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Doing Business with Israel: Increasingly Problematic

20 Jun

[Note: Published below is a letter prepared by the European Coordination of Committee and Associations for Palestine (ECCP) and endorsed by John Dugard, Michael Mansfield, Eric David, and myself; it urges adherence to guidelines relating to corporate and financial activity with unlawful economic activities in Israel and occupied Palestine, and is guided by principles similar to the BDS campaign; it is notable that on June 20th the General Assembly of the Presbyterian Church by a close vote (310-303) voted to divest itself of $21 million dollars worth of shares in three corporations (Motorola Solutions, Hewlett-Packard, Caterpillar) engaged in legally and morally objectionable activities supportive of Israel's occupation of Palestine. There is a growing momentum associated with this new nonviolent militancy associated with the global solidarity movement supportive of the Palestinian struggle to gain a just peace, including realization of rights under international law. This nonviolent turn is being directly challenged by the rise of ISIS in the region that relies on unrestrained violence and promises the liberation of Palestine.]

European Coordination of Committees and Associations for Palestine (ECCP)

On 24-26 June, 37 European companies from 11 EU Member States will travel to Israel as a part of an EU led “Mission for growth” project that aims to “promote partnerships between Israeli and European companies 
active in sectors identified as leading and developing industries in Israel.” Among Israeli companies participating in the “Mission for growth” are those deeply complicit in Israel’s occupation and apartheid policy. The previous delegation of “Mission for growth” took place on 22-23 October last year in Israel, where 97 european companies from 23 EU Member States meet with 215 Israeli companies from the different industrial sectors. In this open letter supported by Richard FalkJohn DugardMichael Mansfield and Eric David, ECCP member organisations call on the European companies to abandon their plans to be involved in the project. Letter to the participants of EU led “Mission for growth”: We, the undersigned members of ECCP – the European Coordination of Committees and Associations for Palestine (ECCP) – a leading network of 47 organisations, NGO’s, unions and human rights organisations from 21 European countries are writing to you about your company’s participation in the recent EU-led mission to Israel named “Mission for growth” with the stated purpose of forging business ties with Israeli companies.

We are writing to make you aware about the legal, economic and reputational consequences to your business if these deals go ahead. According to the Israeli research center, WhoProfits, Israeli participants in “Mission for growth” programme directly contribute to and are complicit in acts that are illegal under international law. For example Elbit Systems, an Israeli military company is involved in the ongoing construction of Israel’s Wall, ruled illegal by the International Court of Justice in 2004.(see Annex) Recognizing these grave violations in 2009, Norway’s sovereign wealth fund divested from Elbit Systems.1 We would like to remind you that business involvement in Israel contains legal implications. According to international law as applied in the 2004 International Court of Justice advisory opinion on Israel’s wall and settlements, third party states are violating their own obligations to not recognize nor render aid or assistance to these serious Israeli violations by allowing financial and economic activity with complicit entities. Since last year, the government of the Netherlands have taken the proactive step to warn companies domiciled in its territory of the legal implications of ties with Israeli companies with activities in the occupied territories. As a result, Vitens, the Netherlands’ largest water supplier, broke an agreement with Mekorot, Israel’s public water company, due to its role in plundering water from Palestinian aquifers in the West Bank.2

PGGM, the largest Dutch pension fund followed suit and divested from all Israeli banks due to “their involvement in financing Israeli settlements.”3 The UN Guiding Principles on Business and Human Rights, supported by the EU and adopted by the UN Human Rights Council, explain that businesses must respect human rights and international humanitarian law. The Principles also urge states to withdraw support and not procure services from companies that persistently violate human rights.4 In September 2012, the UN General Assembly adopted a report on corporate complicity related to the illegal Israeli settlements by Richard Falk, the UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967. The report urges states to take steps to hold businesses accountable for their participation in Israeli violations of international law and to take steps to end business involvement in illegal Israeli settlements5 In March 2013, UN Human Rights Council adopted the report of the Independent Fact Finding Mission on the Israeli settlements. The Fact Finding Mission affirmed that involvement in settlement activities falls under the jurisdiction of the ICC and may result in criminal responsibility. Almost all Israeli companies are deeply complicit, directly or indirectly, in the oppression of Palestinians including its IT sector by drawing expertise from Israel’s military complex and Israel’s manufacturing companies, some based in settlements, with distribution outlets in settlements, helping to sustain them. By participating in the project and cooperating with Israeli companies involved in illegal Israeli settlements and military industry your company would be making a political decision to become deeply complicit with Israel’s violations of international law and Israel’s oppression of Palestinian rights. As such, your company would become a legitimate target for popular boycotts, divestments, protests and sustained campaigns to penalize your involvement and causing you economic losses similar to the loses already inflicted on French-company Veolia for its involvement in the settlement enterprise and British security company G4S6. The Boycott, Divestment and Sanctions (BDS) movement, from which we draw our strength, has been growing at the global level since its launch in 2005 of which the Economist magazine says it “is turning mainstream.”7 The BDS movement has consistently targeted complicit Israeli and international corporations — involved in Israel’s occupation, settlements and other international law infringements — such as SodaStream, G4S, Ahava, Mekorot, Elbit, Veolia, Caterpillar, Africa Israel, all Israeli banks, among others, with significant success and enormous reputational risks8. We will therefore monitor your company for business ties with Israel and urge you to abandon potential plans to cooperate with Israeli companies violating international law and human rights. Sincerely , European Coordination of Committees and Associations for Palestine (ECCP)

Endorsed by: Richard Falk -UN Human Rights Council Special Rapporteur for Palestine, 2008-2014 and Milbank Professor of International Law, Emeritus, Princeton University John Dugard – Professor Emeritus, University of Leiden, Former UN Special rapporteur on the situation of Human rights in the occupied palestinian Territory Michael Mansfield – Professor of Law, President of the Haldane Society and Amicus; practising Human Rights lawyer for 45 years Eric David – Law Professor, Free University of Brussels

*****************

Annex: Israeli participants in “Mission for growth” project violating human rights and international law -

Ahava Dead Sea Laboratories – a private Israeli cosmetics corporation which operates from the occupied West Bank. Ahava is the only company which sells Dead Sea cosmetics and islocated in the occupied area of the Dead Sea. The Ahava factory and visitors’ center is located in the Mitzpe Shalem settlement, on the shore of the Dead Sea in the occupied part of the Jordan Valley and a large percentage of Ahava shares are held by two Israeli West Bank settlements.

