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Invisible Horizons of a Just Palestine/Israel Future

4 Nov

I spent last week at the United Nations, meeting with ambassadors of countries in the Middle East and presenting my final report to the Third Committee of the General Assembly as my term as Special Rapporteur for Occupied Palestine comes to an end. My report emphasized issues relating to corporate responsibility of those companies and banks that are engaged in business relationships with the settlements. Such an emphasis seemed to strike a responsive note with many delegations as a tangible way of expressing displeasure with Israel’s continuing defiance of its international law obligations, especially in relation to the unlawful settlements being provocatively expanded in the West Bank and East Jerusalem at the very moment that the resumption of direct negotiations between the Palestine Authority and the Government of Israel is being heralded as a promising development.

There are two reasons why the corporate responsibility issue seems to be an important tactic of consciousness raising and norm implementation at this stage: (1) it is a start down the slippery slope of enforcement after decades of UN initiatives confined to seemingly futile rhetorical affirmations of Israeli obligations under international law, accompanied by the hope that an enforcement momentum with UN backing is underway; (2) it is an expression of tacit support for the growing global movement of solidarity with the struggle of the Palestinian people for a just and sustainable peace agreement, and specifically, it reinforces the claims of the robust BDS Campaign that has itself scored several notable victories in recent months.

My intention in this post is to put aside these issues and report upon my sense of the diplomatic mood at the UN in relation to the future of Israel/Palestine relations. There is a sharp disconnect between the public profession of support for the resumed peace negotiations as a positive development with a privately acknowledged skepticism as to what to expect. In this regard, there is a widespread realization that conditions are not ripe for productive diplomacy for the following reasons: the apparent refusal of Israel’s political leadership to endorse a political outcome that is capable of satisfying even minimal Palestinian aspirations; the settlement phenomenon as dooming any viable form of a ‘two-state’ solution; the lack of Palestinian unity as between the Palestinian Authority and Hamas undermining its representational and legitimacy status.

The most serious concern on the Palestinian side is whether protecting the interests and rights of the totality of the Palestinian people in a peace process can be achieved within the present diplomatic framework. We need to be constantly reminded that ‘the Palestinian people’ cannot be confined to those Palestinian living under Israeli occupation: refugees in neighboring countries; refugees confined within occupied Palestine, but demanding a right of return to their residence at the time of dispossession; the Palestinian minority living in Israel; and 4-5 million Palestinians who constitute the Palestinian diaspora and its underlying reality of enforced exile.

It was also clear that the Palestinian Authority is confronted by a severe dilemma: either to accept the inadequate proposals put forward by Israel and the United States or reject these proposals and be blamed once again by Tel Aviv and Washington for rejecting a peace offer. Only some Israeli anxiety that the Palestinians might actually accept the U.S. proposals might induce Israel to refuse, on its side, to accept what Washington proposes, and spare the Palestinians the embarrassment posed by the dilemma of swallowing or spitting. That is, Israel when forced to show its hand may actually be unwilling to allow any solution to the conflict based on Palestinian self-determination, even if heavily weighted in Israel’s facvor. In effect, within the diplomatic setting there strong doubts exist as to whether the present Israeli leadership would accept even a Palestinian statelet even if it were endowed with only nominal sovereignty. In effect, from a Palestinian perspective it seems inconceivable that anything positive could emerge from the present direct negotiations, and it is widely appreciated that the PA agreed take part only after being subjected to severe pressure from the White House and Secretary Kerry. In this sense, the best that Ramallah can hope for is damage control.

There were three attitudes present among the more thoughtful diplomats at the UN who have been dealing with the Palestinian situation for years, if not decades: the first attitude was to believe somehow that ‘miracles’ happen in politics, and that a two state solution was still possible; usually this outlook avoided the home of the devil, that is the place where details reside, and if pressed could not offer a scenario that explained how the settlements could be shrunk sufficiently to enable a genuine two-state solution to emerge from the current round of talks; the second attitude again opted to support the resumption of the direct talks because it was ‘doing something,’ which seemed preferable to ‘doing nothing,’ bolstering this rather vapid view with the sentiment ‘at least they are doing something’; the third attitude, more privately and confidentially conveyed, fancies itself to be the voice of realism in world politics, which is contemptuous of the advocacy of rights and justice in relation to Palestine; this view has concluded that Israel has prevailed, it has won, and all that the Palestinians can do is to accommodate an adverse outcome, acknowledging defeat, and hope that the Israelis will not push their advantage toward a third cycle of dispossession (the first two being 1948, 1967) in the form of ‘population transfer’ so as to address their one remaining serious anxiety—the fertility gap leading to a feared tension between professing democracy and retaining the primary Zionist claim of being a Jewish state, the so-called ‘demographic bomb.’

As I reject all three of these postures, I will not leave my position as Special Rapporteur with a sense that inter-governmental diplomacy and its imaginative horizons have much to offer the Palestinian people even by way of understanding evolving trends in the conflict, much less realizing their rights, above all, the right of self-determination. At the same time, despite this, I have increased my belief that the UN has a crucial role to play in relation to a positive future for the Palestinian people—reinforcing the legitimacy of seeking a rights based solution rather than settling for a power based outcome that is called peace in an elaborate international ceremony of deception, in all likelihood on the lawn of the White House. In this period the UN has been playing an important part in legitimating Palestinian grievances by continuously referencing international law, human rights, and international morality.

The Israelis (and officialdom in the United States) indicate their awareness of this UN role by repeatedly stressing their unconditional opposition to what is labeled to be ‘the delegitimation project,’ which is a subtle propagandistic shift from the actual demand to uphold Palestinian rights to the misleading and diversionary claim that Israel’s critics are trying to challenge Israel’s right to exist as a state sovereign state. To be sure, the Palestinians are waging, with success a Legitimacy War against Israel for control of the legal and moral high ground, but they are not at this stage questioning Israeli statehood, but only its refusal to respect international law as it relates to the fundamental rights of the Palestinian people.

Let us acknowledge a double reality. The UN is a geopolitical actor that is behaviorally manipulated by money and hard power on many fundamental issues, including Palestine/Israel; this stark acknowledgement severely restricts the effectiveness of the UN with regard to questions of justice. Fortunately, this is not the whole story. The UN is also a normative actor that articulates the grievances of peoples and governments, influences public discourse with respect to the global policy agenda, and has great and distinctive symbolic leverage in establishing the legitimacy of claims. In other words, the UN can say what is right, without being necessarily able to do what is right. This distinction summarizes the narratives of articulating the Palestinian claims and the justice of the Palestinian struggle without being able to overcome behavioral obstacles in the geopolitical domain that block their fulfillment.

What such a gap also emphasizes is that the political climate is not yet right for constructive inter-governmental negotiations, which would require both Israel and the United States to recalculate their priorities and to contemplate alternative future scenarios in a manner that is far more congruent with upholding the panoply of Palestinian rights. Such shifts in the political climate are underway, and are not just a matter of changing public opinion, but also mobilizing popular regional and global support for nonviolent tactics of opposition and resistance to the evolving status quo. The Arab Spring of 2011 initially raised expectations that such a mobilization would surge, but counter-revolutionary developments, political unrest, and economic panic have temporarily, at least, dampened such prospects, and have lowered the profile of the Palestinian struggle.

Despite such adverse developments in the Middle East from a Palestinian perspective, it remains possible to launch within the UN a broad campaign to promote corporate responsibility in relation to the settlements, which could gradually be extended to other unlawful Israeli activities (e.g. separation wall, blockade of Gaza, prison and arrest abuses, house demolitions). Such a course of action links efforts within the UN to implement international law with activism that is already well established within global civil society, being guided by Palestinian architects of 21st century nonviolent resistance. In effect, two disillusionments (armed struggle and international diplomacy) are coupled with a revised post-Oslo strategy giving the Palestinian struggle a new identity (nonviolent resistance, global solidarity campaign, and legitimacy warfare) with an increasing emancipatory potential.

Such an affirmation is the inverse of the ultra realist view mentioned above that the struggle is essentially over, and all that is left is for the Palestinians to admit defeat and for the Israelis to dictate the terms of ‘the peace treaty.’ While admitting that such a visionary worldview may be based on wishful thinking, it is also appropriate to point out that most political conflicts since the end of World War II have reflected the outcome of legitimacy wars more than the balance of hard power. Military superiority and geopolitical leverage were consistently frustrated during the era of colonial wars in the 1960s and 1970s. In this regard, it should be understood that the settler colonial enterprise being pursued by Israel is on the wrong side of history, and so contrary to appearances, there is reason to be hopeful about the Palestinian future and historical grounds not succumb to the dreary imaginings of those who claim the mantle of realism.

Why Congress Should Say to ‘No’ on Syria

6 Sep

[I am not sure this attempt at clarifying the present stage of the Syria debate adds much to my prior posts, yet I hope that it provides a kind of summary that is helpful in following the unfolding debate; all along I have felt that the Syrian impasse presented the UN and the world with a tragic predicament: trapped between doing something to stop the Assad regime from committing atrocities against its own people so as to retain power and the non-viabiility and illegality of military intervention, a predicament further complicated by the proxy war within the region along sectarian lines, by the strategic involvement of the U.S. and Russia on opposite sides, the maneuverings behind the scenes by Saudi Arabia, Qatar, and Israel, and the avowed Turkish support for regime-changing intervention; also, the overall regional turmoil, and past bad feeling in relation to the UN role in the overthrow of Qadaffi posed additional obstacles; efforts to shape the political outcome by military means, because of the proxy war dimensions (including an increasingly evident, although still surprising, tacit alliance between Israel and Saudi Arabia) have so far only escalated the violence on the ground in Syria; Turkey, Russia, and the United States have all along  oscillated between principled and pragmatic responses favoring one side or the other, and exhibiting an ambivalent commitment to equi-distant diplomacy.]

