Tag Archives: United Nations

For What?

20 Jul

 

             Being disinclined to look in mirrors, not only to avoid evidences of aging, but also because of an autobiographical deficit, I have recently started to question the vectors of my motivation. Not to raise doubts but to seek some understanding of ‘for what?’ I am especially wondering the reasons behind my solidarity with the struggles of distant strangers, why such solidarity is not more widely shared with likeminded friends, and why the inevitable priorities as to what is emphasized and what is ignored have the shape they do. Most pointedly, why am I giving the Palestinians so much more attention and psychic energy than the Kurds, Tibetans, or Kashmiris, and a host of other worthy causes? And how do I explain to myself a preoccupation with the unlawful, immoral, and imprudent foreign policy of the U.S. Government, the sovereign state of my residence upon whose governmental resources I depend upon for security and a range of rights?

 

            There are rational answers that tell part of the story, but only a part, and probably the least illuminating part. I was drawn to the Palestinian struggle as a result of friendship with prominent Palestinian exiles while still a student. I formed a well-evidence belief that the U.S. Government and the organized Jewish community were responsible for the massive and enduring confiscation of Palestinian land and rights. And with this awareness came some added sense of responsibility. ‘Just don’t sit and stare, do something.’

And with this modest kind of engagement came pressures to do more by way of public identification and witnessing, which led to a somewhat deeper awareness, greater familiarity, and of course, a dumpster full of harsh criticism. After many years of speaking and writing, the opportunity and challenge to do more in relation to Palestine/Israel conflict came my way unexpectedly in the form of an unsolicited invitation in 2008 to become the next Special Rapporteur for Occupied Palestine on behalf of the UN Human Rights Council.

 

            I never sought such a position, and realized that it would expose me to an escalating onslaught of vicious personal attacks and threats, an expectation that has been amply fulfilled. It is always uncomfortable to be the target of toxic language, and it is even more scary and disturbing to expose my closest partner in life and love to such calumny. Besides the hotly contested terrain that exists whenever Israeli policies are subject to objective scrutiny and criticism, a position within the UN hierarchy is both burdensome and often frustrating. True, being a Special Rapporteur is essentially a voluntary post, without salary or civil service affiliations, although ‘compensated’ to some degree by institutional independence within the UN, which I have discovered in my four years, can be a considerable blessing. There is little doubt in my mind that if I had been a paid employee I would long ago have been handed a pink slip. As it is I have merely endured a barrage of slanderous insults, including from the Secretary General and Susan Rice, the American ambassador to the UN in New York.

           

            Lest I protest and complain too much, I hasten to add that there are also deep and moving satisfactions. I find particularly satisfying the extent to which my two reports each year on the Israeli occupation of Palestine provides a truthful witnessing to the unspeakable ordeal of this prolonged and harsh occupation. Actually, it is less and less an occupation and more and more an apartheid style form of annexation, aggravated by continuous land grabs, various instruments of ethnic cleansing, and a range of gratuitous cruelties most recently dramatized by a series of heroic hunger strikes by Palestinians protesting those aspects of their plight resulting from violent arrest procedures, administrative detention, and deplorable prison conditions falling far below accepted international standards. Bearing witness, giving the Palestinians an authentic voice with which to formulate their grievances, and having the means to issue press releases calling attention to particular incidents of abuse, makes me feel as though my time is well spent even if the bodies keep piling up on the Palestinian side of the border. Part of the challenge in such a role is to realize the discouraging constraints on what can be achieved. Governments mainly don’t listen, and even when they do, their actions and policies are rarely informed by moral imperatives, and so nothing changes however much the evidence is present.

            The devastating impact of the Gaza blockade has been known and lamented for years by political leaders, and yet the costs of doing anything about it have seemed so great that even those who complain most loudly in the chambers of the UN are silent or worse when it comes to doing something. Someone at my level is shouting to be heard amid the clamor that prevails in the diplomatic discotheques of New York and Geneva, and even when heard, must learn to expect nothing to be done or else despair, even madness, will soon follow.

 

            Beyond this rational balance sheet of gains and losses, is a deeper less accessible convergence of feelings and impulses, which cannot be explained, but only acknowledged. I am not sure why direct exposure to victimization has such a powerful animating effect on my behavior, but it does. I do feel that a sense of responsibility emerges with such knowledge, especially that derived from direct contact with the suffering of victims caught in some historical trap not of their own making. Also, whether visiting North Vietnam as a peace activist during the Vietnam War or seeking to understand the Iranian Revolution by talking with its leaders as the extraordinary process was unfolding in Tehran, I felt a meta-professional obligation to share this privileged exposure by talking and writing about it, however inadequately, particularly, as seemed generally to be the case, that the mainstream media distorted and manipulated their presentations of such historic happenings as misleadingly seen through their Western optic of (mis)perception.

 

            Somewhere in this agonizingly slow formation of my character there was being constructed a self that took the shape of ‘engaged scholar’ and ‘citizen pilgrim.’ In retrospect, I think I was reacting somewhat dialectically to my academic colleagues who mostly felt it inappropriate to speak out on controversial issues although they viewed it as entirely professional to consult with the government and quite all right to avoid the public sphere altogether by packaging themselves as experts who should not be expected to take public stands on partisan issues that divided the polity. I felt, increasingly with age, the opposite. I came to believe that it was an organic part of my integrity as teacher/scholar to create a seamless interface between classroom and sites of political struggle. In truth, not entirely seamless as the classroom must always be treated as a sacred space by a faculty member. It should be maintained as a sanctuary for the uninhibited exchange of views however diverse and antagonistic in an atmosphere of disciplined civility. I have always felt that it is a primary duty of a teacher is to establish sufficient trust with students, that is, permission and encouragement of openness of expression with a clear understanding that performance will be objectively assessed, and not affected by agreement or disagreement with what the teacher happens to believe. This is a delicate balance yet far more conducive to learning than a sterile and journeyman insistence that what people beyond the campus are dying for can be usefully addressed with sanitary dispassion.

 

            In the end, this vital domain of conscious pedagogy and unconscious morality, is spiritually validated by an unmediated and uninterrogated sense that this or that is ‘the right thing to do.’ It certainly helps to remain as free as possible of vested interests and career ambitions that tend to crush an implicit pledge of truthfulness that authentic witnessing depends upon. And beyond witnessing there exists an iron wall of moral obligation: caring about the future, doing what I can to make the world a better place for human habitation and co-evolution with nature, which I have understood as a species obligation that has been made historically urgent ever since an atomic bomb was exploded over the Japanese city of Hiroshima and is now also deeply connected with protecting the planet from the multiple hazards of global warming hopelessly embedded in our carbon-dependent life styles as promiscuously promoted in disastrous directions by the greed of superrich fossil fuel billionaires and their far too powerful corporate allies.

 

            I have not rested these life commitments on the teachings of any particular religious tradition or institution, although I have long found the great world religions, East and West, despite their menacing contradictions and multiple readings, as providing me with the most profound sources of wisdom and guidance. It is the basis of my ecumenical longing for human solidarity, along with my feelings of awe produced by contact with cosmic and natural wonders, and deeply informs my sense of the spiritual ground of the human adventure. These sentiments are reinforced in my case by a commitment to an emergent form of cosmopolitan citizenship that owes allegiance to the ethics and praxis of human sustainability, the individual and collective dignity of all human beings, and a respectful kinship with and love of our non-human co-inhabitants of the planet. Such perspectives, I believe, respond to our historically precarious situation as a species, and here in America, this concern is accentuated. For this is a country with a surfeit of moral and political pretensions. It exhibits hubris to an alarming degree, and in extravagant ways, and is endangering itself along with the rest of the world by a refusal to heed what the geopolitical mirror of reflection warns about. 

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Kuala Lumpur War Crimes Tribunal: Bush and Blair Guilty

29 Nov

This post is modified version of a text published by Al Jazeera a few days ago. It is a sequel to the piece entitled “Toward a Jurisprudence of Conscience,” and will be followed by an assessment of the Russell Tribunal on Palestine session in Cape Town, South Africa investigating the allegations that Israel is guilty of imposing apartheid on the Palestinian people, considered by the Rome Treaty framework of the International Criminal Court to be a crime against humanity.

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Criminal Justice in Kuala Lumpur

 

            In Kuala Lumpur, after two years of investigation by the Kuala Lumpur War Crimes Commission (KLWCC), a tribunal (Kuala Lumpur War Crimes Tribunal or KLWCT) consisting of five judges with judicial and academic backgrounds reached a unanimous verdict that found George W. Bush and Tony Blair guilty of crimes against peace, crimes against humanity, and genocide as a result of initiating the Iraq War in 2003, and in the course of maintaining the subsequent occupation. The proceedings took place over a four day period from November 19-22, and included an opportunity for court appointed defense counsel to offer the tribunal arguments and evidence on behalf of the absent defendants who had been invited to offer their own defense or send a representative, but declined to do so. The prosecution team was headed by two prominent legal personalities with strong professional legal credentials: Gurdeal Singh Nijar and Francis Boyle. The verdict issued on November 22, 2011 happens to coincide with the 48th anniversary of the assassination of John F. Kennedy.

 

            The tribunal acknowledged that its verdict was not enforceable in a normal manner associated with a criminal court operating within a sovereign state or as constituted by international agreement as is the case with the International Criminal Court or by acts of the United Nations as occurred in the establishment of the ad hoc International Criminal Tribunal for former Yugoslavia. But the KLWCT by following a juridical procedure purported to be operating in a legally responsible manner, which would endow its findings and recommendations with a legal weight that seems expected to extend beyond a moral condemnation of the defendants, but in a manner that is not entirely evident.

 

            The KLWCT added two ‘Orders’ to its verdict that had been adopted in accordance with the charter of the KLWCC that controlled the operating framework of the tribunal: 1) Report the findings of guilt of the two accused former heads of state to the International Criminal Court in The Hague; 2) Enter the names of Bush and Blair in the Register of War Criminals maintained by the KLWCC.