9 – Afcon Holdings- The group engages in the design, manufacture, integration and marketing of electro-mechanical and control systems. A subsidiary of the group – Afcon Control and Automation has supplied CEIA metal detectors to Israeli military checkpoints in the occupied Palestinian territories; such as the Hebron Machpela Cave Checkpoint, the Beit Iba checkpoint and the Erez Terminal in Gaza, as well as checkpoints in the occupied Jordan Valley. Additionally, in 2009 the Afcon has supplied services to the Jerusalem light train project, which connects the settlement neighbourhoods in occupied East Jerusalem with the city center. The company also supplies services to the Israeli Army, Israeli prison service and the Israeli police.

10 – El-Go Team – Provider of security gates. Vehicle gates and turnstiles of the company are installed at Qalandia, Huwwara and Beit Iba checkpoints restricting the occupied Palestinian population movement in the occupied territory.

11 - Elbit Vision Systems - the company manufactured electronic surveillance systems (LORROS cameras) to the separation wall project in the Ariel section. The company is a wholly owned subsidiary of Elbit Systems.

12 – Gila satellite network- Provider of satellite communication services. Antennas of the company are installed in checkpoints across the West Bank: Azzun Atma, Beit Iba and Anata – Shu’afat refugee camp. The company has also provided the Israeli Army with the VAST (very small aperture terminal) satellite communications system. Several satellite dishes were installed on armoured personnel carriers.

13 – Netafim – A global private company of irrigation technology, which also provides services and training to farmers and agriculture companies around the world. The company provides irrigation technologies and services to the settlements’ regional council of Mount Hebron and the settlement of Maskiut. The company’s employees volunteered in the Israeli army’s combat unit Oketz. The company employs 4000 employees, owns 16 manufacturing factories in 11 states and over 27 subsidiaries and representatives in over 110 countries. - LDD Tech - provides services to gas stations in settlements in the West Bank and in East Jerusalem.

1 http://online.wsj.com/news/articles/SB125197496278482849

2 http://www.haaretz.com/news/diplomacy-defense/.premium-1.562769

3 https://www.pggm.nl/english/what-we-do/Documents/Statement%20PGGM%20exclusion%20Israeli%20banks.pdf

4 http://www.business-humanrights.org/UNGuidingPrinciplesPortal/TextUNGuidingPrinciples

5 http://www.un.org/apps/news/story.asp?NewsID=43376#.UZH-eSvWyqw

6 http://www.bloomberg.com/news/2014-06-06/gates-foundation-sells-stake-in-u-k-security-company-g4s.html

7 http://www.economist.com/news/middle-east-and-africa/21595948-israels-politicians-sound-rattled-campaign-isolate-their-country

8 http://mondoweiss.net/2014/05/barclays-downgrades-sodastream.html

9 http://www.whoprofits.org/company/ahava-dead-sea-laboratories

10 http://www.whoprofits.org/company/afcon-holdings

11 http://www.whoprofits.org/company/el-go-team

12 http://www.whoprofits.org/company/elbit-systems

13 http://www.whoprofits.org/company/gilat-satellite-networks

On What the Pope Taught

30 May

 

 

            I am not surprised that there are such contradictory reactions to Pope Francis’ recent visit to Palestine and Israel. To begin with, there are sharply divergent views about the Catholic Church, and the papacy itself. Understandably for some, the complicity of the Catholic hierarchy with the shocking prevalence of sexual abuse by priests of young boys seems institutionally discrediting in the extreme. The anti-modern cult of celibacy and a failure to allow women to participate equally in the life of the Catholic Church furthers undermine its moral authority given the changing realities of the 21st century.

 

            Beyond this there are questions raised about Pope Francis’s own past, whether he was far too passive during the time of the ‘dirty war’ in Argentina, and too slow to favor the humane treatment of homosexuality. He has always chosen a simple life for himself, dedicating his pastoral efforts to benefit the poor, and being active as a leader in inter-faith activities. Since becoming Pope these virtues have been the signatures of his leadership, earning him praise and love from around the world, and helping us understand why his acts of devotion have been so widely seen, and an inspirational alternative to what is passed off as ‘global leadership’ in Washington.

 

            Unavoidably, his visit itself has been parsed in many ways and spun in all directions. Some insist that he should never have crossed the line separating religion and politics as he did when he made it clear he was visiting ‘the state of Palestine’ and not the ‘Occupied Palestinian Territories.’ Others complained that in such a situation of oppression and inequality, his carefully orchestrated efforts to acknowledge both sides equally actually gave rise to a false impression. In this respect, it was not acceptable and politically misleading to pay homage at the grave of Theodore Herzl, the founder of Zionism, or to treat Shimon Peres as a man of peace. Still others fault the Pope for not calling attention to the plight of Gaza or the threats confronting Bedouin communities.

 

            In my view, perhaps overstated, such carping misses the point, and manifests a disabling form of blindness. What was worth seeing, and only this, was the Pope bowed in prayer at the Bethlehem apartheid wall. It was this electrifying image, and the related story about how young Palestinian boys dared defy Israeli soldiers by writing welcoming graffiti behind where the Pope stood that makes the visit an unforgettable, even if unintended, affirmation of the Palestinian struggle against multiple forms of injustice. What will allow us to see better in the senses meant here is to appreciate why this image was and is so electrifying, will endure, and why the various commentaries, criticisms, and calumnies will soon to be forgotten.

