers but leave the oppressive and exploitative regimes essentially in tact. This would definitely be a pyrrhic victory, given the hopes and demands that motivated the courageous political challenges embodied in withstanding without weapons the clubs, rubber bullets, live ammunition, and overall brutality, as well as the uncertainty as to what the soldiers in the streets would do when the order to open fire at the demonstrators came from the beleaguered old guard.

What is needed beyond constitutional democracy is the substantive realization of good and equitable governance: this includes, above all, people-oriented economic policies, an end to corruption, and the protection of human rights, including especially economic and social rights.  Such an indispensable agenda recognizes that the primary motivation of many of the demonstrators was related to their totally alienating entrapment in a jobless future combined with the daily struggle to obtain the bare necessities of a tolerable life.

There is present here both questions of domestic political will and governmental capability to redirect the productive resources and distributive policies of the society. How much political space is available to alter the impositions of neoliberal globalization that was responsible for reinforcing, if not inducing, the grossly inequitable and corrupting impact of the world economy on the structuring of domestic privilege and deprivation? Not far in the background is an extended global recession that may be deepened in coming months due to alarming increases in commodity prices, especially food. According to the UN Food and Agricultural Organization the world Food Price Index reached a record high in December 2010, a level exceeded by another 3% rise in January of this year. Lester Brown, a leading expert on world food and environment, wrote a few days ago that “[t]he world is now one poor harvest away from chaos in world grain markets.” [International Herald Tribune, Feb 23, 2011]

With political turmoil threatening world energy supplies, oil prices are also surging, allegedly further endangering the uneven and fragile economic recovery in the United States and Europe. Global warming adds a further troubling feature to this deteriorating situation, with droughts, floods, fires, and storms making it difficult to maintain crop yields, much increase food production to meet increasing demands of the world’s growing population.

These impinging realities will greatly complicate the already formidable difficulties facing new leaders throughout the Arab world seeking with a sense of urgency to create job opportunities and affordable supplies of food for their citizenries. This challenge is intensified by the widely shared high expectations of improved living circumstances. If the autocratic prior regime was held responsible for mass impoverishment of the many and the scandalously excessive enrichment of the few, is it not reasonable to suppose that the more democratic successor governments should establish without much delay greatly improved living conditions? And further, how could it be claimed that the heroic uprising was worthwhile if the quality of life of ordinary citizens, previously struggling to avert the torments of impoverishment, does not start improving dramatically almost immediately? An understandably impatient public may not give their new leaders the time that need, given these conditions, to make adjustments that will begin to satisfy these long denied hopes and needs. Perhaps, the public will be patient if there are clear signs that the leaders are trying their hardest and even if actual progress is slow, there is some evidence that the material conditions of the populace are, at least, on an ascending slope.

Even if the public is patient beyond reason, and understands better than can be prudently expected, the difficulties of achieving economic justice during a period of transition to a new framework of governance, there may be still little or no capacity to fulfill public expectations due to the impact of these worsening global conditions.  It is quite possible that if the worst food/energy scenarios unfold, famines and food riots could occur, casting dark shadows of despair across memories of these historic victories that made the initial phases of each national uprising such a glowing testament to the human spirit, which seemed miraculously undaunted by decades of oppression and abuse.

It needs also to be kept in mind that often the slogans of the demonstrators highlighted a thirst for freedom and rights. Even though there is little experience of democratic practice throughout the region, there will likely be a serious attempt by new governing institutions to distinguish their practices from those of their hated forebears, and allow for the exercise of all forms of oppositional activity, including freedom of expression, assembly, and party formation. Unlike the problems associated with creating jobs and providing for material needs, the establishment of the atmosphere of a free society is within the physical capacities of a new leadership if the political will exists to assume the unfamiliar risks associated with democratic practices. We must wait and see how each new leadership handles these normative challenges of transition. It remains to be seen as to whether the difficulties of transition are intensified by counterrevolutionary efforts to maintain or restore the old deforming structures and privileges. These efforts are likely to be aided and abetted by a range of covert collaborative undertakings joining external actors with those internal forces threatened by impending political change.

And if this overview was not discouraging enough, there is one further consideration. As soon as the unifying force of getting rid of the old leadership is eroded, if not altogether lost, fissures within the oppositions are certain to emerge. There will be fundamental differences as between radical and liberal approaches to transition, and especially whether to respect the property rights and social hierarchies associated with the old regime, or to seek directly to correct the injustices and irregularities of the past. Some critics of the Mandela approach to reconciliation and transition in South Africa believe that his acceptance of the social and economic dimensions of the repudiated apartheid structure have resulted in a widely felt sense of revolutionary disappointment, if not betrayal, in South Africa.

There will also be tactical and strategic differences about how to deal with the world economy, especially with respect to creating stability and attractive conditions for foreign investment. It is here that tensions emerge as between safeguarding labor rights and making investors feel that their operations will remain profitable in the new political environment.

This recitation of difficulties is not meant to detract attention from or to in any way diminish the glorious achievements of the revolutionary uprisings, but to point to the unfinished business that must be addressed if revolutionary aspirations are going to be able to avoid disillusionment. So often revolutionary gains are blunted or even lost shortly after the old oppressors have been dragged from the stage of history. If ever there exists the need for vigilance it at these times when the old order is dying and the new order is struggling to be born. As Gramsci warned long ago this period of inbetweeness is vulnerable to a wide range of predatory tendencies. It is a time when unscrupulous elements can repress anew even while waving a revolutionary banner and shouting slogans about defending the revolution against its enemies. And a difficulty here is that the enemies may well be real as well as darkly imagined. How many revolutions in the past have been lost due to the machinations of their supposed guardians?

Let us fervently hope that the mysteries of the digital age will somehow summon the creative energy to manage the transition to sustainable and substantive democracy as brilliantly as it earlier staged the revolutionary uprisings.

 

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The United States Stands Alone with Israel in the UN Security Council [or How (Dis)honest is the Honest Broker?]

19 Feb

The United States Stands Alone with Israel in the UN Security Council [or How (Dis)honest is the Honest Broker?]

In what appears to be as close to a consensus as the world community can ever hope to achieve, the United States reluctantly stood its ground on behalf of Israel and on February 18, 2011 vetoed a resolution on the Israeli settlements  in the West Bank and East Jerusalem that was supported by all 14 of the other members of the UN Security Council. The resolution was also sponsored by 130 member countries before being presented to the Council. In the face of such near unanimity the United States might have been expected to some respect for the views of every leading government in the world, including all of its closest European allies, to have had the good grace to at least abstain from the vote. Indeed, such an obstructive use of the veto builds a case for its elimination, or at least the placement of restrictions on its use. Why should an overwhelming majority of member countries be held hostage to the geopolitical whims of Washington, or in some other situation, an outlier member trying to shield itself or its ally from a Security Council decision enjoying overwhelming support. Of course this American veto is not some idiosyncratic whim, but is an expression of the sorry pro-Israeli realities of domestic politics, suggesting that it is Israel that is the real holder of the veto in this situation, and the U.S. Congress and the Israeli Lobby are merely designated as the enforcers.


Susan Rice, the American chief representative in the Security Council, appeared to admit as much when she lamely explained that the casting the veto on this text “should not be misunderstood to mean support for settlement construction,” adding that, on the contrary, the United States “rejects in the strongest terms the legitimacy of continued Israeli settlement activity.” Why then? The formal answer given is that the United States, agreeing with Israel, believes that only in the context of direct negotiations can the issue of settlements be addressed alongside other unresolved matters such as refugees, borders, and the status of Jerusalem. This seems absurdly arrogant, and geopolitically humiliating. If the 14 other members of the Security Council believe that Israeli should be censured for continuing to build unlawful settlements, and that no negotiations can proceed until it ceases, then it would seem that a united front would be the most effective posture to resumed negotiations. This is especially so here as it is a no brainer to realize that every additional settlement unit authorized and constructed makes it less likely that a truly independent and viable Palestinian state can ever be brought into being, and that there exists the slightest intention on the Israeli side to do so.

In view of this feverish Israeli effort to create still more facts on the ground, for the Israelis to contend that negotiations should resume without preconditions, is to hope that the Palestinian Authority will play the fool forever. After all for more than 43 years the Israelis have been whittling away at the substance of the two state consensus embodied in unanimous Security Council Resolution 242 (1967), contending at every phase of the faux peace process that an agreement must incorporate ‘subsequent developments,’ that is, unlawful settlements, ethnic cleansing. In the end, the Israelis may turn out to have been more clever by half, creating an irresistible momentum toward the establishment of a single secular democratic state of Palestine that upholds human rights for both peoples and brings to an end the Zionist project of an exclusive ‘Jewish state.’ With great historic irony, such an outcome would seem to complete the circle of fire ignited by Lord Balfour’s secret 1917 promise to the Zionist movement of ‘a Jewish homeland’ in historic Palestine, a process that caused a Palestinian catastrophe along the way and brought war and bloodshed to the region.