There are three positions that have considerable support in Washington circles, although rarely acknowledged and not popular with the public, partly because of recent foreign policy failures, and partly too removed from perceptions of genuine security interests:

–undertake an attack to uphold ‘red line’ credibility of the president and the United States Government;

–undertake an attack too avoid an insurgent defeat, but on a scale that will not produce an insurgent victory; goal: keep the civil war going;

–undertake an attack to convince Iran that Obama is ready to use force if diplomatic coercion doesn’t work.

There are several other considerations that need to be taken into account:

–the Assad regime is guilty of numerous crimes against humanity aside from and prior to its probable (although far from assured) responsibility for the August 21st attack with chemical weapons on Ghouta; Syria lacks a legitimate government from the perspective of international criminal law; with respect to the violation of the Geneva Accord with respect to chemical weapons, the responsibility of Assad personally and the Syrian government generally has not been established beyond a reasonable doubt at this point;

–nevertheless, the Assad regime retains considerable support from various segments of the Syrian population, possesses substantial military capabilities, and is unlikely to collapse without a major ground invasion; the Assad government retains a measure of legitimacy from the perspective of the politics of self-determination;

–insurgent forces are divided, without coherent leadership, and are also responsible for committing atrocities, and contain political extremists in their ranks; a victory by the insurgency does not seem likely to lead to legitimate governing process from the perspective of law and morality;

–the negative American experiences of relying on war in Vietnam, Iraq, and Afghanistan should create a presumption against the authorization of force and reliance on military option in conflict situations; there is mounting evidence from past cases that the costs and risks associated with military options tend to be grossly understated during pre-war debates in the United States due partly to the political mobilization role played by mainstream media;

–the diplomatic alternative to force has been handicapped by its past abuse in the UN Security Council with respect to Libya authorization of ‘responsibility to protect’ undermining the trust of Russia, China, and others, and by the refusal to bring Iran into the political conversation as a key actor.

Against this background there are four important independent reasons for Congress to withhold authorization in this instance:

–a use of force that can neither be justified as self-defense, nor is authorized by the UN, is contrary to the UN Charter, which is an obligatory treaty, as well as being the most serious type of violation of international law in a post-Nuremburg world; the Nuremberg precedent with regard to crimes against peace (as the ‘crime of crimes’) should be respected, especially by the United States, which continues to serve for better and worse, as  the main normative architect of world order;

–the Kosovo precedent of ‘illegal, but legitimate’ is not applicable as a military attack is not likely to achieve either its political goals of ending the civil war and of causing the collapse of the Assad regime, nor its moral goals of stopping the slaughter and displacement of the Syrian people, and the devastation of their cities and country;

–even if the political and moral goals could be achieved, Congress, as well as the president, lacks the authority to authorized foreign policy uses of force that are incompatible with the UN Charter and international law;

–Congress should defer to domestic and world public opinion that clearly is opposed to a proposed military attack in the absence of an exceptional demonstration can be made as to the positive political and moral benefits of such an attack; for reasons mentioned, no such demonstration can be made in this instance; even the European Union has withheld support for a military attack on Syria at the

September meeting of the G-20 in St. Petersburg; only France among America’s traditional allies supported Obama’s insistence on reliance on a punitive military strike, supposedly for the sake of enforcing international law, bizarre reasoning because the rationale reduces to the following proposition: in view of the political realities, it is necessary to violate international law so as to be able to enforce it.

##

15 Jun

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

United Nations

A/HRC/23/XX

General Assembly Distr.: General 27 May 2013   Original: English

Human Rights Council Twenty-third session Agenda item 7

Human rights situation in Palestine and other occupied Arab territories

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

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

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

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

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

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

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

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

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


* Late submission.
[1] For the relevant criteria against which it must be judged, see http://csonet.org/?menu=30.
[3] For a summary of the charges and counter-charges see “TIMELINE: Israel launches Pillar of Defense amid Gaza escalation,” Haaretz, 20 November 2012 http://www.haaretz.com/news/diplomacy-defense/timeline-israel-launches-operation-pillar-of-defense-amid-gaza-escalation.premium-1.479284
[4] See “Israel’s Shortsighted Assassination,” Baskin, New York Times, 16 November 2012 http://www.nytimes.com/2012/11/17/opinion/israels-shortsighted-assassination.html?_r=0%5D
[5] United States Department of State Press Release, 14 November 2012 http://www.state.gov/r/pa/prs/ps/2012/11/200551.htm
[6] See Israeli assessment of Pillar of Defense in Shlomo Brom, ed., “Introduction,” The Aftermath of Operation Pillar of Defense, Institute for National Security Studies, Memorandum 124, 2012.
[7] United Nations Country Team, occupied Palestinian territory, Gaza in 2020: A liveable place? August 2012 http://www.unrwa.org/userfiles/file/publications/gaza/Gaza%20in%202020.pdf
[8] For a graphic account see Mohammed Omer, “Anger at UNRWA in Gaza grows” Al Jazeera, 01 May 2013 http://www.aljazeera.com/humanrights/2013/04/20134294185559594.html
[9] The following is the verbatim English text:  1. Agreement of Understanding For a Ceasefire in the Gaza Strip.  A. Israel should stop all hostilities in the Gaza Strip land, sea and air including incursions and targeting of individuals.  B. All Palestinian factions shall stop all hostilities from the Gaza Strip against Israel including rocket attacks and all attacks along the border.  C. Opening the crossings and facilitating the movements of people and transfer of goods and refraining from restricting residents’ free movements and targeting residents in border areas and procedures of implementation shall be dealt with after 24 hours from the start of the ceasefire.  D. Other matters as may be requested shall be addressed.  2. Implementation mechanisms:  A. Setting up the zero hour for the ceasefire understanding to enter into effect.  B. Egypt shall receive assurances from each party that the party commits to what was agreed upon.  C. Each party shall commit itself not to perform any acts that would breach this understanding. In case of any observations Egypt as the sponsor of this understanding shall be informed to follow up.
[10] OCHA Protection of Civilians Weekly Report, 19-25 February 2013, p.3
[11] GFO-DUO Gaza Weekly Update 18-24 March 2013
[12] OCHA Protection of Civilians Weekly Report, 19-25 February 2013
[13] State of Israel Ministry of Defense, Coordinator of Government Activities in the Territories, Gaza Crossing – Monthly report March 2013.
[15] See  the Special Rapporteur’s previous reports (A/HRC/7/17; A/66/358; A/HRC/20/32, and recent reports by the Special Committee on Israeli Practices (A/66/370 and A/67/550).
[16] See A/66/358, paras 34-40.
[18] See A/67/550 para 16.
[22] See, for recent examples, A/66/358 and A/67/550. See also Physician’s for Human Rights Israel, Oversight and Transparency in the Israeli Penal System, (July 2008), available at http://www.phr.org.il/uploaded/דוח%20שקיפות%20ובקרה.pdf.
[23] For video on administrative detention and hunger strikes, see http://therealnews.com/t2/index.php? option=com_content&task=view&id=31&Itemid=74&jumival=8123
[24] See Addammeer, Eight on Hunger Strike: Hunger Strikes are the Weapon of Prisoners in the Fight Against Administrative Detention, 10 March 2013, available at: http://www.addameer.org/etemplate.php?id=584.
[26] OCHA Protection of Civilians Weekly Report 23-29 April 2013
[27] A/HRC/22/63).
[28] Report of the Security Council Commission Established Under Resolution 446 (1979), 12 July 1979 (S/13450) http://unispal.un.org/UNISPAL.NSF/0/9785BB5EF44772DD85256436006C9C85
[30] Report of the Government of Palestine to the Ad Hoc Liaison Committee meeting in Brussels, 19 March 2013, p.13
[31] OCHA Humanitarian Monitor Monthly Report February 2013, p.18
[32] Ibid., pp.12-15
[33] Civic Coalition for Palestinian Rights in Jerusalem, Urgent Appeal for Action, 6 April 2013
[34] OCHA Protection of Civilians Report 30 April to 6 May 2013
[35] Israel Settlements Will Continue To Expand, Says New Housing Minister Uri Ariel, Reuters, posted 17 March 2013
[36] A/67/379.
[37] A/HRC/22/63.
[39] Feasting on the Occupation: Illegality of Settlement Produce and the Responsibility of EU Member States under International Law, available at http://www.alhaq.org/publications/Feasting-on-the-occupation.pdf.
[41] Copy on file with the Special Rapporteur.

A Brief Further Comment on Syria

25 Jul

 

            Some of the sharpest critics of my posts contend that I focus too much attention on Israel while exempting the far worse Syrian regime from any sort of harsh condemnation. In fact, I did write a post devoted to the Syrian situation on May 31, 2012 in which I referred to the criminal character of the Assad regime and pointed to such bloody deeds (Crimes Against Humanity) as the Houla massacre that had occurred a few days before. In my mind, there is no doubt that the behavior of the ruling clique in Damascus is genocidal, and should be condemned and appropriate international action undertaken to protect the people of Syria.

 

            But what is appropriate in such a situation is far from self-evident. The clarity of condemnation should not be confused with devising a prescription for action. Military intervention rarely succeeds, violates the right of self-determination, and often expands the scope and severity of violence, especially if carried out from the air. Furthermore, we know little about the opposition in Syria, to what extent its governance of the country would be based on the rule of law and human rights. There are confusing reports about rebel atrocities as well as concerning the role of Al Qaeda operatives leading some of the rebel forces, and also indications that Gulf money and weapons have been supplied to these forces ever since the beginning of the anti-Damascus uprising. Every government has the right to fight against its internal enemies, especially if heavily assisted by hostile external forces, although that right must be exercised within the framework of constraints imposed by international humanitarian law.

 

            Reflecting this complexity, the leading governments have turned to the UN as the least bad option, and its former Secretary General, Kofi Annan, to do all in his power to bring the killing to an end, and broker some sort of political compromise. So far it seems that neither side is prepared to lay down its arms, and so the killing goes on. The UN response seems feeble, and it is, but in the absence of a better alternative, it is the best that the organized international community can do at this stage, especially given the standoff between the permanent members of the UN Security Council. In this regard, with all sorts of factors at play, the Syrian slaughterhouse is best interpreted as a tragic predicament for those outside the country and a tragedy for those trapped within.