 

            What we need to realize, whether we like it or not, is that the Catholic Church by its sheer presence, persistence, and resilience occupies a distinctively deep place in the thinking and feeling of people throughout the world, including tens of millions of non-Catholics. And the pope as the leader of Catholicism, in ritual and doctrine, enjoys a spiritual power of pronouncement without needing to utter a single word. And when that power is used charismatically, as at the wall, no cascade of words can suffice to offset the impact of such a potent image and metaphor. The Israeli Prime Minister vainly informed the world that the wall was there to prevent suicide bombing and had contributed to Israeli security since its partial construction more than a decade ago. It is equally irrelevant to refute this claim or to argue in opposition that the World Court had declared a wall built deep in Palestine amounted to an unlawful confiscation of land, imposing hardships, and should be dismantled and compensation paid for harm done.

 

            The Pope is not a lawyer nor is it a time to engage the controversy about the security functions of the wall. What counts, and all that counts, is that the wall has become a devastating image and metaphor of injustice and oppression, with Israelis as the perpetrators and Palestinians as the victims. Hany Abu-Assad’s fine film, Omar, a finalist for best foreign film at this year’s Academy Awards ceremony, also used the wall as the dominant wordless metaphor of what it meant for Palestinian lives to endure oppression day by day, showing its reality for all those with eyes that see.

 

            Reacting to injustice is above all a visual and visceral experience. This is what Pope Francis has taught us. But first we must open our eyes, and keep them open. The greatest writers also perform their magic with language mostly by redirecting our line of vision.

Website Civility Guidelines: Comments

7 May

With the May 1st end of the moratorium on Israel/Palestine posts, I find that the old issues return. Restating and refining guidelines, let me repeat the basic imperative that I hope will be respected: either be civil or go elsewhere. In this spirit here are the guidelines, which are sometimes loosely implemented due to other pressures or being temporarily out of contact with the Internet:

–no comments that contain personal insults directed at me or other comment authors;

–no comments that exhibit ethnic or religious hatred, although serious questioning of historical and religious claims is acceptable, even welcome and constructive;

–no serial comments or republishing of what others have written elsewhere; links are okay;

–no commercially orientated material.

Living in the blogosphere is a learning experience, and so it involves necessarily learning on the job. I appreciate all those who have been loyal and supportive, and welcome additional suggestions about how to make the website more useful, interesting, challenging.

 

SR UN Report on Occupied Palestine (18 September 2013)

25 Oct

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

United Nations
General Assembly
A/68/376

Situation of human rights in the Palestinian territories occupied since 1967
Note by the Secretary-General
The Secretary-General has the honour to transmit to the members of the General Assembly the report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Richard Falk, submitted in accordance with Human Rights Council resolution 5/1.
Distr.: General
10 September 2013
Original: English
Sixty-eighth session
Item 69 (c) of the provisional agenda*
Promotion and protection of human rights: human rights situations and reports of special rapporteurs
and representatives
13-46994 (E)
* A/68/150.
111013
*1346994*

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

30 Jun

The following post is a much revised version of an opinion piece published a few days  ago in Al Jazeera English. It reflect a continuing effort to capture the diverse mood that now prevails in Turkey.

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Whither Turkey: First Thoughts after Gezi Park

Preliminary Disclaimers

As the dramatic Turkish protests subside, or declare an intermission, this is a time to take stock, but cautiously.

Precisely when political reality explodes in unexpected ways, pundits come along suggesting comparisons, offering hastily constructed explanations, and cite influences and antecedents. Surprise is suppressed by most ‘experts’ who do all that they can to hide these awkward exposures of how little they knew about the explosive forces in society, which erupted without any advance notice. After the explosion these wannabe gurus step forth with undiminished confidence to tell us with learned demeanor why and how it happened, why it was almost inevitable to turn out as it did, and the most arrogant and often most influential even dare tell us what to expect next, and why it is good or bad.

While appreciating this fact of public life, let us take note that even the most wily intelligence agencies, with billions at their disposal, total command over mountains of secret data, running roughshod over the privacy and legal rights of even their own citizens and others to get it right on behalf of their government employers, still invariably miss ‘the jumps’ of change that are the real stuff of history. Why are the historians of change so bad at anticipating these jumps of history? Partly, for the same reasons that even the most sophisticated vulcanists cannot predict with any accuracy an earthquake or volcano—as in politics, the tipping points in nature and society are rarely anticipated by interpreting scientific trends or through the analysis of incremental changes, but generally disclose themselves with an unforeseeable abruptness.

In reaction, an appropriate level of humility and tentativeness goes a long way, acknowledging these limits of understanding, suggesting hesitantly and explaining as best we can such charismatic events when they occur, taking due account of their distinctiveness and admitting our inability to access deeper meaning that lie beneath the surface of cascades of events.

Another type of difficulty associated with these interpretative ventures is the bias associated with the observer’s gaze. We are habitually trained and experienced to look at politics from above, whether our perspective is that of elites or counter-elites, but revolutionary impulses come, if and when they come, almost invariably from pressures generated from below, that is, from the ‘multitude,’ pressures that materialize by suddenly bursting forth as happenings that startle and reverberate (e.g. Nelson Mandela’s release from prison, the collapse of the Berlin Wall, the velvet revolution, the Jasmine Revolution, Tahrir Square, Occupy Wall Street).

 

 

The Gezi Park Protests

Was Gezi Park in Istanbul such a happening, as many here in Turkey hope? Did it reflect the wishful thinking of those among the protesters who were seeking a genuinely inclusive democracy in Turkey respectful not only of the environment and cultural identity, but dedicated to the rights of all, especially such habitually abused minorities as Kurds and Alevis? Professor Asli Bali, a highly regarded young law scholar teaching at UCLA, persuasively encapsulated the core of the struggle as an epic encounter between two models of democracy– the majoritarian entitlement claims of Erdogan (but not necessarily all elements in the AKP) versus the participatory and populist ethos of the younger generation, which is almost as opposed to the republican (anti-democratic) ethos of the secular elders who were mainly aligned with the recently inept and anachronistic CHP as it is to Erdogan’s leadership of the AKP.  Bali pins her own best hopes for the political future of Turkey not on an anti-AKP challenge being mounted by an opposition party, but rather on a split within the AKP that will transfer control from Erdogan to the more inclusive moderate wing, which I presume would be led by the current president of Turkey, Abdullah Gul.