The disingenuousness of the Israeli position was confirmed by the recent publication of the Palestine Papers that showed beyond a shadow of a doubt that even when the Palestinian Authorities caved in on such crucial issues as Jerusalem, settlements, and refugees, their Israeli counterparts, including the supposedly more moderate predecessors to the Netanyahu leadership, displayed no interest in reaching even an agreement so heavily weighted in Tel Aviv’s favor. What seems inescapable from any careful reading of these negotiating positions behind closed doors during the prior decade is that the public negotiations are a sham designed to buy time for Israel to complete its illegal dirty work of de facto annexation in the West Bank, a position it has long adopted in the form of Israeli de jure annexation of the entire expanded city of Jerusalem in defiance of the will of the international community and the understanding of international law, objectively considered. To contend that stopping the unlawful encroachments of continuing settlement activity on occupied Palestinian territory, an assessment that even the United States does not question substantively, is an inappropriate Palestinian demand seems so excessive as to humiliate any Palestinian representatives that stooped so low as to accept it. Equally so, is the Israeli claim that this demand has not been made in the past, which to the extent accurate, is not an argument against freezing further settlement activity, but a disturbing comment on Palestinian complacency in relation to their failure to insist upon respect for their rights under international law.

In the context of this latest incident in the Security Council, the Palestinian Authority deserves praise for holding firm, and not folding under U.S. pressure, which was strongly applied, including reported warnings from President Obama by phone to President Mahmoud Abbas of adverse ‘repercussions’ if the text calling for an end to illegal settlement building was brought before the Security Council for a vote. Obviously, the United States Government realized its predicament. It did not want to be so isolated and embarrassed in this way, finding itself caught between its international exposure as willing to support even the most unreasonable Israeli defiance of the UN and its domestic vulnerability to a pro-Israeli backlash in the event that it failed to do Israel’s bidding in this matter of largely symbolic importance.


We should not forget that had the Security Council resolution been adopted, there is not the slightest prospect that Israel would have curtailed, let alone frozen, its settlement plans. Israel has defied a near unanimous vote (with, hardly a surprise, the U.S. judge casting the lone negative vote among the 15 judges) of the World Court in 2004 on the unlawfulness of the settlement wall. Here, an American dissent could not bring Israel in from the cold of its refusal to abide by this ruling as thankfully there is no veto power in judicial settings. In that instance of the wall, Israel wasted no time denouncing the advisory opinion of the highest UN judicial body, declaring its refusal to obey this clear finding that the wall built on occupied Palestinian territory should be dismantled forthwith and Palestinians compensated for any harm done.  Instead, despite brave nonviolent Palestinian resistance, work continues to this day on finishing the wall.


With respect to the settlements it is no wonder that American diplomacy wanted to avoid blocking an assertion of unlawfulness that it was on record as agreeing to, a fact awkwardly acknowledged by Ambassador Rice in the debate, knowing that the resolution would not have the slightest behavioral impact on Israel in any event. It should be noticed that as much as Israel defies the UN and international law, it still cashes in its most expensive diplomatic chips to avoid censure whenever possible. I believe that this is an important, although unacknowledged, Israeli recognition of the legitimizing role of international law and the UN.  It is also connected with an increasing Palestinian reliance on soft power, especially its BDS campaign. This partial shift in Palestinian tactics worries Israel. In the last several months Israeli think tanks close to the government refer to as ‘the delegitimation project’ with growing anxiety.  This approach of the Palestinian Global Solidarity Movement is what I have been calling a Legitimacy War. For the last several years it is being waged and won by the Palestinians, joining the struggles of those living under occupation and in exile.

On the PA side there was reported anxiety that withdrawing the resolution in this atmosphere would amount to what was derisively referred to as a possible ‘Goldstone 2,’ a reference to the inexcusable effort by the Palestinian Authority back in October 2009 to have consideration of the Goldstone Report deferred for several months by the Human Rights Council as a prelude to its institutional burial, which has now more or less taken place thanks to American pressures behind the scene. It has even been suggested that had the PA withdrawn the resolution Abbas would have been driven from power by an angry popular backlash among the Palestinian populace. In this sense, the PA was, like the United States, squeezed from both sides: by the Americans and by their own people.

Of course, in the background of this incident at the UN are the tumultuous developments taking place throughout the region, which are all adverse to Israel and all promising in relation to the Palestinian struggle even though many uncertainties exist. It is not only the anti-autocrat upheavals in Tunisia and Egypt, the outcome of which is still not clear from the perspective of genuine regime change as distinct from recasting the role of dictatorial leader, but the wider regional developments. These include the political rise of Hezbollah in Lebanon, Turkish diplomacy that refuses to tow the Washington line, the failure of American interventionary diplomacy in Iraq, and the beleaguered authoritarian governments in the region some of whom are likely to give more active support on behalf of Palestinian goals to shore up their own faltering domestic legitimacy in relation to their own people.

In many ways, the failed Security Council resolution condemning Israeli settlement activity is a rather trivial event in the broader setting of the underlying conflict. At the same time it is a significant show of the play of forces that are operative in Washington and Ramallah, and above all, it is an unseemly display of the influence Israel wields with respect to the Obama Administration. Is it not time that the United States revisited its Declaration of Independence or began to treat the 4th of July as a day of mourning?

II.19.2011


Revolutionary Prospects After Mubarak

15 Feb

The Egyptian Revolution has already achieved extraordinary results: after only eighteen intense days of dramatic protests. It brought to an abrupt end Mubarak’s cruelly dictatorial and obscenely corrupt regime that had ruled the country for more than thirty years. It also gained a promise from Egyptian military leaders to run the country for no more than six months of transition, the minimum period needed for the establishment of independent political parties, free elections, and some degree of economic restabilization. It is hoped that this transition would serve as the prelude to and first institutional expression of genuine democracy. Some informed observers, most notably Mohamed ElBaradei worry that this may be too short a time to fill the political vacuum that exists in Egypt after the collapse of the authoritarian structures that had used its suppressive energies to keep civil society weak and to disallow governmental institutions, especially parliament and the judiciary, to function with any degree of independence. It is often overlooked that the flip side of authoritarianism is nominal constitutionalism.

In contrast, some of the activist leaders that found their voice in Tahrir Square are concerned that even six months may be too long, giving the military and outside forces sufficient time to restore the essence of the old order, while giving it enough of a new look to satisfy the majority of Egyptians. Such a dismal prospect seems to be reinforced by reported American efforts to offer emergency economic assistance apparently designed to mollify the protesters, encourage popular belief that a rapid return to normalcy will provide this impoverished people (40% living on less than $2 per day; rising food price; high youth unemployment) with material gains.

The bravery, discipline, and creativity of the Egyptian revolutionary movement is nothing short of a political miracle, deserving to be regarded as one of the seven political wonders of the modern world! To have achieved these results without violence, despite a series of bloody provocations, and persisting without an iconic leader, without even the clarifying benefit of a revolutionary manifesto, epitomizes the originality and grandeur of the Egyptian Revolution of 2011. Such accomplishments shall always remain glories of the highest order that can never be taken away from the Egyptian people, regardless of what the future brings. And these glorious moments belong not just to those who gathered at Tahrir Square and at the other protest sites in Cairo, but belong to all those ignored by the world media who demonstrated at risk and often at the cost of their life or physical wellbeing day after day throughout the entire country in every major city. Both the magnitude and intensity of this spontaneous national mobilization was truly remarkable. The flames of an aroused opposition were fanned by brilliantly innovative, yet somewhat obscure, uses of social networking, while the fires were lit by the acutely discontented youth of Egypt and kept ablaze by people of all class and educational backgrounds coming out into the street. The inspirational spark for all that followed in Egypt and elsewhere in the region, let us not forget, was provided by the Tunisian Revolution. What happened in Tunisia was equally astonishing to the amazing happenings in Egypt, not only for being the initiating tremor, but also for reliance on nonviolent militancy to confront a ruthlessly oppressive regime so effectively that the supposed invincible dictator, Ben Ali, escaped quickly to Saudi Arabia for cover.  The significance of the Tunisian unfolding and its further development should not be neglected or eclipsed during the months ahead. Without the Tunisian spark we might still be awaiting the Egyptian blaze!

As is widely understood, after the fireworks and the impressive cleanup of the piles of debris and garbage by the revolutionaries in Tahrir Square, itself a brilliantly creative footnote to their main revolutionary message, there remains the extraordinarily difficult task of generating ex nihil a new governing process based on human rights, the will of the Egyptian people, and a mighty resolve to guard sovereign rights against the undoubted plots of canny external actors scared by and unhappy with the revolution, seeking to rollback the outcome, and seeking above all by any means the restoration of Mubarakism without Mubarak.  The plight of the Egyptian poor must also be placed on the top of the new political agenda, which will require not only control of food and fuel prices, but the construction of an equitable economy that gives as much attention to the distribution of the benefits of growth as to GNP aggregate figures. Unless the people benefit, economic growth is a subsidy for the rich, whether Egyptian or foreign.