 

            Finally, it is certainly true that I have given overwhelming emphasis on my blog to the Israel/Palestine conflict. This is due partly to my recent work as a UN appointee, partly because I feel the United States through its diplomacy and financial contributions is so deeply and unacceptably involved in the conflict, and partly, no doubt, a matter of accidents of birth, friendship, and experience. In the period between 1965-75 I was comparably preoccupied with opposing the Vietnam War. I offer no apologies for either of these preoccupations, but readily admit that I could have chosen others.

Pros and Cons of Solidarity with the Palestinian Struggle

11 Jul

 

            The posture of solidarity with the struggle of ‘the other’ is more complex than it might appear at first glance. It seems a simple act to join with others in opposing severe injustice and cruelty, especially when its reality is experienced and witnessed first-hand as I have for several decades in relation to the Palestinian struggle. I was initially led to understand the Palestinian (counter-) narrative by friends while still a law student in the late 1950s. But my engagement was more in the spirit of resisting what Noam Chomsky would later teach us to call ‘indoctrination in a liberal society,’ a matter of understanding how the supposedly objective media messes with our mind in key areas of policy sensitivity, and none has turned out in the West, especially in North America, to be more menacingly stage managed than the presentation of Palestinians and their struggle, which merge with sinister forms of racial and religious profiling under the labels of ‘the Arab mind’ and ‘Muslim extremism.’ The intended contrast to be embedded in Western political consciousness is between the bloodthirsty Arab/Palestinian/Muslim and the Western custodian of morality and human rights.

 

            Perhaps, for very personal reasons I had since childhood taken the side of the less privileged in whatever domain the issue presented itself, whether in sports or family life or in relation to race and sexual identity, and professionally, in foreign policy. Despite being white and attracted sexually only to women, I found myself deeply moved by the ordeal in democratic America of African Americans, gays, and later, members of indigenous communities. I have sustained these affinities despite a long career that involved swimming upstream in the enclaves of the privileged as a longtime member of the Princeton University faculty.

 

            In recent years, partly by chance, most of these energies of solidarity have been associated with the Palestinian struggle, which has involved mainly in my case the bearing of witness to abuses endured by the Palestinian people living under occupation or in varying forms of exile, especially in my role as UN Special Rapporteur. This is an unpaid position, and affords me a much higher degree of independence than is enjoyed by normal UN career civil servants or diplomats serving a particular government. Many of these individuals work with great dedication and taken on dangerous assignments, but are expected to conform to institutional discipline that is exercised in a deadly hierarchical manner that often links the UN to the grand strategy and geopolitical priorities of a West-centric world order. This structure itself seems more and more out of step with the rise of the non-West in the last several decades. Just days ago the Indian representative at the UN called for a restructuring of the Security Council to get rid of its anachronistic cast of characteristics that overvalues the West and undervalues the rest.

 

            Bearing witness involves being truthful and as factually accurate as possible, regardless of what sort of consensus is operative in the corridors of power. In a biased media and a political climate that is orchestrated from above, the objectivity of bearing witness will itself be challenged as ‘biased’ or ‘one-sided’ whenever it ventures onto prohibited terrain. In actuality, the purpose of bearing witness is to challenge bias, not to perpetuate it, but in our Orwellian media world, it is bias that is too often presented as balanced, and truth witnessing that is either ignored or derided.

 

             The witness of unwelcome truths should always exhibit a posture of humility, not making judgments about the tactics of struggle employed by those fighting against oppression, and not supplying the solutions for those whose destinies are directly and daily affected by a deep political struggle. To do otherwise is to pretend to be thea purveyor of greater wisdom and morality than those enduring victimization. In the Palestine/Israel conflict it is up to the parties, the peoples themselves and their authentic representatives, to find the path to a sustainable and just peace, although it seems permissible for outsiders to delineate the distribution of rights that follow from an application of international law and to question whether the respective peoples are being legitimately represented.

 

            These comments reflect my reading of a passionate and provocative essay by Linah Alsaafin entitled “How obsession with ‘non-violence’ harms the Palestinian cause,” which was published online in the Electronic Intifada on July 11, 2012. The burden of her excellent article is the insistence that it is for the Palestinians, and only the Palestinians, to decide on the forms and nature of their resistance. She writes with high credibility as a recent graduate of Birzeit University who was born in Cardiff, Wales and lived in England and the United States, as well as Palestine. She persuasively insists that for sympathetic observers and allies to worship at the altar of Palestinian non-violence is to cede to the West the authority to determine what are acceptable and unacceptable forms of Palestinian struggle. This is grotesquely hypocritical considering the degree to which Western militarism is violently unleashed around the planet so as to maintain structures of oppression and exploitation, more benignly described as ‘national interests.’ In effect, the culturally sanctioned political morality of the West is indicative of an opportunistically split personality: nonviolence for your struggle, violence for ours. Well-meaning liberals, by broadcasting such an insidious message, are not to be welcomed as true allies.

 

            In this connection, I acknowledge my own carelessness in taking positive note of this shift in Palestinian tactics in the direction of nonviolent forms of resistance, being unwittingly paternalistic, if not complicit with an unhealthy ‘tyranny of the stranger.’ It is certainly not the case that Alsaafin is necessarily advocating Palestinian violence, but rather she is contending that unless the Palestinians realize that they must mobilize their own masses to shape their own destiny, which leads her to lament because it is not yet happening, nothing will change, and the occupiers and oppressors will continue to dominate the Palestinian scene. In effect, Alsaafin is telling us that deferring to Western canons of struggle is currently dooming Palestinians to apathy and despair.

 

            I find most of what Alsaafin has to say to be persuasive, illuminating, and instructive, although I feel she neglects to take note of the courage and mobilizing impact of the prison hunger strikes that have ignited the imagination of many Palestinians in recent months. Also, to some extent, my highlighting of nonviolence was never intended as an input into the Palestinian discourse or as favorable commentary, but seeks to challenge and expose the untrustworthiness of Western liberals who have for years been lecturing the Palestinians to abandon violence for the sake of effectiveness, arguing that a supposedly democratic and morally sensitive society such as they allege exists in Israel would be responsive to a nonviolent challenge by the Palestinians, and this would in turn lead to a more reasonable and fair negotiating approach by the Israelis out of which a just peace could emerge.  As should have been understood by the harsh Israeli responses to both intifadas, Israel turns a blind eye to Palestinian nonviolence, or even does its best to provoke Palestinian violence so as to have some justification for its own. And the usually noisy liberal pontificators such as Tom Friedman and Nicholas Kristof go into hiding whenever Palestinian creativity in resistance does have recourse to nonviolent tactics. These crown princes of liberal internationalism were both silent throughout the unfolding and dramatic stories of the various long hunger strikes. These were remarkable examples of nonviolent dedication that bear comparison with Gandhi’s challenges hurled at the British Empire or the later efforts of the IRA to awaken London to the horrors of prison conditions in Northern Ireland, and certainly were newsworthy.

 

            At the same time, there are some universal values at stake that Alsaafin does not pause to acknowledge. There are two of these truths intertwined in bewildering complexity: no outsider has the moral authority or political legitimacy to tell those enduring severe oppression how to behave; no act of violence whatever the motivation that is directed against an innocent child or civilian bystander is morally acceptable or legally permissible even if it seems politically useful. Terrorism is terrorism whether the acts are performed by the oppressor or the oppressed, and for humanity to move toward any kind of collective emancipation, such universal principles must be affirmed as valid, and respected by militants.

 

            Also absent from the article is any effort to situate the Palestinian struggle in an historical and geographic context. There are tactical realities in some situations of conflict that may make those who act in solidarity a vital part of the struggle that participate on the basis of their own political calculus. The Vietnamese recognized the importance of an autonomous Western peace movement in weakening the will of the American political establishment to continue with the Vietnam War. The global anti-apartheid campaign turned the tide in South Africa, and allowed the internal forces led by the African National Congress to prevail in their long struggle against settler colonial rule and racism. We all need to remember that each struggle has its own originality that is historically, politically, and culturally conditioned, and the Palestinian struggle is no exception.

 

            As Alsaafin powerfully reminds us who attempt to act in solidarity, while she is addressing a related message to the Palestinians, it is for the Palestinians to exert leadership and find inspiration, and for the rest of us to step to one side.  We must be humble for our sake as well as theirs, they must be assertive, and then our solidarity might make a welcome contribution a rather than unintentionally administering a mild depressant.   

UN Alliance of Civilizations, Istanbul Partners Forum, May 31-June 1, 2012

5 Jun


           

               

 

 

 

 

                   The UN Alliance of Civilization (AOC) was initiated by Kofi Annan in 2005 while he was Secretary General of the UN with the joint sponsorship of Turkey and Spain, with its principal center of operations in Istanbul. It was formed under the dark skies that existed after the 9/11 attacks, and seeks to provide an alternative narrative to that of inter-civilizational war, that starkly negative scenario of Islam versus the West associated with the inflammatory views of Bernard Lewis and Samuel Huntington that continues to provide fuel for Islamophobia that burns ever more brightly in Europe and North America. It was several years since I had heard as many references to Huntington’s ‘clash of civilizations’ thesis as I did during the discussions and presentations at the Istanbul Forum, which was opened by speeches made by Recep Tayyip Erdogan, the Prime Minister of Turkey, and Ban Ki Moon, the current UN Secretary General.

 

            The primary rationale for the AOC is to provide a ‘platform’ for inter-civilizational dialogue that explores differences among civilizations, but seeks to promote mutual undertstanding and respect, even affection and celebration. The label platform has become recently popular in international circles to convey the sense of a venue that has minimal restrictions as to participation, agenda, and ideological presuppositions. It is open to all perspectives that accept some presumed core values, and tempers disagreements by insisting upon an atmosphere of civility, and by generally avoiding controversial topics of current events. In this regard both Erdogan and Ban Ki Moon affirmed the broad idealistic goals of the AOC, but also made explicit in strong language their condemnation of the Syrian government for its role in recent atrocities committed against civilian communities, with especial reference to the shocking impact of the Houla Massacre that had occurred several days prior to these meetings.