This is a most unusual way to conceptualize the best political alternative for Turkey, and it underscores a situation in which a change in the leadership of the country would be beneficial, but cannot be seen as issuing from either the present  arrangements of governmental authority or as a result of a successful challenge mounted by the organized opposition. The idea of a split within the AKP that produces a more moderate and inclusive leadership is an attractive option for three reasons. First, it validates the positive contributions of AKP governance over the past eleven years, while rejecting the style and some of the majoritarian implications of Erdogan’s leadership. Secondly, it implicitly rejects the prospect of an electoral transfer of governmental authority to the traditional opposition represented by the old Kemalist party, the CHP, as a result of elections, which despite its strong presence in Gezi Square and in the protests throughout the country, was viewed by the core protesters as politically antagonistic to a reshaping the political future of Turkey through redefining an understanding of democracy. In this regard, the republican/CHP conception of democracy so long as the party held the reins of government in its hands was intolerant toward the religiously observant, as well as repressive toward the Kurdish regions of the country.  Thirdly, strong doubts are present as to whether the Gedi protests, with neither party, program, agenda, nor leaders, strong anarchist elements could grow into an inclusive movement along the lines of what Derrida calls ‘democracy to come,’ an aspirational vision of the future that embraces a liberating conception of freedom that far transcends any historical embodiment of ‘democracy,’ anywhere up to this point. If the past teaches us anything, it suggests that such revolutionary impulses, no matter how intense, will quickly dissipate or implode, either because they become institutionalized in stultifying bureaucracies, engage in torrent of revolutionary terror, losing their revolutionary identity authenticity, or they don’t institutionalize and purge enemies from within and without, and simply fade away.  Of course, for reasons suggested at the outset, history is cunning, and may not mimic the past.

What Future for Turkish ‘New Politics’?

The dust in Turkey has not yet settled, although it appears to be settling. At this point it is far too early to discern whether a new political subjectivity has been born that will fill the Turkish political vacuum. This unfortunate vacuum was formed by the absence of a credible and responsible opposition during this elapsed decade of secular displacement and AKP consolidation. It is uncertain whether this recent venting of frustration and resentment can be converted into a sustainable political movement that offers the Turkish polity a post-Kemalist alternative to Erdogan’s AKP, and does so without losing the very substantial achievements that included ending the practice of prison torture, civilianizing the military, paying off the IMF, tripling the Turkish GDP, coming forward with a promising approach to the Kurdish problem, and gaining great influence and respect for Turkey as a success story in the region and world. Symbolizing these eleven years of national ascent was the emergence of Istanbul as a cosmopolitan crossroads for the world, and a favored site for diplomatic meetings and high profile events.

We also should not dismiss the capacity of the AKP, including Erdogan, to learn from the Gezi Park experience. Despite the bluster and the inflammatory tirades about the evils of social networking, foreign provocateurs and domestic ‘looters’ and ‘terrorists’, the excessive police force (hardly a novelty in the region, and even Europe, but no more excusable for being ‘the old normal’), Erdogan did eventually pull back to a significant degree, apparently taking account of the strong objections mounted against the Gezi Park project in its original form. Erdogan seems now to have put the Gezi Project on hold for the indefinite future, awaiting a judicial finding as to the acceptability of the project and possibly organizing a citywide referendum in Istanbul both to consult the municipal citizenry and find out about their attitude. And we should not idealize the protesters, a minority of whom did vandalize and demean Islamic sensibilities with obscene graffiti and allegedly threw beer bottles thrown on the floor of a nearby mosque, although this charge is sharply contested. Unfortunately, and unacceptably, many governments that claim the mantle of democracy use excessive force when dealing with angry protests and demonstrations, but no autocrat worth his name attempts to meet adversaries half way as such temporizing is regarded either as unnecessary or as a display of what such a leader finds most distasteful, namely, weakness.

The government’s new approach to the Gezi controversy may yet prove to be problematic. The referendum may endorse the project as a reassertion of popular support for Erdogan, and he might be tempted to plunge ahead.  A referendum in such situations can often dangerously infringe upon fundamental social values that should be protected regardless of how ‘the people’ vote. The preservation of Gezi Park would seem to qualify for meta-political protective treatment. Gezi Park as a green enclave, along with its proximity to Taksim Square, possesses a vivid resonance for the whole city of Istanbul, including even the revitalized Ottoman heritage that is so dear to Erdogan and the AKP generally. It seems especially precious to a younger generation of urban Turks that often have cherished memories of the park from their childhood. And for the most ardent followers of Kemal Ataturk the Taksim Square milieu has always been hallowed space where patriotic holidays of the Turkish republic are solemnly celebrated.

Of course, except at the very beginning, and maybe not even then, Gezi Park was about far more than Gezi Park. It was, as suggested, a slowly articulated repudiation of the sort of democracy being offered by the Turkish state, and as yet unarticulated series of demands for another kind of governance based on a different understanding of what politics and freedom are about. It was also about, although vaguely and incoherently, the cultural leveling down associated with neoliberal globalization and the rise of a predatory private sector that seemed responsible for littering the city of Istanbul with shopping malls and high rise twin towers.

There were other more conventional grievances that need to be addressed if the AKP wants to build a more legitimate structure of governance in the country, including the release of journalists and other prisoners of conscience presently held prison, greater reassurances about freedom of expression and dissent, and more public accountability of police and government. At the same time, the depth and intractability of the opposition in some sectors of Turkish society makes reconciliation a mission impossible. Polarization seems the destiny of Turkey for the foreseeable future. Most of the protest spawned by Gedi Square focused on calls for the resignation of Erdogan, in effect demanding a repudiation of democratic elections, which seems rather perverse considering the overall success of Turkey while Erdogan was running the country.