Short of catastrophic imaginings, if interpreted as warnings may forestall their actual occurrence, there are immediate concerns: it seemed necessary to accept the primacy of the Egyptian military with the crucial task of overseeing the transition, but is it a trustworthy custodian of the hopes and aspirations of the revolution? Its leadership was deeply implicated in the corruption and the brutality of the Mubarak regime, kept in line over the decades by being willing accomplices of oppressive rule and major beneficiaries of its corrupting largess. How much of this privileged role is the military elite ready to renounce voluntarily out of its claimed respect for and deference to the popular demand for an end to exploitative governance in a society languishing in mass poverty? Will the Egyptian military act responsibly to avoid the destructive effects of a second uprising against the established order? It should also not be forgotten that the Egyptian officer corps was mainly trained in the United States, and that coordination at the highest level between American military commanders and their Egyptian counterparts has already been resumed at the highest levels, especially with an eye toward maintaining ‘the cold peace’ with Israel.  These nefarious connections help explain why Mubarak was viewed for so long as a loyal ally and friend in Washington, Tel Aviv, and Riyadh, and why the inner counsels of these governments are reacting with concealed panic at the outburst of emancipatory politics throughout the region. I would suppose that these old relationships are being approached with emergency zeal to ensure that however goes the transition to Egyptian democracy it somehow exempts wider controversial regional issues from review and change that would reflect the values that animated the revolutionary risings in Tunisia and Egypt. These values would suggest solidarity with movements throughout the Middle East to end autocratic governance, oppose interventions and the military presence of the United States, solve the Israel/Palestine conflict in accordance with international law rather than ‘facts on the ground,’ and seek to make the region a nuclear free zone (including Israel) reinforced by a treaty framework establishing peaceful relations and procedures of mutual security.  It does not require an expert to realize that such changes consistent with the revolutionary perspectives that prevailed in Egypt and Tunisia would send shivers down the collective spines of autocratic leaderships throughout the region, as well as being deeply threatening to Israel and to the grand strategy of the United States and, to a lesser extent, the European Union, that has been determined to safeguard vital economic and political interests in the region by reliance on the military and paramilitary instruments of hard power.

At stake if the revolutionary process continues, is Western access to Gulf oil reserves at prices and amounts that will not roil global markets, as well as the loss of lucrative markets for arms sales. Also at risk is the security of Israel so long as its government refuses to allow the Palestinians to have an independent and viable state within 1967 borders that accords with the two state solution long favored by the international community, and long opposed by Israel. Such a Palestinian state existing with full sovereign rights on all territories occupied by Israel since the 1967 War would mean an immediate lifting of the Gaza blockade, withdrawal of occupying Israeli forces from the West Bank, dismantling of the settlements (including in East Jerusalem), allowing Palestinian refugees to exercise some right of return, and agreeing to either the joint administration of Jerusalem or a Palestinian capital in East Jerusalem. It should be understood that such a peace was already implicit in Security Council Resolution 242 that was unanimously adopted in 1967, proposed again by Arab governments in 2002 with a side offer to normalize relations with Israel, and already accepted by the Palestinian National Council back in 1988 and reaffirmed a few years ago by Hamas as the basis for long-term peaceful coexistence. It should be understood that this Palestinian state claims only 22% of historic Palestine, and is a minimal redress of justice for an occupation that has lasted almost 44 years (recall that the UN partition plan gave the Palestinians 45% in 1947, and that seemed unfair at the time), and an expulsion that has resulted in an outrageously prolonged refugee status for millions of Palestinians that derives from the nakba of 1948. But until now, even this minimal recognition of the Palestinian right of self-determination has been unacceptable to Israel as most recently evidenced in the Palestine Papers that provide evidence that even when the Palestine Authority agreed to extravagant Israeli demands for retention of most settlements, including in East Jerusalem, and abandonment of any provision for the return of Palestinian refugees, the Israelis were not interested, and walked away. The question now is whether the revolutionary challenges posed by the outcome in Egypt will lead to a new realism in Tel Aviv, or more of the same, which would mean a maximal effort to rollback the revolutionary gains of the Egyptian people, or if that proves impossible, then at least do whatever possible to contain the regional enactment of revolutionary values.

Does this seemingly amateur (in the best sense of the word) movement in Egypt have the sustaining energy, historical knowledge, and political sophistication to ensure that the transition process fulfills revolutionary expectations? So many past revolutions, fulsome with promise, have faltered precisely at this moment of apparent victory. Will the political and moral imagination of Egyptian militancy retain enough energy, perseverance, and vision to fulfill these requirements of exceptional vigilance to keep the circling vultures at bay? In one sense, these revolutions must spread beyond Tunisia and Egypt or these countries will be surrounded and existing in a hostile political neighborhood. Some have spoken of the Turkish domestic model as helpfully providing an image of a democratizing Egypt and Tunisia, but its foreign policy under AKP leadership is equally, if not more so, suggestive of a foreign policy worthy of these revolutions and their aftermath, and essential for a post-colonial Middle East that finally achieves its ‘second liberation.’  The first liberation was to end colonial rule. The second liberation, initiated by the Iranian Revolution in its first phase, seeks the end of geopolitical hegemony, and this struggle has barely begun.

How dangerous is the prospect of intervention by the United States, Gulf countries, and Israel, probably not in visible forms, but in all likelihood in the form of maneuvers carried out from beneath the surface? The foreign policy interests of these governments and allied corporate and financial forces are definitely at serious risk. If the Egyptian revolutionary process unfolds successfully in Egypt during the months ahead it will have profound regional effects that will certainly shake the foundations of the old post-colonial regional setup, not necessarily producing revolutions elsewhere but changing the balance in ways that enhance the wellbeing of the peoples and diminish the role of outsiders. These effects are foreseeable by the adversely affected old elites, creating a strong, if not desperate, array of external incentives to derail the Egyptian Revolution by relying on many varieties of counterrevolutionary obstructionism. It is already evident that these elites with help from their many friends in the mainstream media are already spreading falsehoods about the supposed extremism and ambitions of the Muslim Brotherhood that seem intended to distract public attention, discredit the revolution, and build the basis for future interventionary moves, undertaken in the name of combating extremism, if not  justified as counter-terrorism.

It is correct that historically revolutions have swerved off course by succumbing to extremist takeovers. In different ways this happened to both the French and Russian Revolutions, and more recently to the Iranian Revolution. Extremism won out, disappointing the democratic hopes of the people, leading to either the restoration of the old elites or to new forms of violence, oppression, and exploitation. Why? Each situation is unique and original, but there are recurrent patterns. During the revolutionary struggle opposition to the old regime is deceptively unifying, obscuring real and hidden tensions that emerge later to fracture the spirit and substance of solidarity. Soon after the old order collapses, or as here partially collapses, the spirit of unity is increasingly difficult to maintain. Some fear a betrayal of revolutionary goals by the untrustworthy managers of transition. Others fear that reactionary and unscrupulous elements from within the ranks of the revolution will come to dominate the democratizing process. Still others fear that all will be lost unless an all out struggle against internal and external counterrevolutionary plots, real and imagined, is launched immediately. And often in the confusing and contradictory aftermath of revolution, some or all of these concerns have a foundation in fact.

The revolution does need to be defended against its real enemies, which as here, definitely exist, as well to avoid imagined enemies that produce tragic implosions of revolutionary processes. It is in this atmosphere of seeking to consolidate revolutionary gains that the purity of the movement is at risk, and is tested in a different manner than when masses of people were in the streets defying a violent crackdown. The danger in Egypt is that the inspirational nonviolence that mobilized the opposition can in the months ahead either be superseded by a violent mentality or succumb to outside and inside pressures by being too passive or overly trusting in misleading reassurances. Perhaps, this post-revolutionary interval between collapse of the old and consolidation of the new poses the greatest challenge that has yet faced this exciting movement led by young leaders who are just now beginning to emerge from the shadows of anonymity. All persons of good will should bless their efforts to safeguard all that has been so far gained, and to move forward in solidarity toward a sustainably humane and just future for their society, their region, and their world.

 

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Report of Special Rapporteur to the UN Human Rights Council on Occupied Palestinian Territories

14 Feb

I am posting the official text of my most recent report to the UN Human Rights Council on Israeli human rights violations in the Occupied Palestinian Territories. The period covered ends in December 2010, and the report will be formally presented to the Human Rights Council in Geneva on March 21, 2011. Of course, the impact of recent events, especially in Egypt, is not considered. Of primary interest will be the approach taken by the new Egyptian leadership to the Rafah Crossing, especially whether humanitarian goods will be permitted to enter freely and whether Gazans will be allowed to leave and return without difficulty. Also, important will be whether there will be continued cooperation with the Israeli authorities with respect to maintaining the unlawful blockade. These issues will be one litmus test with respect to the depth of democratization in Egypt. We can only hope that the ordeal endured for so long by the Gazan people will be ended as a collateral benefit of the great Egyptian Revolution, but it will not happen automatically. The time for vigilance and solidarity is now!

I apologize for the awkward formatting of this UN document, which reflects my low level of digital literacy. The official UN citation is given below, and document can be obtained from HRC website.

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United Nations

General Assembly

Human Rights Council Sixteenth session Agenda item 7 Human rights situation in Palestine and other occupied Arab territories

A/HRC/16/72

Distr.: General 10 January 2011

Original: English

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

Summary

The report addresses Israel’s compliance with its obligations under international law, in relation to the situation in the Palestinian territories that it has occupied since 1967. Israel’s persistent lack of cooperation with the fulfilment of the mandate of the Special Rapporteur, as well as other United Nations human rights mechanisms, is highlighted. The Special Rapporteur focuses attention on concerns regarding the expansion of Israeli settlements, in particular in East Jerusalem, the consequences of the Israeli blockade of the Gaza Strip and the treatment of Palestinian children detained by Israeli authorities.