 

            The tribunal these Orders by adding recommendations to its verdict: 1) Report findings in accord with Part VI (calling for future accountability) of the Nuremberg Judgment of 1945 addressing crimes of surviving political and military leaders of Nazi Germany; 2) File reports of genocide and crimes against humanity at the International Criminal Court in The Hague; 3) Approach the UN General Assembly to pass a resolution demanding that the United States end its occupation of Iraq; 4) Communicate the findings of the tribunal to all members of the Rome Statute (governing the International Criminal Court) and to all states asserting Universal Jurisdiction that allows for the prosecution of international crimes in national courts; 5) Urge the UN Security Council to take responsibility to ensure that full sovereign rights are vested in the people of Iraq and that the independence of its government be protected by a UN peacekeeping force.

 

The Anti-War Campaign of Mahathir Mohamed

 

            These civil society legal initiatives are an outgrowth of a longer term project undertaken by the controversial former Malaysian head of state, Mahathir Mohamed, to challenge American-led militarism and to mobilize the global south to mount an all out struggle against the war system.  This vision of a revitalized struggle against war and post-colonial imperialism was comprehensively set forth in Mahathir’s remarkable anti-war speech of February 24, 2003, while still Prime Minister, welcoming the Non-Aligned Movement to Kuala Lumpur for its XIIIth Summit. Included in his remarks on this occasion were the following assertions that prefigure the establishment of the KLWCC and KLWCT:  “War must be outlawed. That will have to be our struggle for now. We must struggle for justice and freedom from oppression, from economic hegemony. But we must remove the threat of war first. With this Sword of Democles hanging over our heads we can never succeed in advancing the interests of our countries.
War must therefore be made illegal. The enforcement of this must be by multilateral forces under the control of the United Nations. No single nation should be allowed to police the world, least of all to decide what action to take, [and] when.”
Mahathir stated clearly on that occasion that his intention in criminalizing the behavior of aggressive war making and crimes against humanity was to bring relief to victimized peoples with special reference to the Iraqis who were about to be attacked a few weeks later and the Palestinians who had long endured mass dispossession and an oppressive occupation. This dedication of Mahathir to a world without war was reaffirmed through the establishment of the Kuala Lumpur Foundation to Criminalize War, and his impassioned inaugural speech opening a Criminalizing War Conference on October 28, 2009.

 

            On February 13, 2007 Mahathir called on the KLWCC to prepare a case against Bush and Blair whom he held responsible for waging aggressive warfare against Iraq. Mahathir, an outspoken critic of the Iraq War and its aftermath, argued at the time that there existed a need for an alternative judicial forum to the ICC, which was unwilling to indict Western leaders, and he was in effect insisting that no leader should any longer be able to escape accountability for such crimes against nations and peoples. He acknowledged with savage irony the limits of his proposed initiative: “We cannot arrest them, we cannot detain them, and we cannot hang them the way they hanged Saddam Hussein.” Mahathir also contended that “The one punishment that most leaders are afraid of is to go down in history with a certain label attached to them..In history books they should be written down as war criminals and this is the kind of punishment we can make to them.” With this remark Mahathir prefigured the KLWCC register of war criminals that has inscribed the names of those convicted by the KLWCT. Will it matter?

Does such a listing have traction in our world? Will future leaders even know about such a stigmatizing procedure? I think civil society is challenged to

do its best to build ‘negative’ monuments in the public squares of global consciousness constructed with a deliberate intent to disgrace those guilty of crimes against peace and crimes against humanity. For too long our public squares have been adorned with heroes of war!

 

            In his 2007 statement Mahathir promised that a future KLWCT would not in his words be “like the ‘kangaroo court’ that tried Saddam.” Truly, the courtroom proceedings against Saddam Hussein was a sham trial excluding much relevant evidence, disallowing any meaningful defense, culminating in a grotesque and discrediting execution. Saddam Hussein was subject to prosecution for multiple crimes against humanity, as well crimes against the peace, but the formally ‘correct’ trappings of a trial could not obscure the fact that this was a disgraceful instance of ‘victors’ justice. Of course, the media, to the extent that it notices civil society initiatives at all condemns them in precisely the same rhetoric that Mahathir used to attack the Saddam trial, insisting that the KLWCT is ‘a kangaroo court,’ ‘a circus,’ a theater piece with pre-assigned roles.

 

            The KLWCT did I think make a mistake by establishing a defense team for Bush and Blair, and then failing to present their best possible arguments. Instead, a sheepish defense based on their acknowledging human failings for engaging in criminal conduct did create an impression that this ‘tribunal’ was not assessing the legal merits of the charges, but merely in reinforcing the preordained guilt of these particular individuals. In reporting on the defense effort, the following excerpt is illustrative of this self-discrediting as aspect of the approach taken by the KLWCT: “Lead Defense Counsel continued, ‘Had George W. Bush said  ‘we know who you are, we know what you did, and we forgive you,’ the world could have been a much different place.  But, instead, Afghanistan, Iraq, Guantanamo happened.  We are fallible human beings.  We make mistakes. And the Defense stated that the defense of Bush and Blair defense is that the accused ‘are human.’” Such a mock atonement, which does not correspond with the continuing effort of these former leaders to justify their Iraq War policy, was entirely inappropriate and erodes both the persuasiveness and credibility of the undertaking. It may be that an empty chair would have been the most suitable way to acknowledge the absence of the defendants from the courtroom, despite being given an opportunity to

present their best defense, or if it was decided to mount a defense on their behalf, then it should have done as skillfully and persuasively as possible.

The KLWCT has already announced a subsequent session devoted to the torture allegations directed at such American political leaders as former Vice President, Dick Cheney, and former Secretary of Defense, Donald Rumsfeld. Hopefully, the question of how to handle absent defendants will be handled in a better manner. The basic choice is whether to mount a genuine defense or to forego a defense on the belief that the purpose of the tribunal is to document the allegations and to pass judgment in overcome the refusal of governmental and inter-governmental judicial institutions to address such geopolitically sensitive issues. It is not clear whether the KLWCT effort to imitate the criminal procedures of tribunals constituted by the state system if the best model for these civil society initiatives. Perhaps, it is time to evolve a distinctive language, norms, institutions, and procedures that

reflect both the populist foundations of a jurisprudence of conscience.

 

            Although receiving extensive local coverage, Western media without exception has ignored this proceeding against Bush and Blair, presumably considering it as irrelevant and a travesty on the law, while giving considerable attention to the almost concurrent UN-backed Cambodia War Crimes Tribunal prosecuting surviving Khmer Rouge operatives accused of genocidal behavior in the 1970s. For the global media, the auspices make all the difference.

 

 

Universal Jurisdiction

 

            The KLWCT did not occur entirely in a jurisprudential vacuum. It has long been acknowledged that domestic criminal courts can exercise Universal Jurisdiction for crimes of state wherever these may occur, although usually only if the accused individuals are physically present in the court. In American law the Alien Tort Claims Act allows civil actions provided personal jurisdiction of the defendant is obtained for crimes such as torture committed outside of the United States. The most influential example was the 1980 Filartiga decision awarding damages to a victim of torture in autocratic Paraguay (Filartiga v. Peña 620 F2d 876). That is, there is a sense that national tribunals have the legal authority to prosecute individuals accused of war crimes wherever in the world the alleged criminality took place. The underlying legal theory is based on the recognition of the limited capacity of international criminal trials to impose accountability in a manner that is not entirely dictated by geopolitical priorities and reflective of a logic of impunity. In this regard, UJ has the potential to treat equals equally, and is very threatening to the Kissingers and Rumsfelds of this world, who have curtailed their travel schedules. The United States and Israel have used their diplomatic leverage to roll back UJ authority in Europe, especially the United Kingdom and Belgium.

 

 

The Move to Civil Society Tribunals

 

            To a certain extent, the KLWCT is taking a parallel path to criminal accountability. It does not purport to have the capacity to exert bodily punishment or impose a financial penalty, and rather stakes its claims to effectiveness on publicity, education, and symbolic justice. Such initiatives have been undertaken from time to time since the Russell Tribunal of 1966-67 to address criminal allegations arising out of the Vietnam War whenever there exists public outrage and an absence of an appropriate response by governments or the institutions of international society. The Lelio Basso Foundation in Rome established in 1976 a Permanent Peoples Tribunal (PPT) that generalized on the Russell experience. It was founded on the belief that there was an urgent need to fill the institutional gap in the administration of justice worldwide that resulted from geopolitical manipulation and resulting formal legal regimes of ‘double standards.’ Over the next several decades, the PPT addressed a series of issues ranging from allegations of American intervention in Central America and Soviet intervention in Afghanistan to contentions about the denial of human rights in the Marcos dictatorship in the Philippines, the dispossession of Indian communities in Amazonia, and the denial of the right of self-determination to the Puerto Rican people.

 

            The most direct precedent for KLWCT was World Tribunal on Iraq held in Istanbul (WTI) in 2005, culminating a worldwide series of hearings carried on between 2003-2005 on various aspects of the Iraq War. As with KLWCT it also focused on the alleged criminality of those who embarked on the Iraq War. WTI proceedings featured many expert witnesses, and produced a judgment that condemned Bush and Blair among others, and called for a variety of symbolic and societal implementation measures. The jury Declaration of Conscience included this general language: “The invasion and occupation of Iraq was and is illegal. The reasons given by the US and UK governments for the invasion and occupation of Iraq in March 2003 have proven to be false. Much evidence supports the conclusion that a major motive for the war was to control and dominate the Middle East and its vast reserves of oil as a part of the US drive for global hegemony… In pursuit of their agenda of empire, the Bush and Blair governments blatantly ignored the massive opposition to the war expressed by millions of people around the world. They embarked upon one of the most unjust, immoral, and cowardly wars in history.” Unlike KLWCT the tone and substance of the formal outcome of the Iraq War Tribunal was moral and political rather than strictly legal, despite the legal framing of the inquiry. For a full account see Muge Gursoy Sokmen, World Tribunal on Iraq: Making the Case Against War (2008).