 

            In Turkey the AOC is taken seriously as a new dimension of continuing thought and reflection as is evident both by the establishment of a dedicated academic program at Bahçeshir University and a separate degree granting graduate institute within a new field of academic specialization identified as ‘alliance of civilizations.’ Its first cohort of students played an active part in the discussion periods during the Forum. The AOC is under the administrative leadership of Jorge Sampaio, former President of Portugal, whose title is UN High Representative for Alliance of Civilizations. It holds periodic meetings on various themes in different parts of the world. I took part in the opening session of the Forum on a panel that included the philosophical founding father of the AOC, Professor Mehmet Aydin, former Minister of State, Rashi Gannushi, the head of the an-Nahda Movement that has emerged victorious in Tunishian elections, and Princess Rym Ali of Jordan, the founder of the Jordan Media Institute. The panel was supposed to address the relevance of global politics, and relied on a Q & A format presided over by the widely admired TV moderator for Al Jazeera, Riz Khan. The session was lively, avoiding the often tedious presentation of a sequence of papers, and led to thoughtful questions posed by members of a disparate audience that included the various constituencies that are brought together by the AOC: governments, international institutions, NGOs, students, and representatives of civil society. Due to the format that I had not known in advance, I had prepared some remarks that were never presented at the session, but I did have the opportunity to make some of these points in responding to questions put to me either by Riz Khan or members of the audience.

 

            It is a fair question to wonder whether sponsoring such events is worth the expense and effort. Skeptics say there is already too much ‘empty talk.’ My tentative response is affirmative. I find that the quality of such global conversations and associated secondary influences to be an essential dimension of a significant 21st century learning experience, not only or even primarily as a result of what speakers from such varied backgrounds have to say, but for the wider audience in attendance and those reached and influenced through media coverage. It is a step in the direction of creating what I described during the discussion period as an emergent ‘cosmopolitan pedagogy’ that is sensitive to divergent cultural styles and understandings. At its best such pedagogy supplements knowledge with wisdom, rationality with ethics and spirituality, and couples concerns about economic development with attentiveness to injustices and environmental hazards. It is through sustaining a creative tension between the particular and the general, the diverse and the universal, as well as between the controversial and the agreed upon that a cosmopolitan pedagogy responsive to the complexities, fragilities, and interactive dynamics of the early 21st century will come gradually into being. I found the discussions at the Istanbul Forum to be valuable contributions to a process of reconstituting cultural cognition for this moment in history.

 

My prepared remarks are published here online for the first time, and were formulated before I had the benefit of the discussions at the Forum, and I hope are of some slight interest:

 

            “I am grateful for this opportunity to participate in this Istanbul Forum of the Alliance of Civilizations.

 

            “As several others have undoubtedly already had occasion to mention the mission of the Alliance as one of promoting understanding among civilizations by way of an open dialogue that stresses differences, I wish to emphasize the commonalities associated with this undertaking. More than ever before in human history there is the need for peoples throughout the world to find leaders who will facilitate cooperation supportive of the shared needs of the planet. The world is faced with a series of problems of global scope that cannot be successfully addressed by governments acting alone or even by coming to agreements about cooperative arrangements based on their mutual national interests. As the failure to act responsibly from a global perspective in relation to nuclear weaponry or climate change illustrates, the peoples of the world remain beholden to the severe limitations of state-centric world order in seeking to shape a global policy that serves the human interest, which is long-term survival and an equitable distributions of burdens.  The risks associated with the possession and deployment of nuclear weaponry and those caused by the inability to fashion a timely response to climate change depend on global policy formed to benefit the whole of humanity, now and in the future, and not just the parts as represented by the governments of sovereign states. Even a global state such as the United States acts selfishly whenever confronted by challenges that threaten its military dominance, diplomatic prestige, and its economic growth

 

            What is particularly appealing about the AOC orientation is the replacement of states by civilizations as the primary units of analysis when thinking about world politics. Such a perspective frees us from the narrowness, egoism, and shortsightedness of nationalist thinking and tribal identities. It also underscores the crucial potential roles of religion and culture in developing an approach to global challenges on the basis of shared and universally endorsed values that draw their inspiration from the East as well as the West. Central to this endeavor is the focus so well expressed by Jacques Derrida on what it might mean for humanity “to live together well” on this planet, a deceptively simple observation that makes a double assertion with profound implications: however we choose as a species to behave, we are destined to live together, which is the inescapable message of globalization, but the more demanding second part of the assertion is the implied encouragement to live together benevolently, that is, in peace, justice, and contentment as attainable ideals. Unfortunately, except as abstractions, we remain mostly in the dark as to how, as a practical matter it could become possible to live, if not well, at least better together: working to achieve real peace, real justice, and real harmony, which presupposes, above all sympathy for and hospitality toward ‘the other’ in all the shapes and forms that human experience presents, and especially, with respect to those others that suffer and are being victimized in various ways by existing societal arrangements. Actually, we have some sense of what such a better world would look like, but we do not have much understanding of how to make the transition from where we are to where we would like to be, and maybe the unstated purpose of the AOC is to bring discussions of such a transition into the domain of public reason, and thus less subject to dismissal as ‘utopian’ wishful thinking. In passing I would note that utopian thought in this period of planetary emergency deserves also to be taken seriously and may provide the world with an emancipatory potential.

 

            The task set for this panel is to emphasize the relevance of global politics to the work of AOC. This is a difficult and speculative task although it is probably better undertaken here in Istanbul than anywhere else in the world. The Turkish political leadership over the course of the last decade has been impressively sensitive to the originality of this young century, and its relevance for the conduct of diplomacy and foreign policy. The essence of this sensitivity has been to give substantive implementation to an awareness that the state is a part of more inclusive configurations of influence and belief—region, civilization, religion—and not on its own.  That without a world government the state remains the most influential representative of the whole—species, world. In effect, the pursuit of national interests, detached from an appreciation of such wider interests as global interests, civilizational identity, and the human interest is not only a betrayal of core values but increasingly dysfunctional for the ends served by the state itself. In the end, this is a fundamental adjustment that calls for vision, ethics, and a practical understanding of how problems can be best solved in a manner that is also mindful of future generations. Fitting together the parts with the whole has always been a challenge to the political and moral imagination of statesmen, but the bearing of problems of global scope and the need for longer time horizons puts a premium on developing responsive modes of thought, policy, and action. It is in this respect that Turkey’s foreign policy based on principled pragmatism has seemed to be a breakthrough in an era where hard power diplomacy has so often failed and the urgencies generated by interdependence tend to be downplayed even as they are acknowledged.

 

            Against this background I think we need as soon as possible to make a conceptual leap of faith. For several centuries world order has been shaped by a preoccupation with borders and walls, along with the related idea of territorial sovereignty. Political community has been established within defended borders, and what is not bounded effectively is open for occupation or shared use. Of course, the colonial period gave a Eurocentric twist to this more general idea, but since the collapse of colonialism this state-centric manner of distributing authority and establishing order has been accepted throughout the world. It is expressed in international law by the ideas of equality among sovereign states, by sovereign authority within the state and freedom beyond its borders as exercised in such global commons as the oceans and space. It is from this perspective that we speak of ‘the freedom of the high seas.’ The United Nations was organized on the basis of the legitimacy of this state-centric imagery, and its Charter reflects this orientation toward world order, although privileging some states in the procedures of the Security Council.

 

            Identity for persons and peoples followed from this basic spatially conceived mapping of the world, giving rise to nationalism and patriotism.  Nationalist ideology and citizenship became in the modern world the exclusive means for individuals and groups to be accorded protection and membership in a state, making statelessness an acute form of vulnerability, an existence without rights. Of course, this conceptual mapping was a crude approximation of reality that overlooked many features of the manner in which this system operated: citizens were frequently helplessly vulnerable to the violence and abuse by their own state; minorities were targets of discrimination; hegemonic and imperial geopolitics encroached upon the territorial sovereignty of weaker states.

 

            Two fundamental developments altered the descriptive accuracy and ethical acceptability of this image of world order. First, the destructiveness of World War II highlighted by the use of atomic bombs against Japanese cities undermined the idea that war could be rationally reconciled with sovereign control over the technologies of warmaking. Secondly, the rise of human rights in the aftermath of the disclosure of the Holocaust challenged the normative idea that states were unrestricted( that is, sovereign) in their internal behavior except as restrained by the rule of law and institutions of constitutional governance. Expressed more vividly we can say that Hiroshima and Auschwitz gave rise to a new concern with limits to complement the earlier focus on borders. This shift has now acquired an ecological dimension through the fears associated with climate change, and the failures to regulate sufficiently the discharge of greenhouse gasses. What has become evident in each of these domains is that problem-solving capabilities of a world of borders cannot address adequately the issues posed by a world of limits, whether these limits refer to political violence, sovereign authority, and the regulation of the global commons, including the world economy.

 

            In other words, the degree to which states, and their perspectives, continue to dominate the formation of global policy has become increasingly anachronistic. It is epitomized by the construction of walls and barriers to keep unwanted people in or out, even sea walls are being proposed and some actually constructed to overcome rising sea levels associated with global warming and the prospect of maritime migrants fleeing from places that are uninhabitable due to heat or flooding. Some states are indulging the illusion that they can escape the downsides of interdependence by establishing for their citizenry the kind of security established by affluent ‘gated communities.’ Similarly, the response of the United States to the 9/11 attacks was to territorialize its quest for restored global primacy by attacking Afghanistan, and then Iraq, in what should have been understood to be an essentially non-territorial conflict of global scope that gave rise to transnational policing and information gathering, but also to self-scrutiny as to whether such extremism, while adopting criminal tactics, might not have been prompted by legitimate grievances.  Such war making after 9/11 was the source of major confusions as a result of the deliberate intertwining of a worldwide counterterrorism campaign with the pursuit of global state-building, the global domination project of the American foreign policy establishment.