GE.11-10190

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Contents

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I. Introduction ………………………………………………………………………………………………. II. Reviving the direct peace talks…………………………………………………………………….. III. Continuing expansion of settlements in the occupied Palestinian territories ………. A. The de facto annexation of East Jerusalem…………………………………………….. B. Expulsions from East Jerusalem as a means to annexation ………………………. IV. West Bank roads and international complicity in perpetuating the occupation……. V. Continuation of the Gaza blockade ………………………………………………………………. VI. Abuse of children by Israeli authorities in the occupied territories……………………. VII. Recommendations ………………………………………………………………………………………

Paragraphs Page

1–9 3 10–13 6 14–19 8 15–16 9 17–19 10 20–22 11 23–25 13 26–31 14

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I. Introduction

1. Unfortunately, the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 needs to again call to the attention of the membership of the Human Rights Council the continuing refusal of the Government of Israel to allow the Rapporteur to visit the occupied Palestinian territories. Repeated attempts have been made to engage the Government of Israel in discussion with the hope of reversing the policies that led to the detention and expulsion of the Special Rapporteur from Ben-Gurion Airport on 14 December 2008, but so far without any response. Efforts will be made to seek the necessary cooperation of the Government of Israel in relation to the obligation of the Special Rapporteur to discharge official undertakings of the United Nations. Such cooperation should be understood as a fundamental legal obligation incident to membership in the Organization.

2. As repeated efforts to call this situation to the attention of the Human Rights Council and the General Assembly have to date produced no positive results, the Special Rapporteur appeals on the occasion of this report for a more robust attempt to secure the cooperation of the Government of Israel. It should be recalled that Article 104 of the Charter of the United Nations declares that the Organization “shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes”. Article 105, paragraph 2, specifies that those who represent the United Nations shall enjoy in the territory of State Members: “such privileges and immunities as are necessary for the independent exercise of their function in connexion with the Organization”. These provisions were elaborated in the Convention on the Privileges and Immunities of the United Nations, adopted by the General Assembly on 13 February 1946, and then implemented via the Agreement between the Swiss Federal Council and the Secretary General of the United Nations, dated 19 April 1946. Article VI, Section 22, thereof, entitled “Experts on Missions for the United Nations”, is particularly relevant, setting forth the rather extensive duties of Members to cooperate with such representatives as special rapporteurs and to avoid interfering with their independence.

3. It should be pointed out that the Government of Israel has also not cooperated with other recent important initiatives of the Human Rights Council relating to the occupied Palestinian territories, including the report of the United Nations Fact-Finding Mission on the Gaza Conflict (A/HRC/12/48) and the report of the independent international fact- finding mission to investigate violations of international law, including international humanitarian and human rights law, resulting from the Israeli attacks on the flotilla of ships carrying humanitarian assistance (A/HRC/15/21). This pattern of non-cooperation with official undertakings of the Human Rights Council should produce a concerted attempt by this organ and the Office of the Secretary-General to do what can be done to obtain the future cooperation of the Government of Israel.

4. Closely related to issues associated with non-cooperation are several outstanding matters bearing on non-implementation. The report of the International Fact-Finding Mission on the Gaza Conflict on the basis of its findings of severe and systematic violations of international humanitarian law recommended that several steps be taken to assess the accountability of the perpetrators of criminal acts committed during the Gaza conflict (2008/09). There is currently no sign of any attempt to mobilize effective support for the implementation of these recommendations. Moreover, evidence of an Israeli willingness to impose credible levels of accountability for criminal acts of its soldiers and leaders in accordance with international standards remains absent. These conclusions were reaffirmed by the report of the Committee of independent experts that assessed investigations by Israel and the Palestinian sides into the Gaza conflict (A/HRC/15/50). In addition, the same

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conclusions seem to pertain to the report of the independent international fact-finding mission on the incident of the humanitarian flotilla of 31 May 2010.1 Thus, a strong impression is being formed within the international community that a lack of political will exists with which to implement recommendations based on authoritative findings that Israel has been guilty of flagrant violations of international humanitarian law and international criminal law. This impression of unwillingness to push forward with implementation fosters widespread perceptions of impunity with respect to the conduct of Israel, and in the case of flotilla incident limits and delays the opportunity of flotilla passengers to pursue remedies for harms unlawfully inflicted. This dynamic of evasion and delay weakens overall respect for international law, as well as the credibility of the Human Rights Council in relation to its own initiatives. More substantively, it deprives the Palestinian people living under occupation of their rights to receive the benefits of protection conferred in circumstances of occupation by international law and, specifically, the Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) and the First Additional Protocol to the Geneva Conventions of 1949.

5. Given the long duration, the severity and continuing nature of the violations of many fundamental legal obligations of Israel as the occupying Power, these failures of implementation of international humanitarian law are experienced on the ground through various acute forms of abuse and suffering endured on a frequent, often on a daily, basis by the civilian population of the occupied Palestinian territories. Many political leaders have confirmed this assessment in recent months, and yet the organized international community remains silent. For instance, the Foreign Minister of Germany, Guido Westerville, after a recent visit to Gaza declared that the persistence of the blockade was “not acceptable”.2

6. Furthermore, the report of the Independent International Fact-Finding Mission on the incident of the humanitarian flotilla found that the violence used by the Israel Defence Forces when the flotilla was attacked was “not only disproportionate but demonstrated levels of totally unnecessary and incredible violence” as well involving “an unacceptable level of brutality”.3 The report concludes that the Israeli attack resulted in “grave violations” of international human right and humanitarian law, as specified in article 147 of the Fourth Geneva Convention.4 It also solicits cooperation from the Government of Israel to identify the perpetrators of this violence, whose identity was hidden by masks worn during the attack on the flotilla. Such information was being sought “with a view to prosecuting the culpable”.5 As a result of these findings, the Government of Israel is obliged to end the blockade in all its aspects with a sense of urgency, to cooperate in the identification of perpetrators of the violence and of the leaders responsible for the underlying policies so that effective procedures of accountability can be employed and finally to compensate individuals and surviving family members in appropriate amounts for the unlawful harm suffered. Moreover, civil society actors that engage in such missions for genuine humanitarian purposes should be allowed to carry out their work without interference.

7. The Rapporteur believes that there are important issues of language that arise from the cumulative effects of Israeli violations of international humanitarian law, human rights law and criminal law. It becomes misleading to treat these violations as distinct behavioural

1 At the time of the submission of this report, there is still outstanding the report and recommendations of the Panel of Inquiry into the flotilla incident established by the Secretary-General and the Turkel Commission formed by the Government of Israel.

2 Ma’an News Agency, “German minister calls on Israel to lift Gaza blockade,” 8 November 2010. 3 A/HRC/15/21, para. 264. 4 Ibid., para. 265. 5 Ibid., para. 267.

instances disconnected from broader consequences that are either designed by intention or the natural outcome of accumulating circumstances (so-called “facts on the ground”). These concerns about language are accentuated because Israel is the stronger party in diplomatic settings and generally enjoys the unconditional support of the United States of America. Indeed, unlawful Israeli behaviour that starts out as “facts” have over time been transformed into “conditions”, or in the words of the American Secretary of State, Hilary Clinton, “subsequent developments” that are treated as essentially irreversible. Such transformation is true of several aspects of the occupation, including at a minimum the settlement blocs and accompanying infrastructure of roads and security zones, as well as the separation wall. To call appropriate attention to the effects and implications of these unambiguously unlawful patterns, and their somewhat perverse ex post facto attempted “legalization” and “normalization” requires stronger expository language to better understand the unbridled assault upon Palestinian rights and prospects for meaningful self- determination. It is against this background that this report has decided to employ such terms as “annexation”, “ethnic cleansing”, “apartheid”, “colonialist” and “criminality” as more adequately expressing the actual nature of the situation in the occupied Palestinian territories. Such labels can be perceived as emotive, and admittedly require a finding by a court of law to be legally conclusive. However, such language, in the Special Rapporteur’s view, more accurately describes the realities of the occupation as of the end of 2010 than the more neutral-seeming description of factual developments that disguises the structures of this occupation which has undermined the rights under international law of the Palestinian people for 43 years.

8. Against this background, the Rapporteur deems it appropriate at this time to renew the call of the former Special Rapporteur on the occupied Palestinian territories, John Dugard, for a referral of the situation to the International Court of Justice for an authoritative decision as to whether, “elements of the [Israeli] occupation constitute forms of colonialism and of apartheid”.6 It should be emphasized that the crime of apartheid is no longer attached to the racist policies of the South African regime that generated the International Convention on the Suppression and Punishment of the Crime of Apartheid. It is now a crime associated with an “institutionalized regime of systematic oppression … by one racial group over any other racial group … committed with the intention of maintaining that regime”.7 The crime of apartheid is also treated as “a grave breach” of article 85, paragraph 4 (c), of the First Geneva Protocol, an international treaty with 169 parties, and widely regarded as universally binding because it is declaratory of customary international law. As will be illustrated in the present report, the dual discriminatory structure of settler administration, security, mobility, and law as compared to the Palestinian subjugation seems to qualify the long Israeli occupation of the West Bank as an instance of apartheid. The referral to the International Court of Justice should also seek clarification as to whether the pattern of continuing unlawful settlement, manipulation of residence credentials, expulsions in East Jerusalem qualify as “ethnic cleansing” and, if so, how this behaviour should be viewed from the perspective of the international law of belligerent occupation.

9. It is also important to underscore what should be self-evident, namely, that Israel has State responsibility for all violations of international humanitarian law in the territories under occupation, above all, for the settlements. State responsibility cannot be evaded by delegation or failure to deal with violations of Palestinian rights in the occupied territories arising from the behaviour of municipal or private sector actors, as in connection especially with claims of unlawful settlement building and ethnic cleansing allegations in East Jerusalem.