 

Justifying Tribunals of Popular Justice and Public Conscience

 

            Two weeks before the KLWCT, a comparable initiative in South Africa was considering allegations of apartheid directed at Israel in relation to dispossession of Palestinians and the occupation of a portion of historic Palestine (Russell Tribunal on Palestine, South African Session, 5-7 November 2011). All these ‘juridical’ events had one thing in common: the world system of states and institutions was unwilling to look a particular set of facts in the eye, and respond effectively to what many qualified and concerned persons believed to be a gross historical and actual circumstance of injustice. In this regard there was an intense ethical and political motivation behind these civil society initiatives that invoked the authority of law. But do these initiatives really qualify as ‘law’? A response to such a question depends on whether the formal procedures of sovereign states, and their indirect progeny—international institutions—are given a monopoly over the legal administration of justice. I would side with those that believe that people are the ultimate source of legal authority, and have the right to act on their own when governmental procedures, as in these situations, are so inhibited by geopolitics that they fail to address severe violations of international law.

 

            Beyond this, we should not neglect the documentary record compiled by these civil society initiatives operating with meager resources. Their allegations are almost always exhibit an objective understanding of available evidence and applicable law, although unlike governmental procedures this assessment is effectively made prior to the initiation of the proceeding. It is this advance assurance of criminality that provides the motivation for making the formidable organizational and fundraising effort needed to bring such an initiative into play. But is this advance knowledge of the outcome so different from war crimes proceedings under governmental auspices? Indictments are made in high profile war crimes cases only when the evidence of guilt is overwhelming and decisive, and the outcome of adjudication is known as a matter of virtual certainty before the proceedings commence. In both instances the tribunal is not really trying to determine guilt or innocence, but rather is intent on providing the evidence and reasoning that validates and illuminates a verdict of guilt and resulting recommendations in one instance and criminal punishment in the other. It is of course impossible for civil society tribunals to enforce their outcomes in any conventional sense. Their challenge is rather to disseminate the judgment as widely and effectively as possible. A PPT publication in book form of its extensive testimony and evidence providing the ethical, factual, and legal rationale for its verdict proved sometimes to be surprisingly influential. This was reportedly the case in exposing and generating oppositional activism in the Philippines in the early 1980s during the latter years of the Marcos regime.

 

The Legalism of the KLWCT

 

            The KLWCT has its own distinctive identity. First of all, the imprint of an influential former head of state in the country where the tribunal was convened gave the whole undertaking a quasi-governmental character. It also took account of Mahathir’s wider campaign against war in general. Secondly, the assessing body of the tribunal was composed of five distinguished jurists, including judges, from Malaysia imparting an additional sense of professionalism. The Chief Judge was Abdel Kadir Salaiman, a former judge of Malaysia’s federal court. Two other persons who were announced as judges were recused at the outset of the proceedings, one because of supposed bias associated with prior involvement in a similar proceeding, and another due to illness. Thirdly, there was a competent defense team that presented arguments intended to exonerate the defendants Bush and Blair, although the quality of the legal arguments offered was not as cogent as the evidence allowed.

 

            Fourthly, the tribunal operated in rather strict accordance with a charter that had been earlier adopted by the KLWCC, and imparted a legalistic tone to the proceedings. It is this claim of legalism that is the most distinctive feature of the KLWCT in relation to comparable undertakings that rely more on an unprofessional and loose application of law by widely known moral authority personalities and culturally prominent figures who make no pretense of familiarities with the technicalities of legal procedure and the fine points of substantive law. In this respect the Iraq War Tribunal (IWT) held in Istanbul in 2005 was more characteristic, pronouncing on the law and offering recommendations on the basis of a politically and morally oriented assessment of evidence by a jury of conscience presided over by the acclaimed Indian writer and activist Arundhati Roy and composed of a range of persons with notable public achievements, but without claims to expert knowledge of the relevant law, although extensive testimony by experts in international law did give a persuasive backing to the allegations of criminality. Also unlike KLWCT, the IWT mad no pretense of offering a defense to the charges.

 

Tribunals of ‘Conscience’ or of ‘Law’?

 

            It raises the question for populist jurisprudence as to whether ‘conscience’ or ‘law’ is the preferred and more influential grounding for this kind of non-governmental initiative. In neither case, does the statist-oriented mainstream media pause to give attention, even critical attention. In this regard, only populist democratic forces with a cosmopolitan vision will find such outcomes as Kuala Lumpur notable moves toward the establishment of what Derrida called the ‘democracy to come.’ Whether such forces will become numerous and vocal enough remains uncertain. One possible road to greater influence would be to make more imaginative uses of social networking potentials to inform, explain, educate, and persuade.

This recent session of the Kuala Lumpur War Crimes Tribunal offers a devastating critique of the persisting failures of international criminal law mechanisms of accountability to administer justice justly, that is, without the filters of impunity provided by existing hierarchies of hard power. So whatever the shortcomings of the KLWCT it definitely moved to close the criminal justice gap that now protects what might be called ‘geopolitical criminals’ from accountability for their crimes against peace and crimes against humanity, and this is a move, however haltingly, toward global justice and the global rule of law.

 

             

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Goldstone’s Folly: Disappointing and Perverse

4 Nov

This post is a slightly revised version of an online article published yesterday by Al jazeera English.

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            Surely, the New York Times would not dare turn down a piece from the new Richard Goldstone who had already recast himself as the self-appointed guardian of Israel’s world reputation even as he had earlier been anointed as the distinguished jurist who admirably put aside his ethnic identity and personal affiliations when it came to carrying out his professional work as a specialist in international criminal law or in carrying out high profile investigative and factfinding missions in the international arena. Goldstone was even seemingly willing to confront the Zionist furies of Israel when criticized by one of their own adherents in chairing the UN panel appointed to consider allegations of Israeli war crimes during the Gaza War of 2008-09 .

 

A few months ago Goldstone took the unseemly step of unilaterally retracting a central conclusion of the ‘Goldstone Report’ during those attacks on Gaza. The former judge wrote, then in a column in the Washington Post, that the Goldstone Report would have been different if he had known then what he came to know now, an arrogant assertion considering that he was but one of four panel members designated by the UN Human Rights Council, and considering that the other three publicly reaffirmed their confidence in the original conclusion as presented in the report written and released months earlier. What should have been discrediting of this earlier Goldstone effort to restore his tarnished Zionist credentials was this failure to consult with other members of the team before rushing into print with his seemingly opportunistic change of heart. It is also of interest that he chooses to exhibit this new role on the pages of the newspapers of record in the United States, and reportedly escalated the tone and substance of his retraction after the Times rejected the original version of the piece supposedly because it was too bland. To get into print with this wobbly change of position, Goldstone went to these extraordinary lengths.

 

            Now on the eve of the third session of the Russell Tribunal on Palestine scheduled to be held in Cape Town between November 5-7 Goldstone has again come to the defense of Israel in a highly partisan manner that abandons any pretense of judicious respect for either the legal duties of those with power or the legal rights of those in vulnerable circumstances. Recourse to a quality tribunal of the people, in this instance constituted by and participated in by those with the highest moral authority and specialized knowledge, is a constructive and serious response to the failure of governments and international institutions to declare and implement international criminal law over the course of many years, and the unavailability of either the International Court of Justice or the International Criminal Court. Persons of good will should welcome these laudable efforts by the Russell NGO as overdue rather angrily dismiss them as Goldstone does because of their supposed interference with non-existent and long futile negotiations between the parties. Those who will sit as jurors to assess these charges of apartheid against Israel are world class moral authority figures whose response to the apartheid charge will be assisted by the testimony of experts on the conflict and by jurists of global stature. It should embarrass Goldstone to write derisively of such iconic South African personalities as Archbishop Emeritus Desmond Tutu and Ronnie Kasrils or internationally renowned figures such as the morally driven novelist Alice Walker, Nobel Peace Prize winner Mairead Maguire, former member of the U.S. Congress Cynthia McKinney, the 93 year old Holocaust survivor and French ambassador, Stephane Hessel, as well as several other person of high repute.

 

A further imprimatur of respectability is given to the Russell Tribunal by the participation in the event of Goldstone’s once close colleague, John Dugard, who is internationally regarded as South Africa’s most trusted voice whenever legal comparisons are made between apartheid as practiced in South Africa and alleged in Palestine. Professor Dugard will play a leading role in the Russell proceedings by offering expert testimony in support of the legal argument for charging Israel with the crime of apartheid. Professor Dugard, a widely esteemed international lawyer and global public figure, who was scrupulous in his efforts to report truthfully on the situation of occupied Palestine while acting for seven years as Special Rapporteur for the UN Human Rights Council, which led him already in that role, despite his cautious legal temperament, to allege the apartheid character of the occupation in his formal reports submitted to the United Nations several years ago.

 

Goldstone condemns the venture before it begins without acknowledging the participation of these distinguished participants, scorning this inquiry into the injustice and criminality of Israeli discriminatory practices associated with its prolonged occupation of Palestine by contending that it is intended as an “assault” on Israel with the “aim to isolate, demonize and delegitimize” the country.  In the most aggressive prosecutorial style, Goldstone demonizes these unnamed Russell jurors as biased individuals who hold “harsh views of Israel.” The new Goldstone adopts the standard Israel practice of denigrating the auspices and by condemning any critical voices, however qualified and honest they may be, without bothering to take a serious look at the plausibility of the apartheid allegations. The fact that those familiar with the Israeli policies are sharp critics does not invalidate their observations but raises substantive challenges that can only be met by producing convincing countervailing evidence. Unbalanced realities can only be accurately portrayed by a one-sided assessment if truthfulness is to be the guide to decide whether bias is present or not. If the message contains unpleasant news then it deserves respect precisely because delivered by a trustworthy messenger. It should be reflected upon with respect rather than summarily dismissed because this particular messenger has the credibility associated with an impeccable professional reputation, and strengthened in the context of the Russell Tribunal by a wealth of prior experience that predisposed and prepared her or him to compose a message with a particular slant.

 

The central Goldstone contention is that to charge Israel with the crime of apartheid is a form of “slander” that in his words is not only “false and malicious” but also “precludes, rather than promotes, peace and harmony.”