 

            In these contexts, and others, we are living in a world of limits but continue to act as if we can address its challenges by acting as if the world of borders remains sufficient. Of course, in many respects our lives and destinies continue to be controlled by these spatial allocations of authority, but the state is stymied when it comes to solving the most basic challenges of the day, whether it be grasping the impacts of drone technology and cyberwar or handling the transnational ramifications of excessive sovereign debt. Issues of scarcity relative to food, water, and energy are also emerging to pose questions about the future viability of our collective lives on the planet, and the need to think now and urgently about how to address limits in a manner that respects the dignity of persons and peoples, and also adopts a precautionary approach to sustainability and survival risks. The preoccupation with borders in what is becoming daily a more borderless world will give rise to waves of despair as problems that could be solved if limits were agreed upon and institutionalized continue to be ignored, or at best, marginalized in the search for the right solutions for global problems.

 

            In conclusion, we can discern the relevance of the AOC theme of civilizational discourse. Only by enlisting the wisdom, core values, and visions of civilizations, including with special appreciation those associated with indigenous peoples, have we any hope of making the necessary transition from borders to limits in our consciousness and governmental logic. It is within the world’s cultures and religions that the sense of limits is inscribed in the deepest recesses of memory and pedagogy, establishing the imperative that human endeavor is doomed unless respectful of limits, either as generated by divine authority or through the enveloping power of nature. Human tragedy, as ancient peoples well understood, is to ignore or live beyond such limits. The Greeks had a word for it: hubris, which conveyed a deep awareness that tragedy befell those who exceeded limits, however powerful and autonomous they might seem.

 

            To learn from others is particularly crucial for the West, which has not heeded these cultural warnings, and especially the United States, that continues to project its military power and neoliberal dogma on a global scale. It means heeding this message of limits whether articulated by native peoples or by the sages of the East. I close with some words uttered long ago by Rabindranath Tagore in his 1913 Nobel Prize Acceptance Speech: “It is the East in me which gave to the West. For is not the East the mother of spiritual Humanity and does not the West, do not the children of the West amidst their games and plays when they get hurt, when they get finished and tired, turn their face to the serene mother, the East? Do they not expect their food to come from her, and their rest for the night when they are tired? And are they to be disappointed?” This early utterance of such inspirational sentiments was far too generous to the colonizing East and too hopeful about prospects for inter-civilizational harmony, but at the same time prophetic in reminding the children of the Enlightenment in the West that the spiritual accomplishments of the East should not be overlooked. Of course, spirituality is embedded in all civilizations, and it is more a matter of recovering those suppressed spiritualities of the West that succumbed to a spell of secular absolutism while crafting the modern world by means of its technological prowess that proved so useful in war and economic development.

What Can Be Done About Syria? Tragedy and Impotence

31 May

 


            The Houla Massacre of a week ago in several small Muslim villages near the Syrian city of Homs underscores the tragic circumstances of civilian vulnerability to the brutal violence of a criminal government. Reliable reports confirm that most of the 108 civilians who died in Houla were executed at close range in cold blood, over 50 of whom were children under the age of 10. It is no wonder that the Houla Massacre is being called ‘a tipping point’ in the global response to this latest horrifying outbreak of Syrian violence, a process that started over 15 months ago. The chilling nature of this vicious attack that refused to spare the most innocent among us, young children, does seem like a point of no return. What happened in Houla, although still contested as to details, seems established as mainly the work of the Shabiha, the notorious militia of thugs employed by Damascus to deal cruelly with opposition forces and their supposed supporters among the Syrian people. This massacre also represents a crude repudiation of UN diplomacy, especially the ceasefire 280 unarmed UN observers have been monitoring since it was put into effect on April 12th.  In this regard the events in Houla reinforced the impression that the Assad regime was increasingly relying on tactics of depraved criminality and state terror to destroy the movement that has been mounted against it. Such defiance also created new pressure on the UN and the international community to do something more interventionary than bemoaning and censuring when confronted by such evil, or face being further discredited as inept and even irrelevant.

 

            But is not the Syrian situation better treated as a ‘tragic predicament’ of contemporary world order rather than presented as a tipping point that might justify military intervention? The language of tipping point raises misleading hard power expectations that external coercive initiatives can redeem the situation? What kind of hitherto unimaginable action plan undertaken by the UN or NATO could hope to stop the violence at acceptable costs and thereby change the governing structure of Syria for the better? There has long existed an international consensus that the Syrian response to a popular uprising that started nonviolently more than a year ago should be vigorously opposed, but this awareness was coupled with a growing realization that there were no good options in the event, as has proved to be the case, that the Assad regime defies international censure and media exposure. Even those who supported the 6-Point Annan Plan in the UN acknowledged from its inception that it represented a desperate effort, which had almost no prospect of succeeding. Critics claimed that the Annan Plan was ‘accepted’ in bad faith by Assad to give Damascus breathing space while it went forward with its own plans to crush the opposition by all means at its disposal, and had no intention of reaching a political solution of the conflict. In truth, the opposition may also have been unwilling to live within the limits of the Annan approach as it meant giving up its primary goal of establishing a new governance structure for Syria.

 

            There was a widely shared sentiment at the UN and in the world media that it was unacceptable to stand back and watch further crimes against humanity take place, inducing a mood that ‘something more must be done,’ but what? Remembering the awful failure of the world to look away while the genocide in Rwanda in 1994 or to remain passive in responding to the massacre at Srebrenica in 1995, there existed the feeling that the developments in Syria were heading toward a comparably unspeakable humanitarian catastrophe, already more than 10, 000 Syrians had died, and it seems likely that worse may still occur if the Assad leadership is not removed.

 

            Diplomacy had been arduously pursued since the outset of the turmoil in Syria:  originally by Turkey, then the Arab League, and finally by Kofi Annan, the Joint Envoy of the UN Secretary General and the Arab League, each phase greeted by deceptive welcoming gestures in Damascus but clearly without any intention to abandon or even mitigate reliance on indiscriminate violence directed at the civilian population. The parties all along, including Bashar al-Assad sweet talked international emissaries, announced their willingness to stop the killing and other abuses, and even accepted monitoring arrangements. On occasion after occasion before negotiators had even left this tormented country the two sides resumed their fierce combat as if nothing had happened to alter their behavior, and for this, the opposition led by the Syrian Free Army deserves a share of the blame. In effect, diplomacy has been given multiple chances, and continues to be put forward as the only way to make a difference in the conflict, and yet it clearly lacks the authority and capabilities to stop the bloodshed and suspend the political struggle for control of the Syrian state.

 

            This frustration of diplomacy over many months naturally turns our attention to more coercive options. Russia has been blamed for preventing stronger action being endorsed by the UN Security Council, and is even being charged by the American Secretary of State, Hilary Clinton, with pushing Syria into a prolonged civil war due its unwillingness to back stronger collective measures in the Security Counil.  Whether Russia will alter its stance in response to these latest developments remains uncertain, but there is a definite call for new initiatives within and outside the UN. There are intimations of the formation of a new ‘coalition of the willing’ prepared to engage in military intervention, and even NGOs are demanding a stronger stand. For instance, Amnesty International, for instance, has issued an appeal to the Security Council to call upon the International Criminal Court to issue indictments against the Syrian leadership for their role in the commission of severe crimes against humanity, culminating in the Houla Massacre.

 

            Military intervention has been strongly advocated for several months by some irresponsibly belligerent political figures in the United States, most notably by John McCain, the Republican Senator who lost the presidential election to Barack Obama back in 2008.  So far there seems little appetite for such a major new military undertaking even at the Pentagon, and certainly not among the American public. Also Syria has no substantial coveted oil reserves that might have swung the balance of governmental opinion toward intervention during the debate on what to do about Qaddafi’s Libya.

 

            The logistics and politics surrounding any proposed military intervention in Syria make it an unrealistic option. There is not the political will to mount the kind of major military operation on the ground that would have reasonable hopes of combining regime change with an enforced stability until normalcy could be established by a new national leadership. Unlike Libya where NATO’s reliance on air power without ground troops was able to turn the tide decisively, if destructively, in favor of rebel forces, such a scenario is viewed as inapplicable to Syria where there continues to exist more public support for the regime and more substantial military and paramilitary resources at its disposal, especially if it continue to receive military assistance from Iran. All in all, the military option would likely make matters worse for the Syrian people, increasing the magnitude of internal violence without having the effect of bringing the conflict to an end, or producing better hopes for the future in a society as conflict and divided by enmities, bad memories, and fears as is the case of Syria.

 

            A major reason why it is suspicious to be too interventionary, or for that matter dogmatically aloof, is the radical uncertainty surrounding the nature of the anti-Assad coalition of forces within Syria, and the motivations of their external backers. Such uncertainty is particularly prevalent among Syrian minorities that seem to fear the collapse of the present regime in Damascus more than these dislike some of its oppressive behavior. How to act in such circumstances of uncertainty should counsel humility, but rarely does as this sort of acknowledgement hampers the kind of mobilization of support needed for bold action. What is certain is the bloody nature of the conflict, the indiscriminate tactics relied upon, and the efforts to terrorize the civilian population. While it is correct at this point to hold the government in power responsible and accountable, both sides have acted ruthlessly and in a manner

that casts a dark cloud over Syria’s future.

 

            The dilemma exposes the weakness of empathetic geopolitics in a world that continues to be dominated by territorially supreme sovereign states with insecure and antagonistic minorities. In the Syrian situation this tragic reality is revealed in all its horror, complexity, and contradictions. It is unacceptable to remain a passive spectator in a media wired world where events are reported visually almost as they are occurring, or immediately thereafter, and there is no way to avert the gaze of the outside world that is both compassionate and untrustworthy. It is morally unacceptable to stand by, watch, and do nothing. But the UN lacks the authority, capability, and legitimacy to impose the collective will of international society except in those rare instances when it is able to mobilize an effective geopolitical consensus as it did in Libya (but only by deceiving Russia and China as to the scope of the response contemplated by the authorization of force in March of 2011), but the outcome still being shrouded in uncertainty and controversy. For reasons explained above, plus the lingering resentment due to the Libyan deception on the part of Russia and China, there has not yet emerged a similar geopolitical consensus favoring military intervention in Syria, and none seems likely. Just as doing nothing is unacceptable, mounting a military intervention is unrealistic, and perhaps undesirable, and for now politically impossible.