6 A/HRC/4/17, summary, tenth paragraph. 7 See Rome Statute of the International Criminal Court, article 7, para. 2 (h).

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II. Reviving the direct peace talks

10. At present, there has been a pause in the peace negotiations between Israel and the Palestinian Authority and feverish diplomatic efforts are being made to continue discussions between the parties. These efforts are relevant to the Rapporteur, as the generally accepted route to the fulfilment of the right of self-determination for the Palestinian people living under occupation has been to achieve an Israeli withdrawal in accordance with Security Council resolution 242 (1967) or on the basis of an agreement between the parties. Whether such negotiations can be effective and legitimate is itself a much contested question that will not be considered here, nor will the presumed outcome of establishing an independent Palestinian state in the occupied territories be assessed from the perspective as to whether the accumulation of facts on the ground has made such an outcome unattainable as a practical matter. In a recent report to the General Assembly (A/65/331), the Special Rapporteur put forth the argument that the developments in the West Bank and East Jerusalem have transformed a de jure framework of occupation into a de facto condition of annexation. The Rapporteur remains convinced that Israeli settlements, including related infrastructure roads, buffer zones and the separation wall, continue to be the single most important obstacle to resuming the peace talks, assuming that such talks can make constructive contributions to the realization of Palestinian rights, which is far from self-evident. The Palestinian Authority has repeatedly said that it would not resume negotiations without an unqualified freeze on settlement expansion, including East Jerusalem. President Mahmoud Abbas stated: “We want a complete cessation of settlement construction. We don’t want to be deceived with another moratorium or a half moratorium or a quarter moratorium. If they want us to talk to the direct talks, the settlements must stop completely”.8 The chief Palestinian negotiator, Saeb Erekat, made the same avowal: “There are no compromises over settlement construction … The Israeli government must choose between peace and settlements, because it can’t combine the two together”.9

11. Further, the Rapporteur believes that there are grounds for concern with respect to maintaining the rights of the Palestinian people in relation to the inducements offered to Israel to extend the partial moratorium on settlement expansion. Since this question is one of principle, it remains relevant despite the announcement of the Government of the United States that it will no longer press the Government of Israel to freeze settlement expansion. It is important to bear in mind that the unlawfulness of the settlements has been confirmed over and over again by reference to the textual language of article 49(6), of the Fourth Geneva Convention, by decisions and resolutions of the General Assembly and the Security Council and by numerous statements on the part of respected world leaders. Therefore, providing Israel with substantive benefits for temporarily and partially halting an unlawful activity that infringes on Palestinian prospects for self-determination raises disturbing issues of principle and precedent. The former American Ambassador to Israel, Daniel Kurtzer, has referred to such an effort by the United States to renew the negotiations as designed “to reward Israel for its bad behavior” in the past and present.10 It is also widely reported that, if Israel accepts the offer, it will never again be asked to impose a moratorium on settlement expansion in either the West Bank or East Jerusalem. What is most relevant

8 Khaled Abu Toameh, “Abbas: Israel seeking to ‘close door to right of return’”, The Jerusalem Post, 8 November 2011.

9 Ibid. 10 “With settlement deal, U.S. will be rewarding Israel’s bad behavior”, Washington Post, 21 November

2010. Robert Fisk has phrased an objection in even harsher language: “The current American bribe to Israel, and the latter’s reluctance to accept it, in return for even a temporary end to the theft of somebody else’s property would be [normally] regarded as preposterous”. “An American bribe that stinks of appeasement”, The Independent, 20 November 2010.

here is the disregard of the legal rights of the Palestinians living under occupation. If a pattern of repeated violation of rights, as here, is to be treated as a new platform of legality, then a terrible precedent is being established for these parties and generally. There can be no positive significance to a negotiating process that incorporates an acceptance and legitimization of Israeli settlements and their infrastructure of roads, which constitute a fundamentally unlawful dimension of the prolonged Israeli occupation of the West Bank and East Jerusalem. In this respect, only a permanent commitment to freeze settlement growth would signal the minimal good faith required to support the belief that peace talks are a viable path at this stage to reach the essential goals of Palestinian self-determination and a sustainable peace with security for both peoples.

12. On the matter of Palestinian self-determination, the most basic right whose exercise is precluded by the continuation of the occupation, Palestinian Authority has stated that if the talks fail it will establish a Palestinian state on its own even in the face of the occupation. President Abbas expressed this view as follows: “If we fail in [the negotiations], we want to go to the United Nations Security Council to ask the world to recognize the Palestinian state”.11 This is consistent with the frequently discussed plans for Palestinian statehood articulated by the Palestinian Authority Prime Minister, Salam Fayyad. Mr. Fayyad has announced plans for constructing in the West Bank the institutional components of Palestinian statehood, and his efforts have been viewed as credible and impressive in many independent quarters.12 In Mr. Fayyad’s recent words, “I firmly believe [Palestinian statehood] can happen. We need to build up a sense of inevitability about this. I think it will happen next year”.13 A report issued by the World Bank in October 2010 also encouraged these expectations, suggesting that if the Palestinian Authority maintains “its performance in institution-building and delivery of public services …, it is well-positioned for the establishment of a Palestinian state at any point in the near future”.14 Nevertheless, it needs to be understood that such a Palestinian state could be viewed as falling far short of realizing the minimum content of an acceptable enactment of self-determination, lacking in resolution of outstanding core issues such as refugees, Jerusalem, borders, water and settlements. In a notable recent development, with many legal and political implications, Brazil and Argentina formally recognized Palestine as a state within its 1967 borders, which in effect, seems to be the territorial vision of Palestinian self-determination contained in Security Council resolution 242 (1967)(subject to minor border adjustments, but not sufficient to allow annexation of the settlement blocs in “exchange” for largely arid land abutting Gaza, or to transfer Arab villages currently behind the green line) and encompassing the crucial non-territorial issue of refugees.

13. Another matter of concern for the Rapporteur during the reporting period is the passage of an Israeli law that would subject any agreement reached in intergovernmental negotiations to be made subject to a national referendum unless approved by 80 or more members of the Knesset.15 If an agreement were to be reached that embodied the rights and duties of the respective governmental actors, adding internal requirements of approval by either a parliamentary super-majority or a national referendum would only unnecessarily burden that process. Saeb Erekat has gone a step further and stated that the new legislation

11 “Abbas: Israel seeking to ‘close door to right of return’”. 12 See e.g. Robert Serry, “Is the two-state solution fading?”, 27 April 2010, speech at Truman Institute,

Hebrew University. 13 Reuters, “Palestinians demand immediate statehood to counter Israeli “unilateralism’” 9 November

2010. 14 World Bank, “A Palestinian State in Two Years: Institutions for Economic Revival” (September

2009), para. 3. 15 See Chaim Levinson, “Knesset mandates referendum to withdraw from annexed land”, Haaretz, 23

November 2010.

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“is making a mockery of international law”.16 States do customarily require some form of legislative endorsement of international treaty obligations. In this instance, the public validation by Israel of any agreement reached might add to its political legitimacy and the likelihood of future respect and, if it failed to gain sufficient Israeli support, could signal the unsustainability of the agreement. Thus, this new constraint on the finality of a negotiated settlement can at best be viewed as ambivalent, and not itself unlawful, although it might be imprudent, if the objective is to end the conflict through a negotiated agreement, a position that is increasingly confronted by doubts.

Continuing expansion of settlements in the occupied Palestinian territories

14. Given the centrality that has been accorded by both sides to the settlement phenomenon, the Rapporteur believes that more detailed attention to the facts and legal implications of recent settlement expansion seems appropriate. The Israeli 10-month self- delimited “moratorium” on settlement expansion in the West Bank expired on 26 September 2010, leading to the breakdown of the briefly resumed peace process and giving rise to lengthy negotiations aimed at re-establishing the moratorium that have now been abandoned. However, several points must be noted. First, the 10-month moratorium did not stop settlement construction but only slowed the pace of expansion in some parts of the West Bank;17 it did not purport to freeze settlement construction in occupied East Jerusalem, contending, contrary to the international legal and political consensus, that the whole of Jerusalem, as expanded by Israeli law since 1967, is unoccupied, and that the whole city is the capital of Israel, leaving no part of the city to be available as the capital of a future Palestinian state. In the West Bank, settler construction of public facilities such as schools and community centres as well as thousands of housing units already under construction continued unabated during the moratorium. Second, according to the movement Peace Now, a surge of settlement building took place in the first six weeks following the end of the moratorium on 26 September.18 Further, the settlers managed to start to build 1,629 housing units, and to dig the foundations for 1,116 of them. Work started in 63 settlements, 46 of them east of the separation wall and 17 on the western side of it. In all of 2009, according to the Israeli Central Bureau of Statistics data, work on 1,888 new housing units have started. Had the construction continued at the same speed without the moratorium, there would have been 1,574 units during the 10-month period. In the six weeks following the end of the freeze, the settlers managed to start a similar number of units attesting to the reality that the settlement freeze was no more than a 10-month delay in the construction.19 In fact, the rate of settlement construction quadrupled compared to what it had been during the two years before the moratorium.20 Third, and perhaps most importantly, the underlying premises of the moratorium were never drawn into question, namely, that it was a matter of Israeli discretion to initiate or terminate a settlement freeze. Official diplomacy never considered the relevance of the continuing violation arising from the presence of the settlements or the questionable status of the 500,000 Israeli settlers who

“Erekat on referendum: Israel making a mockery of int’l law”, The Jerusalem Post, 23 November 2010. See Peace Now, “Eight Months into the Settlement Freeze”, 2 August 2010. See Peace Now, “In 6 weeks the settlers almost made up for the 10 months Settlement Free,” 13 November 2010.

