Tag Archives: United States

Snowden’s Post-Asylum Relevance

Now that Snowden has been given temporary asylum in Russia for a year, attention in the drama has shifted in two directions, although overshadowed at the present by the horrific happenings in Egypt and Syria. The Snowden issues remain important, and it is too soon to turn aside as if the only question was whether the U.S. Government would in the end, through guile and muscle, gain control of Snowden. Among the issues that should continue to occupy us are as follows:

–interpreting the negative impact on U.S.-Russia relations;

–the claim that if Edward Snowden is a sincere whistle-blower he will now, despite asylum, voluntarily return to the United States to tell his story in open court so as to answer charges that he is guilty of criminal espionage and conversion of government property.

As before, to grasp this post-asylum phase of the Snowden drama a few aspects of the background need to be appreciated:

–it continues to bias the public to describe Snowden as ‘a leaker,’ which is the usual way he is identified in the mainstream media, including such authoritative newspapers as the New York Times and Washington Post; on the right, he is simply called ‘a traitor,’ and for the liberal elite the jury is out on whether to conclude that Snowden is ‘a whistle-blower’ deserving some belated sympathy á la Ellsberg or ‘a traitor’ for his supposed gifts to the enemies of the United States that undermine ‘security,’ and deserve harsh punishment. As always, language matters, and its careful analysis is revealing as to where to locate ‘the vital center’ of American and international opinion;

Snowden’s own statement of his rationale for acting ‘unlawfully’ seems credible and idealistic, and given the wrongful nature of what was revealed and its bearing on the constitutional rights of Americans and the norms of international law, should have been sufficient to induce a humane government to drop all charges, and even acknowledge Snowden’s service as a dutiful citizen, inviting his return to the United States. Here are Snowden’s words befitting someone who deserves exoneration not criminal confinement: “America is a fundamentally good country; we have good people with good values who want to do the right thing, but the structure of power that exist are working to their own ends to extend their capability at the expense of the freedom of all publics.”

–Russia (and China) never had an obligation: legal, moral, and political, to transfer Snowden in response to the extradition request of the United States Government. Even if there had been an extradition treaty, ‘political crimes’ are not subject to extradition for good reasons. In a plural international order, it is highly desirable to provide foreign sanctuary to those who act peacefully in opposition to an established national political order. The United States itself has engaged repeatedly in such practice, shielding even political fugitives who have engaged in terrorist acts, provided only that the target government was viewed as hostile by Washington at the time of the alleged crimes, e.g. Cuba, Nicaragua, Venezuela;

–the rationale for refusing to extradite Snowden is particularly strong given the nature of his disclosures, the substance of which have evoked strong denunciations from a range of foreign governments, including such friends of the U.S. as Brazil and the United Kingdom; although espionage has long been routine in international relations, the deliberate and comprehensive spying on foreign citizens and confidential governmental undertakings is treated as unacceptable when exposed, and would be viewed as such if Russia (or any country) was detected as having established such a comparably broad surveillance program in the United States; there is an admitted schizophrenia present, making their spies criminals, ours heroes, and vice versa; such are the games played by states, whether friends or enemies;

–the United States angered a number of countries by its tactics designed to gain custody over Snowden, especially in Latin America. Its hegemonic style was most crudely displayed when it succeeded in persuadingseveral European governments to deny airspace to the presidential plane carrying the Bolivian president , Evo Morales. It is almost certain that the United States would treat such behavior as an act of war if the situation were reversed; more privately, it evidently cajoled and threatened foreign leaders via diplomatic hard ball to withhold asylum from Snowden. Such an effort, in effect, attempted to subvert sovereign discretion in relation to asylum as a respected human rights practice entirely appropriate in the context of Snowden’s plight, which included, it should be remembered, the voiding of his U.S. passport;

–Obama has finally admitted at a press conference of August 11^th that negative reactions even in Washington to what was widely perceived as surveillance far in excess of what could be reasonably justified by invoking post 9/11 security, was prompting the government to take steps to protect privacy and roll back the program. Whether these planned reforms will amount to more than gestures to quiet the present public uproar remains to be seen. Obama did acknowledge, what everyone knew in any event, that it was the Snowden disclosures that prompted such official action at this time, but even with this show of recognition, the president still called on Snowden to return to the United States to tell his story to a criminal court if he seeks vindication. In his words, if Snowden thought he had done the right thing, “then, like every American citizen, he can come here, appear before the court with a lawyer and make his case.” Really!

In the aftermath of the Bradley Manning saga, the treatment of Guantanamo detainees, the acquittal of Zimmerman in the Trayvon Martin case, and the denial of ‘compassionate release’ to Lynne Stewart a brave and admired lawyer with a reputation for defending unpopular clients, who lies shackled in a Texas jail while dying of terminal cancer. It could only be a naïve fool who would risk their future on a scale of justice offered to Snowden by the American criminal law system in light of these judicial and governmental outrages. It seems rather perverse for Snowden’s father, Lou Snowden, to be reported as planning to visit his son in Moscow with the intention of urging his return to face charges, although only if the government provides appropriate reassurances. It should by now be obvious that such reassurances to Snowden would be meaningless even if made in good faith by the Attorney General. Normally, the judge and jury in any criminal trial involving alleged breaches of national security defers to the government’s view of the situation and would be unlikely to allow Snowden the option of introducing evidence as to his motivation, which is normally excluded, especially if classified material is at stake. In a trial of this sort the government only needs to show criminal intent, that is, the deliberate flouting by Snowden of relevant American law. Since this is uncontested, it would mean that Snowden would have to claim ‘necessity,’ a defense rarely entertained by American courts, and here would also require that Snowden be able to depict the surveillance system and why it was a threat to American democracy and the rights of American citizens, which could not be done without declassifying the very documents that Snowden is accused of wrongfully disclosing.

A Tale of Two Texts

Without dwelling on their detailed character, it is worth noting two texts that illustrate the range of reaction to the Snowden controversy. The first is by Thomas Friedman, the NY Times columnist, with a flair for pithy supercilious commentary on the passing scene, and an arrogance rarely exceeded even in Washington. The second is by Antonio Patriota, the foreign minister of Brazil, a country that has rarely seldom its voice to question even the most questionable behavior of its hegemonic neighbor to the North.

Friedman’s column, published on August 13, is entitled “Obama, Snowden and Putin,” and its theme is that Snowden and Putin have an opportunity to overcome their bad behavior by seizing the opportunity for a second chance. Snowden is supposed to come home, face trial, and show the country by so doing allow American courts to make the judgment as to whether to view him as ‘whistle-blower’ or ‘traitor.’

