Archive | October, 2011

Libya After Muammar el-Qaddafi’s Execution

30 Oct

 

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

 

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

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

 

 

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

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

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

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

 

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

the chaotic violence that befell Somalia after the overthrow of

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

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

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

 

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

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

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

 

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

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

 

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

 

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

 

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

 

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

 

If such protective undertakings are to achieve credibility in the

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

 

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

hospitable to foreign investors and companies. After such a

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

 

Oral Statement introducing Report on Israeli Violations of Human Rights in Occupied Palestine

23 Oct

ORAL PRESENTATION on 20 October 2011 of Report to the General Assembly by Special Rapporteur on “Situation of human rights in the Palestinian Territories occupied since 1967,” submitted in 13 September 2011

I am placing an edited and slightly modified version of my oral statement to the Third Committee of the UN General Assembly on 21 October 2011. The main modification is to add a paragraph on the prisoner exchange. I found it disturbing that the single Israel soldier released received virtually all the attention in the Western press whereas the Palestinians released remained nameless except to call attention to the crimes that had led to their imprisonment. It is a rather vivid example of humanizing the suffering of the occupier while treating the far greater ordeal of the occupied population as a statistic. Furthermore, the soldier captured is treated as a hero of war, while the acts of Palestinian resistance are derided as crimes, or worse, as terrorism.

If you have read the complete report, the only new material here are the paragraphs devoted to recent developments.

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1.    It is troubling that I must again begin this latest report by noting my inability to fulfill my duties as Special Rapporteur due to the non-cooperation of the Government of Israel, which continues to deny me access in my UN role to assess the situation as it exists on the ground in the Occupied Palestinian Territories. I have continued to seek the cooperation of Israel in the hopes of working out a satisfactory arrangement, and would request the support of Members in helping me to carry out the duties associated my role as Special Rapporteur of this mandate. With new conditions existing in Egypt a mission to the Gaza Strip was arranged at the end of 25 April to 3 May, 2011, but the security situation in Gaza led the United Nations security division to recommend the deferral of the visit. Despite this disappointment, the mission adapted to the situation, and went forward. Many useful meetings were arranged in Cairo and Amman with representatives of Palestinian and UN NGOs and several notable personalities who traveled from the oPt to discuss the human rights situation in the West Bank, East Jerusalem, and Gaza. Helpful discussions were held bearing on the mandate with the Foreign Ministers in both Egypt and Jordan. The Special Rapporteur notes with gratitude the friendly cooperation of officials in both countries, as well as with officers of the Arab League. My latest report to the General Assembly has made use of the information provided by these meetings. Another mission to Gaza is planned for early 2012. The objective will be to get as much information from primary sources as possible to provide the most accurate and up to date information in relation to the human rights situation.