Ibid. See International Middle East Media Center, “Rate Of Israeli Settlement Construction Quadrupled In Last Month”, 21 October 2010.

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17 18

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now reside in the West Bank and East Jerusalem and benefit from a preferential legal and administrative structure, which contributes to the impression of apartheid (as a result of its discriminatory, coercive and ethnically specified characteristics). In this respect, the magnitude of the settlement phenomenon, combined with its persistence and character, also warrant concern that the occupation is a form of colonialist annexation that has been established with a clear intention of permanence.

The de facto annexation of East Jerusalem

15. The Israeli insistence on excluding East Jerusalem from the partial moratorium and its overall attitude toward its status is of further concern to the Rapporteur. Prime Minister Binyamin Netanyahu, along with other Israeli leaders, has repeatedly confirmed continuing rejection by Israel of United Nations resolutions and other relevant aspects of international law recognizing that the occupied Palestinian territory includes East Jerusalem. Mr. Netanyahu dramatized this point when he recently stated that “Jerusalem is not a settlement – Jerusalem is the capital of the State of Israel. Israel has never restricted itself regarding any kind of building in the city, which is home to some 800,000 people – including during the 10-month construction moratorium in the West Bank. Israel sees no connection between the peace process and the planning and building policy in Jerusalem, something that hasn’t changed for the past 40 years”.21 Although such an assertion amounts to defiance of international law, it is a significant expression of Israeli diplomatic posture, casting further doubt on what could be expected to emerge from a negotiating process that attempts to foreclose a fundamental Palestinian right to have the part of historic Jerusalem occupied by Israeli in 1967 as its national capital. Again, it is disturbing to note the absence of formal objection by the international community and interested Governments to such an Israeli posture taken in advance of negotiations.

16. The Rapporteur finds that by December 2010, the pace of settlement expansion in East Jerusalem had in fact escalated. On 4 November 2010, the Government of Israel issued tenders for 238 new housing units in the East Jerusalem settlements of Pisgat Zeev and Ramot22 and the following day announced plans for construction of 1,352 new housing units elsewhere in East Jerusalem. Continued construction in addition to settlers’ forcibly taking over Palestinian homes in East Jerusalem has resulted in the expulsion of Palestinian residents from their homes. Palestinian families, some of whom have lived in their homes for generations, have been expelled by Israeli police and settlers. In July 2010, a large Palestinian family that had lived in their home in the Old City for more than 70 years was expelled by police-backed settlers who then took over the house.23 In November 2010, settler organizations took control of two houses in Palestinian neighbourhoods of Jabal al- Mukkaber and al-Tur in East Jerusalem resulting in forcible eviction of several Palestinian families from their homes.24 The Sheikh Jarrah neighbourhood has also been the subject of persistent attempts by Israeli settler groups to take over land and property in order to establish new settlements in the area. As a result, over 60 Palestinians have lost their homes and another 500 remain at risk of forced eviction, dispossession and displacement in the

Attila Somfalvi, “PM responds to Obama: Jerusalem not a settlement”, Yediot Aharanot, 10 November 2010. Amnesty International UK, “East Jerusalem: Israel’s 238 housing units plan threatens Palestinian human rights”, 15 October 2010.

Harriet Sherwood, “Israeli settlers evict Palestinian family from their home of 70 years”, The Guardian, 29 July 2010. B’Tselem, “New settler enclaves in East Jerusalem”, 2 December 2010.

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near future.25 In Silwan neighbourhood of East Jerusalem, Israeli families have forcibly taken over Palestinian homes, turning them into guarded settlement compounds flying Israeli flags.26 Many of the settler organizations are backed by private donors from abroad,27 raising the issue of international complicity, as well as Israeli State responsibility, with these continuing violations of international law. Moreover, The Government of Israel and the Jerusalem Municipality support the settlers’ actions in Palestinian neighbourhoods in East Jerusalem and the Old City by allocating private security guards, paid for by taxes, to protect the compounds; sending security forces to accompany takeover of Palestinian houses; funding and promoting building and development projects in the compounds; and transferring Government assets to the control of the organizations.28 This support further illustrates the institutional and systematic discrimination against the Palestinian residents of Jerusalem by Israel, as well as ongoing Israeli efforts to create what are euphemistically called “facts on the ground” for the annexation of East Jerusalem.

Expulsions from East Jerusalem as a means to annexation

17. The Special Rapporteur believes that the expulsions from East Jerusalem go beyond those linked to house seizures or demolitions – and beyond the immediate dire consequences to individuals and families facing the loss of their homes – and form part of the broader picture of annexation, not as an Israeli legal claim but enacted increasingly as evidence of an Israeli political project. Israel carries out new punishments against Palestinians in Jerusalem, including threats of the revocation of Jerusalem residency rights of Palestinians living legally in Jerusalem.

18. In one of the most egregious examples, in July 2010, four Palestinian citizens of Israel, who were elected members of the Palestinian Legislative Council, including one former Council minister, were given notice that their right to Jerusalem residency was being revoked, after the four politicians refused to renounce their ties to Hamas.29 Efforts to expel these parliamentarians were resumed in the summer of 2010 and finally, on 8 December 2010, one of these individuals was deported from Jerusalem.30 The expulsion of the Council’s members from Jerusalem is a violation of the article 49(6) of the Fourth Geneva Convention, which explicitly prohibits the forcible transfer of protected persons. It also sets a particularly dangerous precedent for the removal of more than 270,000 Palestinians living in East Jerusalem.31 As the Special Rapporteur has noted before, it is particularly worrying that Israel appears ready to forcibly transfer these individuals based on their supposed lack of allegiance to the state of Israel.32 Israel, as an occupying Power, is prohibited from transferring civilian persons from East Jerusalem and from forcing Palestinians to swear allegiance or otherwise affirm their loyalty to the State of Israel. The revocation of residency permits, home demolitions and evictions, settlement construction, the separation of East Jerusalem from the rest of the West Bank and its annexation to Israel,

Office for the Coordination of Humanitarian Affairs – occupied Palestinian territory (OCHA-OPT), “Fact sheet: The Case of Sheikh Jarrah”, October 2010. See e.g. Wadi Hilweh Information Center Silwan, “Settlers took over a house in Al-Farouq neighborhood in Silwan”, 23 November 2010.

See “New settler enclaves in East Jerusalem”. Ibid. See B’Tselem, “In dangerous precedent, Israel revokes residency of four Palestinians affiliated with Hamas from East Jerusalem and acts to forcibly transfer them”, 18 July 2010. Associated Press, “Israel expels Hamas MP jailed over Jerusalem status”, 9 December 2010. “In dangerous precedent, Israel revokes residency”. Statement of the Special Rapporteur, “Israel must avoid further violations of international law in East Jerusalem,” 29 June 2010.

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27 28 29

30 31 32

and other Israeli measures to push Palestinian residents out of the city will cumulatively make the creation of a viable Palestinian state, with its capital as East Jerusalem, impossible.33

19. The evidence mounts that from a longer vantage point, the overall pattern combining forced expulsions of Palestinians outwards and of Government-supported voluntary transfers of Israeli settlers inwards reflects a systematic policy of Israel to set the stage for an overall dispossession of Palestinians and the establishment of permanent control over territories occupied since 1967. According to a United Nations report, forced population transfer, or ethnic cleansing, is defined as the “systematic, coercive and deliberate … movement of population into or out of an area … with the effect or purpose of altering the demographic composition of a territory … particularly when that ideology or policy asserts the dominance of a certain group over another”.34 There is no question that, with its policy of Palestinian expulsion and dispossession in Jerusalem, Israel continues to be responsible for a gradual, incremental, yet cumulatively devastating policy designed to achieve the ethnic cleansing of Palestinians.

IV. West Bank roads and international complicity in perpetuating the occupation

20. The Rapporteur strongly believes that the wider infrastructure of occupation and in particular the dual system of roads represents a growing violation by Israel, the occupying Power, of the International Convention on the Suppression and Punishment of the Crime of Apartheid and, more pertinently, of apartheid as an instance of a crime against humanity as specified in the statute governing the operations of the International Criminal Court. The dual system of roads, as correlated with legal regimes, creates two domains in the West Bank: one for privileged Israeli settlers and the other for subjugated Palestinians living under an occupation. This is particularly visible in the Government and international funding of a network of alternative roads designed to facilitate Palestinian travel, while institutionalizing Israeli military control over the existing main roads, which are then accessible only to Israeli settlers. Many of these roads are also being constructed or upgraded in Area C – the approximately 62 per cent of the West Bank, which according to the 1995 Oslo agreement remains under Israeli administrative and military control, and where the material conditions of the Palestinians living in Area C compares extremely unfavorably with conditions in areas A and B, and even with the wretched conditions under blockade in Gaza. In those cases, the roads remain under control of the occupying Power and thus largely inaccessible to Palestinians (except those very few who obtain a permit), while the international aid and money used to pay for the roads is money – diverted from funding streams ostensibly aimed at improving the lives of Palestinians living under occupation – instead benefits the occupying Power.