Of course, it is necessary to await the deliberations of the Russell Tribunal to determine whether allegations of apartheid are irresponsible accusations by hostile critics or are grounded, as I believe, in the reality of a systematic legal regime of discriminatory separation of privileged Israelis, especially several hundred thousand unlawful settlers, from rightless and often dispossessed Palestinians, who are indigenous to the land so long occupied by Israel. The Rome Statute of the International Criminal Court treats apartheid as one among several types of crime against humanity, and associates its commission with systematic and severe discrimination.

 

Although the crime derives its name from the South African experience that ended in 1994 it has now been generalized to refer to any condition that imposes an oppressive regime based on group identity and designed to benefit a dominating collectivity that coercively through its control of the legal system abuses a subjugated collectivity. It is true that ‘race’ is the basis for drawing the dividing line between the two collectivities, but the legal definition of race has been expanded to make it clear beyond reasonable doubt that the practice of apartheid can be properly associated with any form of group antagonism that is translated into a legal regime incorporating inequality as its core feature. This includes regimes that base their human classification of belonging to a group by reference to national and ethnic identity as is the case with regard to Israelis and Palestinians. The government of Israel has itself drawn attention to this ethno/religious divide by demanding that its Palestinian minority and the Palestinian Authority formally accept its character as ‘a Jewish state.’

 

The overwhelming evidence of systematic discrimination is impossible to overlook in any objective description of the Israel’s current occupation of the West Bank, and to a lesser degree, East Jerusalem. The pattern of establishing settlements for Israelis throughout the West Bank not only violates the prohibition in international humanitarian law against transferring members of the occupying population to an occupied territory. It also creates the operational rationalization by Israel for the establishment of a legal regime of separation and subjugation. From this settlement phenomenon follows an Israeli community protected by Israeli security forces, provided at great expense with a network of settler only roads, enjoying Israeli constitutional protection, and given direct unregulated access to Israel. What also follows is a Palestinian community subject to often abusive military administration without the protection of effective rights, living with great daily difficulty due to many burdensome restrictions on mobility, and subject to an array of humiliating and dangerous conditions that include frequent Israeli use of arbitrary and excessive force, house demolitions, nighttime arrests and detentions that subjects Palestinians as a whole to a lifetime ordeal of acute human insecurity. The contrast of these two sets of conditions, translated into operative legal regimes, for two peoples living side by side makes the allegations of apartheid seem persuasive, and if a slander is present then it attributed to those who like Goldstone seek to defame and discredit the Russell Tribunal’s heroic attempt to challenge the scandal of silence that has allowed Israel to perpetrate injustice without accountability.

 

Goldstone’s preemptive strike against the Russell Tribunal is hard to take seriously. It is formulated in such a way as to mislead and confuse a generally uninformed public. For instance, he devotes much space in the column to paint a generally rosy (and false) picture of recent conditions of life experienced by the Palestinian minority in Israel without even taking note of their historic experience of expulsion, the nakba. He dramatically understates the deplorable status of Palestinian Israelis who live as a discriminated minority despite enjoying some of the prerogatives of Israeli citizenship.  Goldstone’s main diversionary contention is that apartheid cannot be credibly alleged in such a constitutional setting where Palestinian are currently accorded citizenship rights, and he never dares to raise the question of what it means to ask Palestinian Muslims and Christians to pledge allegiance to ‘a Jewish state,’ by its nature as a fracturing of community based on racially based inequality. Few would argue that this pattern of unacceptable inequality adds up to an apartheid structure within Israel, and the Russell allegation does not so argue, and is likely to forego making the apartheid charge associated with the events surrounding the founding of Israel in the late 1940s because from an international law perspective they took place before apartheid was criminalized in the mid-1970s.

 

The Tribunal is focusing its attention on the situation existing in the West Bank that has been occupied since 1967. John Dugard has issued a statement to clear the air, indicating that his testimony will be devoted exclusively to the existence of conditions of apartheid obtaining in the occupied territories, which reflects his special competence. [See Statement of John Dugard, “Apartheid and the Occupation of Palestine,” Aljazeera, 4 Nov. 2011; ] That Dugard had to issue such a statement is a kind of backhanded tribute to the success of the Goldstone hasbara effort to divert and distort. For Goldstone to refute the apartheid contention by turning to the present situation within Israel itself, while at the same time virtually ignoring the allegation principally concerned with the occupation is a stunning display of bad faith. He knows better. Goldstone avoids any reference to the Israeli mass expulsion of Palestinians from their land in 1948 and the subsequent destruction of hundreds of Palestinian villages when he attempts to refute the apartheid allegation, which would likely be viewed as legally dubious because of its retroactivity.

 

With shameless abandon Goldstone relies in his diatribe on another debater’s trick by insisting that apartheid is a narrowly circumscribed racial crime of the exact sort that existed in South Africa is certainly disingenuous. Goldstone takes scant account of the explicit legal intent, as embodied in the authoritative Rome Statute and in the International Convention on the Crime of Apartheid, to understand race in a much broader sense that applies to the Israeli/Palestine interaction if its systematic and legally encoded discriminatory character can be convincingly established as I believe is the case.

 

The sad saga of Richard Goldstone’s descent from pinnacles of respect and trust to this shabby role as legal gladiator recklessly jousting on behalf of Israel is as unbecoming as it is unpersuasive. It is undoubtedly a process more personal and complex than caving in to Zionist pressures, which were even nastier and more overt than usual, as well as being clearly defamatory, but what exactly has led to his radical shift in position remains a mystery. As yet there is neither an autobiographical account nor a convincing third party interpretation. Goldstone himself has been silent on this score, seeming to want us to believe that he is now as much a man of the law as ever, but only persisting in his impartial and lifelong attempt to allow the chips to fall where they may.  Given his polemical manipulation of the facts and arguments makes us doubt any such self-serving explanation based on the alleged continuities of professionalism. It is my judgment that enough is now known to acknowledge Goldstone’s justifiable fall from grace, and for his own sake it is unfortunate that Goldstone did not choose a silent retreat from the fray rather than to reinvent himself as a prominent Israeli apologist.

 

Palestinian suffering and denial of legal rights is sufficiently grounded in reality that the defection of such an influential witness amounts to a further assault not only on Palestinian wellbeing but also on the wider struggle to achieve justice, peace, and security for both peoples. Contrary to Goldstone protestations about the Russell Tribunal striking a blow against hopes for resolving the conflict, it is the Goldstones of this world that are producing the smokescreens behind which the very possibility of a two-state solution has been deliberately destroyed by Israel’s tactics of delay while accelerating its policies of expansion and encroachment.

 

In the end if there is ever to emerge a just and sustainable peace it will be thanks to many forms of Palestinian resistance and a related campaign of global solidarity of which the Russell Tribunal promises to make a notable contribution. We should all remember that it is hard to render the truth until we render the truth however ugly it may turn out to be!   

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

22 Oct

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

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United Nations

General Assembly

Sixty-sixth session

Item 69 (c) of the provisional agenda*

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

A/66/358

Situation of human rights in the Palestinian territories occupied since 1967

Note by the Secretary-General

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

* A/66/150.

11-49552 (E) 290911

*1149552*

Distr.: General 13 September 2011

Original: English

A/66/358

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

Summary

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

Contents

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

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I. Introduction

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

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

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

II. Issues of non-implementation

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

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

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1 A/HRC/12/48.

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

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

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

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

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

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

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

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

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

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

III. Palestinian self-determination

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

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

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

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

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

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

10 See A/66/364.

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

IV. Protection of the civilian population living under occupation

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

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

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

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

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

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

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

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

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

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

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

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

V. Detention and imprisonment

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

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

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

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

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

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

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

VI. Israeli settlements

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

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

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

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

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

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

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

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

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

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

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

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

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

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A. Settler violence

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

B. The future of Israeli settlements

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

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

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

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

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

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

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

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

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

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

VII. Palestinian children, human rights and international humanitarian law

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

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

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

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

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

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

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

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

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

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

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

A. Arrest and detention procedures for Palestinian children

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2. Prohibit night arrests of minors;

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

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

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

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

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

B. Gaza blockade, collective punishment and Palestinian children

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

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

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

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

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

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

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

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

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

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

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

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

VIII. Recommendations

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

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

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

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

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

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

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Interview on the Palestinian Statehood Bid

8 Oct

This post consists of my responses to questions put to me by a Greek journalist, C.J Polychroniou, who long followed intellectual thought in the West, and is a keen analyst of the current European economic crisis.

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1. What prompted the Palestinian Authority to seek UN recognition for Palestine at this historical juncture in the struggle for justice and the creation of an independent Palestinian state?

I think the essential motivating feature was long overdue disillusionment with the ‘peace process’ as derived from the Oslo Framework of Principles agreed upon in 1993, and looking toward the resolution of final status issues (borders, refugees, Jerusalem, settlements, security, water) within five years. More recently Obama in his 2011 speech to the UN General Assembly appeared committed to the establishment of a Palestinians a state within a year, but awkwardly backed away from this kind of assessment in 2012 when he merely declared that it was difficult to achieve peace, and that only hope was direct negotiations without any preconditions. The published Palestine Papers on confidential negotiations behind closed doors between representatives of Israel and of the Palestine Authority, leaked to Al Jazeera several months ago, reinforced the impression that the Israeli leadership was not at all interested in a negotiated end to the conflict even when offered far reaching concessions by Palestinian interlocutors. Negotiations that lead no where serve Israel’s interests far better than would a clear declaration that acknowledges Palestinian rights under international law as the necessary foundation of a peaceful resolution of the conflict.

Another line of explanation for the statehood bid relates to the efforts of the PA Prime Minister, Salam Fayyad, to engage in state-building while under occupation, both to demonstrate the credibility of a viable Palestinian state able to govern effectively when Israeli withdrawal takes place and as an alternative path to statehood than that offered by direct negotiations. Several international institutions, including the IMF, have been impressed by these efforts to achieve governmentality despite the difficulties of occupation. There are varying assessments of the degree of success of this Fayyad program of action, both in relation to its approach to economic development, societal wellbeing, and Palestinian self-determination.