 

            What is left to fill the gap between the unacceptable and the unrealistic is diplomacy, which has proved to be futile up to this point, but hanging on to the slim possibility that it might yet somehow produce positive results, is the only conceivable way forward with respect to the Syrian situation. It is easy to deride Kofi Annan and the frustrations arising from the repeated failures of Damascus to comply with the agreed framework, but it remains impossible to  find preferable alternatives. If diplomacy is finally admitted to be a deadend  as seems almost certain it raises serious questions as to whether in a globalizing world the absence of stronger global institutions of a democratic character is not a fatal flaw in the 21st century structure of world order. Moral awareness without the political capacity to act responsively points up a desperate need for global reform, but the grossly unequal distributions of power and wealth in the world make unfeasible such adjustments for the foreseeable future. And so the peoples of the world seem destined to go on living in this tragic space between the unacceptable and the impossible. It will take a true miracle to overcome this gap for the benefit of the Syrian people, and others.

Choosing a President for the World Bank: West Centrism Prevails over Global Democracy

22 Apr

This post is a revised version of a text that appeared a few days ago in Al Jazeera English, and seeks to use the selection of an American as the new President of the World Bank both to expose the fraudulent claim of a merit-based selection process and to insist indirectly that the future peace and justice of the world requires a more democratic and legitimate structure of global governance that reflects the post-colonial rise of the non-West, a rise that is not reflected in antiquated structures that persist despite changed conditions.

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            The unsurprising announcement that the Board of the World Bank had voted in favor of the American candidate, Jim Yong Kim, presents an opportune moment to reflect upon the soft power structures that shape global public policy in the early 21st Century inside the UN system and beyond. It is necessary to draw a distinction between Mr. Kim’s substantive qualifications and the procedure by which he was selected. Substantively, although lacking in either financial or diplomatic experience, Dr. Kim is in certain respects an interesting choice because of his lifelong dedication to improving the health of the very poor in the global South, as well as his training in medicine and PhD in anthropology. He has had extensive relevant experience on the ground, and in working with NGOs (he co-founded the widely admired Partners in Health) and in institutional settings (for some years he directed the HIV/AIDs program for the World Health Organization) and has been president of Dartmouth University for the past three years, although stirring controversy during his brief period of administrative tenure. It may be still wondered whether Dr. Kim understands sufficiently the economic dimensions of World Bank policy to enjoy the respect of the professional staff, and might have been more appropriately chosen to head an enhanced program of the Bank devoted to health and poverty. Overall, still, the substantive case for the appointment is relatively strong, although the two opposing candidates, both former finance ministers of developing countries, certainly had equally impressive substantive résumés and ethical profiles, and were plausible choices for this position.

 

            The procedural criticisms of the appointment process are far more serious, and raise fundamental questions about the legitimacy of global institutions in the post-colonial period. It was not surprising that Dr. Kim’s two opponents, Ngozi Okonjo-Iweala of Nigera and José Antonio Ocampo of Colombia, openly expressed their disgust with the process, complaining that the most qualified candidate had not been chosen despite the institutional promise of a ‘merit-based’ selection process. Ms Okonjo-Iweala uttered a truism when she said that selecting the Bank president was not “open, transparent and merit-based.” Mr. Ocampo was even more direct, saying, “[Y]ou know this thing is not really being decided on merit.”  In this fundamental respect, the supposed international search for a director was a charade. It became clear as other candidate were put forward by their respective governments that the decision would be made in Washington and that the person proposed would be, as in every instance, since the World Bank was established would be an American (just as every Managing Director of the International Monetary Fund has been a European. This is a quid pro quo never formalized but decreasingly legitimate given the new deWesternized geopolitical landscape that is becoming the most prominent reality of the early 21st century).

 

            More specifically, this vote was a foregone conclusion, despite some mutterings to the effect that this World Bank search would be open as compared to the past, because Europe had bargained away their independence with respect to the Bank some months earlier so as to secure American support for Christine Lagarde’s appointment to head of the IMF. She too had been faced with non-Western well qualified candidates for the position that she now occupies. In fact, there were feeble boasts made in Western circles that at least this time there were non-Western candidates for these positions would be considered fairly.

 

            In a letter to The Financial Times (April 19, 2012), Mr. Moen Qureshi, former Prime Minister of Pakistan and former Senior Vice President of the World Bank, expresses his annoyance with this new assertion of American ‘old boy’ privileges in staffing the top positions in world order.  He does not offer

criticisms in the wider context of a dysfunctional institutional rigidities that fail to register historical changes, and instead makes the temporizing suggestion that the World Bank establish a new No. 2 position who would be a person with banking experience and knowledge of the World Bank, allowing the Bank to clarify its role in a global setting with changing priorities. He proposes that Ngozi Okonjo-Iweala be given the job, partially to overcome the injustice of her losing out in the competition for top position, but also to bring into the World Bank a person of stature and experience who can offset the limitations of Kim’s background.  Of course, even in the unlikely event that Qureshi’s sensible advice is followed, it fails to address the fundamental issue of creating a more legitimate, just, and effective structure of global governance.

           

            If the credibility of global financial leadership is considered more critically, given American responsibility for the global meltdown and recession going back to 2008 and the ongoing failed European efforts to solve the sovereign debt problems and internal budgetary, and taking account, in contrast, of how well the leading emerging economies handled the crisis of the last several years, this would have seemed to be an ideal moment to acknowledge the globalization of economic knowhow and competence, and pick a non-Westerner to head the Bank. President Obama might even have restored some of his tarnished reputation as a visionary and post-nationalist global citizen if he had gratuitously given up this informal prerogative enjoyed by the United States ever since the end of World War II, although those who preside over the erosion of imperial prerogatives are invariably appreciated at home for accommodating changing realities that downgrade the role of their own country, however compelling the case for such an overdue adjustment may be. Arguably, the more overdue the adjustment, the more intense the likely backlash from those with strong ideological affinities and entrenched interests in maintaining the old order as long as possible. It certainly would not have been a wise tactical move for Obama to make in an election year, but at anytime any gesture toward a more globally democratic structure for global public policy in the economic realm would have elicited a bitter screed from the likes of the Wall Street Journal.

 

            The informal lock on Western domination of the Bretton Woods institutions continues without much challenge. It is reported that both China and India supported the selection of Dr. Kim, apparently not wanting to alter expectations about the locus of global economic leadership, and even Russia and Mexico apparently voted for the American candidate (the votes are cast by secret ballot, and so their attribution is based on leaks and speculation). It seems that the geopolitical comfort level of the BRIC countries remains largely accommodationist in character, suggesting that decolonizing the mind of the global South has a long way to go. It would seem almost self-evident that the informal power/prestige sharing that might have appeared natural in 1945 when access to American capital markets were crucial for the success of international financial initiatives should no longer govern behavior more than 65 years later when the United States is close to being a failed state when it comes to financial viability having even suffered the indignity of having its credit rating downgraded by an independent market-oriented private agency.  As it is, despite broadening the G-8 to the G-20 with regard to some global economic issues, the governance of the world economy remains determinedly neoliberal and West-centric, and for this reason less than legitimate, especially when consideration is given to widening disparities of wealth and income within and between countries and the persistence of high levels of deep poverty and material deprivation. The geopolitical passivity of the BRICs is not encouraging from the perspective either of the wellbeing of the peoples of the world or the prospects for global democracy. It is notable that such passivity is also evident in other policy domains: climate change, control of nuclear weaponry and even recourse to military intervention (the most that BRIC countries were willing to do to express their opposition to the NATO intervention in Libya was to abstain when it came to the crucial March 2011 vote in the Security Council, although Russia and China deceived in the Libyan setting have refused to go along with R2P approach in the Syrian context).

 

            Undoubtedly, the most vivid institutional effort to achieve global reform that reflects the world we now live in rather than the one that existed at the end of World War II when most of the non-West was formally or informally operating under Western surveillance and control, has been the endlessly frustrating struggle to broaden and reconstitute the membership in the UN Security Council. It is scandalously anachronistic that the United Kingdom and France, at best secondary countries in the present global hierarchy, both hold permanent seats in the Security Council and enjoy a veto right, while countries such as Brazil, India, Nigeria, Indonesia, Pakistan, and Turkey must compete for the nine seats with two-year terms that are shared with the other 189 members of the UN. It is not only a problem of representation for important states, but also the fact that there is no Muslim or Hindu majority state that is permanently represented in the supposedly global body. At least with the UN there is an excuse that the Charter makes amendments almost impossible, prescribing that there must be total acquiescence in any change in the composition of the Security Council by all five of its permanent members, as well as two-thirds of the overall membership. I suppose it is far too much to expect that France and the UK would accept a single rotating European permanent seat, and relinquish their dysfunctional separate membership on the Council. In the meantime, the UN System is largely frozen in time, and the world is deprived of a more legitimate and effective global problem-solving capability that is desperately needed at this time.

 

            It is important to move toward the achievement of global democracy for the sake of both global policymaking and the overall legitimacy of world order. To move away from violent geopolitics, acknowledging changes in the status of governments by reliance on soft power criteria leadership of international institutions has never been more useful. From this perspective the selection of Dr. Kim, even if he lives up to his considerable potential for a turn toward global empathy, is one more lost opportunity to move beyond the West-centric structuring of world order after World War II.