As for Putin, even before angering the United States by giving asylum to Snowden, he gave up the ‘reset’ opportunity given by Obama for good relations with the United States. According to Friedman, Putin’s failure was not repression at home, but his failure to follow the American lead in foreign policy, whether on Syria, Iran, cyber security. And from this outlook, Putin is seen as staking his domestic political future in Russia through an alleged adoption of an anti-American set of policies. Friedman never pauses to wonder whether American policies in the Middle East and elsewhere in the world are worthy of support. He never asks whether Putin was right or wrong in defying Obama in the Snowden context. He never notes that Moscow was very forthcoming in cooperative law enforcement in the aftermath of the Boston Marathon bombing last April, or that Putin expressed his hope that the Snowden incident would not harm relations between Russia and the United States. Friedman did not even pause to wonder about the provocative nature of American joint military exercise with Georgia a hostile presence on the border of the Russian heartland or the way in which NATO has been given a second life after the Cold War that includes the deployment of defensive missile systems threatening to Russia.

What is most astonishing is that Friedman exempts Obama from any blame, presumably because he doesn’t need a second chance. It seems Friedman conveniently forgets the heavy handed abuse of Manning, the refusal to look into the substance of the war crimes disclosed by the WikiLeaks documents, and the belated admission that the surveillance network had overreached legitimate security requirements. It would seem that with Guantanamo still open, and engaged in the force-feeding of hunger-striking detainees, most of whom are deemed innocent by their captors, would be a gaping wound in the body politic that might call for presidential remedial intervention! And nowhere does Friedman note that Obama’s handling of the Snowden case needlessly damaged America’s relations in the Western Hemisphere. But do not hold your breath until Friedman makes such comments that would surely be unwelcome in the White House.

In contrast, hampered in rhetoric by traditions of diplomatic courtesy, Foreign Minister Patriota, made the following statement on the Snowden disclosures at the UN Security Council on August 6^th: “..the interception of telecommunications and acts of espionage, practices that are in defiance of the sovereignty and in detriment to the relations among nation. They constitute a violation of our citizen’ human rights and the right to privacy.” The minister then goes to say that several leading states in Latin America, including Brazil, intend to pursue their grievance in other venues of the UN, including the Security Council. He explains that this “is a serious issue, with a profound impact on the international order. Brazil has been coordinating with countries that share similar concerns to uphold an international order that is respectful of sovereignty of States and of human rights.” Also, Mr. Patriota welcomed the statement of the UN High Commissioner for Human Rights, Navi Pillay, who called attention to the Snowden disclosures as revealing forms of surveillance that violate Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights.

These two texts illuminate the inside/outside nature of international relations brought to the attention of scholars a decade ago in the work of R.B.J Walker. Inside of America, the problems are seen as relating to Snowden,and his culpability combined with a superpower’s frustrations resulting from an inability to swallow him whole. Outside America, especially in Latin America, the domain of gunboat diplomacy and the Monroe Doctrine, the focus is on the fundamental logic of reciprocity upon which peaceful and friendly relations among sovereign states depends. Nothing better shows the hegemonic nature of the United States presence in the world than its unyielding refusal to grasp, let alone accept, this logic of reciprocity even in dealing with friends and neighbors.

Tags: Bradley Manning, Evo Morales, Federal government of the United States, New York Times, Russia, Snowden, United States, Washington

Comments 14 Comments
Categories America, Commentary, Crimes of State, security

What If a Russian Snowden?

9 Aug

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tags: Barack Obama, Bradley Manning, Hong Kong, Russia, Snowden, United States, Vladimir Putin, Washington

Comments 23 Comments
Categories America, Commentary, Human Rights

Polarization Doomed Egyptian Democracy (Revised)

5 Aug

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

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When Polarization Becomes Worse than Authoritarianism Defer Democracy

Doubting Democracy

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

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

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

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

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

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

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

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

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

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

The Arab Upheavals

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

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

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

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

Egypt and Turkey

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

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

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

The Politics of Polarization

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

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

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

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

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

The Authoritarian Temptation

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

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

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

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

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

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

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

Tags: Egypt, European Union, Iraq, Middle East, Ottoman Empire, Soviet Union, United States, Vietnam War

Comments 34 Comments
Categories Commentary, Human Rights, International & Global Law, Middle East

Reviving the Israel-Palestine Negotiations: The Indyk Appointment

30 Jul

Appointing Martin Indyk as Special Envoy to the upcoming peace talks was to be expected. It was signaled in advance. And yet it is revealing and distressing.

The only other candidates considered for the job were equally known as Israeli partisans: Daniel Kurtzer, former ambassador to Israel before becoming Commissioner of Israel’s Baseball League and Dennis Ross, co-founder in the 1980s (with Indyk) of the AIPAC backed Washington Institute for Near East Policy; handled the 2000 Camp David negotiations on behalf of Clinton.

The winner among these three was Martin Indyk, former ambassador to Israel (1995-97; 2000-01), onetime AIPAC employee, British born, Australian educated American diplomat, with a long list of pro-Israeli credentials.

Does it not seem strange for the United States, the convening party and the unconditional supporter of Israel, to rely exclusively for diplomatic guidance in this concerted effort to revive the peace talks on persons with such strong and unmistakable pro-Israeli credentials?

What is stranger, still, is that the media never bothers to observe this peculiarity of a negotiating framework in which the side with massive advantages in hard and soft power, as well as great diplomatic and media leverage, needs to be further strengthened by having the mediating third-party so clearly in its corner. Is this numbness or bias? Are we so accustomed to a biased framework that it is taken for granted, or is it overlooked because it might spoil the PR effect of reviving the moribund peace process?

John Kerry, the U.S. Secretary of State, whose show this is, dutifully indicated when announcing the Indyk appointment, that success in the negotiations will depend on the willingness of the two sides to make ‘reasonable compromises.’ But who will decide on what is reasonable? It would be criminally negligent for the Palestinians to risk their future by trusting Mr. Indyk’s understanding of what is reasonable for the parties. But the Palestinians are now potentially entrapped. If they are put in a position where Israel accepts, and the Palestinian Authority rejects, “(un)reasonable compromises,” the Israelis will insist they have no “partner” for peace, and once more hasbara will rule the air waves.

It is important to take note of the language of reasonable compromises, which as in earlier attempts at direct negotiations, excludes any reference to international law or the rights of the parties. Such an exclusion confirms that the essential feature of this diplomacy of negotiations is a bargaining process in which relative power and influence weighs heavily on what is proposed by and acceptable to the two sides. If I were advising the Palestinians, I would never recommend accepting a diplomatic framework that does not explicitly acknowledge the relevance of international law and the rights of the parties. In the relation of Israel and Palestine, international law could be the great equalizer, soft power neutralizing hard power. And this is precisely why Israel has worked so hard to keep international law out of the process, which is what I would certainly recommend if in Tel Aviv’s diplomatic corner.

Can one even begin to contemplate, except in despair, what Benjamin Netanyahu and his pro-settler cabinet consider reasonable compromises? On what issues can we expect Israel to give ground: borders, Jerusalem, refugees, settlements, security?