Finally, it is important to realize that these periodic failed negotiations have not been neutral as between the parties. They are good for Israel, bad for Palestine. Settlement building and its accompanying infrastructure encroach increasingly on the occupied remnant of historic Palestine. To continue with negotiations without a permanent freeze on settlement expansion is to put an end to any prospect of a two-state solution, and thereby threaten the PA role as providing leadership for the Palestinian struggle for self-determination. The United States has further aggravated the situation by treating the unlawful settlements as ‘subsequent developments,’ in Israeli parlance as ‘facts on the ground,’ that are to be incorporated into Israel rather than undone.

2. The US has called UN recognition of Palestine a “mistake,” with Obama apparently threatening Abbas with significant repercussions, but even some Palestinians have questioned the move, saying it would be mainly a symbolic victory and would not change the reality of the Israeli occupation. What are your views on the matter?

Threatening the PA for taking this perfectly legal initiative of seeking recognition of its statehood and gaining membership in the UN shows the extent of America’s willingness to do Israel’s bidding, however unreasonable its behavior. It is coupled with American silence in the face of blatant Israeli criminality as with the Gaza blockade and 1998-99 attacks, the flotilla incident of May 2010, and the recurring instances of excessive use of force by occupying Israeli forces.

There are complexities on all sides of these questions of why Palestinian statehood and why now. If the Abbas leadership is weakened, it increases the possibility of the extension of Hamas influence on the West Bank. Certainly the United States, and probably Israel, fears such a result. It is possible that Israel would be ambivalent in the face of such a development as it would tend to justify the ongoing dynamic of de facto annexation that has been a byproduct of the settlement phenomenon combined with the rise of Israeli extremist leadership that seems disinterested in any outcome that involves the establishment of a Palestinian sovereign  state.

On the Palestinian side, there are also critics of the statehood bid. Some are concerned that the PA may be transforming the conflict into an essentially territorial dispute over land, thereby marginalizing if not abandoning the right of return of Palestinian refugees and those several million Palestinians living in exile. Closely related is the concern, especially among some respected Palestinian NGOs and throughout the Palestinian diaspora, that the PA is trying to displace the Palestinian Liberation Organization as the sole representative of the Palestinian people. The PLO, unlike the PA, gives Palestinians living outside of the occupied territories representational rights, including a majority of seats in the now dormant Palestinian National Council. It should be observed that Abbas in his speech tried to provide reassurance as to the PLO role, promising that it will remain the sole representative of the Palestinian people so long as the conflict persists. Also of concern to Palestinians is the fear that Israel will, in effect, tell the Palestinians that now they have their state, and there is nothing more to discuss. The conflict is resolved with Israel retaining control of the borders, internal security, and settlements, producing the sort of surrealistic outcome that apartheid South Africa attempted to impose on the black South African majority by creating ten Bantustans.

 3. In his historic speech of September 23rd to the UN General Assembly,  Mahmoud Abbas spoke of Israel’s policies as “colonial” and “ethnic cleansing” and violation of “international humanitarian laws.” Does this speech represent a change of strategy for PLO or was it for domestic consumption, i.e., in order to promote solidarity among Palestinian supporters?

The use of this appropriately strong language was the most notable feature of the Abbas speech, and a dramatic shift in tone from earlier appeals to the international community. It is this feature as much as the statehood/membership bid that made the speech ‘historic.’ It also served to enhance the legitimacy of the PA, whose reputation has been eroded by its quasi-collaborative relationship with Israel and the United States.

4. Israel has threatened PLO with “punishment” for taking the move to seek UN recognition of Palestine. What more barbaric actions can it take?

The U.S. can withhold financial assistance, a course of action that is likely to be insisted upon by the U.S. Congress in any event unless the Security Council fails to support the statehood bid by a majority of nine or more of its fifteen members, thereby sparing the U.S. the embarrassment of so inappropriately using its veto. America’s right wing Congress is gunning for the UN in any event, and it will seize upon this Palestinian challenge to demonstrate again its unconditional support for Israel’s demands, however unreasonable and cruel in their effects, and to do so at the expense of the UN will be doubly sweet for Tea Party Republicans.

5. Any intuition into what the future holds for the Palestinian question?

I think the overall regional developments are supportive of the Palestinian struggle for a just and sustainable peace. Any Arab government, especially Egypt, will now find it easier to satisfy their restive public opinion at home by confronting Israel than by enhancing the material wellbeing of their own population. In this respect, politics is easier than economics! Whether this prospect will do more than strengthen the hand of Israeli extremism is anyone’s guess.

Turkey has shown the way in these respects, and has embarrassed Arab governments that have been passive for many years in the face of Palestinian suffering and Israeli outrages, including remaining on the sidelines despite the harsh blockade imposed on the 1.6 million people of Gaza as a collective punishment for their willingness to give electoral support to Hamas in the 2006 national elections. If the international community and the Palestinian solidarity movement exerts sufficient pressure for a just solution to the conflict it may eventually give rise to an internal Israeli involving the rediscovery of Israeli realism. One of the costs of Netanyahu/Liebermann hegemony has been to make Israel unable to understand and act upon its own interests, which not only prolongs the Palestinian ordeal but severely endangers Israel’s own security and wellbeing. 

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Another UN Failure: The Palmer Report on the Flotilla Incident of 31 May 2010

11 Sep


 

            When the UN Secretary General announced on 2 August 2010 that a Panel of Inquiry had been established to investigate the Israeli attacks of 31 May on the Mavi Marmara and five other ships carrying humanitarian aid to the beleaguered people of Gaza there was widespread hope that international law would be vindicated and the Israelis would finally be held accountable. With the release of the Palmer Report these hopes have been largely dashed as the report failed to address the central international law issues in a credible and satisfactory manner. Turkey, not surprisingly, responded strongly that it was not prepared to live with the central finding of the 105 page report reaching the astonishing conclusions that the Israeli blockade of the Gaza Strip is lawful and could be enforced by Israel against a humanitarian mission even in international waters.

 

            Perhaps this outcome should not be so surprising after all. The Panel as appointed was woefully ill-equipped to render an authoritative result. Geoffrey Palmer, the Chair of the Panel, although a respected public figure, being the former Prime Minister of New Zealand and an environmental law professor, was not particularly knowledgeable about either the international law of the sea or the law of war. And incredibly, the only other independent member of the Panel was Alvaro Uribe, the former President of Colombia, with no professional credentials relevant to the issues under consideration, and notorious both for his horrible human rights record while holding office and forging intimate ties with Israel by way of arms purchases and diplomatic cooperation that was acknowledged by ‘The Light Unto The Nations’ award given by the American Jewish Committee that should have been sufficient by itself to cast doubt on his suitability for this appointment. His presence on the panel compromised the integrity of the process, and made one wonder how could such an appointment can be explained, let alone justified.  Turkey’s agreement to participate in such a panel was itself, it now becomes clear, a serious diplomatic failure. It should have insisted on a panel with more qualified, and less aligned, members.

 

The other two members of the panel were designated by the governments of Israel and Turkey, and predictably appended partisan dissents to those portions of the report that criticized the position taken by their respective governments. Another unacceptable limitation of the report was that the Panel was constrained by its terms of reference that prohibited reliance on any materials other than what was presented in the two national reports submitted by the contending governments. With these considerations in mind, we can only wonder why the Secretary General would have established a formal process so ill-equipped to reach findings that would put the legal controversy to rest and resolve diplomatic tensions, which it has certainly failed to do. Such deficient foresight is itself one of the notable outcomes of this unfortunate UN effort to achieve the peaceful resolution of an international dispute.

 

            Even such an ill-conceived panel did not altogether endorse Israeli behavior on 31 May. The panel found that Israel used excessive force and seemed legally and morally responsible for the deaths of the nine passengers on the Mavi Marmara, instructing Israel to pay compensation and issue a statement of regret. In other words the Palmer Report seems to fault seriously the manner by which the Israeli enforced the blockade, but unfortunately upheld the underlying legality of both the blockade and the right of enforcement, and that is the rub. Such a conclusion contradicted the earlier finding of a more expert panel established by the Human Rights Council, as well as rejected the overwhelming consensus that had been expressed by qualified international law specialists on these core issues. A gross inadequacy of the report was to separate the assessment of the blockade as if exclusively concerned with Israeli security, and ignore its essential role in imposing an intolerable regime of collective punishment on the population of Gaza that has lasted for more than four years.

 

            While the Panel delayed the report several times to give diplomacy a chance to resolve the contested issues, Israel and Turkey could never quite reach closure. There were intriguing reports along the way that unpublicized discussions between representatives of the two governments had agreed upon  a compromise arrangement consisting of Israel’s readiness to offer Turkey a formal apology and to compensate the families of those killed as well as those wounded during the attack, but when the time for announcing such a resolution of this conflict, Israel refused to go along. In particular, the Israeli Prime Minister, Benjamin Netanyahu, seemed unwilling to take the last step, claiming that it would demoralize the citizenry of Israel and signal weakness to Israel’s enemies in the region. More cynical observers believed that the Israeli refusal to resolve the conflict was a reflection of domestic politics, especially Netanyahu’s rivalry with the even more extremist political figure, Foreign Minister, Avigdor Lieberman, who was forever accusing Netanyahu of being a wimpy leader and made no secret of his own ambition to be the next Israeli head of state. Whatever the true mix of reasons, the diplomatic track failed, despite cheerleading from Washington that openly took the position that resolving this conflict had become a high priority for American foreign policy. And so the Palmer Report assumed a greater role than might have been anticipated for what was supposed to be no more than a technical inquiry about issues of law and fact. After the feverish diplomatic efforts failed, the Palmer panel seemed to offer the last chance for the parties to reach a mutually satisfactory resolution based on the application of the international law and resulting recommendations that would delimit what must be done to overcome any violations that had taken place during the attack on the flotilla.