  1. 2.    The present report, in addition to reporting on human rights and IHL violations associated with settlement expansion, the Gaza blockade, the separation wall, and interference with Palestinian residence rights in East Jerusalem gives special emphasis to two sets of concerns: abuse of children held in detention, especially in the West Bank; the upsurge of settler violence and the failure of the Occupying Power to accord adequate protection for Palestinians living under military administration.
  2. In the interim between the deadline for the submission of this report in September and today, several notable developments bearing on this mandate have taken place, and will be briefly commented upon so as to give a more accurate picture of the situation prevailing in the oPt at the present time. I will comment on four of these intervening developments.
  3. The Palmer Report. The Palmer Report, of the Panel of Inquiry appointed by the Secretary General to investigate the flotilla incident on 31 May 2010 in which nine passengers of the Turkish vessel, Mavi Marmara, were kllled, was released. The purpose of the Panel was to clarify the issues in contention under international law with the hope of bringing the dispute between Turkey and Israel to a conclusion. The Report as issued was adopted formally by Israel, and strongly criticized by the Government of Turkey, especially the claim that the blockade of Gaza was lawful, and that Israel enjoyed a right to enforce the blockade under international law. It should be pointed out that the Palmer Report disagreed on these central issues with the earlier report of an expert panel appointed by the Human Rights Council. This Special Rapporteur along with the Special Rapporteurs on the rights to food, mental and physical health, and extreme poverty and human rights issued a joint press release that took issue with these claims. Our statement was particularly critical of the treatment by the Palmer Report of the blockade of Gaza purely as an issue of security, thereby ignoring the adverse humanitarian impacts on food, water, health, and wellbeing in Gaza. The Palmer Report seems seriously deficient from an international humanitarian law standpoint due to its failure to assess the contention that this blockade that also applies to Israeli crossings has lasted for more than four years, and seems in its essence to be a form of collective punishment of the civilian population of Gaza prohibited by Article 33 of the Fourth Geneva Convention. Unfortunately, the Palmer Report provided a formal justification for the continuing denial of fundamental human rights to the people of Gaza by a process of reasoning that is not consistent with the weight of expert opinion among international law specialists.
  4. The Palestinian Statehood Bid. The President of Palestinian Authority, Mahmoud Abbas, formally requested in a letter to the Secretary General that Palestine be admitted as a member state of the United Nations. The rationale for this request was provided in a speech by President Abbas on the same day to the General Assembly. This effort to be recognized as a state by the UN and to become a member is directly relevant to the Palestinian struggle to realize the right of self-determination. Statehood, even without membership, would enlarge the potential institutional options for Palestine to fulfill their rights under international law, and to participate in peace negotiations on the basis of sovereign equality.
  5. Bedouin Forced Displacement. Serious concerns have been raised recently about an Israeli plan to forcibly displace Bedouin Communities in Area C of the West Bank. Area C, established by Oslo guidelines, is 59% of the territory in the West Bank, and is under the full control of Israeli occupying forces. It includes settlements and settler roads, military bases, the separation wall, closed military areas, and Israeli-designated nature preserves. The Bedouin community has been victimized by more than 62 years of occupation, in which has endured the status of being a double minority marginalized as indigenous and non-Palestinian. Its traditional pastoral way of life is under increasing threat from Israeli settlement plans, which have resulted in a disturbing increase in the number of house demolitions and related efforts to displace Bedouin communities against their will. Such policies are contrary to the human rights of the Bedouin community to maintain their way of life while living under occupation. During the mission to Jordan the Special Rapporteur was informed by UN civil servants and NGO representatives of their belief that the Bedouin people were subject to severe abuses associated with Israel’s occupation policies.
  6. Prisoner Exchange. A notable development was the agreed release of Palestinians detained in Israeli prisons in exchange for the release of an Israeli soldier who had been detained since his capture

five years ago. 477 of an agreed 1027 Palestinians were released on 18 October along with the Israeli soldier, with the remaining Palestinians to be released in a few months. In contrast to the media, which focused on the Israeli prisoners, leaving the Palestinians nameless, I deliberated refrain from naming the Israeli soldier. Although many more Palestinians than Israelis were released, three considerations should be kept in mind: it does not show as Israeli propaganda suggests a greater valuing of Israeli life; some of those released were deported from their places of residence to neighboring countries, which is generally considered a violation of international humanitarian law; it needs to be remembered that over 5,000 Palestinians remain in captivity under harsh conditions that fall far below international standards. 

  1. Settler Violence. There has been an alarming increase in settler violence in 2011.  The UN Office for the Coordination of Humanitarian Affairs reports more than a 50 per cent increase in incidents in the West Bank involving violence against Palestinians, documenting injuries to 178 Palestinians during the first half of 2011 as compared to 176 for the entire year of 2010. According to UNRWA, those injured in settler violence just in the first half of 2011 include twelve children. These specific injuries resulted from stone throwing, assaults, and shootings by Israeli settlers. Yet these incidents only tell part of the story. There are almost daily accounts of settler vandalism against Palestinian agricultural land and villages, with several incidents videotaped by individuals working with B’Tselem, the highly regarded Israeli human rights organization.[1] Especially in the villages around Nablus there have been numerous reports of agricultural land and olive groves being destroyed.[2] Also part of this disturbing set of developments is a pattern of passive support for settler activities exhibited by Israeli security forces and border police. It often takes the form of shooting tear gas and stun grenades at Palestinians while doing nothing to stop settler violence, and has also been documented on video.[3] A further dimension of these activities is frequent settler harassment of Palestinian children on their way to school, also not prevented by Israeli forces, which has reportedly discouraged many children and their families from attending school, thereby obstructing their right to education. In some areas, most consistently in Hebron where settler violence is frequent and severe, international civil society organizations such as the Christian Peacemaker Team and the Ecumenical Accompaniment Program in Palestine/Israel have attempted to step into the breach, providing direct protection of schoolchildren when Israeli forces do not meet their obligation to prevent settler violence.[4] Overall, the failure to prevent and punish settler violence remains a serious and on-going violation of Israel’s most fundamental obligation under international humanitarian law to protect a civilian population living under occupation.
  2.  Violations of the Rights of Children. During the Special Rapporteur’s planned mission to Gaza, but redirected to Cairo and Amman, a series of meetings with representatives of the Palestinian Authority, UN agencies, and a range of human rights nongovernmental organizations, particular attention was paid to the impact of prolonged occupation on the rights of Palestinian children.  The results of these inquiries are disturbing for three principal reasons:

 

a. Prolonged occupation exerts a constraining burden on civilians. Yet this impact is heavier on children, whose development is deformed by pervasive deprivations affecting health, education, and overall security. The insecurity of Palestinian children is aggravated in the West Bank, including East Jerusalem, by settler violence and night time raids and detentions by Israeli occupation forces, house demolitions, threatened expulsions, and a host of other practices, and in Gaza by the blockade and by traumatizing periodic violent incursions and sonic booms resulting from over flights, as well as the still unrepaired destruction of refugee camps, residential communities, and public buildings by Israeli forces during “Operation Cast Lead;”

 

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

 

c. The testimony of experts on child development agrees that children suffer more from violations than do adults, and the protection of their rights should be of urgent concern to the international community. Writing on the impact of home demolitions, an UNRWA report of 12 June 2011 notes that “The impact of home demolitions on children can be particularly devastating. Many children affected by demolitions show signs of post-traumatic stress disorder, depression and anxiety.”[5]

 

 

Arrest and detention procedures for Palestinian children

 

Many of the arrests of Palestinian children arise out of allegations of stone throwing aimed at settlers or Israeli security personnel in the West Bank. [6] Those accused are subject to Israeli military law, which offers far fewer protections for minors than are present in Israel criminal law. Most relevantly, in military law there is an absence of protective provisions regarding the presence of a parent during interrogation, the hours that the interrogation must be conducted, or respect for the dignity of the child during the arrest process. The arrest procedures documented by UN agencies and reliable human rights organizations include arrests in the middle of the night, removal of child from parents for questioning, abusive treatment in detention, and conviction procedures that appear to preclude findings of not guilty. During our mission we were frequently told that these arrest procedures seemed systematically intended to frighten and humiliate those arrested, and to force them to identify protest leaders in demonstrations and refrain from anti-occupation demonstrations in the future.

 

In the period between 2005 and 2010, 835 children were prosecuted for stone throwing, of which 34 were 12-13 years old, 255 were 14-15, and 546 were 16-17.[7] Since 2007 the number prosecuted has risen each year.

 

There is abundant anecdotal evidence of child abuse associated with interrogations and arrests of children.[8] The UNICEF oPt Child Protection Programme contains the following summary that confirms other reputable descriptions: “Reports of interrogations are widespread: fingerprinting, blood tests, humiliation, using dogs to frighten, forcing parents into the streets on their knees, and bringing elderly women and invalids for interrogation.” The same source tells of an instance in the village of Awarta in which a 3 year old girl was taken outside her home at 3 am and threatened at gun point; told she would be shot and her family home destroyed unless she reported on the whereabouts of her brother; andnow, her mother explained, she can’t sleep through the night and bedwets. It is little wonder in view of such incidents that both Médecins Sans Frontières and UNICEF recently said that the number of children suffering from stress disorder has greatly increased.[9] Colonel Desmond Travers, a member of the United Nations Fact-Finding Mission on the Gaza Conflict said in a recent interview: “[i]f the British had behaved toward children who threw stones at them in the manner that is the norm on the West Bank for Israeli security forces—whereby children are rounded up in the evening and taken to places of detention, hooded, beaten, and in some cases tortured—the Northern Ireland problem would not be resolved today..”

 

9. Recommendations.

 

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

 

II. Urgently allow entry to Gaza of materials needed for repair of water and electricity infrastructure so as, to avoid further deterioration in health of civilian population, especially children, which is currently in critical condition;

 

III. Develop and implement appropriate detention and imprisonment policies and practices for Palestinians, including fully observing the prohibition of transfer of prisoners to the occupying country of persons living under occupation who are convicted by Israeli military courts of security crimes.

