December 2013 Report to UN Human Rights Council on Occupied Palestine

5 Mar
United Nations

A/HRC/25/67

General Assembly Distr.: GeneralXX December 2013

Original: English

 

 

 

 

[(Prefatory Note: This is my last report as Special Rapporteur on Occupied Palestine as my term is coming to an end after six years. The mandate is important as a source of information pertaining to the realities of occupation from the perspective of international humanitarian law and international criminal law. My hope is that this mandate can be brought to an end as early as possible, but not earlier than when Palestinians can live in equality with the Israelis either in a single bi-national state or in separate states. It is a matter that need to be decided by the two peoples in accordance with respective rights. No solution can be imposed or negotiated in a setting that is not premised on the equality of the peoples. RAF)]

Human Rights Council

Twenty-fifth 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

SummaryThe present report is the final report of the current Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Richard Falk, submitted in accordance with Human Rights Council resolution 5/1. The report addresses Israeli settlements in the West Bank, including East Jerusalem, the wall in the context of the tenth anniversary of the Advisory Opinion of the International Court of Justice, and considers Israel’s policies and practices in occupied Palestine in light of the prohibition on segregation and apartheid. It also addresses concern in relation to the deterioration of the human rights situation of Palestinians living under the Israeli blockade in the Gaza Strip.

Contents

           Paragraphs           Page

  1. Introduction                   1-9      3
  2. The wall and the 2004 Advisory Opinion             10-21      5
  3. Israeli settlements and the fragmentation of occupied Palestine            22-47      8
  4. The Gaza Strip             48-50      14
  5. Question of apartheid and segregation             51-76      14
  6. Concluding observations            77-79      20
  7.  Recommendations            80-88      21