There is, to be sure, some peculiar features present in the litany of opposition complaints. For instance, there are frequent allegations that anti-government criticism of Erdogan and the AKP is absent from the media due to intimidation. It is true that Turkish TV seemed at first to ignore embarrassingly the events in Gezi Park while international TV was covering the unfolding protest in real time. Yet the true situation in Turkey, as I have experienced it, is one of widespread and harsh criticism of Erdogan from many angles, in this regard not the slightest evidence of media intimidation or alleged self-censorship, and a greatly exaggerated contention here and abroad that the voices of censure have been silenced by imprisonment. Posting an otherwise illuminating article online, Michael Ferguson, finishing a PhD in history and classics at McGill, writes this incredible phrase, while commenting on the media’s failure to mention of a controversial assertion: “..not surprisingly, however, given the Turkish media’s unwillingness to criticize Erdogan.”  I have been reading numerous opinion pieces attacking Erdogan in the Turkish press during the past two weeks, and so I cannot imagine what prompts such an assertion. True, there are many journalists imprisoned, to be sure, but apparently less for their critical views than for their supposed involvement in anti-government, unlawful activities. These charges should be investigated without any further delays, and those being held either tried or released, but that is a different matter than contending that Erdogan is being treated as a hothouse flower by the Turkish media, which is manifestly untrue.

The puzzle I have encountered after recently arriving in Turkey is why so many people seem honestly to believe that freedom of expression has been so severely encroached upon when it seems at least as robust as what is found in other democracies. What can be more aptly complained about here in Turkey, but less so than in the United States, is the shrillness of the critical media that offers no space for those with moderate views cleaving to ‘the golden mean.’ In the U.S. where talk radio features inflammatory voices of the extreme right such as Rush Limbaugh, Bill O’Reilly, and Glenn Beck. Also present are the Murdoch tabloid mendacities of the Fox Network that are given more intelligent and careful reactionary spins in the editorial and opinion columns of the Wall Street Journal.  Yet there is also present influential middle of the road media, New York Times, Washington Post, PBS, Rachel Maddow, MSNBC, which although far from objective still helps readers understand that there are at least two sides to many contested issues.  Controversially, I find Today’s Zaman the most consistently informed and balanced of the major media sources in Turkey, but interestingly almost unavailable at most newsstands throughout Istanbul that seem to favor the strictly secular media.

A Preliminary Balance Sheet

Up until now the unsettled immediate situation in Turkey has dissuaded me from commenting on what remains a still confused, complicated, and unfinished situation. Despite their marginalization in Gezi Square itself, the mainstream Turkish secular opposition to the AK Party leadership of the country over the past 11 years, welcomed these protests with unreserved enthusiasm misleadingly claiming in the media and throughout the world that these confrontations with the state was a moment of their supreme vindication. It should be remembered that both the Kemalist republicans and the traditional left have feared and hated the AKP from the moment of its suprising initial electoral victory in 2002. They have particularly detested Recip Teyyip Erdogan even before he became prime minister. These political elements of the Old Turkey stubbornly refuse to acknowledge the achievements of his leadership in elevating Turkey’s regional and global stature in dramatic fashion, while managing to do what was thought to be impossible—depoliticizing the Turkish military from political arenas while managing to preside  over an unprecedented period of economic growth and political stability. The embittered opposition angrily explained that these positive results would merely the good luck of the AKP, that they would have occurred under whatever government was in power, and besides, the AKP must be stopped and exposed, as it is deceitfully pursuing a secret agenda was intent on placing the country within an iron cage of Sharia law, the unquestionable goal to make Turkey into ‘a second Iran.’

It seems clear that these essentially partisan and polarizing attitudes do not seem to have animated the original protesters in Gezi Park who were mainly reacting with appropriate anger to a grotesque urban renewal plan that would have destroyed a sentimental park adjoining the richly symbolic center of Istanbul in Taksim Square, replacing it with a vulgar reconstruction of Ottoman Era army barracks, incredibly given an ugly modern face as one more shopping mall.  In some respects, such a future for Gezi Park did strike many of the early protesters as a fitting predatory expression of consumer capitalism gone wild.

The second much enlarged wave of protest was the spontaneous outpouring of youth, appalled more by the brutality of the police response than the environmental agenda, and clearly thirsting for a new form of emancipatory politics, beyond the greed for power of the traditional parties with their hollow promises and interest-driven programs. It was this outlook, difficult to categorize precisely because it was discovering and revealing itself as the events unfolded, exemplifying their distance from traditional politics by relying on humor, satire, inclusiveness, and a political style that seemed to owe more to ‘performance art’ (e.g. ‘standing men’ and other tropes) than to bombastic political speeches enunciating the familiar litany of political demands.  Such a politics of protest, even taking account of the carnivalesque atmosphere and the anarchist turns toward violence, was fully committed in its critical posture to a ‘search and explore’ method of doing politics along with an extreme reflex of disgust whenever political leaders tell their citizens what to do and not do in their lives.  It is this acute sensitivity to government and its leader intruding upon this sacred zone of private autonomy that does make this new protest ethos seemingly join forces with seculars in their denunciation of Erdogan and the AKP. Imprudently, Erdogan has gone down this road. He has backed legislation restricting where and when alcohol can be consumed, aired his opinion as to how many children a mother should produce, and told the public why kissing in public and wearing of lipstick should be discouraged and avoided. There is no doubt that Erdogan does irresponsibly fan the flames of youth and secularist discontent in Turkey by his inability or refusal to keep his conservative personal preferences about social issues to himself, and not undermine his identity as the elected leader of the whole public of a modern nation composed of diverse ethnicities and outlooks. Especially in Turkey’s principal cities many young people, above all, want to live their lives as they please without any guidance from Ankara. As we should all know by 2013, ‘the personal is political.’

These traits of Big Brother also lend some credibility to the deeper fears that Erdogan does harbor dreams, if not ambitions and plans, of becoming an autocratic ruler in the manner of the great Ottoman sultans or that his vision of majoritarian democracy is at odds with substantive democracy, that is, the establishment of a society where the views and identities of minorities and dissenters are respected and protected alongside the preferences of the majority. In effect, Erdogan should not be blamed for the acute polarization of Turkish society of which he is in many ways an unjust and long-term victim. At the same time, his blunt style of communicating with the citizenry and the opposition, is also polarizing. It suggests that Turkey remains an immature political culture, but it is far being alone in this regard.