 

             

 

Why Europe is not yet ‘A Culture of Peace’

5 Apr


             It is undoubtedly true that the greatest unacknowledged achievement of the European Union (EU) is to establish ‘a culture of peace’ within its regional enclosure for the 68 years since 1944. This has meant not only the absence of war in Europe, but also the absence of ‘war talk,’ threats, crises, and sanctions, with the single important exception of the NATO War of 1999 that was part of the fallout from the breakup of former Yugoslavia. This was undertaken by the American-led alliance both to accomplish the de facto independence of Kosovo from Serbian rule, to ensure the post-Cold War viability of NATO, to reinforce the lesson of the Gulf War (1991) that the West could win wars at low costs due to their military superiority, and to rescue Albanian Kosovars from a possible humanitarian catastrophe at the hands of their Serb oppressors.  The contrast with the first half of the 20th century is stark when Europe seemed definitely the global cockpit of the war system in the East-West struggle for global supremacy.  Millions of soldiers and civilian died in response to the two German attempts by force of arms to gain a bigger role within this European core of West-centric geopolitics. Germany challenged the established order not only by recourse to massive aggressive wars in the form of World War I and II, but also by establishing a diabolical political infrastructure that gave rise in the 1930s to the violently genocidal ideologies of Nazism and fascism.

 

Even during the Cold War decades, Europe was not really at peace, but always at the edge of yet another devastating. For the four decades of the Cold War there existed a constant threat of a war fought with nuclear weapons, a conflict that could have produced totally devastating warfare at any point resulting from provocative American-led deployments of nuclear weapons or inflammatory Soviet interventions in Eastern Europe, or from the periodically tense relations in the divided city of Berlin. Also, to some extent the Soviet Union, with its totalitarian variant of state socialism, was as much European as it was Asian, and thus to a degree the Cold War was being fought within Europe, although its violent dimensions were prudently limited to the global periphery. Despite the current plans to surround Russia with defensive missile systems, supposedly to construct a shield to stop Iranian missiles, there seems little threat of any war being fought within European space, and even a diplomatic confrontation seems improbable at this point. In many respects, the EU culture of peace, although partial and precarious, has been transformative for Europeans even if this most daring post-Westphalia experiment in regional integration and sovereignty has been wrongly assessed almost exclusively from an economistic perspective as measured by trade and investment statistics, and the strength of the Euro and the rate of economic growth. The deep financial crises afflicting its Mediterranean members captures the public imagination without any appreciation of this European contribution to peaceful regional governance.

 

Many foreign policy experts are tend to discount this claim of an internally peaceful Europe. First because it had the benefit of an external Soviet adversary that made a political consensus among European elites appear to be a condition of physical and ideological survival. Secondly, because it could count on the American military presence, hegemonically instrumentalized via NATO, to protect Europe and to soften the edges of any intra-European disagreements. This latter role helps us understand the deployment in Europe of American forces so long after the fighting stopped, even if gradually reduced from troop levels of over 300,000 to the present 50,000. Even this smaller military presence is maintained at high cost to the United States, but it is widely seen in Washington as both a guarantor of peace in Europe and as an expression of America’s global engagement and permanent repudiation of its earlier geopolitical stance toward Europe of what was called ‘isolationism.’ Such a stance was never truly descriptive of American foreign policy, which was almost from its time of independence was expansionist and disposed toward intervention in hemispheric affairs.

 

            While I would with some qualifications affirm the European experience with regionalism as a step forward from the perspective of global governance, there are some darker features of European behavior that need to be taken into account. The colonial powers did not give up their empires without a fight. While the EU was emerging from the wreckage of World War II, European powers fought some dirty wars in futile efforts to hold onto their overseas empires in such countries as Malaya, Indonesia, Indochina, and Algeria. In a sense, the European culture of violence toward non-Europeans was taken over by the United States in its almost continuous engagement in counterinsurgency warfare against the peoples and nations of the South, a mode of one-sided warfare that reached its climate during the Cold War in Vietnam and has risen to alarming levels of destructiveness in Afghanistan and Iraq.

 

            There are also some broader matters of global policy involved.  After the end of the Cold War, the Western security priorities shifted from the defense of Europe against a Soviet threat to an ongoing campaign led by the United States to control the geopolitics of energy. This refocusing shifted the fulcrum of world conflict from Europe to the Middle East, a process strongly reinforced by Washington’s willingness to follow Israel’s lead on most matter of regional security. In such settings external to the territorial domain of the EU, the approach adopted under American leadership has been premised on discretionary recourse to violence under NATO banners, as in Afghanistan and Libya, especially following the American resecuritization of world politics along liberal internationalist lines since the NATO War in Kosovo, and even more so after the 9/11 attacks. The recent buildup toward war against Iran, allegedly because it is on the verge of acquiring nuclear weapons, is a further demonstration of the contrast between the EU as a European regional arrangement based on the rejection of war as a foreign policy option and NATO as a Western hierarchal alliance that performs as a discretionary mechanism of military intervention in the non-Western world, especially in the energy-rich countries of the Muslim Middle East.

 

Iran is the poster child of such separation of Europe as a zone of peace and the Islamic world as a zone of war. It is notable that the threats to attack Iran in the coming months and the imposition of four stages of crippling sanctions are premised on the unacceptability of Iran’s nuclear program, which is allegedly moving close to the threshold of nuclear weaponry. It could certainly be doubted whether if Iran was intent on acquiring nuclear weapons, and thereby violating its pledge under the Nuclear Nonproliferation Treaty, it would be grounds for recourse to force.  If the issue were to be more reasonably contextualized it would make us more aware of the relevance of Israel’s stealth acquisition and development of nuclear weapons, accumulating an arsenal estimated to exceed 300 warheads. The exclusions of geopolitical discourse, facilitated by a compliant media, allow Israel to lead the charge against Iran’s supposed quest for nuclear weapons without even an acknowledgement that in light of the overall realities the most prudent and equitable approach would be for all states in the region to unconditionally renounce their intention to acquire or possess this infernal weaponry of mass destruction.

 

But the situation is even more distressing than this shocking embrace of double standards. The available evidence makes it doubtful that Iran is even trying to become a nuclear weapons state. This conclusion is supported by an apparent agreement of all 16 American intelligence agencies that share the view that a high probability exists that Iran abandoned its nuclear weapons program in 2003, and has not resumed it. This intelligence consensus corresponds with the Iranian contention that it is not seeking to acquire nuclear weapons. The moves toward war against Iran have been amplified by repeated threats of attack in violation of Article 2(4) of the UN Charter, as well as by deliberately imposing punitive sanctions of intensifying severity and by engaging in provocative destabilizing intrusions on Iranian sovereignty taking the form of targeted killings of nuclear scientists and the encouragement of anti-regime violence. Europe is a willing junior partner of the United States in this post-colonial reassertion of Western interests in the oil-rich Middle East, and thus complements its imperfect regional culture of peace with a dangerous global culture of war and hegemony.

 

            As might be expected, this kind of European role external to Europe has sparked a variety of anti-European acts of violent opposition. In turn, Europe has turned in an Islamophobic direction, giving rise to anti-immigrant reactionary politics that are mainly directed against Islamic minorities living within its midst, to a reluctance to move down the road leading to Turkish accession to EU membership, and to various restrictions of religious freedom associated with the practice of religious Islamic women such as wearing a headscarf or burka.

 

            What is striking here is the dedication by the West to sustain by relying on its military superiority the colonial hierarchy of North/South relations in the post-colonial world order. The state system has been universalized since 1945, but the countries of the North, under American leadership, have continuously intervened to promote Western interests at the cost of millions of lives, first as an aspect of worldwide anti-Soviet and anti-Chinese geopolitics, and more recently, to secure oil reserves and to counter Islamic political moves to control national governance structures, as in Afghanistan. The West no longer seeks to fly its flag over the governmental buildings of non-Western countries, but it as hungry as ever for their resources, as well as to ensure receptivity to Western foreign investment and trade interests. Whether to slay the dragons of Communism or Islam, or to satisfy the bloodthirsty appetites of liberal internationalists that champion ‘humanitarian interventions,’ the dogs of war are still howling in the West. The doctrinal masks of law and a UN mandate obscure the realities of aggressive war making, but should not be allowed to deceive those genuinely dedicated to a peaceful and just world.  For one thing, we should not be fooled by belligerent governments relying on legitimizing imprimatur of the Responsibility to Protect—R2P—norm, as in Libya or Syria, to mount their military operations, while at the same time adhering to a non-interventionary ethos when it comes to Gaza, Kashmir, Chechnya, Kurdistan, Tibet). Of course, consistency is not the whole story, but it does penetrate the thick haze of geopolitical hypocrisy. More basic is the renunciation of violent geopolitics and reliance for social and political change on the dynamics of self-determination. Let us appreciate the biggest successes in the Arab Spring took place where the uprising were essentially non-violent and there was minimal external interference, and the most dubious outcomes have occurred where the anti-regime movement was violent and received decisive military assistance from without.

 

            Unfortunately, despite the complexities involved we cannot count on the United Nations partly because the veto creates a possibility to preclude appropriate responses (as in relation to Israeli abuses of Palestinians) or its failure to be used due to geopolitical pressures authorizes essentially unlawful warfare (as in relation to the Libyan intervention where opponents abstained rather than block military action). True, the UN can sometimes withhold its certification for aggression, as it did in 2003 when it rejected the American appeal for a mandate to invade and occupy Iraq, but even then it stood aside when the aggression took place, and even entered Iraq to take part in consolidating the outcome of the unlawful attacks. The UN can be useful in certain peacemaking and peacekeeping settings, but when it comes to war prevention it has lost credibility because tied too closely to the lingering dominance of Western geopolitics.

            These critical assessments highlight the need of persons seeking peace and justice to work within and beyond the established channels of institutional governance. And more specifically, to take note of what Europe has achieved, and might yet achieve, without overlooking past and present colonial and colonialist wrongdoing. In this respect, we need both a UN that becomes as detached as possible from its geopolitical minders and a robust global Occupy Movement that works to provide the peoples of the world with a democratic public order that protects our lives and is respectful of nature’s limits.  