  1. Introduction
  1.     In his final presentation to the Human Rights Council (HRC), the Special Rapporteur would like to underscore the importance of this mandate as providing an independent witness to the evolving effects of Israel’s continuing occupation of Palestine. This exposure is centred upon the presentation of information received of the persistence of severe violations of international humanitarian law (IHL) and international human rights law. Bearing witness provides both a record of Israel’s violations and defiant attitude, and challenges the United Nations to take steps to ensure compliance. It should be remembered that the suffering of the people of Palestine is inseparably linked to the partition arrangements initially proposed by the United Nations in 1947, and which were never implemented or revised in a manner that takes full account of the rights of the Palestinian people, above all their inalienable right of self-determination.
  2. 2.    It was unfortunate that Israel refused even minimal cooperation with this mandate to the extent of allowing the Special Rapporteur to have access to occupied Palestine during the past six years or of responding to several ‘urgent appeals’ addressing specific situations of immediate concern that fell within the purview of the mandate. This Special Rapporteur was expelled in December 2008 when attempting to enter Israel to carry out a mission of the mandate to visit occupied Palestine, and detained overnight in unpleasant prison conditions. Such humiliating non-cooperation represents a breach of the legal duty of members of the United Nations to facilitate all official undertakings of the Organization. Although it has been possible to gain information needed to report on the situation confronting Palestinians living under occupation, it deprives the mandate of direct interaction, including the receipt of testimony bearing on international law grievances from representatives of the Palestinian people. It is to be hoped that the Special Rapporteur to be appointed as my successor will receive sufficient backing from the HRC to induce cooperation from Israel and some[RF1]  protection against defamatory attacks by some NGOs than was my experience.
  3. 3.    International Law. An abiding theme of my reports during the past six years has been the consistent failure of Israel to comply with clear legal standards embodied in the Fourth Geneva Convention and elsewhere in IHL and international human rights law. This pattern, as will be detailed below, is flagrant in relation to the wall, settlements, East Jerusalem, the Gaza Strip, water and land resources, and the human rights of Palestinians living under occupation. Also relevant is the failure of the United Nations to ensure implementation of the recommendations as to international law contained in two high-profile HRC reports of 2009 and 2013, respectively those of: The fact-finding mission on the Gaza Conflict (A/HRC/12/48) and the fact-finding mission to investigate the human rights implications of the Israeli settlements (A/HRC/22/63). To the extent such a pattern is tolerated, it undermines respect for international law.
  4. 4.    Palestine. In light of the recognition of Palestine as a non-member observer state in its resolution of 29 November 2012 (A/RES/67/19), it seems appropriate to refer to territory under Israeli occupation as ‘Palestine’ rather than as ‘Occupied Palestinian Territories.’ Such a shift in language also emphasizes the inadequacy of the international law framework available to address a condition of prolonged occupation that has now extended for more than 45 years. Special steps and procedures need to be adopted that will confer rights and establish the rule of law. To sustain indefinitely an oppressive occupation containing many punitive elements also seems designed to encourage residents to leave Palestine, which is consistent with the apparent annexationist, colonialist, and ethnic cleansing goals of Israel, especially in relation to the West Bank, including East Jerusalem.
  5. 5.    Corporate Responsibility. Recent reports have underscored the potential implications for corporations and financial institutions that engage with and profit from Israeli settlements. The establishment and continued development of settlements is in violation of Article 49(6) of the Fourth Geneva Convention, an assessment reinforced by the International Court of Justice (ICJ) in its advisory opinion of 2004 on the wall. Such an initiative has tried at all times to proceed cooperatively with the economic actors involved, and has acknowledged instances of compliance with international law and relevant United Nations guidelines and the encouraging recent indication of governmental and European Union reinforcement of these obligations. This trend also converges with and reinforces the social mobilization of civil society in a variety of initiatives, especially the growing campaign of Boycott, Divestment, and Sanctions.
  6. 6.    ‘Legitimacy War’. In the pursuit of Palestinian rights under circumstances of prolonged occupation, there is increasing reason to believe that despite the authority of international law and the expressed will of governmental members of the United Nations, the situation is essentially frozen, if not regressing. In addition, Palestinians seem increasingly disillusioned with armed resistance and with traditional inter-governmental diplomacy. Palestinian hopes now for the realization of their fundamental rights have shifted to engagement in a ‘Legitimacy War’. Such a shift involves a worldwide struggle to gain control over the debate about legal entitlements and moral proprieties in the conflict as abetted by a global solidarity movement that is changing the climate of opinion. The United Nations has a crucial role to play in this process by lending support to Palestinian claims of rights and providing assessments of associated grievances resulting from Israel’s violation of IHL and international human rights principles and standards.
  7. 7.    Language. The Special Rapporteur believes that the language used to consider Palestinian grievances relating to IHL and international human rights law in Palestine needs to reflect everyday realities, and not remain beholden to technical wording and euphemisms that mask human suffering resulting from violations. It seems therefore appropriate to describe such unlawful impositions on the people resident in the West Bank by reference to ‘annexation’ and ‘colonial ambitions’ rather than ‘occupation,’. Whether these impositions constitute ‘apartheid’ is discussed in more detail in my report. Such clarifications at the level of language reinforce the contention that it is a matter of urgency to pursue more concerted efforts within United Nations venues to implement the rights of the Palestinian people.
  8. 8.    Emergency in Gaza. Developments in the region  combined with an unlawful blockade  maintained since mid-2007, has created a serious emergency situation in the Gaza Strip that threatens the entire population. From the perspective of international law, as argued in prior reports (A/HRC/20/32), Gaza remains ‘occupied’ despite Israel’s implementation of its ‘disengagement’ plan in 2005, due to control of borders, airspace, and coastal waters, as well as periodic military incursions. In that context, the present situation is dire as massive infrastructural failures cause daily hardship for the population, who are also at risk of epidemics. At the time of writing, with insufficient quantities of fuel reaching Gaza, electricity is available for only short periods, making it impossible for hospitals to provide proper treatment for seriously ill patients suffering from cancer and kidney ailments. The situation is aggravated by persisting tensions between the Palestinian Authority and the governing authorities in Gaza, and by the breakdown of cooperation along the border with Egypt. Egyptian security concerns in Sinai have led to greater restrictions at the Rafah Crossing, as well as to the destruction of the tunnel complex in southern Gaza that had eased some of the difficulties caused by the blockade.  Some countries, notably Turkey and Qatar, have responded to this situation by providing emergency relief, but much more assistance is required, including pressure upon Israel to end the unlawful blockade.
  9. 9.    Urgency. The stark reality is that the beleaguered occupied people of Gaza, over half of whom are children, are not receiving the protection to which they are entitled under IHL, which imposes an overall duty on the occupying Power to act in such a manner as to protect the civilian population from harm. Given the failure of Israel to live up to these obligations as set forth in the Fourth Geneva Convention, the United Nations and international society generally is challenged to take urgent action. The principles embedded in the R2P concept, ‘the responsibility to protect,’ would seem to have a special applicability to the emergency conditions currently existing in Gaza that is being brought to the attention of the world by graphic pictures of sewage in the streets, widespread flooding, seasonal cold including snow, and of children entrapped by these conditions.
  10. The wall and the 2004 Advisory Opinion

10. July 2014 will mark 10 years since the ICJ gave its near unanimous advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory[1]. Israel’s refusal to implement this assessment of international law by the highest judicial body in the United Nations is cause for severe concern.