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Overdosing on ‘Breaking Bad’

14 Jan

 

            It could be a telling sign of being out of touch with popular culture to admit that until two weeks ago when our children showed up for the holidays, I had never heard of the cable TV drama series ‘Breaking Bad.’ Of course, this sort of admission damaged my already fragile credibility with those under 30. And when I discovered that ‘Breaking Bad’ was in its fifth season, and had received numerous awards, receiving praised by leading media critics as ‘the greatest television drama of all time’ (according to the Megacritic website, ‘Breaking Bad’ is the highest rated cable show ever, earning a rating of 99/100 on the basis of 22 reviews) my self-esteem took a big hit for being so out of the loop. Having overdosed on the series during the recent past I may be about to fall from one trap to another, now putting myself forward as an ‘instant expert,’ a role not less tasteless than instant coffee. Intimidated by such a prospect, I will limit myself to a few random impressions with the goal of stimulating others to set me straight.

 

            At this time I admit to being in danger of becoming a ‘Breaking Bad’ junkie with serious addiction issues, having watched more than 25 of the early episodes with family members during what has become an almost obsessive nightly ritual. I am left wondering,  ‘what is the source of this fascination?’ ‘what is ‘Breaking Bad’ telling us about ourselves, our reality as a nation and globe-girdling capitalist powerhouse state?’ Whatever else, ‘Breaking Bad’ is tale of crime, violence, and personal adventure is quintessentially American, it could not be set elsewhere. On the most superficial level, there is no doubt that the writing, the acting, and cinematography are of a high caliber, holding one’s attention week after week due to an engagement with the lives of the characters and the subtle and innovative movements of the plot. It is obvious, as well, that both the technical and dramatic direction is quite masterful if measured by the metrics of craftsmanship and captivating storytelling. The form of episodic presentation, 47 minutes each week, imposes its own constraints. Each episode needs to combine a self-contained mini-drama with continuities of plot and character that create links to earlier segments and create suspense and curiosity about what will happen next. The result is a strange hybrid of soap opera and panoramic moviemaking.

 

            There is no doubt that the series creator, producer, and director, Vince Gilligan, knows what he is doing (and came to ‘Breaking Bad’ with past credentials as a producer of another killer TV series, ‘The X-Files’), which is to interweave in compelling ways the complex inter-ethnic world of drug dealing in the American southwest with the humdrum nature of suburban living in Albuquerque, New Mexico: throughout, the ordinary is repeatedly trumped and undermined by extraordinary happenings in episode after episode as the perils and pleasures of Walter (Walt) White, hero-villian’s life accumulate. In the process Walt’s struggle for survival is turned upside down, being transformed from an underachieving, overqualified high school chemistry teacher having trouble making ends meet to becoming a cash rich overachieving, under qualified supplier (in the harsh business of allocating drug markets) of crystal meth to local gangs linked to some big drug cartels. Actually, a layering takes place as Walt continues to teach chemistry as his daytime job, a vocational calling, as well as a job, that he never gives up on, showing an abiding concern for his students and exhibiting his talents as a teacher, although the strains of his secret life finally take its toll, and he is forced to take an extended leave of absence during the third season of the show. There is a certain ironic tension between his teaching routine in a high school setting and his use of sophisticated chemistry to produce the highest quality meth available in the Albuquerque market, with an outreach that extends to the cutthroat cartels south of the border .

 

            There is no doubt that Walt White (brilliantly played by Bryan Cranston) is as intriguing a character as has ever flitted across my TV screen. Some critics have treated White merely as an acute casualty of a mid-life crisis, where the comforts of the bourgeois life are exchanged for the excitement of the drug underworld, with its violence, risk, double life, and big payoffs, but this seems facile and almost willfully superficial. What gives White an edge is the fact that his ardent embrace of crime coincided with receiving a diagnosis of terminal lung cancer, giving rise, among other things to a desperate need for large sums of money to pay the huge bills for medicines and treatment, as well as to the realization that his family will be destitute after his death. The storyline also offers a bit of caviar to tease those who fancy themselves gourmets of high culture. White, as drug dealer, is known in the trade by the moniker, ‘Heisenberg,’ a cute play on the idea of ‘indeterminacy,’ (just who is White is tantalizingly elusive; and a lookalike is actually hired to confuse the police). As well, there are various bonding lines drawn between Walt White and Walt Whitman, especially relating to his celebrated poem, ‘Song of Myself.’

 

            To my way of thinking, one of the great achievements of the series is the interplay between Walt and Jesse Pinkman (brilliantly played by Aaron Paul), an almost likeable young punk who takes some hard knocks, and has a kind of innocence that is displayed by kindness to animals, empathy with a young child caught up in a violent family situation, and by his own victimization resulting from hatefully insensitive parents. There is left the impression that Jesse manages to survive, but barely, wants a cleaner, safe life, but can’t quite muster the will to escape one and for all. He is at once too tender a person to flourish in the cutthroat world of hard-core drug business and yet too dependent to avoid the maelstrom of use and dealing. Jess is unlike Walt in all ways, more consistently emotional and romantic, less calculating, as much an addict as a supplier, a cultural casualty rather than a good citizen who goes awry by succumbing to the lure of the gigantic drug profit margins.

 

            Throughout ‘Breaking Bad’ there are numerous implicit and explicit commentaries on the tawdry character of American life, replete with contradictions and complex filmic and cultural juxtapositions that link benign pretentious hypocrisies with lethal, violent realities that lie just beneath the surface. The relationship between law and crime is examined from many different angles, and it can be no accident, that the lead lawyer puts himself forward falsely as a Jew, Saul Goodman, when in fact he is a shabby abettor of criminality whose ethnicity in Irish. The lie at the heart of his law practice is multiply signaled: a huge balloon version of the Statue of Liberty is attached to the roof above his office, the room where he meets and greets clients uses the text of the U.S. Constitution as wallpaper, and his professional interest in lawyering is to make use of law and lawyers for the sake of promoting crime and safeguarding criminals, and all for the sake of making some extra bucks. There is in the series a second more ‘honorable’ lawyer who is no more loveable, using his knowledge of the intricacies of law to further the cruelties of capitalism. Actually, doctors fare only slightly better than lawyers, offering treatments motivated more by their professional ambitions than a patient’s likelihood of cure, and in the spirit of Michael Moore’s ‘Sicko,’ making even the most urgent health care a slave of one’s bank balance. 