 

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

 

 

V. Request that the International Court of Justice issue an Advisory Opinion on the legal status of prolonged occupation, as aggravated by prohibited transfers of large numbers of persons from the Occupying Power and imposing a dual and discriminatory administrative and legal system in the West Bank, including East Jerusalem.

 

 

 

 

 


 

 

 

 

 

 

 

 

 

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

22 Oct

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

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United Nations

General Assembly

Sixty-sixth session

Item 69 (c) of the provisional agenda*

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

A/66/358

Situation of human rights in the Palestinian territories occupied since 1967

Note by the Secretary-General

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

* A/66/150.

11-49552 (E) 290911

*1149552*

Distr.: General 13 September 2011

Original: English

A/66/358

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

Summary

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

Contents

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

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I. Introduction

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

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

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

II. Issues of non-implementation

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

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

__________________

1 A/HRC/12/48.

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

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

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

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

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

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

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

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

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

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

III. Palestinian self-determination

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

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

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

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

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

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

10 See A/66/364.

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

IV. Protection of the civilian population living under occupation

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

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

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

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

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

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

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

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

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

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

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

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

V. Detention and imprisonment

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

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

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

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

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

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

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

VI. Israeli settlements

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

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

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

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

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

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

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

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

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

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

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

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

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

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A. Settler violence

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

B. The future of Israeli settlements

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

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

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

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

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

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

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

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

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

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

VII. Palestinian children, human rights and international humanitarian law

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

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

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

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

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

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

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

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

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

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

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

A. Arrest and detention procedures for Palestinian children

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2. Prohibit night arrests of minors;

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

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

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

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

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

B. Gaza blockade, collective punishment and Palestinian children

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

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

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

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

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

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

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

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

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

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

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

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

VIII. Recommendations

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

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

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

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

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

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

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

15 Oct


 

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

 

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

 

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

 

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

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

 

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

 

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

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

 

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

 

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

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

 

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

Drone Attacks: American Citizens and Foreign Civilians

11 Oct


 

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

 

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

 

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

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

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

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

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

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

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

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

 

Is this a Global Gandhian Moment?

10 Oct


             Mahatma Gandhi has been dead for more than 63 years, and yet his relevance to the politics of our time has never been greater. It is a tribute to the power of Gandhi’s inspirational ideas and life that his current influence is far greater than that of any other leader of the past century. We recall such names as Churchill, Franklin Roosevelt, Mao Tse-tung, Lenin, and Nehru as individuals who were great leaders in their time and remain historic personages of lasting importance, but they do not speak directly to the political circumstances of the 21st century. Those seeking to challenge what is exploitative, destructive, humiliating, corrupt, and oppressive in their surroundings are mostly indifferent to or even ignorant of these agents of past history. By contrast, Gandhi remains a towering figure that seems as fascinating as when he had become on that dismal day in 1948 when he died at the hands of a Hindu nationalist assassin.

 

            Beyond this legacy is the claim that we are actually living through ‘a Gandhian moment.’ Some have invoked such an image to identify any sustained political challenge directed at the established order that is self-consciouslessly premised upon principles of nonviolence. For instance, a distinguished Gandhi scholar, Ramin Jahanbegloo, entitles a short essay on Iran’s Green Revolution ‘The Gandhian Moment,’ and treats these courageous massive uprisings in Iran that followed upon the apparently stolen election of June 12, 2009 as an example of an historic event illustrative of Gandhi’s contemporary impact, so much so that he honors the events by affixing the label ‘a Gandhian moment.’ He also believes that a series of other national leaders espousing nonviolent politics have contributed their own variant of a Gandhian moment: Khan Abdul Ghaffar Khan, Martin Luther King, Jr., Nelson Mandela, Lech Walesa, Vaclav Havel, Benigno Aquino, Aung San Suu Kyi, and Ibrahim Rugova. These are all admirable individuals who bravely fought against an oppressive established order, yet I find it dilutes and somewhat misinterprets the Gandhian legacy to bestow upon their activities the Gandhian imprimatur. Or explaining my reaction differently, the espousal of nonviolent politics is a necessary but far from sufficient reason for christening a momentous political occasion as a Gandhian moment.