It would have been easy for Kerry to create a more positive format if he had done either of two things: appointed a Palestinian or at least someone of Middle Eastern background as co-envoy to the talks. Rashid Khalidi, President Obama’s onetime Chicago friend and neighbor, would have been a reassuring choice for the Palestinian side. Admittedly, having published a book a few months ago with the title Brokers of Deceit: How the U.S. Undermined Peace in the Middle East, the appointment of Khalidi, despite his stellar credentials, would have produced a firestorm in Washington. Agreed, Khalidi is beyond serious contemplation, but what about John Esposito, Chas Freeman, Ray Close? None of these alternatives, even Khalidi, is as close to the Palestinians as Indyk is to the Israelis, and yet such a selection would have been seen as a step taken to close the huge credibility deficit. Yet such credibility remains outside the boundaries of the Beltway’s political imagination, and is thus inhabits the realm of the unthinkable.

It may be that Kerry is sincere in seeking to broker a solution to the conflict, yet this way of proceeding does not. Perhaps, there was no viable alternative. Israel would not come even to negotiate negotiations without being reassured in advance by an Indyk-like appointment. And if Israel had signaled its disapproval, Washington would be paralyzed.

The only remaining question is why the Palestinian Authority goes along so meekly. What is there to gain in such a setting? Having accepted the Washington auspices, why could they not have demanded, at least, a more neutral or balanced negotiating envoy? I fear the answer to such questions is ‘blowin’ in the wind.’

And so we can expect to witness yet another charade falsely advertized as ‘the peace process.’ Such a diversion is costly for the Palestinians, beneficial for the Israelis. Settlement expansion and associated projects will continue, the occupation with all its rigors and humiliations will continue, and the prospects for a unified Palestinian leadership will be put on indefinite hold. Not a pretty picture.

This picture is made more macabre when account is taken of the wider regional scene, especially the horrifying civil war in Syria and the bloody military coup in Egypt. Not to be forgotten, as well, are Israeli threats directed at Iran, backed to the hilt by the U.S. Congress, and the terrible legacy of violent sectarian struggle that is ripping Iraq apart. Naturally, there is speculation that some kind of faux solution to the Israel/Palestine conflict would release political energy in Washington that could be diverted to an anti-Assad intervention in Syria and even an attack on Iran. We cannot rule out such infatuations with morbid geopolitical projects, but neither should we assume that conspiratorial scenarios foretell the future.

Tags: Israel, Israel-Palestine, John Kerry, Martin Indyk, Middle East, United States, Washington, Washington Institute for Near East Policy

Comments 52 Comments
Categories America, Commentary, International & Global Law, Israel/Palestine

Geopolitical Winds Blow in China’s Direction

25 Jul

Among those who comment influentially from the sidelines of power, there are new trends visible in thinking about American foreign policy. The most salient of these concerns is a shift away from the post-9/11 counterterrorist agenda to a new phase of mainstream policy advocacy that emphasizes the renewed strategic importance of geopolitical rivalry among leading sovereign states. There is also a shift away from the temptations of military intervention and regime change as a favored Western tactic for sustaining influence in the post-colonial world. There is a realization, at least temporarily, that adventures in military intervention, whether Afghanistan, Iraq, or Libya, are just that—‘adventures,’ if not fiascos. And costly too, rarely a success even when overwhelming military superiority is brought to bear.

After the Vietnam War there emerged a similar reluctance to intervene overseas that was derisively labeled ‘the Vietnam Syndrome.’ It endured for more than a decade being finally overcome by the low-casualty victory in the Gulf War. I think it is safe to assume that for the rest of the Obama presidency, barring a major unforeseen development, that both counterterrorism and military intervention will be occupy a much lower place on the foreign policy agenda. This observation does not mean that such issues will disappear from view, as the recurrent debate on Syria shows. It does argue that they will be treated by political leaders as Gordian Knots, and addressed only warily and tangentially.

But power centers abhor a geopolitical vacuum. Policymakers must find something to take the place of the al-Qaeda sequel to the Cold War and the liberal embrace of aggressive forms of ‘democratic peace’ that for a time built support for periodic interventions in the non-Western world. It seems that vacuum is likely to be filled by a return to ‘the great game’ of great power politics.

It is not surprising that we should look first to Wall Street for clues, and we will not be disappointed. The gold standard of finance capital in the age of globalization, Goldman Sachs, already in 2001 alerted the attentive public to the relevance of the changing geopolitical landscape with its clever acronym of BRICs, that is, Brazil, Russia, India, and China. Jim O’Neill, an economist at Goldman Sachs, had initially proposed the acronym in an analytical paper on global trends. It did not catch on in the wider literature until 2008 or 2009.

In effect, Goldman Sachs was telling the investing world to take account of challenges to and opportunities for American and Western interests in global economic policy associated with these rising powers. Of course, putting Russia on the list seemed strange to some because their military prowess, size, and resource endowments meant that they were never really off the list, and from an opposite viewpoint, its economic achievements were not so impressive as to put it in the same class as the most rapid growth economies. Others suggested that the BRIC enclosure excluded such other states as South Africa, Turkey, and Indonesia that deserved a similar recognition in light of their economic success, political stability, and increasing regional and global assertiveness.

Yet, broadly speaking, the BRIC hypothesis possessed geopolitical plausibility, and caught on, not least among the BRIC countries themselves, which welcomed this certification of status and relevance. It was given intellectual validation by that neocon heavyweight, Robert Kagan, in his book, The Return of History and the End of Dreams (New York: Knopf, 2008), who in effect suggested that the interval after the Cold War in the 1990s that seemed free from geopolitics was a deceptive hiatus. The geopolitical backbone of world politics had recovered.

For India and Brazil old dreams of Security Council membership and regional influence became new political projects. The move from the G-8 to the G-20 for global economic policymaking was an indirect acknowledgement that the global context was changing in ways that required more representation of the South to have any hope of effectiveness and legitimacy.

At present, there seems to be a further reassessment of geopolitical concern: Brazil and India have for the time being lost their claims to be regarded as candidates for front row seats, while China and Russia have maintained, if not enhanced their claims. China, especially, despite the slowing of its extraordinary growth economy to a rate that would still make Western political drool with joy and pride, is increasingly perceived as a threat to American global dominance. The Obama presidency seemingly admitted this reality by its much proclaimed ‘pivot’ to Asia that was a thinly disguised message to Beijing: the United States intended to pursue a diplomacy of ‘soft containment’ of China as the highest priority in its future foreign policy. This adjustment was a notable sequel to the 1990s pivot from Europe to the Middle East.

These latest expressions of concern about U.S. adaptation to a changing security setting is giving rise to two kinds of reaction. The first is illustrated by a thoughtful comment of Colin Dueck, a Fellow at the Foreign Policy Research Institute, on the overall importance of geopolitics for constructing foreign policy. Dueck faults American foreign policy not for the pivot to Asia, but for what he calls its ‘under-resourced’ implementation, which he insists is evidenced by recent cuts in the budget of the U.S. Navy. He concludes that “..the U.S. response to a rising China has simply not been adequate.” [Colin Dueck, “Geopolitics Reborn,” E-Notes, Foreign Policy Research Institute, Philadelphia, PA, July 2013] Such a view of geopolitics is explicitly tied to hard power calculations based on the historical agency of military superiority, and takes no account of globalization, networking, soft power diplomatic creativity, and the rise of non-state actors and transnational social movements that in aggregate constitute the alternate promise of a ‘new geopolitics.’