 

            The series also a hard look taken at the fakery surrounding family values and community camaraderie. Walt is the main focus of attention, but is not alone, being portrayed as someone driven to crime by a true and abiding love for his wife and children, and in return receives the unconditional love of his disabled son. He says over and over again that all that he cares about is his family, and this gives him a mask of decency no matter how pervasively he falsifies his life. Walt faced with the prospect of his own assured death within a couple of years due to cancer and lacking the capacity to provide a decent future on the basis of legitimate work as a gifted high school chemistry teacher or as a helper in an auto repair shop turns to the lucrative work of ‘cooking’ high quality meth in large quantities. In effect, we are informed only a turn to crime can achieve what hard, honest work of a constructive nature cannot provide. The message within the message is that there is the scantest difference between Princeton graduates embarking on Wall Street careers with a clear conscience and those making their living from the drug trade, although the latter is far less obviously violent and dangerous, but also contains fewer illusions about normalcy, decency, honesty, and morally and socially acceptable life styles. Of course, ‘Breaking Bad’ portrays those on the top of the drug trade as mimicking in dress and life style the paragons of business and societal virtue, further blurring the boundaries between criminality and legitimacy. Indeed, ‘Breaking Bad’ occupies the whole social space in Gilligan’s America as there seems to be no available option to encourage breaking good!

 

            Part of what makes Walt such a memorable character is his mercurial personality that contains unpredictable, yet plausible swerves and shifts, and is dramatically punctuated with completely irrational outbursts that he laments after the fact, as well as by highly rational discourses on what line of action to take. For instance, at a silly poolside party (epitomizing what goes on in polite middle class Albuquerque) Walt pressures his disabled teenage son, Walt Jr., to get disastrously drunk on tequila for no obvious reason, and gets furious when his Drug Enforcement Agency (DEA) brother in law, Hank Schrader, interferes in an effort to prevent this patently improper father-son interaction from doing any further damage. This disturbing incident is out of character for Walt as he normally treats with loving kindness. In another episode, Walt is stopped by a highway patrol officer while driving at a normal speed in the desert countryside. The police man steps from his car and explain that the car was stopped because its windshield was shattered, making it unsafe and unlawful to drive. When the officer starts writing out a ticket for driving such a vehicle, Walt goes ballistic. He had earlier told the policeman that the damage to the windshield was caused by debris that fell from a fatal plane crash that had occurred in the city a few days earlier. The policeman responded by saying that it does not matter how the damage was done, that driving a car in this condition is against the law and deserves a ticket. Walt remains defiant, disobeys orders to stay in the car, yelling insults at the officer shouting he has ‘rights.’ After being warned, Walt is bloodied and taken into custody. He is soon released when Hank, his DEA relative, intercedes, and again law, such as it is, takes a back seat to the play of personal relations. In both of these incidents Walt after the fact apologizes, insisting that he was acting out of character, and makes vague intimations that his medical condition may have been the explanation.

 

            There is an unusual structural feature throughout the series. There are several dyads or pairings of character. Walt and Skyler (his wife), Walt and Jesse, Walt and Hank (DEA), Skyler and her sister, Marie (also Hank’s wife), two lawyers, two drug enforcers. Walt and his wife are the primary pair, with Skyler the seemingly good woman and loyal wife, but also dipping her toes into dirty water by covering up the crimes of her boss as well as indulging in a workplace romance with this sleazy character. Nothing is as it seems, especially nothing that purports to be good is really good, except perhaps the sincerity of the biologically damaged Walt, Jr., who also at least flirts with indeterminacy by adopting the name ‘Flynn’ to alter his identity until he reverts to Walt, Jr., when his cherished father is banished from home by Skyler after she finally discovers that he has been lying to her for many months, maintaining a secret double life, and obtaining funds far beyond his salary by dealing in drugs, and not as he has insisted, through the generosity of (hated) rich friends who had actually made a fortune by stealing his ideas.

 

            As with any imagined fiction, from Shakespeare to Gilligan (and his team of nine writers) what engages an audience is the vividness of the characters and the suspense, illuminations, and hypnotic strangeness of the narrative. The message and cultural critique are secondary to these dramatic qualities, and definitely, ‘Breaking Bad’ holds our attention mainly by sharing a wild roller coaster ride with its principal characters. The series doesn’t really need the scenes of extreme violence that are present in almost every episode, bloody beatings and killings with gory details, almost unwatchable brutality, but they seem thematically integral, and punctuate with exclamation points the crude justice of both the underworld of drugs and the proper world of law and police. There is even one grisly murder in which a stolen ATM machine is used as a weapon to crush a totally unsympathetic victim’s head. A symbolic eloquence is present in such a crime: the complex interplay of money, violence, and criminality is epitomized. Why? In some ways I believe that ‘Breaking Bad’ is itself a symptom of what it decries. It ‘entertains’ us by its exhibitions of extreme violence and criminality because anything less is assumed not to engage the modern public imagination, especially here in America where even the idea of minimal gun control proposed after a series of horrific domestic massacres is met with collective rage and derision. The gun lobby’s incredibly influential NGO, the NRA, tells us that there will be no ban on even assault weaponry while gun enthusiasts stock up such killing machines because they are fearful that a ban may be imposed, and this would be intolerable, itself grounds to take up arms against the already hated government in Washington. Also, of course, AMC network and Sony Pictures Television are both providers of the ATM used for making ‘Breaking Bad’ at $3 million per episode, and reap the monetary benefits of the show’s great success.   