 

            Without taking issue with Jahanbegloo’s list, I would note that several of those included were practitioners of tactical nonviolence without ever articulating an unconditional commitment of the sort that Gandhi made the signature of his life and theory. As far as I know Mandela never recanted his support for armed resistance to the apartheid regime in South Africa on the part of the ANC. Aquino although a determined democrat, failed to build a popular movement around nonviolent politics, although his widow, Cory Aquino led the people power movement that overthrew the Marcos regime in 1986, but again without any indication of being guided by such an unconditional framework as Gandhi insisted upon. And Rogova, although supporting an imaginative nonviolent resistance to oppressive Serbian governance of Kosovo, nevertheless welcomed the NATO intervention of 1999, and even had an autographed picture of Madeline Albright on his office wall. In effect, Jahanbegloo’s list mixes different degrees of nonviolent commitment without clarifying the originality of Gandhi’s mandatory framing of nonviolence in absolutist terms. This framing led to some awkwardness of response on Gandhi’s part as when he counseled German Jews to stay put in the face of Nazi persecution or advised the liberal democracies to dissuade Hitler from aggression by unilaterally disarming or urged civilians to confront the pilot of the planes dropping atomic bombs on Japanese cities with a sacrificial resignation of peacefulness and non-hostility. I mention these examples not to criticize Gandhi, but to clarify the extremity of his views on nonviolence that allowed no room for exceptions, no matter how extenuating the circumstances. From this perspective I am not comfortable with calling the Green movement in Iran, which had rather modest reformist goals even at its height, ‘a Gandhian Moment.’

 

And yet, I would argue that we are living through a Gandhian Moment in two quite different respects that relates to my understanding of the originality of Gandhi’s ethics, politics, and underlying spirituality. I find the two most significant features of a distinctively Gandhian approach to be his linkage of nonviolence with living in truth (satyagraha) that imparts its unconditional character and his dedication to what I call ‘the politics of impossibility,’ that is, dedication to goals that are beyond the limits of the feasible as conventionally understood. This was the case for Gandhi when he challenged British imperial rule in India after World War I, and it was even more characteristic of his unfulfilled philosophical anarchist vision for India.  His proclaimed ideal India was a country of self-reliant villages with minimal state institutions and a turn away from the corrupting lures of modernity. Even many of Gandhi’s closest associates, including the great Jawaharlal Nehru, opted for a politics of possibility once Indian independence was achieved, seeking to make India a normal state. This normalcy culminated in the acquisition of nuclear weapons by India in 1998, a move that would have certainly horrified Gandhi.

 

Why, then, claim we are in the midst of a Gandhian moment? First of all, because the various movements and uprisings associated with and stimulated by the Arab Awakening were rooted in their spontaneous commitment to a politics of impossibility coupled with an explicit and courageous dedication to nonviolent confrontation. This was especially true in Tunisia and Egypt, where although the trajectory remains radically uncertain, what has been achieved already qualifies as the attainment of ‘the impossible.’ A few months ago in Cairo when talking to activists who had been in Tahrir Square I was struck by their uniform commentary of what an extraordinary experience it had been to participate in a process that had been unimaginable before Mubarak’s remarkable departure from power took place before their eyes.

If the #OccupyWallStreet protests, now a presence in 70 American cities, succeed in producing a transformative movement, it would reinforce this reality of a global Gandhian Moment even if the name Gandhi never appears in the manifestos issued by the convenors. I want to suggest that a Gandhian Moment occurs whenever the inner affinities with the essential Gandhian legacy seem pronounced, and not necessarily when the influence of the man and his achievements is overtly acknowledged.

 

There is a second reason why I think it useful to identify our time as a Gandhian Moment. It is our inability to address any of the most pressing global challenges effectively and humanely without a dual reliance on a politics of impossibility and an unconditional commitment to nonviolence.

Among these challenges, I would mention the following: global climate change; nuclear disarmament; a sustainable and just Palestine/Israeli peace; water scarcities; transition to a post-petroleum economy; an equitable and stable world economy; extreme poverty; and global democracy. Each of these challenges is overwhelming, and in their aggregate, presages a catastrophic future for the human species. Yet we cannot know the future, and need to keep our spirits high by embracing appropriate transnational, global, regional,  local, and even personal forms of an empowering politics of impossibility. Whether in such a setting a new Gandhi will emerge is almost irrelevant to the claim that to be alive now is to enjoy the potential of experiencing the vibrant rhythms of a Gandhian Moment! 