Then there is the view of Leslie Gelb and Dimitri Simes, two titans of the American foreign policy intellectual establishment, who writing in the New York Times [“A New Anti-American Axis,” July 6, 2013; Gelb is former president of the Council on Foreign Relations and Pentagon official; Simes is president of The Center for the National Interest and publisher of The National Interest], want us to consider not separate states as challenges, but an emergent cooperative anti-American relationship that joins China and Russia together in thwarting the American global design. Oddly, they use as their telling example of a menacing development, the cooperation between China and Russia in enabling Edward Snowden to elude American efforts to gain custody over him by facilitating his flight from Hong Kong to Moscow. What might have been proclaimed as the protection of someone charged with ‘political crimes’ (and hence, exempt from extradition), is presented in crude foreign policy terms by Gelb and Simes.

They point to the incident as evidence of China and Russia’s “growing assertiveness and their willingness to take action at America’s expense.” Among the additional examples cited are the refusal to back the West at the UN with respect to Syria, Chinese hacking of American corporate websites, and Russian cyber attacks on their enemies. Aside from Syria, these other complaints refer to national policies that are not cooperatively undertaken by the two countries. Also, with characteristic American myopia, there is no recognition that the United States might be doing things that are deeply threatening to Beijing and Moscow, and that their cooperation may be actually, on balance, prudent and beneficial for the global public good. Such nationalistic approaches to geopolitics consider ‘balance’ only desirable to contain the ‘other,’ never the ‘self.’ From an objective historical standpoint, considering the global role of the United States in the last two decades, it would seem that Washington’s diplomacy of force that has produced long and destructive wars, unbalanced support for Israel, cyber attacks against Iran, global surveillance regime, and notorious places of detention associated with Abu Ghraib and Guantanamo are greater threats to a benevolent world order than giving sanctuary to Snowden.

The larger argument being put forward by Gelb and Simes is more nuanced. It suggests that it would be important to avoid either passivity or aggressiveness in response once it is understood that such global cooperation between China and Russia, if not properly addressed, “could pose grave risks for America and the world.” It recognizes that despite this obstructionism by these adversary states there are also strong common interests in trade and global economic stability, as well as in some aspects of security concerns, including North Korean and Iranian nuclear programs. Gelb and Simes are clear about not wanting to revive the Cold War, and certainly are not counseling policies that risk military confrontations, but rather favor a policy of selective firmness and pragmatic cooperation. There is a recognition of a certain level of multipolarity with respect to the management of conflict, suggesting that such security challenges as currently posed by Iran, Syria, and North Korea could only be handled in an effective and practical way if China and Russia agree to cooperate with the United States. They might have added climate change, food security, and refugee policy as areas where cooperation seems vital. To fail to produce this mix of resistant and cooperative diplomacy would be, in their words, “folly of historic proportions.”

What is worth noticing is this return to the abandonment of any pretension of the sort that surfaced after the Cold War in various guises such as ‘the unipolar moment’ or ‘the end of history.’ There also seems to be a tacit realization that the 20^th century struggle over the future of Europe is no longer of geopolitical interest, nor is Europe an independent political force on the global stage in the way that China and Russia are. It also represents a step back from the BRIC worldview as Brazil and India can once again be safely ignored from a global perspective. Perhaps, but only as an outside possibility, Gelb and Simes are the intellectual precursors of ‘a new trilateralism’ that is built around the idea that the new circle of ‘indispensable nation’ has been enlarged beyond the United States to include China and Russia.

Tags: BRIC, China, Dimitri Simes, Foreign Policy Research Institute, Goldman Sachs, New York Times, Russia, United States

Comments 7 Comments
Categories America, Commentary, Global Governance

Global Big Brother and the Snowden Hollywood Chase

16 Jul

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

‘show and tell’ stories.

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

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

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

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

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

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

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

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

Tags: Augusto Pinochet, Hong Kong, Moscow, National Security, Russia, Snowden, United States, Vladimir Putin

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Categories America, Commentary, Human Rights, International & Global Law

Misreading the Snowden Affair

11 Jul

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tags: Daniel Ellsberg, Federal government of the United States, Pentagon Papers, Russia, Snowden, United States, US government, Washington

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Categories America, Commentary, Human Rights, International & Global Law

Protecting Snowden

4 Jul

Such self-designated ‘wise men’ of our time as David Brooks and Tom Friedman, highly influential opinion and opinionated writers of the NY Times, have been telling their readers that Edward Snowden was decent and intelligent, but overstepped the law by arrogating to himself the disclosure of the ‘total data’ surveillance programs of the National Security Agency of the U.S. Government. By deliberately releasing abundant evidence of the astonishing breadth and depth of surveillance, Snowden was clearly motivated by the concern that rights of privacy, the quality of democratic life, and respect for the sovereignty of foreign countries and the confidentiality of diplomatic events were being placed in jeopardy. For some, this bold decision to expose American intelligence gathering made Snowden a villain, called ‘a traitor’ by a variety of public officials including John Kerry, the Secretary of State. There is no doubt that Snowden is guilty of violating espionage laws, which automatically almost constitutes treason for those who possess an ultra-nationalist mentality. Those who think this way believe Snowden deserves to be punished to the limits of the law, and that foreign governments friendly to this country should accede to Washington’s request for his detention and expulsion to the United States to face charges.

Of course for many others Snowden is a hero for our times, actions that should be honored by a Nobel Prize. Snowden put democratic accountability ahead of his own career and security, knowingly placing himself at great risk by daring to challenge the security policies of the government of his own mighty country for the sake of avoiding a gathering Orwellian political storm. What President Obama speaking after the Snowden leaks described in Germany somewhat disingenuously as “a circumscribed, narrow system directed at us being able to protect our own people.” What protection of the American people have to do with listening in on the diplomatic communications of European Union members seems more than far fetched!

There are many sober voices declaring themselves worried about the dangerous implications of such a massive breach of national security, especially following the major discrediting disclosures of those recent master whistle blowers—Bradley Manning and Julian Assange. In effect, given the kind of security threats that exist in the post-9/11 world the public must trust the government to strike the right balance between protecting the country against threats to national security and upholding the liberty of its citizens and respecting the sovereignty of other countries. As Michael Hayden, former director of the CIA and later the NSA, put it after these events: “We are now going to target the U.S. as if it were a foreign country.” Should Snowden’s violation of his oath and of espionage laws be welcomed as ‘a safety valve,’ a check upon abusive government, or as a gaping hole in governmental operations that needs to be closed as tightly as possible? The Belt Way insiders’ argument is that unless this latter approach is taken governmental policymaking will suffer because the needed institutional confidence that secrets are kept will be lost.