11. The question put to the Court by the General Assembly bears repeating[2]: “What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, …, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?” The ICJ was unequivocal in its reply. In summary, it concluded that the construction of the wall in occupied Palestine, including East Jerusalem, and its associated regime, was contrary to international law. The crucial point being that it would not have been unlawful for Israel to build a security wall on an established international border, but to encroach unilaterally on territory occupied in the 1967 was a flagrant violation of international law. The Court stated that Israel had a continuing duty to comply with its international obligations in this regard. It found that Israel was obliged to end the illegal situation, cease construction and dismantle the wall in the OPT, and to make reparations for all damage caused as a result of the wall.

12. In addition to the conclusions addressing Israel’s obligations, the Court stated that all States are obliged not to recognise the illegal situation arising from the wall, and that States parties to the Fourth Geneva Convention of 1949 were obliged to ensure compliance by Israel with that Convention. Finally, the Court suggested that the United Nations, and especially the General Assembly and the Security Council, should consider further action to overcome this illegal situation resulting from the construction of the wall and its associated regime[3].

13. In clear defiance of international law, Israel has continued construction of the wall and maintains on its website a map of 30 April 2006 showing its revised route[4]. At the time of the advisory opinion, the Secretary-General estimated that approximately 180 km of the wall had been completed[5]. Since that time, parts of the wall have been re-routed[6]. In 2013, the Secretary-General (A/68/502) reported that approximately 62 per cent of the wall had been completed. A further 10 per cent was under construction, and construction of the remaining 28% of the planned route had not yet commenced. Upon completion, the wall is expected to run approximately 708 km.

14. 85% of the planned route of the wall lies within the West Bank, and will cut off and isolate 9.4% of the West Bank territory, including East Jerusalem and so-called No-Man’s land[7]. Palestinian communities affected by the wall experience varying degrees of isolation and restrictions on their freedom of movement. The seam zone’s[8] associated permit regime requires Palestinians to continually apply for temporary permits to allow them to reside in their home area and carry on aspects of their lives that require entering or exiting the seam zone. In order to access farming land beyond Israeli controlled access gates, leave and return for work, access education, health and other services, visit family and friends or arrange for visits to those communities for non-resident Palestinians, prior permission by Israeli authorities is necessary. This permit procedure imposes daily hardships on many Palestinian lives[9].

15. The Ministry of Defence states that “The Security Fence does not annex territories to the State of Israel, nor will it change the status of the residents of these areas[10].” Israel maintains that the purpose of the wall is to ensure security and protect Israeli citizens from terrorist attacks. In 2011, the Israeli High Court supported this reasoning regarding security in rejecting NGO petitions which claimed that the permit regime was aimed at expropriation and annexation of Palestinian land, and argued that its exclusive application to Palestinians, and not e.g. to settlers in the zone, was discriminatory and comparable to the Pass Laws of apartheid South Africa[11]. However, the High Court’s assertion does not overcome the conclusion by the ICJ that the grave infringements of the rights of Palestinians caused by the wall in the OPT were not necessary to satisfy legitimate Israeli security requirements[12].

16. If protection of Israeli citizens were indeed the only reason for the wall and the associated regime, it begs the question of why Israel continues to support the expansion of illegal settlements in the West Bank, thus moving an increasing number of Israeli citizens into the very area from which it says the risk emanates. That continued settlement in West Bank land, including East Jerusalem, cut off by the wall seems to be creating a fait accompli amounting to de facto annexation, is a grave concern raised by the HRC, which has demanded that Israel comply with the Advisory Opinion (A/HRC/Res/22/26).