 

            But to be satisfactory, the report had to interpret the legal issues in a reasonable and responsible manner. This meant, above all else, that the underlying blockade imposed more than four years ago on the 1.6 million Palestinians living in Gaza was unlawful, and should be immediately lifted. On this basis, the enforcement by way of the 31 May attacks was unlawful, an offense aggravated by being the gross interference with freedom of navigation on the high seas, and further aggravated by producing nine deaths among the humanitarian workers and peace activists on the Mavi Marmara and by Israeli harassing and abusive behavior toward the rest of the passengers. Such conclusions should have been reached without difficulty by the panel, so obvious were these determinations from the perspective of international law as to leave little room for reasonable doubt. But this was not to be, and the report as written is a step backward from the fundamental effort of international law to limit permissible uses of international force to situations of established defensive necessity, and even then, to ensure that the scale of force employed, was proportional, respectful of civilian innocence, and weighed security claims against harmful humanitarian effects. It is a further step back to the extent that it purports to allow a state to enforce on the high seas a blockade, condemned around the world for its cruelty and damaging impact on civilian mental and physical health, a blockade that has deliberately deprived the people of Gaza of the necessities of life as well as locked them into a crowded and impoverished space that has been mercilessly attacked with modern weaponry from time to time.

 

            Given these stark realities it is little wonder that the Turkish Government reacted with anger and disclosed their resolve to proceed in a manner that expresses not only its sense of law and justice, but also reflects Turkish efforts in recent years to base regional relations on principles of fairness and mutual respect.  The Turkish Foreign Minister, realizing that the results reached by the Palmer Panel were unacceptable, formulated his own Plan B. This consisted of responses not only to the report, but to the failure of Israel to act responsibly and constructively on its own by offering a formal apology and setting up adequate compensation arrangements. Israel had more than a year to meet these minimal Turkish demands, and showed its unwillingness to do so. As Mr. Davutoglu made clear this Turkish response was not intended to produce an encounter with Israel, but to put the relations between the countries back on ‘the right track.’ I believe that this is the correct approach under the circumstances as it takes international law seriously, and rests policy on issues of principle and prudence rather than opts for geopolitical opportunism. As Davutoglu said plainly, “The time has come for Israel to pay a price for its illegal action. The price, first of all, is being deprived of Turkey’s friendship.”

 

            And this withdrawal of friendship is not just symbolic. Turkey has downgraded diplomatic representation, expelling the Israeli ambassador from Ankara and maintaining inter-governmental relations at the measly level of second secretary. Beyond this all forms of military cooperation are suspended, and Turkey indicated that it intends to strengthen its naval presence in the Eastern Mediterranean. As well, Turkey has indicated that it will initiate action within the General Assembly to seek an Advisory Opinion from the International Court of Justice as to the legality of the blockade. What is sadly evident is that Israeli internal politics have become so belligerent and militarist that the political leaders in the country are hamstrung, unable to take a foreign policy initiative that is manifestly in their national interest. For Israel to lose Turkey’s friendship is second only to losing America’s support, and coupled with the more democratic-driven policies of the Arab Spring, this alienation of Ankara is a major setback for Israel’s future in the region, underscored during the last several days by the angry anti-Israeli protests in Cairo.

 

            What is more, the Turkish refusal to swallow the findings of the Palmer Report adopts a political posture that is bound to have a popular resonance throughout the Middle East and beyond. At a time when some of Turkey’s earlier diplomatic initiatives have run into difficulties, most evidently in Syria, this stand on behalf of the victimized population of Gaza represents a rare display by a government of placing values above interests. The people of Gaza are weak, abused, and vulnerable. In contrast, Israel is a military powerhouse, economically prospering, a valuable trading partner for Turkey, and having in the background an ace in the hole– the United States ever ready to pay a pretty penny if it could induce a rapprochement, thereby avoiding the awkwardness of dealing with this breakdown between its two most significant strategic partners in the Middle East. We should also keep in mind that the passengers on these flotilla ships were mainly idealists, seeking nonviolently to overcome a humanitarian ordeal that the UN and the interplay of national governments had been unable and unwilling to address for several years. This initiative by civil society activists deserved the support and solidarity of the world, not discouragement from the UN and a slap on the wrist by being chastened by the Palmer report’s view that their actions were irresponsible and provocative rather than empathetic and courageous.

 

            Israel has managed up to now to avoid paying the price for defying international law. For decades it has been building unlawful settlements in occupied West Bank and East Jerusalem. It has used excessive violence and relied on state terror on numerous occasions in dealing with Palestinian resistance, and has subjected the people of Gaza to sustained and extreme forms of collective punishment. It attacked villages and neighborhood of Beirut mercilessly in 2006, launched its massive campaign from land, sea, and air for three weeks at the end of 2008 against a defenseless Gaza, and then shocked world opinion with its violence against the Mavi Marmara in its nighttime attack in 2010. It should have been made to pay the price long ago for this pattern of defying international law, above all by the United Nations. If Turkey sustains its position it will finally send a message to Tel Aviv that the wellbeing and security of Israel in the future will depend on a change of course in its relation to both the Palestinians, its regional neighbors, and to the international community. The days of flaunting international law and fundamental human rights are no longer policy options for Israel that have no downside. Turkey is dramatically demonstrating that there can be a decided downside to Israeli flagrant lawlessness. 

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Preliminary Libyan Scorecard: Acting Beyond the UN Mandate

6 Sep


            In Western circles of influential opinion, the outcome of the NATO intervention in Libya has already been pronounced ‘a victory’ from several points of view: as a military success that achieved its main goals set at acceptable costs, as a moral success that averted a humanitarian catastrophe, and as political success the creation of an opportunity for freedoom and constitutionalism on behalf of a long oppressed people. This is one of those rare results in an international conflict situation that seems to please both conservatives and liberals. Conservatives because it was a show of force that reaffirmed Western primacy based on military power. Liberals because force was used with UN backing in accordance with international law and in furtherance of human rights and liberal values.

 

Qaddafi and his loyalists are apparently a spent force, and the future of Libya now becomes a work in progress without any clear understanding of who will call the shots from now on. Will it be the Libyan victors in the war now battling among themselves for the control of the country? Will it be their NATO minders hiding behind the scenes? Will it be the NATO representatives doing the bidding of the oil companies and the various corporate and financial interests that make no secret of seeking a robust profit-making stake in Libya’s future? Or will it be some combination of these influences, more or less harmoniously collaborating? And most relevant of all, will this process be seen as having the claimed liberating impact on the lives and destinies of the Libyan people? It is far too early to pronounce on such momentous issues, although sitting on the sidelines one can only hope and pray for the best for a country substantially destroyed by external forces. Even before the dust of the original conflict settles it is not too soon to raise some skeptical questions about the unconditional enthusiasm in mainstream Western circles for what has been done and what it portends for the future of UN peacekeeping.

 

            What has transpired since March when the UN Security Council gave its go ahead for the use of force to protect civilians in Libya should never have become an occasion for cheering despite the military and political outcome of the intervention. This unfortunate triumphal spirit was clearly voiced by the normally critically sensitive Roger Cohen. Writing in the New York Times Cohen insists that the Libyan intervention should be viewed as a historically momentous discharge of the global moral responsibility that somehow rests on the shoulders of post-colonial pro-active leaders in the West:  “..the idea that the West must at times be prepared to fight for its values against barbarism is the best hope for a 21sr century less cruel than the 20th .” This rather extraordinary claim cannot be tested by reference to Libya alone, although even narrowly conceived the grounds for such confidence in Western uses of force in the global south seems stunningly ahistorical. But if the net is enlarged, as it must be, to encompass the spectrum of recent interventions under Western auspices that include Vietnam, Iraq, and Afghanistan the self-absorbed gaze of Cohen seems like a dangerously misguided form of advocacy relating to the use of force in international relations. Looking at this broader experience of Western intervention makes one squirm uncomfortably in reaction to the grandiose claim that the willingness of leading Western countries to police the world is humanity’s ‘best hope’ for the future. Cohen is not timid about insisting that the Libya operation up to this point provides a positive model for the future : “The intervention has been done right—with the legality of strong backing, full support of America’s European allies, and quiet arming of the rebels.” A contrast with Iraq is drawn, presumably, in contrast, an intervention ‘done wrong.’

 

            There is a heavy dose of implicit paternalism, condescension, and passé consciousness, not to mention wishful thinking, present if the West is to be identified as the best hope for the future just because it managed to pull off this Libyan intervention, that is, even assuming that the post-Qaddafi experience in the country is not too disillusioning in this one set of circumstances. What about putting the failed interventions into the balance, and then deciding whether it is helpful or not to encourage the West, which means mainly the United States, to take on this protective role for the rest of the world? I seem to remember not that long ago such self-empowering phrases as ‘white man’s burden’ and ‘civilizing mission’ being used by colonial apologists with a straight face. The West has quite a record of barbarism of its own, both within its geographic confines and in its encounters with others.  It seems arbitrary and contentious to situate barbarism geographically, and it certainly seems strange to think that the long exploited and abused non-West generates a new breed of barbarians at the gates.

 

            And let us not be to quick to heap praise on this Libyan model? It is certainly premature to conclude that it has been a success before acquiring a better sense of whether the winners can avoid a new cycle of strife and bloodshed, and stick together in a Libya without the benefit of Qaddafi as the common enemy. Or if they do, can they embark upon a development path that benefits the Libyan people and not primarily the oil companies and foreign construction firms. Any credible assessment of the Libyan intervention must at least wait and see if the new leaders are able to avoid the authoritarian temptation to secure their power and privilege within the inflamed political atmosphere of the country. The majority of the Libyan people undoubtedly have strong expectations that their human rights will now be upheld and that an equitable economic order will soon be established that benefits the population as a whole, and not the tiny elite that sits on the top of the national pyramid. These are expectations that have yet to be satisfied anywhere in the region. The challenge is immense, and perhaps is beyond even the imagination and aspirations of the new leaders, posing a challenge that exceeds their capabilities and will.