I find the Big Brother fears more credible than these anxieties about leaks in the secrecy enclosures relied upon by supposedly constitutional governments in defiance of the democratic ethos of accountability, transparency, and participation. What one finds consistently in government practice is an excess of secrecy via promiscuous classification tendencies that seem frequently used often to avoid embarrassing politicians from exposing dubious behavior or protecting bureaucrats from second-guessing and hostile commentary by journalists and the public. What is evident is that the government, even in a country that prides itself on freedom and privacy, tends to view information gathering in a spirit similar to weaponry—do whatever the technology allows so long as the costs are reasonable and the risks can be contained at moderate levels. And with the advent of digitized information technology, the sky is the limit: the PRISM program that was what Snowden was working on in his role as private contractor in the employ of the consulting firm of Booz, Allen, and Hamilton, and —-, was an indiscriminate data collection process that didn’t confine its intrusions to those for whom there existed grounds of suspicion. Indeed, every person everywhere was now living under a cloud of suspicion, there were no roster of ‘usual suspects’ to be rounded up in the aftermath of serious criminal incidents. The distinction crucial for the political wellbeing of people living in a liberal society between suspect and citizen now seems superseded and irrelevant, and this is an ominous development that should be challenged.

Two major developments brought this unsavory reality into being, and given ‘libertarian politics’ a new credibility. First, the most feared existential security threat became associated with potential political extremists who could be anywhere, within or beyond national borders, with or without affiliations to a political network. Consider such instances as the Norwegian Islamophobic right wing sociopath, Anders Breivik, guilty of a massacre on July 22, 2011 or the Tsarnaev brothers who carried out the Boston Marathon bombers on April 15, 2013. It is truly the case that the presence of isolated individuals, as well as transnational terrorist networks, pose severe threats to the viability of constitutional democracies. Many have voiced fears that a repetition of 9/11 in the United States would produce a slide into a kind of reactive fascism, and thus some sacrificing of freedoms, placing our trust in elected leaders and representative institutions, and hoping for the best is a kind of situational necessity. Politicians contend that such information trolling in the private domains of peoples’ lives has already contributed to the avoidance of terrorist attacks and horrifying incidents in as many as 90% of the cases of successful prevention. That is, the kind of threat that dominates our current fears can only be addressed in a responsible manner by giving up any expectations of autonomous citizenship or the promises of accountable government. Such a democratic slippage may simply have become a fact of 21^st century life about which most of society has accepted, even if with scant awareness of what is happening.

The second important factor is the ‘can do’ quality of digital technology as applied to the temptations of mass surveillance whether for purposes of governmental control or private profit. Information can be gathered, enlisting the social networking infrastructures of modern society, stored, analyzed, coded, and made available for a wide range of licit and illicit uses. There is a sinister continuity between the technological capabilities of the massive data collection program of the NSA known as PRISM and the lethal drone missions controlled by civilian operators acting far from any combat zone, carrying out battle plans based on the selection of targets from a kill list presented daily to the president, and approving in secret the execution of American citizens and those living in foreign countries who owe no allegiance to American laws. Such is the nature of the ‘global war’ unleashed by George W. Bush after 9/11 and continued by Barack Obama. There are reassurances that care is taken, efforts are made to minimize mistakes, and only the most imminent of threats are targets. The objective assessment of the killing fields tell a different story—of innocent persons killed, of ‘signature’ strikes targeting for death those against whom there is only vague circumstantial evidence, of a reign of terror in areas where suspects are supposed to be based.

In actuality, what Snowden did was surprisingly responsive to national security concerns, including the protection of secrecy surrounding controversial overseas undertakings. Snowden has indicated that he never had an intention to release any documents that implicate particular agents engaged in covert operations or that reveal the location of CIA bases in foreign countries. In effect, Snowden was acknowledging that the government has ‘secrets’ that deserve keeping, and that he was distinguishing these from the those that were not justified by security considerations and posed a severe threat to the future quality of constitutional democracy. It is undoubtedly the case, as Snowden has hinted, that he had good reason to believe without such an unauthorized disclosure, the public would have no way of finding out what was going on and no say in shaping the privacy/security balance, and the government would undoubtedly continue to rely on excessive claims of secrecy to insulate itself from procedures of accountability, including the rather unconvincing forms of oversight that are entrusted with avoiding wrongdoing in its surveillance gulag. I think there is good reason to conclude that it is only the obtrusiveness of whistleblowers that produces these occasional glimmers of sunlight that illumine to some degree the dark corridors of governmental power.

The three major whistleblowing incidents of the last half century bearing on national security, (Ellsberg (Pentagon Papers), Bradley Manning (Iraq and Afghanistan document trove), and Snowden (the NSA Prism Program of Surveillance) had one thing in come, disclosures of state crimes that had been long covered up, and were integral to structures of impunity that seem vital to the performance of the dirty work of empire. Daniel Ellsberg in a Salon interview with Brad Friedman on June 14, 2013 [Salon.com] insisted that a more permissive political atmosphere existed in 1972 when he released the Pentagon Papers. There was then at least the possibility of getting the story out without being thrown into prison under conditions of solitary confinement (Manning) or hounded as if a common criminal (Assange, and now Snowden). Under current conditions it seems as if the only way for Snowden to have some opportunity to give his reasons for doing what he did was to go abroad, and then seek asylum.

What seems most dismaying about the Snowden affair is the prosecutorial zeal of the Obama presidency, supposedly liberal in its outlook on matters of personal freedom and the values of constitutional government. What Snowden has done is so clearly ‘a political crime,’ if it is a crime at all, and in recognition of this there has existed since the French Revolution been seen as inconsistent with the generally desirable policy of inter-governmental cooperation in the apprehension of suspected criminals. In such circumstances it is unseemly to instruct the Vice President to call around the world exerting leverage to discourage grants of asylum or sanctuary to Snowden, or worse yet, to use American influence to interfere with international flights thought to be associated with Snowden’s attempt to seek asylum, itself a right conferred in Article 14(1) of the Universal Declaration of Human Rights. Maybe it is a legal stretch to insist on Snowden’s right of asylum considering that the ‘persecution’ he might face if returned to the United States would be nothing more (or less) than prosecution under applicable American criminal law, which presumably would be carried out in a judicially supervised manner as constitutionally prescribed by due process standards. But given the vindictive response to the Manning release of a cache of documents to WikiLeaks, and the refusal of the government to acknowledge the implications of policies that are criminal in nature, asylum should be granted to Snowden, and the failure to do so exhibits two features of present world order: American exceptionalism (would the US Government really turn over to China or Cuba a person who had risked everything to disclose state secrets to the world? The following statutory language is certainly suggestive of an answer: “No return or surrender shall be made of any person charged with the commission of any offense of a political nature.”); and the logic of major states that share an interest in collaborating with each other so as to keep the lid of secrecy covering their most nefarious practices.