17. For Palestinian residents isolated from the rest of the West Bank by the wall,  and living under the permit regime and other restrictions, the issue is not alone about status, but also about how life is made untenable, inducing more and more Palestinians to abandon their land and leave. By way of illustration, for years, the village of Nabi Samwel reportedly attempted to improve the village school. The village’s location in the seam zone complicates access to outside education. The United Nations Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, Valerie Amos, stated on her 2011 visit to the village: “I am horrified by the way the Barrier affects Palestinians. It divides communities and inhibits the provision of services. I visited a one-room school with no windows and very few facilities, which can’t be improved because the planning rules don’t allow it. This is unacceptable[13].” In September 2013, the village succeeded in installing a container on the school ground to serve as an additional classroom. However, the school is now in danger of losing one of its two rooms for lack of a building permit[14]. These acutely burdensome living conditions lead to the displacement of long term residents. In 2012, the Village Council noted that over the past decade at least 10 families have left the village, which counts some 260 residents[15].

18. Another case in point is the approximately 25 houses making up the village of Al-Numan. It is also encircled by the wall, with its only access through an Israeli checkpoint, and restricted from unlicensed building activity, effectively resulting in the inability of families and the population of the village to grow as housing needs cannot be met[16]. Consequently, the villagers have seen their own number fall while observing the neighbouring illegal Har Homa settlement’s steady growth in occupied territory. In 2006 Al-Haq published a case study on the indirect forcible transfer taking place in Al-Numan[17]. These are but two concrete examples of the obstacles communities face daily. In 2012, the Office for the Coordination of Humanitarian Affairs estimated that there were approximately 7,500 Palestinians still living in the seam zone[18]. This is a decrease from an estimated 10,000 people in 2003[19]. Upon completion of the wall, an estimated 25,000 Palestinians would be located in the seam zone, a figure which does not include the Palestinian population in East Jerusalem[20].

19. Regular demonstrations against the wall and its associated regime staged affected villages are often violently suppressed[21]. A website for the village of Bil’in, a farming community, describes its struggle thus: “[Bil’in] is fighting to safeguard its land, its olive trees, its resources… its liberty. … .Supported by Israeli and international activists, Bil’in residents peacefully demonstrate every Friday in front of the “work-site of shame”. And every Friday the Israeli army responds with both physical and psychological violence[22].”

20. The impact of the wall on people’s lives is reflected in the progress report of the Board of the United Nations Register of Damage Caused by the Construction of the Wall in the OPT[23]. As of June 2013, 36803 claim forms for registration of damage had been received and, of the almost 9000 claims decided, all but 580 claims were found to meet the eligibility criteria for inclusion in the register. Claimants may submit claims under categories of losses including: agriculture; commercial; residential; employment; access to services; and public resources[24].

21. In his first report (A/63/326) to the General Assembly, the Special Rapporteur recommended seeking the assistance of the Security Council for the implementation of the advisory opinion. In the face of the unequivocal opinion of the ICJ, and of General Assembly resolution ES-10/15 that called on Israel to comply with the advisory opinion, Israel has defiantly acted as if international law and international judicial authority has no bearing on their policies and behavior[25]. With the tenth anniversary of the advisory opinion approaching, it is time again to examine what legitimate action by the international community can be taken to achieve compliance with international law, as set out by the ICJ. It is often supposed that because the legal findings of the ICJ were embedded in an ‘advisory opinion’, it has no bearing on the status of Israel’s legal obligations. This is incorrect. An advisory opinion of the ICJ is as determinative with respect to the authority of international law as a judgment in a dispute between two or more states, but unlike such a judgment between states that can be directly enforced by reliance on Article 94 of the United Nations Charter, an advisory opinion cannot be so implemented. However, this difference does not weaken the obligation of Israel to act in accordance with this authoritative determination of international legal obligations, and its failure to do so puts it in breach of international law and responsible for the cumulative harm inflicted on the Palestinian people. It is past time, for the United Nations to take action that seeks to protect the rights of the Palestinian people bearing on the sanctity of their territory and its relation to the underlying right of self-determination.

III.Israeli settlements and the fragmentation of occupied Palestine

  •      Facts on the ground

22. The hallmark of Israel’s 46-year prolonged annexing occupation of Palestine has been Israel’s determined pursuit of settlement construction and expansion in the West Bank, including East Jerusalem, in defiance of its international law obligations[26]. This was clearly reflected in the findings of the international fact-finding mission on the implications of Israeli settlements.[27] Throughout the past six years, the Special Rapporteur has periodically reported on the expansion of settlements and outposts[28] in the West Bank, including East Jerusalem, (in breach of Israel’s own commitment to freeze settlement expansion, including natural growth under the 2003 Middle East Quartet Road Map), and the impact of associated policies and practices on the human rights of Palestinians living in the occupied territory.[29] While the pro-settlement camp claims that, “Settlements aren’t the problem”[30], this view stands in sharp contrast to the facts on the ground.