 

            Yet such worries are not just about the uncertain future of Libya. Even if, against the odds, Libya turns out to be the success story already proclaimed, there are still many reasons to be concerned about the Libyan intervention serving as a precedent for the future. These concerns relating to international law, to the proper role for the UN, and to the shaping of a just world order have been largely ignored in the public discussion of the Libyan intervention. In effect, once NATO helped the rebels enough to get rid of the Qaddafi regime, it has been treated as irrelevant to complain about aspects of the undertaking and such issues have been completely ignored by the media. In the rest of this blog I will try to explain why the Libyan intervention is far from providing future diplomats with an ideal model. I believe we should learn from the Libyan experience, and reject it as a precedent.

 

            As the World Court made clear in the Nicaragua decision of 1986, modern international law does not allow states to have recourse to force except when acting in self-defense against a substantial prior armed attack across its borders, and then only until the Security Council acts. The United Nations, normally the Security Council, but residually the General Assembly, has the authority to mandate the use of force under Chapter VII of the UN Charter on behalf of peace and security, including on the basis of UN evolving practice, for humanitarian ends under extreme circumstances of the sort that arguably existed in Libya during the latter stages of Qaddafi’s rule. This humanitarian extension of UN authority has been challenged as opening a loophole of indefinite dimensions that can be used to carry out a post-colonial imperialist agenda. Even granting that humanitarian ends should now be understood to have been legally incorporated into prevailing ideas of ‘international peace and security,’ a crucial further question exists as to whether the force used by NATO remained within the confines of what was authorized by the Security Council.

 

            The Security Council debate on authorization indicated some deep concerns on the part of important members at the time, including China, Russia, Brazil, India, and Germany, that formed the background of SC Resolution 1973, which in March 2011 set forth the guidelines for the intervention.This extensive resolution articulated the mission being authorized as that of protecting threatened Libyan civilians against violent atrocities that were allegedly being massively threatened by the Qaddafi government, with special reference at the time to an alleged imminent massacre of civilians trapped in the then besieged city of Benghazi. The debate emphasized the application of the norm of Responsibility to Protect (R2P) endorsed by the Security Council a few years ago that sought to allay fears about interventions by the West in the non-West by refraining from relying on the distrusted language of ‘humanitarian intervention’ and substituting a blander way of describing the undertaking as less of a challenge directed at the territorial supremacy of sovereign states and more in the nature of a protective undertaking reflecting human solidarity. The R2P norm relies on a rationale of protecting vulnerable peoples from rulers that violated basic human rights in a severe and systematic fashion.

 

            But once underway, the NATO operation unilaterally expanded and qualitatively shifted the mission as authorized, and almost immediately acted to help the rebels win the war and to make non-negotiable the dismantling of the Qaddafi regime. NATO made these moves without even attempting to explain that it was somehow still acting primarily to protect Libyan civilians. This was not just another instance of ‘mission creep’ as had occurred previously in UN peacekeeping operations (for instance, the Gulf War of 1991), but rather mission creep on steroids! It would have been possible during the Security Council debate to explain in a forthright manner what obviously must have been the real intentions all along of NATO. It would have been possible and respectful of the integrity of UN discourse to have made the attempt to convince the members of the Security Council that the only way the Libyan people could be protected was to help the rebels win the civil war and to be sure that Qaddafi was taken out of the picture. Presumably such forthrightness was avoided by the pro-interventionist states because it would almost certainly have turned several of the already reluctant abstaining five countries into negative votes, including in all likelihood, those of China and Russia that are permanent members whose votes have a veto effect, which in this case would have prevented the Security Council from reaching a decision. So the pro-interventionists admittedly faced a genuine dilemma: either dissemble as to the ends being pursued and obtain the legitimacy of limited advance authorization from the UN or reveal the real goals of the operation and be blocked by a veto from acting under UN auspices. If so blocked, then the further issue arises as to whether to intervene in the absence of a UN mandate.

 

A similar dilemma faced the intervening governments prior to the 1999 NATO’s Kosovo War. It was resolved by ignoring the legalities altogether, with NATO acting without any UNSC authorization. It was also a controversial precedent, and some blamed the Kosovo reliance on ‘a coalition of the willing’ or on a military alliance as providing a sufficient authorization, for the later claim of de facto authority to carry out the Iraq invasion without gaining prior UN approval. In both Kosovo and Iraq circumventing the UN’s legally prescribed role of deciding when to authorize non-defensive force on behalf of international peace and security was criticized, but the unlawfulness of the action led to no clear repudiation of either intervention after the fact, and rather highlighted the weakness of the UN. In both cases the UN after the fact acted to ratify the results of uses of force that clearly violated the UN Charter’s unconditional prohibition imposed on all uses of non-defensive force by member states. The rogue recourse to force was especially disturbing in Iraq as the attack legally amounted to a war of aggression, a crime against the peace in the language of the Nuremberg Judgment rendered in 1945 against surviving Nazi leaders after World War II.

 

            With regard to Libya, the culprits are not just the states that participated in this runaway operation, but the members of the Security Council  that abstained from supporting Resolution 1973 and the Secretary General of the United Nations have a special duty to make sure that the limits of authorization were being respected throughout the undertaking. It would seem to be a matter of constitutional responsibility for all members of the Security Council to ensure respect for the Charter’s core effort to prevent wars and seek peaceful resolution of conflicts. When exceptions are made to this generalized Charter prohibition on the use or threat of force it should always be strictly formulated, and then continuously monitored and interpreted, and if limits are exceeded, then the supervisory authority and responsibility of the Security Council should kick in as a matter of course, and in a spirit of upholding the autonomy and legitimacy of the United Nations. The Secretary General also has secondary responsibility to take appropriate steps to call the attention of the membership to such blatant departures from an authorizing resolution as an essential aspect of his role as custodian of the integrity of UN procedures and as the UN’s de facto ombudsman in relation to ensuring fidelity to the Charter. This allocation of responsibility seems more important when it is realized that the actions of the Security Council are not subject to judicial review. This controversial doctrine of judicial self-restraint within the UN System was ironically decided by the World Court in the 1992 Lockerbie case involving sanctions imposed on Libya in apparent violation of relevant treaty law. The majority of the judges concluded that whatever the Security Council decided needed to be treated as authoritative even if it went against international law, that the Security Council always had the last word in shaping UN policy even when it was acting unwisely or irresponsibly.

 

            Against this background, the abstaining states were also derelict at the outset by allowing a resolution of the Security Council involving the use of force to go forward considered that it contained such ambiguous and vague language as to raise a red flag as to the scope of the proposed authorization. Although Security Council Resolution 1973 did seem reasonably to anticipate mainly the establishment of a No Fly Zone and ancillary steps to make sure it would be effective, the proposed language of the resolution should have signaled the possibility that action beyond what was being mandated was contemplated by the NATO countries and would likely be undertaken. The notorious phrase ‘all necessary measures’ was present in the resolution, which was justified at the time as providing the enforcers with a desirable margin of flexibility in making sure that the No Fly Zone would render the needed protection to Libyan civilian.  Almost immediately once NATO launched its operations it became obvious that an entirely new and controversial mission was underway than what was acknowledged during the debate that preceded the adoption of 1973. The U.S. Supreme Court has often invalidated Congressional action as ‘void for vagueness,’ and this is something in the UN setting that Security Council members should have been prepared to do on their own in their role as final guardians of constitutional integrity in relation to war making under UN auspices. Given the Charter emphasis on war prevention and peaceful settlement of disputes, it should be standard practice that exceptional mandates to use force would be interpreted strictly to limit the departure from Charter goals and norms, but the UN record even before Libya has been disappointing, with geopolitics giving states a virtually unlimited discretion that international law purports to withhold.

 

            There is a further related issue internal to best practices within the United Nations itself. The Security Council acts in the area of peace and security on behalf of the entire international community and with representational authority for the whole membership of the Organization. The 177 countries not members of the Security Council should have confidence that this body will respect Charter guidelines and that there will be a close correspondence between what was authorized and what was done especially when force is authorized and sovereign rights are encroached upon. This correspondence was not present in the Libyan intervention, and this abuse of authority seems to have barely noticed in any official way, although acknowledged and even lamented in the corridors and delegates lounge of UN Headquarters in New York City.

 

This interpretative issue is not just a playground for international law specialists interested in jousting about technical matters of little real world relevance. Here the life and death of the peoples inhabiting the planet are directly at stake, as well as their political independence, the territorial integrity, and economic autonomy of their country. If the governments will not act to uphold agreed and fundamental limits on state violence, especially directed at vulnerable countries and peoples, then as citizens of the world, ‘we the peoples of the United Nations,’ as proclaimed by the Preamble to the Charter need to raise our voices. We have the residual responsibility to act on behalf of international law and morality when the UN falters or when states act beyond the law. Of course, this imperative does not imply a whitewash for tyrannical rule.

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Libya without Qaddafi: Decoding an Uncertain Future

26 Aug

 

            There is so much spin surrounding the Transitional National Council victory in Libya that it is difficult to interpret the outcome, and perhaps premature to do so at this point considering that the fighting continues and the African Union has withheld diplomatic recognition on principled grounds.  Almost everything about the future of Libya has been left unresolved, beyond the victory of the rebel forces as massively assisted by NATO air strikes as well as a variety of forms of covert assistance given to the anti-regime Libyans on the battlefield. Of course, in the foreground is the overthrow of a hated and abusive dictator who seemed more the outgrowth of the surrealist imagination than a normal political leader who managed to rule his country for more than 42 years, and raised the material standards of the Libyan people beyond that of other societies in the region.  

 

It does seem that the great majority of the Libyan people shared with others in the region a thirst for political freedom. The initial uprising seems definitely inspired by the Arab Spring.  But unlike the other populist challenges to authoritarian Arab states, in Libya the anti-regime forces abandoned nonviolent tactics at early stage and became an armed uprising. This raised some doubts and widespread fears about the onset of a civil war in  the country, but it also brought forth a variety of explanations about the murderous behavior of the regime that left its opponents no alternative.