Tags: Barack Obama, Bradley Manning, George W. Bush, National Security Agency, New York Times, NSA, Snowden, United States

Comments 31 Comments
Categories Commentary, Global Governance, International & Global Law

Political Infernos: United States, Turkey, Egypt

28 Jun

A New Political Inferno: Polarization of Immature Democracies

Prelude

To begin with, I know of no truly mature political democracy on this, although to be sure some rest on a more stable political base than others. Most importantly, some forces of opposition despair of ever succeeding by democratic procedures, while others pin their hopes on the next election, or the one after that. Some democracies have greater economic stability or can boast of high growth rates, possess a larger private sector and bigger middle class with more to lose, than others. Some states are more vulnerable to foreign interference than others, and some have formidable foreign enemies that seek regime change or something worse.

Perhaps, more victimized than any most modern societies, Germany devastated after World War I was caught in the midst of recovering from a humiliating military defeat accentuated by vindictive victors, a resulting economic depression featuring high unemployment and runaway inflation. Its pathetic enactment of liberal democracy could neither find credible solutions nor adopt principled positions. It should not be surprising that an extreme form of political polarization emerged in response, producing disastrous results not only for Germany but for Europe and the world: Communism versus Fascism. Battles raged between these antagonists in the streets of German cities, and the Nazis emerged triumphant even at the ballot box, helped by the complicity of cartelized big business and the ethos of the Bavarian elites hostile to any hint of democratic politics. The rest is history.

Today, there exist an assortment of deeply worrisome encounters between political extremes brought on by a range of conditioning circumstances. As a first approximation I would mention three disturbing instances, each distinctive, yet each afflicted by destructive polarized politics: Egypt, Turkey, and the United States.

Infernal Polarization and the Creative Dialectic

Before offering some comments on the three cases, it seems helpful to clarify what is meant by ‘polarization.’ There are several features, varying with context, grievances, goals, outlook, and unity of the opposition, as well as the response of those in control of the government, the economy, and sometimes the military, but there are also certain shared characteristics that encourage generalizations: On discourse: in a polarized polity the opposition seldom reasons and never listens, while those governing rarely hear what critics say and almost never engage in serious self-scrutiny; reasonableness is seen by both sides more often as a lack of conviction and principle rather than as an expression of respect and inclusiveness: moderation is out, polemics are in. On governance: both sides are generally inhibited from offering compromises and accommodations for fear of seeming weak, and thereby alienating their base of support. On tactics: the opposition seeks instability and dissatisfaction, and if possible a climate of opinion that demands change either by constitutional means or by a populist uprising that makes the country ungovernable; the government, in contrast, obtains law and order by whatever means are at its disposal, often provoking worse opposition by employing excessive force.

There is also an emergent form of polarization that may be more productive of positive results, and seems often to be hiding behind the curtain of its infernal other. It is a youth oriented rejection of all traditional forms of political rivalry: parties, programs, politicians. Pox on both your houses! This kind of creative dialectic takes many forms depending on heritage, context, and cultural sensibilities.

In its most radical forms a creative dialectic is a bottom up momentum, sometimes substituting humor, sensuality, and satire for polemics, valuing all forms of inclusiveness, welcoming the participation of LGBT activists, celebrating the joy of living, and committed to governing from below. A rather restrained form of such a creative dialectic can easily confused with ‘infernal polarization.’ It was such a creative dialectic that flourished in Tahrir Square during those remarkable 18 days in January 2011, reflected in the spirit of the 99% that brightened the skies above Wall Street, St. Paul’s Cathedral in London, and many other cities for some hopeful months later in the same year, and just recently again became manifest during the early days of the Gezi Park protests in Istanbul and the Brazilian risings. A benevolent future for democratic societies depends on nourishing these forces of mainly youth and malcontents that have ‘invented’ their version of a creative dialectic while not partaking of the largely negative energies of infernal polarization that are pushing many societies to the risky precipices of implosion.

Why infernal? The legitimating premise of a democratic society is some form of consent by the governed, normally by the political verdicts delivered at periodic, fair and free elections. In the extreme instances of infernal polarization, the opposition seeks to change the rules of the political game by forcing the elected leaders to surrender their power or face chaos or a military takeover. It may be democracy to end autocracy (as with Mubarak) or it make take aim at democracy (as with Morsi), ultimately, the politics of the Reichstag fire (1933), the military takeover in Algeria after the 1991 electoral triumph of Islamists, and the unfulfilled phantasies of extreme Kemalists in Turkey.

An abusive or highly incompetent and corrupt majority invites radical forms of dissent, and so it is not fair to put all the blame on the side of the opposition. It all depends. An autocratic option for the governing majority is to cancel elections, invite a military to take over, and throw in the towel of democratic legitimacy. In effect, polarization becomes infernal because it inclines both government and opposition to adopt extreme positions usually for contradictory reasons, either the majority becomes oppressive and greedy or the minority becomes desperate, despairing of gaining control over the levers of governance by fair play. Of course, in racist Rhodesia or apartheid South Africa it was the abusive minority that held the majority in chains, and yet had the temerity to claim lawful and legitimate governance. At minimum, infernal polarization jeopardizes and impairs the quality of democracy, and its persistence, is likely to impose a death sentence on what be called ‘the realm of decent politics.’

Comparisons

The mildest instance of infernal polarization is currently evident in the United States, although it may be the most consequential, given America’s global projection of hard power and its world leadership role. Increasingly, the domestic political atmosphere is beset by a polarizing opposition that rejects reasonableness in its preoccupation with inducing the elected leadership to fail and thus disappoint the electorate even if the result is overall decline for the society, especially its poorest 40-60%. The Tea Party mentality of opposition to the Obama presidency is mainly expressed by way of polarizing rhetoric and irresponsible Congressional behavior, but its worldview is extremist, and regards with a scary sympathy right-wing advocates of anti-democratic and even violent tactics. In the background is the post-9/11 mainstream moves to monitor the behavior of the entire citizenry, regarding each person, whether citizen or not, as a potential terrorist, and possibly a target for assassination. On the one side of the divide is a rejection of compassionate governance and an unconditional libertarian distrust of government, while on the other side is the expectation that citizens will forfeit their freedoms to the Orwellian security claims of a government engaged in a perpetual war against its enemies who could be hiding in the bushes situated anywhere in the world including within its borders, or even deep in the bowels of its most secretive bureaucratic domains.

How else to interpret the vindictive fury, cries of ‘treason!’ even by supposedly liberal politicians and media stalwarts against such public spirited whistle-blowers as Bradley Manning and Edward Snowden? To tell the secrets of government is not a matter of breaching security, but it is a massive, acknowledgement of cruelty and criminality. The messenger must be mercilessly destroyed so as to frighten potential future messenger, and the message shredded and forgotten. Whether such a pattern governance and opposition is to remain relatively ‘mild’ is a matter for debate, but so far the framework of constitutional government has been superficially maintained, and neither an appeal nor threat of a military coup seems imminent.