23. Increasing fragmentation of the West Bank, including East Jerusalem, by way of a combination of policies and practices including, but not limited to: the wall; the creation of seam zones; checkpoints; zoning and planning restrictions; demolition of homes and forced evictions (particularly of Bedouin communities in Area C); revocation of residency rights; the designation of vast tracts of land in the West Bank as closed military zones or natural reserves; and the expropriation of land for settler agriculture or industrial zones, may irreversibly disrupt the contiguity of the West Bank undermining a just and sustainable “two-state” solution[31].

24. Peace Now, an Israeli NGO, called attention to “Bibi’s Settlements Boom” in 2013, reporting that tenders had been published for 3,472 new units in settlements, and that plans had been promoted 8,943 new settlement units in the eight months since the Netanyahu government took office in March 2013.[32] Despite a brief and limited ten month moratorium on settlement construction in 2010 during the last round of unsuccessful peace talks (which also demonstrated Israel’s ability to halt settlement activity if desired), Israel issued tenders for the construction of 5,302 housing units in the West Bank, including East Jerusalem, during the period from March 2009 to January 2013.[33]

25. The timing of announcements regarding settlement expansion has also been provocative, with the two most recent announcements coinciding with the first and second round of Palestinian prisoner releases by Israel in the context of the renewed peace negotiations that began in August 2013. The passage of time under the status quo has not been a neutral factor for Palestinians as more “facts on the ground” are created on a daily basis, strengthening Israel’s position in its preferred mode of power-based negotiations (as opposed to negotiations based on rights and international law). Despite protestations over settlement activity by the United Nations, and notably also by the United States, and the European Union[34], Israel continues to use state power and resources to promote its defiant settlement policies. The Secretary-General has described Israel as playing a “leading role” in the construction and expansion of settlements through the control of land and natural resources as well as the preferential treatment given to settlers by way of benefits and incentives.[35]

26. This latter factor is important to note if the removal of existing settlements were to occur as part of a peace agreement. Approximately half of all settlements in the West Bank can be classified by type as either ‘quality of life’, or a mixture of ‘quality of life/ideological’, which tend to be inhabited by predominately secular or mixed settler populations.[36] At least for the economic settlers who were persuaded to move to the West Bank settlements through various government benefits and incentives, Israel might be able to re-incentivise those settlers to re-settle to the west of Israel’s pre-1967 borders. Israel would have a more difficult time removing the more religious settlers who live in approximately 70 settlements across the West Bank, all the more so as population growth in the settlements of approximately 2.8 per cent continues to outstrip population growth in Israel.[37] It also remains to be seen whether an emergent settler unity precludes implementing a future peace agreement based on inducing economic settlers to return to Israel. Certainly, it may be anticipated that ideological settlers would do their best to prevent such a division and the implementation of such an agreement.

27. It has been a small minority within the ideologically motivated  settlers who have been responsible for most of the violence committed against Palestinian men, women and children as well as their homes and properties. 361 incidents of settler violence were reported in the first ten months of 2013, including 87 resulting in the injury of Palestinians (compared to a total of 366 incidents in 2012).[38] Most of these incidents occurred in the Nablus, Ramallah and Hebron governorates. Settler violence is reinforced by a lack of accountability and the related failure of Israeli law enforcement forces to protect vulnerable Palestinian communities.[39]

28. Housing demolitions and displacement of Palestinian communities also kept up with the settlement boom in 2013. From January to October 2013, 533 Palestinian homes and livelihood structures were demolished, including 205 residential structures displacing 969 people, including 441 children. International donor-funded structures, paid for by taxpayers around the world were not spared from demolition, and 96 donor funded structures, including residential, livestock-related and water and sanitation facilities in the West Bank were demolished by Israeli authorities.