 

            In the end, the question posed for me by ‘Breaking Bad’ is whether moral, political, and societal authenticity is any longer possible given the overall present nature of American popular culture. The government is far from exempt from such criticism if account is taken of the heavy militarist and carbon American footprint throughout much of the world, and the damage done to young Americans sent off to die in wars of no meaningful consequences for the protection of the homeland. I am someone who has spent his entire life in this country, appreciating its freedoms and supportive of its moments of moral progress (for instance, the selection of an African-American to be its president), although long critical of the gap between its proclaimed values and behavior, especially in relations with the non-Western world. I find myself now for the first time tempted to adopt an  ‘expatriate consciousness.’ I interpret this temptation as an expression of political despair, a giving up on the future of the country. It is not only discouragement with the failures of substantive democracy that leaves the 99% in a permanent condition of precarious limbo, while the supposedly ‘liberal’ leadership and citizenry seems to sleep well despite terrorizing distant foreign communities with drone violence inflicted for the supposed sake of our ‘security.’ It is also the increasing failures of procedural democracy, the chances offered to the public by elections and political parties, that makes me feel that the most I can hope for during my lifetime is ‘the lesser of evils,’ allowing me recently the pleasure of a sigh of relief that it was Obama not Romney who was elected in 2012. Yet this was an electoral campaign in which both sides refused to act responsibly. Each side refused to take the risk of raising such issues as the predatory nature of neoliberal globalization, the ecological death trip of climate change, and the idiocy of ‘the long war’ with its global battlefield that was unleashed after the 9/11 attacks. I fully realize that I am transforming ‘Breaking Bad’ into a metaphor for my own malaise, and I am unsure how Vince Gilligan would react if confronted with such reactions. But does that matter?

 

            Whatever may be the intention of those who put the series together, I do think ‘Breaking Bad,’ whether deliberately or not, raises disturbing political and cultural questions, somewhat analogous to issues powerfully posed a generation ago by David Lynch in ‘Blue Velvet.’ This movie remains one of the great filmic chronicles of the underside of America that has become almost indistinguishable from the self-congratulatory America of patriotic parades and holiday speeches by politicians. This dark criminality that lurks just below the surface of polite society is air brushed out of our collective consciousness by the mega-escapism of spectacles, sports, and a pacifying mainstream media. What I am saying, in effect, is that ‘Breaking Bad’ works fantastically as entertainment, but that it is also a reliable journalistic source confirming the bad news about several uncontrolled wild fires burning up the country, and the world.

Seeing Light: The Blogger’s Delight

7 Jan

 

 

            While reflecting on my prior blog lamenting the challenges of sustaining civility amid tumult and controversy, I came to appreciate my own partial captivity in realms of darkness. The negativities I tried to discuss are the shadow land of my blog experience, which is more essentially lived in the sunshine of new and renewed friendship, solidarity, mutuality, and the new emotional and spiritual resonances of our era, what I would call, in the absence of greater precision, the emergence of ‘digital love.’

 

            What becomes possible, although there is no doubt that it produces its share of blood, sweat, and tears, are invisible communities of commitment to a better future for humanity, all of it. Such communities keep candles of hope flickering during an historical period of thickening darkness when even the will to species survival seems to be in doubt. Why else would the world choose to live with nuclear weapons? Why else would political leaders turn their backs on the alarming scientific consensus as to the growing hazards and harms associated with climate change? Why else would the 1% be allowed to indulge super-luxuries while more than a billion struggle daily with the ordeals of poverty?

 

            It is in this spirit that I write from an aspiring identity as ‘citizen pilgrim,’ not content with the way the world is organized or the way rewards and punishments are distributed, seeking of a better world as a bequest to the future. It is not sufficient to be a ‘world citizen,’ which to be sure takes an step away from the privileging of identities of nation, race, religion, and gender, an implied acknowledgements of the primacy of ‘the global interest’ and ‘the human interest,’ but still tied either to present security structures built around territorial claims or tied to some project of political unification that succumbs to the seductively misleading promises of  ‘world government.’

In contrast, the citizen pilgrim is more concerned with time than space, favoring the profound readjustments that would be needed if the human species is ever in the future to fulfill its spiritual potential as well as satisfy its material needs and take the sort of prudential steps necessary to stave off civilizational catastrophe.

 

            It is a grand thing to be dedicated to such a vision of impossible possibilities, the sole foundation of hope in our time that is not built on illusion. Yet such grandiosity is irresponsible unless coupled with a willingness to take present suffering seriously. It is this ethical imperative of the immediate and existential that has led me to do what I can to challenge oppression and side with the weak, marginal, and most vulnerable in their struggles for emancipation, rights, and justice. While all of us are entrapped in the downward spiral of world order, many are denied the minimal decencies of life on earth, while others are allowed to flourish, either benevolently through their works and prayers, or dishonorably by stealth and by making the most of systemic corruption.

 

            I have strayed from my original intention, which was to make amends for my lack of graciousness so evident in my tiresome complaints about the torments of blogging. I wanted mostly to thank all those whose warm words of encouragement and support have given me the confidence and stamina to persist during these two years, and more than confidence, feelings of gratification that in some small way enclaves of truth telling are being constructed in cyberspace while the rulers are sleeping, building sanctuaries for those of us who seek refuge from a corporatized media that plays with our minds to induce the wrong fears while stimulating our most destructive consumerist appetites.  Without doubt it is this experience of digital love, new to this century, that is allowing the light to get through even on the darkest of days!

 

            It is my belief that there are many flickering candles throughout the world that partake of the special energies of place, culture, and memory, expressive of an array of distinctive identities unconsciously conjoined by mainly unrealized and unappreciated affinities. I would like to believe that we are participants in the founding of a new world religion that dispenses with institutions, dogma, and metaphysics, affirming a semi-conscious network of spiritually resonant citizen pilgrims aroused to action by urgent end-time challenges.  Perhaps, just perhaps, ‘hope against hope’ (Nadezhda Mandelstam) is not yet an outmoded indulgence!    

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