Less containable within the boundaries of constitutional government is the virus of infernal polarization that has been afflicting Turkey for the past eleven years, ever since the AK Party gained a plurality in the 2002 elections. Particularly the traditional Kemalist opposition, long the governing majority, has seen its grip on power slip away in this young century as the AKP has won successively more impressive electoral victories. At base there is a polarization that is sometimes confusingly phrased as an opposition between traditional and modern values, although there is an important dimension of the rivalry and distrust that pits the religiously observant against the secularly permissive, but really the tension is between different visions of modernity expressed as secularism versus religion. The AKP is all for modern business and science, has turned many keys of power over to the private sector, although its main leaders are privately devout, avoid alcohol and gambling, pray daily, and marry women who cover their heads. Also, there are class and regional tensions, with the AKP being seen as a slightly disguised movement of political Islam, while the secular opposition, and its political parties, represent the social and nationalist elites that were associated with the life and leadership of Kemal Ataturk that above all saw a modern future for the country depending on mimicking European life styles and church/state relations.

These Europeanized elites were never really willing to cede power to their AKP rivals, and counted on a military intervention to end the political nightmare, and validated by judicial activism from the high court dominated by Kemalist holdovers that shared the sense that the AKP posed a dire threat to the Turkish republic as established by Ataturk. When these anti-democratic plans of the opposition failed to materialize, the opposition grew increasingly frustrated and bitter, and began to see itself as a permanently beleaguered opposition with little hope of regaining control. On the other side, as the AKP and its charismatic leader, Recip Teyyip Erdogan, rode the ever higher waves of success, became contemptuous of their opposition, and seemed to pose an autocratic threat given concrete form via Erdogan’s ‘presidential project.’

Simultaneously, many urban youth in Turkey yearned for a permissive social milieu, a redeeming purpose for their lives, and deeply resented the tendency of Erdogan to express his constraining personal life style preferences as if they should become the law of the land. It was this combination of factors that suddenly erupted in reaction to the plans to transform Gezi Park into a shopping center. What was evident, along with the anti-Erdogan animus, was the clash between the old style of party politics as the negation of the AKP, and this new style that refrained from articulating its vision, but appeared to seek substantive and participatory democracy that was not only inclusive of and responsive to all elements in society, even the most marginal, but also seemed intent on reinventing the modalities of opposition and governance. There is confusion in Turkey, partly because this new youth politics of revolution is intertwined with the old party politics that wants to enjoy the fruits of power, prestige, and influence. It is encouraging and appropriate for this innovative current of Turkish politics to be holding nightly forums to discover what it is they believe and desire, and how to go about attaining it.

This political and cultural thrust of the Turkish protests needs to be understood against a background of economic stability and fantastic progress as assessed by standard economic indicators. Somehow, despite the inequality of benefits associated with this spurt of growth, and the presence of a large impoverished underclass, the AKP has so far maintained the support of the poor and disenfranchised. The agenda of social and economic rights was not entirely absent from the Turkish demonstrations, but it was certainly not salient. In contrast, the Brazilian protests, also coming after a decade of progress and left of center political leaders, found their unity in these social justice issues, especially rallying against the perception of corruption at the top and distorted priorities as embodied in expensive sports stadiums for international events while the Brazilian poor languished. Unlike Turkey, the Brazilian political scene is not polarized, and there is no comparable antipathy toward (or enthusiasm for) Dilma Rousseff as exists in relation to Erdogan. For these reasons, at least for now, Brazil with all its problems, and its opposition because more motivated by material demands may be more sustained, is still not to be categorized as infernally polarized.

Egypt is by far the most precarious of these three instances of infernal polarization, especially at the moment. For months it has become evident that an incompetent and beleaguered elected government headed by Mohamed Morsi was opposed by an irreconcilable opposition that would only be satisfied by the resignation of the elected leader, and new presidential elections far earlier than their scheduled 2016 date. As this process slides toward its awful and dreaded moment of truth on June 30^th(a year to the day after Morsi was sworn in as president) when both sides have promised a show of populist force in the streets of Cairo and elsewhere in the country. Morsi has become for the opposition the new Mubarak, the latter provided the unifying element in those remarkable days of January 2011. Unlike Mubarak, however, Morsi has legions of Muslim supporters rallying to his side beneath the banner of ‘No to violence, Yes to legitimacy.’ But unlike Mubarak in 2011, even in 2012 when Ahmed Shafik, a Mubarak surrogate came within 2 percentage points of an electoral victory in a runoff election against Morsi), the once anti-Mubarak secular/Copt oppisition is now allied with the Mubarak remnant, as well as those who once hope for change, but now just want normalcy, especially with respect to the economy.

As brilliantly analyzed by Esam al-Amin (“Egypt’s Fateful Day,” Counterpunch, June 26, 2013), the outcome for Egypt is uncertain, but extremely dangerous as the country is in the midst of staggering unemployment, especially among the young, near 50%, living in poverty, stagnant development, a failing tourist sector, and dwindling currency reserves, while also being engaged in a potentially dangerous conflict with Ethiopia over the damming of the upper Nile whose waters are indispensable to Egypt’s subsistence as a nation. In other words, the political confrontation on June 30^th takes place against a backdrop of economic and foreign policy crisis, and will not be resolved in the street because both sides seem to have formidable backing. The only way to avoid such a dismal and demoralizing unraveling would seem to be either a sudden moderating of opposition demands or a reentry of the military into the governing process, thereby canceling the extraordinary achievement of Tahrir Square, a regression of unimaginably demoralizing proportions.

I recall my visit to Cairo weeks after the overthrow of Mubarak when great excitement about and support for an inclusive democratic process existed in most circles, although some suspicions were also voiced. At that time, the secular forces seemed confident that they could control Egypt’s political future. The sentiment expressed in Cairo was that the Muslim Brotherhood should by all means be encouraged to participate in elections, and was likely to win support at the 30% level. It was further conjectured that this would be fine, but that if it was at a level of 40% the country would be in trouble. When the initial elections for the parliament disclosed far stronger Muslim support than anticipated, including over 20% for Salafi parties that were far more socially conservative and politically constraining than the MB, it was clear that the future was not what the anti-Mubarak secular liberals expected or wanted, and with the passage of time, especially since Morsi managed to win the presidency in a close vote, this implacable opposition hardened to the point of outright defiance. No matter what kind of peace offerings were made

by Morsi, the opposition was not interested. The composition of this opposition is also a restored blend of Mubarak fulools, disenchanted secular liberals and , and a reenergized revolutionary youth, which is quite a political brew that would seems an expedient coalition that is likely to survive only so long as the Brotherhood runs the country. If the Egyptian situation is not bad enough, there are a variety of foreign governments that would like to push the political process in one direction or another, including the Gulf giants of Saudi Arabia and Qatar, and of course, the United States and Israel. For different reasons, it would seem that all these foreign meddlers would if the situation further deteriorates, will side with the opposition, which certainly had feeble democratic credentials, and is suspected, as with the Kemalist opposition in Turkey, of looking with favor at a takeover of the reins of government by the repoliticized Egyptian military.