 

Now with Qaddafi gone as leader, if not yet captured or killed, a new central concern emerges. What will the morning after bring to Libya? At the moment it is a matter of wildly divergent speculation as the unknowns are so predominant. There are a few observations that clarify the main alternatives. More favorably than in Egypt or Tunisia, this populist uprising possesses a revolutionary potential. It has seems poised to dismantle the old order altogether and start the work of building new structures of governance from the ground up. The fact that the TNC resisted many calls for reaching an accommodation or compromise with the Qaddafi regime gives the new leadership what appears to be a clean slate with which to enact a reform agenda that will be shaped to benefit the people of the country rather than foreign patrons. This opportunity contrasts with the messy morning after in Egypt and Tunisia where the remnants of the old order remain in place. In Cairo numerous demonstrators were sent to jail, and reportedly tortured, after new demonstrations were held in Tahrir Square led by those fearful that their political aspirations were being destroyed by the same old bureaucracy that had provided Mubarak with his oppressive structures of authority that made the country safe for neoliberal exploitation and unsafe for constitutional democracy.  Let’s hope that the TNC can sustain Libyan unity and commit itself to the building of a democratic constitutional order and an equitable economy step by step. It will not be easy as Libya has no constitutional experience with citizen participation, an independent judiciary, or the rule of law. Beyond this, political parties, non-state controlled media, and civil society were absent from Libya during the Qaddafi era.

 

And then there is the big possible problem of NATO’s undefined post-Qaddafi role. The air war inflicted widespread damage throughout the country, and already NATO entrepreneurial interests are staking their claims, and TNC spokespersons have indicated that those who lent their cause support will be rewarded in appreciation. Fortunately, NATO does not purport to be an occupying force, but the United States and the principal European countries that took part in the war are pulling strings to release billions of dollars of assets of the Libyan state that were frozen in compliance with Security Council Resolution 1973 and various national directives, and may well be playing a major advising role behind the scenes. Will this dynamic of enabling the new leadership to achieve a finance recovery and reconstruction in Libya come as part of a package containing undisclosed political conditions and economic expectations?  There are signs that oil companies and their government sponsors are scrambling to get an inside track in the current fluid situation. It does not require paranoia about imperialist geopolitics to take note of the fact that the two major military interventions in the Arab world within the last decade were both situated in significant oil producing countries whose leadership rejected integration into a world order in which global energy policy was under the firm control of the market interests of international capital. And, oh yes, the other likely target of major Western military action is Iran, and it too ‘happens’ to be a major oil producer. Let us recall that the UN failed to respond in oil-free Rwanda in 1994 when a small expansion of a peacekeeping presence already in the country might have saved hundred of thousands from an unfolding genocidal onslaught. In the realm of world politics, it may be worth observing, coincidences rarely happen.

 

There are also significant unresolved issues associated with the precedent set by the UN in authorizing a limited protective intervention that when acted upon ignored the guidelines set forth by the drafters of the Security Council resolution. The actual scope and ill-disguised purpose of the intervention shortly after it became an operational reality in Libya was to tip the balance in a civil war and achieve regime change. Such goals were never acknowledged by the pro-intervening governments in the course of the extensive and sharp Security Council debate, and had they been, it is almost certain that two permanent members, China and Russia, given their reluctance to approve of any use of force in the Libyan situation, would have blocked UN action by casting a veto. The UN is confronted by a dilemma. Either it refuses to succumb to geopolitical pressures as was the case when it withheld approval from the United States plan to attack Iraq in 2003, and steps aside while a so-called ‘coalition of the willing’ is hastily formed to carry out an attack, or they grant some kind of limited authority that is cynically overridden by the far more expansive goals of the intervening governments as has been the case in Libya. Either way respect for the authority of the UN is eroded, and the historical agency of geopolitics is confirmed.

 

In the Libyan case, the evaluation of the UN role is likely to depend on what happens in the country during the weeks and months ahead. If a humane and orderly transition takes place in the country, and national resources are used to benefit the people of Libya and not foreign economic interests, the intervention will be effectively marketed as a victory for humane governance and a demonstration that the international community can engage in humanitarian intervention in an effective and principled manner. If the country descends into chaos as the Libyan victors fight among themselves for the political and economic spoils or take revenge on those associated with the Qaddafi regime, the intervention will be retrospectively discredited. This will happen also if the country becomes one more neoliberal fiefdom in which the majority of the population struggles to subsist while tiny elites sitting in Tripoli and Benghazi collaborate with foreign financial and corporate interests while skimming billions off the top for themselves.

 

This assessment of the intervention as a precedent is based on considering only its consequences. As such, it does not take into account the importance of maintaining as a matter of principle, the integrity of UN authorizations of military force both in relation to the UN Charter and with respect to confining the military undertaking to the strict limits of what was authorized. I will consider in a companion essay this issue of sustaining constitutionalism and the rule of law when the Security Council authorizes military action.

 

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Can Humanitarian Intervention ever be Humanitarian?

4 Aug


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

 

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

 

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

 

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

 

            Coming to specifics, Walzer understandably turns his attention to Libya

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

 

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

 

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

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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A Few Notes on WHAT IS LEFT (or Toward a Manifesto for Revolutionary Emancipation)

19 Jun

 

WHAT IS LEFT in two senses:

 

            –what remains of the historic left, conceived more universally as emancipatory politics independent of place and cultural nexus; that is, not

just Marxism, and its progeny, but all forms of resistance to oppression, including by indigenous peoples or in response to religious convictions;

            –the definitional challenge associated with defining ‘the left’ under contemporary conditions; the position taken here is that the left is somewhat obsolete if conceived in Eurocentric terms as opposition to the right, and needs to be conceived in relation to visions and projects of emancipation and through the aperture of historic struggles.

 

Toward a Manifesto for Revolutionary Emancipation:

            –the need for a radical depiction of transformative politics that takes full account of the historical particularity of present world conditions;

            –the importance of repudiating and transcending the anti-utopian ethos of prevailing political perspectives on change and reform;

            –the potentiality of generalizing a politics that seeks a just and sustainable future for all living beings on the planet;

            –the engagement with a conversational approach to political advocacy, and a corresponding rejection of all forms of dogmatic thinking.

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The ‘left’ agenda of the early 21st century:

 

            –support for the Palestinian Solidarity Movement, including its BDS campaign as both a creative form of resistance to oppressive circumstances, not just territorial occupation, but also to the struggle to overcome the enforced refugee and displacement status that has afflicted millions of Palestinians for more than six decades and a vision of justice and reconciliation;

            –struggle against global capitalism, especially in its neoliberal globalizing phase of super-financialization, as fundamentally unjust and unsustainable;

            –support for movement from below to push for adjustments to the challenges of climate change; the emissions of greenhouse gasses must be drastically reduced as an urgent priority; waiting until the harm is sufficiently tangible to produce effective governmental responses will be waiting too long, and involves the neglect of justice to future generations and indifferent to the present sufferings of sub-Saharan  Africa, islands and coastal areas subject to flooding.

 

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The leading forces for and against emancipatory politics:

 

            –FOR: the declining effectiveness of hard power politics either in its governmental or resistance forms; militarism is failing, although the political elites of the world, led by the United States, seem oblivious to this decisive historical trend; confirmations include the revolutionary potential of the Arab Spring, as well as the outcome of the Vietnam War, the Iraq War, and the still persisting Afghanistan War; it is not that military power has become irrelevant, but that it rarely in this historical period determines the political outcome; the great series of struggles in the last 60 years against colonialism ended with victory by the militarily weaker side, or by the side, as in India, that did not contest the imperial presence by violent forms of resistance; in contrast, hard power warfare and rulership were effective in earlier historical eras, and throughout the world;

 

        –AGAINST: the spreading of materialist consumerism as the new opiate of the people that hides the destructive and alienating dimensions of late modernity, and shields capitalist behavior from transformative critique; economic globalization as exhibited through franchise capitalism is the most widely endorsed regressive ideology operative in the world today, and is characteristic in different formats of the two leading exponents of the capitalist path: the United States and China. The absence of a counter-ideology of wide applicability after the Soviet collapse combined with discrediting a socialist ethos as alternative foundation for economic and political activity and organization has contributed to a widespread mood of resignation (‘there are no alternatives’). Replacing despair with hope is indispensable if new

globally attractive forms of emancipatory politics are to emerge and evolve.

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Comments on Legitimacy Wars as the encompassing form of struggle:

 

–an overriding recognition of the historical ascendancy of soft power;

–tactical and strategic commitments to nonviolence, although not unconditionally;

–crucial emphasis on gaining the high moral ground to widen popular appeal,

and use of law as an instrument to mobilize support, especially international law (‘lawfare’ as an approved modality of struggle);

–use of international arenas, whether regional or global, local or national, to wage symbolic struggles on behalf of legitimate claims, with a special stress on the symbolic significance of gaining support in the United Nations;

–understanding that most struggles for legitimate goals are non-territorial in relation to the symbolic and soft power battlefields that give potency to public opinion, to exemplary leadership (e.g Gandhi, Nelson Mandela); to tactics such as boycott, divestment, and sanctions, and to the certification of the moral and legal authority of grievances and claims (e.g. the Goldstone Report);

–patience and perseverance  as cardinal political virtues, along with the realization that legitimacy wars can be lost as well as won, with outcomes contingent on many contextual factors (e.g. self-determination for Tibetans, Chechens; indigenous peoples);

–a vision of the goal that includes reconciliation, accountability, and forgiveness, with the realization that there will be tensions and contradictions present in clearing the path forward, away from conflict, toward sustainable and just peace.

 

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These notes are meant as tentative and conversational expressions of an emergent political point of view, and will be revised in response to commentary by others. Obviously, also, there is no pretension on my part of comprehensiveness, or else many other issues would have been addressed: struggles against various types of patriarchy; the need to renounce nuclear weaponry, and work toward a phased process of nuclear disarmament, as well as other aspects of demilitarization; extending rights of self-determination to indigenous peoples variously situated; and establishing institutional arrangements giving opportunities for popular and direct representation of the peoples of the world (e.g. a UN Parliament of Peoples); building in all social spaces substantive democracy based on the equality of persons, reverence for the natural environment, and celebration of diverse spiritual and religious traditions. A cosmopolitan ethos that affirms love of self and others, tradition and otherness, and the familiar and the exotic.

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