21. The Office for the Coordination of Humanitarian Affairs has reported that Israeli authorities continue to implement measures to restrict Palestinian movement and access and, at the same time, to facilitate the movement of Israeli settlers.35 These measures include, namely, the expansion of the alternative (“fabric of life”) road network;

33 Carter Center, “Carter Center Calls for End to East Jerusalem Deportations, Respect for International Law” (22 July 2010). Available from http://www.cartercenter.org/news/pr/palestine-072210.html.

34 The Human Rights Dimensions of Population Transfer, including the Implantation of Settlers, Preliminary Report prepared by A. S. al-Khawasneh and R. Hatano (E/CN.4/Sub.2/1993/17), paras. 15 and 17.

35 OCHA-OPT, “West Bank Movement and Access Update” (June 2010).

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checkpoints (including partial checkpoints); and the unstaffed obstacles, including roadblocks, earthmounds, earth walls, road gates, road barriers and trenches.36 These measures exact a price from Palestinians. For example, the “fabric of life” roads, which often require the seizure of private Palestinian lands, reconnect a few of the Palestinian communities that were disconnected due to the restricted access of Palestinians to a main road or due to the obstruction of a road by the separation wall. They, however, continue to reinforce the exclusion of Palestinians from the primary road network and undermine the territorial contiguity between different areas.37

22. Whether inadvertently or not, the role of the international donor community has led to a consolidation of Israeli control in the West Bank through the two-tiered system of roads. The United States Agency for International Development (USAID) has acknowledged that all its West Bank projects in Area C, including road construction, must be carried out through prior coordination with the Government of Israel.38 In other words, USAID and American taxpayers are financing, and thereby further entrenching, the Israeli de facto annexation of the West Bank.39 In one specific example, USAID announced in June 2010 that United States taxpayers had paid for road construction in the West Bank, boasting that “after completion of a road project in the southern West Bank, trade between Dahriyeh and the neighboring city of Beer Sheva (approximately 100,000 residents total) increased dramatically”.40 The West Bank area between Dahriyeh and Beer Sheva lies largely within Area C, thus aid funds designated for Palestinian residents is instead helping Israel finance the occupation. In another example in a nearby area, Nidal Hatim, a resident of Battir village near Bethlehem, described his inability to use Route 60, the main road from Bethlehem to his home village and the principal north-south traffic artery through the West Bank; “To go on the highway, we have to go through the checkpoint and turn around. I have a West Bank Palestinian ID, so I can’t go through the checkpoint”.41 Instead, he takes a side road that is currently being built by the Palestinian Authority with USAID support. The side road, still under construction, weaves around and under the four-lane Route 60, which is now used mostly by Israeli settlers. Upon completion, this “fabric of life” road is expected to be the sole access point connecting the villages in the western section of Bethlehem governorate with the urban area of Bethlehem.42 According to the Israeli human rights organization B’Tselem, “the dual road system in the West Bank will in the long run cement Israeli control. The tunnel that connects with Battir can be controlled by one army jeep”.43 The Palestinian Authority grants approval for some of the roads. However, that does not change the legal consequence of an outside-Government funding infrastructure that consolidates the process of de facto annexation already under way in the

36 Ibid. 37 Ibid. 38 Letter from USAID dated 9 June 2010. Available from http://www.usaid.gov/wbg/misc/2010-WBG-11.pdf. 39 See further Akiva Eldar, “US taxpayers are paying for Israel’s West Bank occupation”, Haaretz, 16

November 2010: “The roads are one of the initiatives of the United States Agency for International Development for building infrastructure in underdeveloped countries. Israel has already proudly left the club of developing countries and is not among the clients of USAID. Nevertheless, it appears the Smith family of Illinois is making the occupation a little less expensive for the Cohen family of Petah Tikva.”

40 USAID, “Fact Sheet: Water Resources and Infrastructure”, (June 2010). Available from http://www.usaid.gov/wbg/misc/WRI%20-%20INP%20Fact%20Sheet.pdf.

41 Nadia Hijab and Jesse Rosenfeld, “Palestinian Roads: Cementing Statehood, or Israeli Annexation?”, The Nation, 30 April 2010.

42 “West Bank Movement and Access Update”. 43 “Palestinian Roads”. See also Badil, “The implications of losing access to route 60”. Available from

http://www.badil.org/en/documents/category/33-ongoing-displacement.

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occupied Palestinian territory. Such funding could arguably result in the outside Government supplying the funds being deemed complicit in the illegal occupation.

Continuation of the Gaza blockade

23. It is important to underscore at the outset the conclusions drawn by the report of the independent international fact-finding mission on the incident of the humanitarian flotilla. The report reached a series of conclusions that are likely to become authoritative so far as the international assessment is concerned and have some wider policy implications with regard to the continuing blockade and occupation of Gaza. Perhaps, the most important of these implications, as of 31 May 2010, is “the firm conclusion that a humanitarian crisis existed” at the time in Gaza on the basis of a “preponderance of evidence from impeccable sources” that “is too overwhelming to come to a contrary opinion”.44 The report of the Mission further concludes that the existence of a humanitarian crisis is enough by itself to make the blockade “unlawful”45 and, by extension, to regard the interception of the flotilla in international waters as a violation of international law.46 It should be noted that the core unlawfulness of the blockade, quite independent of its overall humanitarian effects, is that it constitutes a clear, systematic and sustained instance of collective punishment imposed on an entire civilian population in direct violation of article 33 of the Fourth Geneva Convention. One dramatic further finding is “that a deplorable situation exists in Gaza”, such that action by humanitarian organizations to break an unlawful and cruel blockade of this sort is fully justified.47 This is especially so when, as here, “the international community is unwilling for whatever reason to take positive action”.48 Such an interpretation of the situation confronting the people of Gaza, and having persisted and worsened ever since Israeli sanctions were imposed in 2006 and dramatically escalated by the blockade established in 2007, is a powerful vindication of the humanitarian rationale for the flotilla offered by its organizers and denied by Israeli officials, who repeatedly refute that any humanitarian crisis exists in Gaza.

24. The Rapporteur has found that the situation of the civilian population in Gaza continues to be of critical concern. In 2010, Israeli uses of force resulted in 58 Palestinians killed in Gaza (including 22 civilians) plus 233 Palestinians injured (including 208 civilians).49 Israel has declared a buffer zone that extends for 1,500 metres into Gaza from the border fence (comprising 17 per cent of Gaza), and Israeli military personnel fire at farmers and children who are pursuing normal peaceful activities close to the border.50 Israeli naval forces also restrict Gaza fishing boats to three nautical miles from shore and fire warning shots should these boats go beyond this limit.51 These characteristics of the ongoing Israeli relationship to Gaza are strongly confirmatory of the legal and factual assessment that Gaza remains an occupied territory.

A/HRC/15/21, paras. 261 and 263. Ibid., para. 261. Ibid., para. 262. Ibid., para. 275.

Ibid., para. 276. OCHA-OPT, “Protection of Civilians Weekly Report”, 10–23 November 2010. See OCHA-OPT, Between the Fence and a Hard Place, (2010). See the next chapter for further on this topic. Ibid.

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25. Despite the announced easing of the blockade after the flotilla incident of 31 May 2010, the dire humanitarian situation persists in Gaza.52 Unfortunately, despite some selective easing of the blockade, its essential features persist with continuing hardship and hazard for the entire civilian population of Gaza.53 The most recent statistics available, for instance, suggest that an average of 780 truckloads per week of humanitarian goods had entered Gaza in late November 2010 (as compared to 944 truckloads after the reported easing of the blockade on 20 June 2010) and this total was only 28 per cent of the weekly average before the blockade was imposed in June 2007.54 According to a recent report by 25 non-governmental organizations, Gaza requires 670,000 truckloads of construction material to rebuild after the Israeli assault in January 2009. However, the Israeli authorities have only permitted an average of 715 truckloads per month since the “easing” of restrictions in June 2010.55 At this rate it will take 78 years to rebuild Gaza, with a completion date in 2088. It is also notable that 53 per cent of the total import was for food items as compared to 20 per cent prior to the blockade, suggesting the decline of the non- food requirement for civilian normalcy. There has also been no increase in industrial fuel since the beginning of 2010. As a result, total available electricity is 40 per cent below the estimated daily demand of 280 MW.56 Daily power cuts of up to 12 hours negatively affect such essential services as water supply, sewage treatment and removal, and health facilities.57 Twenty per cent of Gazans have access to water only for one day out of five (and then for 6–8 hours), fifty per cent have access only one day in four; and a further thirty per cent every second day.58 In September 2010, the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) reported that, owing to the continuing blockade, it cannot meet the enrolment needs of 40,000 Gazan school children.59 These facts demonstrate the persistence and unlawful character of the blockade, being both a form of unlawful collective punishment amounting to a crime against humanity and a denial of material necessities to a civilian population living under occupation in violation of international humanitarian law.

Abuse of children by Israeli authorities in the occupied territories

26. In 2010, there were several reports of the abuse of Palestinian children in the West Bank including East Jerusalem. It is recalled that children are treated as entitled to high

See Prime Minister Netanyahu’s Office’s statement following the Israeli Security Cabinet meeting, 20 June 2010. Available from http://www.mfa.gov.il/MFA/Government/Communiques/2010/Prime_Minister_Office_statement_20-Jun- 2010.htm.