A Concluding Observation

Infernal polarization is unlikely to give rise to efficient and humane forms of democratization, unless transformed from within by a creative dialectic that seeks to transcend traditional political encounters. As the future unfolds it will become clearer as to whether this positive scenario has sufficient traction to both end polarization and offer something new by way of democratic governance. At present, there are few reasons to be hopeful about these prospects for the United States, Turkey, and Egypt. In some respects, Turkey offers the most hope of the three cases as its governing leadership has achieved much that is beneficial for the society, and the polarized opposition seems capable of exerting strong reformist pressures that yet fall short of threatening to capsize the ship of state.

Tags: Democracy, Egypt, polarization, Politics, Tea Party, Turkey, United States, Wall Street

Comments 4 Comments
Categories Commentary, World Politics

15 Jun

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

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

Human Rights Council Twenty-third session Agenda item 7

Human rights situation in Palestine and other occupied Arab territories

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

Summary

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

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

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

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

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

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

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

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

* Late submission.

[1] For the relevant criteria against which it must be judged, see http://csonet.org/?menu=30.

[2] http://www.unwatch.org

[3] For a summary of the charges and counter-charges see “TIMELINE: Israel launches Pillar of Defense amid Gaza escalation,” Haaretz, 20 November 2012 http://www.haaretz.com/news/diplomacy-defense/timeline-israel-launches-operation-pillar-of-defense-amid-gaza-escalation.premium-1.479284

[4] See “Israel’s Shortsighted Assassination,” Baskin, New York Times, 16 November 2012 http://www.nytimes.com/2012/11/17/opinion/israels-shortsighted-assassination.html?_r=0%5D

[5] United States Department of State Press Release, 14 November 2012 http://www.state.gov/r/pa/prs/ps/2012/11/200551.htm

[6] See Israeli assessment of Pillar of Defense in Shlomo Brom, ed., “Introduction,” The Aftermath of Operation Pillar of Defense, Institute for National Security Studies, Memorandum 124, 2012.

[7] United Nations Country Team, occupied Palestinian territory, Gaza in 2020: A liveable place? August 2012 http://www.unrwa.org/userfiles/file/publications/gaza/Gaza%20in%202020.pdf

[8] For a graphic account see Mohammed Omer, “Anger at UNRWA in Gaza grows” Al Jazeera, 01 May 2013 http://www.aljazeera.com/humanrights/2013/04/20134294185559594.html

[9] The following is the verbatim English text: 1. Agreement of Understanding For a Ceasefire in the Gaza Strip. A. Israel should stop all hostilities in the Gaza Strip land, sea and air including incursions and targeting of individuals. B. All Palestinian factions shall stop all hostilities from the Gaza Strip against Israel including rocket attacks and all attacks along the border. C. Opening the crossings and facilitating the movements of people and transfer of goods and refraining from restricting residents’ free movements and targeting residents in border areas and procedures of implementation shall be dealt with after 24 hours from the start of the ceasefire. D. Other matters as may be requested shall be addressed. 2. Implementation mechanisms: A. Setting up the zero hour for the ceasefire understanding to enter into effect. B. Egypt shall receive assurances from each party that the party commits to what was agreed upon. C. Each party shall commit itself not to perform any acts that would breach this understanding. In case of any observations Egypt as the sponsor of this understanding shall be informed to follow up.

[10] OCHA Protection of Civilians Weekly Report, 19-25 February 2013, p.3

[11] GFO-DUO Gaza Weekly Update 18-24 March 2013

[12] OCHA Protection of Civilians Weekly Report, 19-25 February 2013

[13] State of Israel Ministry of Defense, Coordinator of Government Activities in the Territories, Gaza Crossing – Monthly report March 2013.

[14] See B’Tselem: http://www.btselem.org/statistics/detainees_and_prisoners, as well as Addameer: http://www.addameer.org/einside.php?id=9.

[15] See the Special Rapporteur’s previous reports (A/HRC/7/17; A/66/358; A/HRC/20/32, and recent reports by the Special Committee on Israeli Practices (A/66/370 and A/67/550).

[16] See A/66/358, paras 34-40.

[17] http://www.unicef.org/oPt/UNICEF_oPt_Children_in_Israeli_Military_Detention_Observations_and_Recommendations_-_6_March_2013.pdf.

[18] See A/67/550 para 16.

[19] http://embassies.gov.il/UnGeneva/NewsAndEvents/Pages/Autopsy-on-Palestinian-detainee-Arafat-Jaradat.aspx

[20] See original autopsy report http://www.alhaq.org/images/stories/PDF/2012/Arafat_Jaradat.pdf

[21] http://www.btselem.org/torture/impunity.

[22] See, for recent examples, A/66/358 and A/67/550. See also Physician’s for Human Rights Israel, Oversight and Transparency in the Israeli Penal System, (July 2008), available at http://www.phr.org.il/uploaded/דוח%20שקיפות%20ובקרה.pdf.

[23] For video on administrative detention and hunger strikes, see http://therealnews.com/t2/index.php? option=com_content&task=view&id=31&Itemid=74&jumival=8123

[24] See Addammeer, Eight on Hunger Strike: Hunger Strikes are the Weapon of Prisoners in the Fight Against Administrative Detention, 10 March 2013, available at: http://www.addameer.org/etemplate.php?id=584.

[25] http://unispal.un.org/UNISPAL.NSF/0/2FA82C2602EA28E585257A13004C821D

[26] OCHA Protection of Civilians Weekly Report 23-29 April 2013

[27] A/HRC/22/63).

[28] Report of the Security Council Commission Established Under Resolution 446 (1979), 12 July 1979 (S/13450) http://unispal.un.org/UNISPAL.NSF/0/9785BB5EF44772DD85256436006C9C85

[29] http://www.ariel-sharon-life-story.com/12-Ariel-Sharon-Biography-1977-1982-Settlement-Fever-and-the Peace-with-Egypt.shtml

[30] Report of the Government of Palestine to the Ad Hoc Liaison Committee meeting in Brussels, 19 March 2013, p.13

[31] OCHA Humanitarian Monitor Monthly Report February 2013, p.18

[32] Ibid., pp.12-15

[33] Civic Coalition for Palestinian Rights in Jerusalem, Urgent Appeal for Action, 6 April 2013

[34] OCHA Protection of Civilians Report 30 April to 6 May 2013

[35] Israel Settlements Will Continue To Expand, Says New Housing Minister Uri Ariel, Reuters, posted 17 March 2013

[36] A/67/379.

[37] A/HRC/22/63.

[38] http://www.fidh.org/IMG/pdf/trading.pdf.

[39] Feasting on the Occupation: Illegality of Settlement Produce and the Responsibility of EU Member States under International Law, available at http://www.alhaq.org/publications/Feasting-on-the-occupation.pdf.

[40] http://www.bdsmovement.net/files/2013/02/Farming-Injustice-Briefing-Feb2013-web.pdf.

[41] Copy on file with the Special Rapporteur.

Tags: Gaza Strip, Israel, Richard Falk, UN Watch, United Nations, United Nations Human Rights Council, United Nations Special Rapporteur, United States

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