 

               

Interview on the Palestinian Statehood Bid

8 Oct

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Modest Proposal: Is It Time for the Community of Non-Nuclear States to Revolt?

7 Oct


             There are 189 countries that are parties to the Nuclear Nonproliferation Treaty (NPT) that entered into force in 1970. Only India, Pakistan, Israel, and North Korea have remained outside the treaty regime so as to be free to acquire the weapons. The nuclear weapons states have done an incredibly successful job, especially the United States, in getting a free ride, continuously modernizing their arsenals while keeping the weapons out of most unwanted hands.

 

            But the NPT was negotiated as a world order bargain. The non-nuclear countries would forego their weapons option in exchange for receiving the full benefits of nuclear energy and a pledge by the nuclear weapons states to seek nuclear disarmament in good faith. After 40 years it seems time to question both the benefits of nuclear energy (especially so after Fukushima) and even more the good faith of the members of the nuclear weapons club. Back in 1996 the World Court unanimously concluded that the nuclear weapons states needed to fulfill their treaty obligation to seek nuclear disarmament as a matter of urgency, and yet nothing resembling disarmament negotiations has taken place. It seems time to declare that the good faith obligation of Article VI of the treaty has been violated, and that this is a material breach that allows all states to disavow any obligation.

 

            Two mind games have kept the non-nuclear majority of states in line so far: first, convincing the public that the greatest danger to the world comes from the countries that do not have the weapons rather than from those that do; secondly, confusing the public into believing that arms control measures are steps toward nuclear disarmament rather than being managerial steps periodically taken by the nuclear weapons states to cut the costs and risks associated with their weapons arsenals and programs and to fool the world into thinking they are living up to their obligation to phase out these infernal weapons of mass destruction.

 

            There are other problems too. Israel has been allowed to acquire nuclear weapons by stealth without suffering any adverse consequences, while Iraq was invaded and occupied supposedly to dismantle their nuclear weapons program that turned out to be non-existent and Iran is under threat of military attack because its nuclear energy program has a built in weapons potential. Such double standards and geopolitical discrimination severely erode the legitimacy of the NPT approach.

 

            Barack Obama earned much favorable publicity, and probably was given the Nobel Peace Prize, because in 2009 he made an inspirational speech in Prague announcing his commitment to a world without nuclear weapons. Although the speech was hedged with qualifications, including the mind-numbing reassurance to nuclearists not to worry, nothing would happen in Obama’s lifetime, it still gave rise to hopes that finally there would be a genuine attempt to rid the world of this nuclear curse. But it was not to be.

As with so many issues during the Obama presidency, the early gestures of promise were quietly abandoned in arenas of performance.

 

            Has not the time come for the too patient 184+ non-nuclear weapons states to stand together with the peoples of the world to challenge the world nuclear weapons oligopoly? One way would be to declare the treaty null and void due to non-compliance by the nuclear weapons states. Such a move would be fully in accord with international treaty law.

 

            Another way, perhaps more brash, but also maybe more likely to have a political impact, would be for as many non-nuclear states as possible to take a collective stand by way of an ultamatum: if the nuclear weapons states do not engage in credible nuclear disarmament negotiations designed to eliminate the weapons within two years, the treaty will be denounced.  

 

            

An American Awakening?

5 Oct Wall Street 1


             The exciting presence of protestors on Wall Street (and the spread of the #OccupyWallStreet protests across the country) is a welcome respite from years of passivity in America, not only in relation to the scandalous legal and illegal abuses of comprador capitalists, but also to the prolongations of wars in Iraq and Afghanistan, a shocking disregard of the impinging challenges of climate change, a rising Islamophobic tide at home, and a presidency that seems less willing to confront hedge fund managers than jobless masses. But will this encouraging presence be sustained in a manner that brings some hope of restored democracy and social wellbeing at home and responsible law-oriented leadership abroad?