Toward A Jurisprudence of Conscience

26 Nov

Ever since German and Japanese surviving leaders were prosecuted after World War II at Nuremberg and Tokyo, there has been a wide abyss separating the drive for criminal accountability on the part of those who commit crimes against peace, crimes against humanity, war crimes from the realities of world politics. The law is supposed to push toward consistency of application, with the greatest importance attached to holding accountable those with the greatest power and wealth. The realities of world politics move in the opposite direction, exempting from criminal accountability those political actors that play dominant roles. In a sense the pattern was encoded in the seminal undertakings at Nuremberg and Tokyo that assumed the partially discrediting form of ‘victors’ justice.’ Surely the indiscriminate bombings of German and Japanese cities by Allied bomber fleets and the dropping of atomic bombs on Hiroshima and Nagasaki were ‘crimes’ that should have been investigated and punished if the tribunals had been fully ‘legal’ in their operations. It was the case, especially in Tokyo, that the tribunal allowed defendants to be represented by competent lawyers and that the judges assessed fairly the evidence alleging criminality, producing dissenting opinions in the Japanese proceedings and there was an acquittal at Nuremberg. In effect, there was a measure of procedural fairness in these trials. Without doubt those who were accused of crimes did engage in activity that was legally permissible and important for the future of world order to criminalize through findings of guilt and impositions of punishment, but this outcome was flawed to the extent that victors were not subject to comparable standards of accountability.

There was a second message arising from these trials: that winning side by conducting trials of this kind takes advantage of the opportunity to reinforce claims as to the justice of historical verdicts by pronouncing on the criminality of losers while overlooking the criminality of victors.  There was also a third message that tries to overcome the flaw of double standards. It has been called ‘the Nuremberg promise,’ and involves a commitment by the victors in the future to abide by the norms and procedures used to punish the German and Japanese surviving military and political leaders. In effect, to correct this flaw associated with victors’ justice by making criminal accountability in the future a matter of law applicable to all rather than a consequence of the outcome of wars or a reflection of geopolitical hierarchy.

The Chief Prosecutor at Nuremberg, Justice Robert Jackson (excused temporarily from serving as a member of the U.S. Supreme Court), gave this promise an enduring relevance in his official statement to the court: “If certain acts and violations of treaties are crimes, they are crimes whether the United  States does them or whether Germany does them. We are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.” These words are repeatedly quoted by peace activists, yet ignored by political leaders who took no notice of either the original flaw at Nuremberg or the obligation to remove it. Since 1945 crimes by the victors in conflict have continued to be overlooked by international criminal law, while prosecutions reflecting geopolitical leverage have kept happening without any concerted intergovernmental or UN effort to correct the imbalance. Since the end of the Cold War implementation of criminal responsibility has been increasingly imposed on losers in world politics, including such leaders as Slobadan Milosevic, Saddam Hussein, and Muammar Qaddafi each of whom were deposed by Western military force, and either summarily executed or prosecuted.

This dual pattern of criminal accountability that cannot be fully reconciled with law or legitimacy has given rise to several reformist efforts. Civil society and some governments have favored a less imperfect legalization of criminal accountability, and raised liberal hopes by unexpectedly achieving the establishment of the International Criminal Court in 2002 through the extraordinary efforts of a global coalition of NGOs and the commitment of a group of middle powers. Fearful of losing their impunity geopolitical heavyweights such as the United States, China, India, and Russia have refused to sign on to the ICC. Yet this and other formal initiatives have not yet seriously impinged on the hierarchal realities of world politics, which continue to exhibit an embrace of the Melian ethos when it comes to criminal accountability: “the strong do what they will, the weak do what they must.” Such an ethos marked, for Thucydides, unmistakeable evidence of Athenian decline, but for contemporary realists a different reading has been prevalent, underpinning political realism, contending that hard power calls the shots in history, and the losers have no choice but to cope as best they can. Double standards persist: the evildoers in Africa are targets of prosecutors, but those in the West that wage aggressive war or mandate torture as national policies continue to enjoy impunity as far as formal legal proceedings are concerned.

The existence of double standards is part of the deep structure of world politics. It was even given constitutional status by being written into the Charter of the United Nations that permits the five permanent members of the UN Security Council, that is the winners in 1945, to exercise a veto over any decision affecting the peace and security of the world, thereby exempting the world’s most dangerous states, being the most militarily powerful and expansionist, from any obligation to uphold international law. Such a veto power, while sounding the death knell for the UN in its core role of war prevention based on law rather than geopolitics, is probably responsible for keeping the Organization together through times of intense geopolitical conflict. Without the veto, undoubtedly the West would

have managed to push the Soviet Union and China out the door during the Cold War years, and the UN would have disintegrated in the manner of the League of Nations, which after the end of World War I converted Woodrow Wilson’s dream into a nightmare.  Beyond this, even seen through a geopolitical optic, the anachronistic character of the West-centric Security Council is a remnant of the colonial era. 2011 is not 1945, but the difficulty of achieving constitutional reform means that India, Brazil, Turkey, Indonesia, and South Africa seem destined to remain permanent ladies in waiting as the UN goes about its serious male business. What this means for UN authority, including its sponsorship of the politics of individual criminal accountability, is that all that is ‘legal’ is not necessarily ‘legitimate.’

My argument seeks to make two main points: first, double standards pervade the application of international criminal law eroding its authority and legitimacy; and secondly, those geopolitical hierarchies that are embedded in the UN framework lose their authority and legitimacy by not adapting to changing times and conditions, especially the collapse of the colonial order and the rise of non-Western centers of soft and hard power.

There are different kinds of efforts to close this gap between the legal and the legitimate in relation to the criminality of political leaders and military commanders. One move is at the level of the sovereign state, which is to encourage the domestic criminal law to extend its reach to cover international crimes. Such authority is known as Universal Jurisdiction (UJ), a hallowed effort by states to overcome the enforcement weaknesses of international law, initially developed to deal with the crime of piracy, interpreted as a crime against the whole world. Many liberal democracies in particular have regarded themselves as agents of the international legal order, endowing their judicial system with the authority to apprehend and prosecute those viewed as criminally responsible for crimes of state. The legislating of UJ represented a strong tendency during the latter half of the twentieth century in the liberal democracies, especially in Western Europe. This development reached public awareness in relation to the dramatic 1998 detention in Britain of Augusto Pinochet, former ruler of Chile, in response to an extradition request from Spain where criminal charges had been judicially approved. The ambit of UJ is wider than its formal implementation as its mere threat is intimidating, leading those prominent individuals who might be detained and charged to avoid visits to countries where such claims might be plausibly made. As might be expected, UJ gave rise to a vigorous geopolitical campaign of pushback, especially by the governments of the United States and Israel reacted with most fear to this prospect of criminal apprehension by foreign national courts. As a result of intense pressures, several of the European UJ states have rolled back their legislation so as to calm the worries of travelers with tainted records of public service!

There is another approach to spreading the net of criminal accountability that has been taken, remains controversial, and yet seems responsive to the current global atmosphere of populist discontent. It involves claims by civil society, by the peoples of the world, to establish institutions and procedures designed to close the gap between law and legitimacy in relation to the application of international criminal law. Such initiatives are appropriately traced back to the 1966-67 establishment of the Bertrand Russell International Criminal Tribunal that examined charges of aggression and war crimes associated with the American role in the Vietnam War. The charges were weighed by a distinguished jury composed of moral and cultural authority figures chaired by Jean-Paul Sartre. The Russell Tribunal was derided at the time as a ‘kangeroo court’ or a ‘circus’ because its conclusions could be accurately anticipated in advance, its authority was self-proclaimed and without governmental approval, it had no control over those accused, and its capabilities fell far short of enforcement. What was overlooked in such criticism was the degree to which this dismissal of the Russell experiment reflected the monopolistic and self-serving claims of the state and state system to control the administration of law, ignoring the contrary claims of society to have law administered fairly in accord with justice, at least symbolically. Also ignored by critics was the fact that only such initiatives could overcome the blackout of truth achieved by the geopolitics of impunity. The Russell Tribunal may not have been ‘legal’ as understood from conventional governmental perspectives, but it was ‘legitimate’ in responding to double standards, by calling attention to massive crimes and dangerous criminals who otherwise enjoy a free pass, and by providing a reliable and comprehensive narrative account of criminal patterns of wrongdoing that destroy or disrupt the lives of entire societies and millions of people. As it happens, these societal initiatives require a great effort, and only occur where the criminality seems severe and extreme, and where a geopolitical mobilization precludes inquiry by established institutions of criminal law.

It is against this background that we understand a steady stream of initiatives that build upon the Russell experience. Starting in 1979, the Basso Foundation in Rome sponsored a series of such proceedings under the rubric of the Permanent Peoples Tribunal that explored a wide variety of unattended criminal wrongs, including dispossession of indigenous peoples, the Marcos dictatorship, Armenian massacres, self-determination claims of oppressed peoples.  In 2005 the Istanbul World Tribunal on Iraq inquired into the claims of aggression, crimes against humanity, and war crimes associated with the U.S./UK invasion and occupation of Iraq, commencing in 2003, causing as many as one million Iraqis to lose their lives, and several million to be permanently displaced from home and country. In the last several weeks the Russell Tribunal on Palestine, a direct institutional descendant of the original undertaking, held a session in South Africa to investigate charges of apartheid, as a crime against humanity, being made against Israel. In a few days, the Kuala Lumpur War Crimes Tribunal will launch an inquiry into charges of criminality made against George W. Bush and Tony Blair for their roles in planning, initiating, and prosecuting the Iraq War, to be followed a year later by a subsequent inquiry into torture charges made against Dick Cheney, Donald Rumsfeld, and Alberto Gonzales. I intend to write subsequently about each of these proceedings.

Without doubt such societal efforts to bring at large war criminals to symbolic justice should become a feature of the growing demand around the world for real democracy sustained by a rule of law that does not exempt from responsibility the rich and powerful whether they are acting internally or internationally.

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