See generally Amnesty International UK et al, “Dashed Hopes: Continuation of the Gaza blockade”, 30 November 2010. See also Gisha, “Unraveling the closure of Gaza: what has changed and what hasn’t since the Cabinet decision and what are the implications?”, July 2010. Available from http://www.gisha.org/UserFiles/File/publications/UnravelingTheClosureEng.pdf. For further update, see also Gisha, “Facts Behind MFA Report on ‘Easing’ of Gaza Closure”. Available from http://www.gisha.org/index.php?intLanguage=2&intItemId=1890&intSiteSN=119.

“Protection of Civilians”. “Dashed Hopes: Continuation of the Gaza blockade”. Ibid. Ibid. See also OCHA-OPT, “Gaza’s electricity crisis: the impact of electricity cuts on humanitarian situation”, May 2010. Ibid. UNRWA, “40,000 students turned away from UNRWA schools due to Gaza closure”, 15 September 2010.

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standards of protection in situations of arrest or when enduring occupation. Article 37(b) of the Convention on the Rights of the Child provides: “The arrest or imprisonment of a child shall be used only as a measure of last resort and for the shortest appropriate period of time”. Article 76 of the Fourth Geneva Convention specifies that “Proper regard shall be paid to the special treatment due to minors”. Further, Article 77, paragraph 1, of the First Additional Protocol to the Geneva Conventions reinforces this legal obligation as follows: “Children shall be the object of special respect and shall be protected against any form of indecent assault. The Parties to the conflict shall provide them with the care and aid they require, whether because of age or for any other reason”. The treatment by Israeli authorities of Palestinian children living under occupation does not at all comply with these provisions.

27. The Rapporteur utterly deplores and strongly condemns the fact that, since 2000, 1,335 Palestinian children (including 6 children in 2010) have been killed as a result of Israeli military and settler presence in the occupied Palestinian territories.60 The arbitrary opening of fire by Israeli military against Palestinian children is particularly appalling. Since March 2010, Israeli soldiers along the border with Gaza have shot 17 children while they collected building gravel in the Gaza buffer zone to support their families. The children were shot whilst working between 50 and 800 metres from the border. Adults and children continue to do this dangerous work as Israeli authorities refuse to allow the entry of construction material into the Gaza Strip and there are few job opportunities available.61

28. The Rapporteur is further dismayed at the continual arrests and detention of Palestinian children by Israeli authorities. In 2010, Israeli authorities arrested children at checkpoints, off the street or, most commonly, from the family home. In the case of house arrests, large numbers of Israeli soldiers typically surrounded the family home in the middle of the night. Children were beaten or kicked at the time of arrest and put at the back of a military vehicle where they were subject to further physical and psychological abuse on the way to the interrogation and detention centre. Upon arrest, children and their families were seldom informed of the charges against them.62 Children were often subject to abuse during interrogation.63 At the end of October 2010, 256 children remained in Israeli detention, including 34 between the ages of 12–15 years.64 As of August 2010, 42.5 per cent of Palestinian children in Israeli prisons were not held in facilities separate from adults.65

29. The continued reports of inhumane and degrading treatment, including sexual assault, of children in detention is further deplorable. In Silwan neighbourhood of East Jerusalem, at least 81 minors from Silwan have been arrested or detained for questioning (mostly in the middle of the night), the vast majority on suspicion of stone-throwing following confrontations between Palestinians and settlers in the neighbourhood, where

60 See Defence for Children International/Palestine Section (DCI-Palestine), “Detention Bulletin: November 2010”.

61 Ibid. 62 DCI-Palestine, “Submission to European Parliament Sub-Committee on Human Rights: Hearing on

Situation in Prisons in Israel and Palestine”, 25 October 2010. Available from http://www.dci-

pal.org/english/doc/press/Prison_Conditions_EU_Parliament_25_Oct_2010.pdf. 63 Ibid.

64 DCI-Palestine, “Detention Bulletin: October 2010”. 65 “Submission to European Parliament Sub-Committee on Human Rights” (citing figures provided by

the Israeli Prison Service). See also B’Tselem and Hamoked, “Kept in the Dark: Treatment of Palestinian Detainees in the Petah Tikva Interrogation Facility of the Israel Security Agency”, October 2010, p. 33.

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there is tension resulting from settlers’ taking control of houses and archeological sites.66 Some of those arrested were under the age of 12. An increasing number of testimonies by children and their families pointed to gross violations of the rights of children during interrogation.67 In the Ariel settlement in the occupied West Bank, children reported that they had been given electric shocks by Israeli interrogators in the settlement.68 The children, one as young as 14 years of age, were each accused of throwing stones at a settler bypass road in the occupied West Bank. Following the electric shocks, the boys provided their interrogators with confessions, although they maintained their innocence.69 In May 2010, a 14-year-old boy reported that his interrogator in the Israeli settlement block of Gush Etzion, in the occupied West Bank, attached car battery jump leads to the boy’s genitals and threatened to electrify the cable. After further abuse, the boy confessed to throwing stones, although he maintains his innocence.70

30. Each year, approximately 700 Palestinian children (under 18) from the West Bank are prosecuted in Israeli military courts after being arrested, interrogated and detained by the Israeli army.71 Observers have been shocked by the disparities between the special regard for children imposed by international legal norms and the actual practices of Israeli military and security forces. A recent visit by a British Parliamentary group is illustrative: Sandra Osborne, after visiting a military court used to prosecute children at Camp Ofer, near Ramallah, remarked during a Parliamentary debate on the subject, “it was a visit to a military court that shocked us to the core”.72 Among the shocking features were the following: the child defendants – 13 and 14 years of age – were brought into the courtroom with their legs shackled in changes and handcuffed, usually behind their backs; their jail sentences were lengthened by as much as three times unless they pleaded guilty; the judge had no interaction with the child defendants and was reported never even to look at them; proceedings and signed confessions were in Hebrew, a language most of these children did not know.73 The scene being described resembles the administration of justice in the South Africa of apartheid that the Special Rapporteur visited on a formal mission on behalf of the International Commission of Jurists in 1968.

31. The apartheid dimension of this abusive atmosphere is also accentuated by the dual legal system that is operative in the occupied territories, with settler children – who are rarely apprehended in any event for their violent act – being prosecuted in Israeli civilian courts, while Palestinian children are brought before the military court system. Among the discriminatory features of the two systems is the imposition of higher degrees of accountability at lower ages, Palestinians being held responsible as adults at the age of 16, while the Israeli age is 18. The failure to uphold minimum standards in relation to the treatment of Palestinian children detained and imprisoned is an extreme violation of Israeli

66 See generally B’Tselem, “Caution: Children Ahead – The Illegal Behavior of the Police toward Minors in Silwan Suspected of Stone Throwing”, December 2010. See also, Wadi Hilweh Information Center, “Silwanian Children at the Frontline”, 12 May 2010. Available from http://silwanic.net/?p=2966.

67 See, “Child protection laws broken during Silwan interrogations”, The Jerusalem Post, 25 November 2010.

68 DCI-Palestine, “Detention Bulletin, September 2010”. 69 Ibid. 70 Ibid. DCI-Palestine and PCATI have submitted complaints against the Israeli army and police

interrogators and demanded an investigation into reports that an Israeli interrogator in the settlement of Gush Etzion attached car battery jump lead to the genitals of a 14-year-old boy in order to obtain a confession to stone throwing.

71 “Submission to European Parliament Sub-Committee on Human Rights”. 72 Haaretz, “Otherwise Occupied/Labour is concerned”, 13 December 2010. 73 Ibid.

obligation to do all that is possible, subject to reasonable security measures, to respect the status of protected persons as mandated by the Fourth Geneva Convention. Such an assessment is rendered more disturbing when account is taken that almost all of these arrests of children are generated by their resistance to unlawful patterns of Israeli settlement building and expansion, along with related ethnic-cleansing measures being applied at an accelerating rate in East Jerusalem.

VII. Recommendations

32. The Special Rapporteur recommends that:

(a) Intensified efforts be made to induce Israel to cooperate with the proper discharge of this mandate, including allowing access to the occupied Palestinian territories by the Special Rapporteur;

(b) Efforts be undertaken to have the International Court of Justice assess allegations that the prolonged occupation of the West Bank and East Jerusalem possess elements of “colonialism”, “apartheid” and “ethnic cleansing” inconsistent with international humanitarian law in circumstances of belligerent occupation and unlawful abridgements of the right of self-determination of the Palestinian people;

(c) Intensified efforts be made to attach legal consequences to the failure by Israel to end the blockade of the Gaza Strip in all of its dimensions;

(d) The Human Rights Council organize an inquiry, possibly jointly with the International Committee of the Red Cross or the Government of Switzerland, into the legal, moral and political consequences of prolonged occupation, including prolonged refugee status, with an eye toward convening Governments to negotiating further protocols to the Geneva Conventions of 1949;

(e) Steps be taken by the Human Rights Council to implement the recommendations of the report of the United Nations Fact-Finding Mission on the Gaza Conflict in the light of the failure of Israel to address allegations in a manner that accords with international standards as well as the conclusions of the Independent International Fact-Finding Mission into the incident of the humanitarian flotilla;

(f) Measures are taken to ensure that no Palestinian child is detained inside Israel or in the occupied Palestinian territories in contravention of article 76 of the Fourth Geneva Convention; children are not brought before military courts; cases of mistreatment and abuse of children are thoroughly and impartially investigated; and all evidence against children obtained through ill-treatment or torture be rejected by the courts.

A/HRC/16/72

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