 

            There is little doubt that this move to the streets expresses a deep disillusionment with ordinary politics based on elections and governing institutions. Obama’s electoral victory in 2008 was the last hope of the young in America who poured unprecedented enthusiasm into his campaign that promised so much and delivered so little. Perhaps worse than Obama’s failure to deliver, was his refusal to fight, or even to bring into his entourage of advisors some voices of empathy and mildly progressive outlook. From his initial appointment of Rahm Emmanuel onwards, it was clear that the Obama presidency would be shaped by the old Washington games waged by special interests, as abetted by a Republican Party leaning ever further to the right, a surging Tea Party that is pushing the opposition to the outer extremes of irrational governance, and a Democratic Party that is trying to survive mainly by mimicking Republicans. If such a portrayal of ordinary politics is more or less correct it is a wonder that a more radical sense of America’s future took so long to materialize, or even to show these present signs of displeasure with what is and engagement with what might be.

 

            For those of us with our eyes on the Middle East two observations follow. The extraordinary falling back from Obama’s speech in Cairo of 2009, which was, contrary to how it was spun by the pro-Israeli media, a very cautious approach to the Israel/Palestine conflict, but at least forward looking in its realization that something more had to be done if negotiations were ever to be more than a charade. The speech contained lots of reassurances for Israel, especially it treated the dispute as essentially territorial (withdrawal to 1967 borders, which deliberately pretends that refugee and exile rights of Palestinians are irrelevant to a just peace), and only seemed to project balance when it insisted on a suspension of settlement expansion as a confidence-building step toward a new cycle of negotiations. It really was a most modest request to insist that Israel temporarily stop expanding settlements that were almost unanimously seen as flagrant violations of Article 49(6) of the Fourth Geneva Convention and posing a real threat to the viability of an independent Palestinian state. When Israeli leaders and their zealous American backers indicated ‘no go,’ the Obama administration back peddled with accelerating speed, gradually isolating the United States on the global stage by the unconditionality of its support for Israel even in situations where Israel is seen by virtually the entire rest of the world as defiant toward international law. Besides this, a few months ago the leaked Palestine Papers underscored Israel’s disinterest in a negotiated solution to the conflict even in the face of Palestinian of huge Palestinian Authority concessions behind closed doors. Of course, Obama should not take the whole blame as Congress has outdone him when it comes to support for partisan positions that often seem to outdo the Knesset.

 

            The latest phase in American foreign policy in relation to the conflict is associated with the American threat to veto the statehood bid of Palestine in the UN Security Council, coupled with its arm-twisting efforts to induce others to vote with the U.S. against statehood or at least abstain, so that Palestine will not get the nine affirmative votes it needs to receive a positive recommendation and the U.S. will be spared the embarrassment and backlash of casting a veto. The shrillness of the sterile call by Obama in his 2011 speech to the General Assembly to the parties to resume negotiations after almost twenty years of futility, and for the Palestinians the effects were far worse than mere failure    (the ordeal of occupation, loss of land to settlements, annexation wall, road infrastructure).  It should finally be understood. Time is not neutral. It helps Israel, hurts Palestine.

 

            Disavowing American party and institutional politics and situating hope with the arousal of progressive forces in civil society is different from concluding that the Wall Street protests is more than a tantalizing flash in the pan at this stage. Even this cautionary commentary should make it obvious that the events owe their primary inspiration to Tahrir Square (with a surprising initial push from the Canadian anti-consumerist organization Adbusters, previous mainly known for its irreverent and vaguely anarchistic magazine by the same name), especially the ethos of a nonviolent leaderless, programless spontaneous rising that learns day by day what it is about, who it is, and what is possible. Of course, the stakes for activists are much lower than in Egypt or elsewhere in the Middle East, as there is little risk of death at this point on American streets. At the same time, the monsters of Wall Street are not quite as potent a unifying target for an militant opposition as was the grim personage of Hosni Mubarak, cruel autocrat of more than three decades, and so it may be harder to transform the protests into a sustainable movement.

 

            In the end, we must hope and engage. The beginnings of hope are rooted in the correctness of analysis, and so we can be thankful that this initiative places its focus on financial and corporate structures, and not on the state. Further along these lines, if the struggle will gain momentum it will be totally thanks to politics-from-below. The implicit not so subtle point is that the center of power over the destinies of the American people has shifted its locus from Washington to New York, and from the penthouse to the the basement!!  We’ll see!!

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