29. Herding communities living in small villages in Area C have been particularly vulnerable to Israeli practices accelerating the fragmentation of the West Bank. In 2013, the United Nations High Commissioner for Human Rights twice spoke out against the demolition of at least three Bedouin and herder communities in Mak-hul, Tel al Adassa and Az Za’ayyem in the northern Jordan Valley.[40] Israel’s violations of international law extend to actively preventing the provision of urgent humanitarian assistance from the international community to the affected Palestinian communities.[41]

  •      The future of outposts

30. In July 2012, the Committee to Examine the State of Construction in the West Bank appointed by the Ministry of Justice and chaired by Supreme Court Justice (Ret.) Edmund Levy (the Levy Committee), issued its report on the legal status of Israeli settlements in the West Bank and in particular, set forth recommended steps to regularize the construction of ‘illegal settlements’ (outposts) in the West Bank (currently numbering over 100).It concluded that the international laws of occupation, including the Fourth Geneva Convention, did not apply to Israel’s unique situation in Judea and Samaria (the name given the West Bank in internal Israeli discourse and signalling a claimed biblical attachment), and that Israelis had the legal right to settle in the West Bank despite the international consensus.

31. The Levy Committee conclusions not only reflected disregard of international law but also set forth a quasi-legal retroactive endorsement of outposts, formally  unauthorized under Israeli law. In fact, the Committee determined that existing outposts were “carried out with the knowledge, encouragement and tacit agreement of the most senior political level, government ministers and the Prime Minister, and therefore such conduct is to be seen as implied agreement”.[42] A previous report of 2005 by Talia Sasson, a former chief state prosecutor concerning the illegal outposts had not gone so far as to implicate the senior most political echelon of the country, but had found the Settlement Division of the World Zionist Organization (fully funded from the State Treasury), the Ministry of Construction and Housing, the Civil Administration in Judea and Samaria, and the Assistant to Defense Minister complicit in the establishment of new unauthorized outposts and exposed an unelected bureaucracy in charge of creating new outposts without political authorization or oversight.[43]

32. The Special Rapporteur notes that while Sasson’s report clearly labelled the outposts as illegal under Israeli law and recommended their dismantlement, developments on the ground since then have shown that successive Israeli Governments preferred to follow the approach endorsed post-facto by the Levy Committee. Of 1,708 units constructed in West Bank settlements in the first half of 2013, 180 units were located in outposts.[44] In May 2013, Israel announced plans to legalize four outposts in the West Bank (in other words to recognise them as official settlements)[45] While the Netanyahu Government never adopted the Levy report, the Knesset Committee on Constitution, Law and Justice is expected to debate the report in early December 2013, indicating that it is being taken seriously at the highest levels in Israel.[46]

  • ‘Demographic balance’ in East Jerusalem

33. The status of East Jerusalem remains one of the most contentious issues to be resolved in the Israeli-Palestinian conflict. It is worth recalling that United Nations Security Council resolution 478 (1980) affirmed that Israel’s Basic Law proclaiming Jerusalem, including the annexed area, as the capital of Israel constitutes a violation of international law and did not affect the application of the Fourth Geneva Convention in Palestine, including East Jerusalem.

34. For Palestinians living in East Jerusalem, their situation would not be as precarious if, despite the illegality of annexation, they were treated equally to Israeli citizens and afforded access to quality education, health care and housing. Instead, Palestinians living in East Jerusalem are regarded as ‘permanent residents’ and subject to a gradual and bureaucratic process of ethnic cleansing.[47] This has consisted of revocation of residency permits, demolitions of residential structures built without Israeli permits (often virtually impossible to obtain)[48], and forced evictions of Palestinian families, in violation of the  basic right to adequate housing, enshrined in the International Covenant on Economic, Social and Cultural Rights.

35. A 2013 report by the United Nations Conference on Trade and Development on the Palestinian economy in East Jerusalem detailed Israeli policies that have impeded the natural growth of the Palestinian economy. It also noted that Palestinians are made to pay high municipal taxes in return for poor services and disproportionately low public expenditure in East Jerusalem.[49] This has been particularly evident with respect  to education, characterised by  shortage of classrooms, a high overall dropout rate of 13 per cent among Palestinian schools in East Jerusalem, and a general neglect of the Arab schooling system in comparison to their Jewish counterparts literally metres away in West Jerusalem.[50]

36. The situation in East Jerusalem today is a microcosm of the fragmentation of territory taking place across the West Bank. Israel actively seeks to undermine the Palestinian presence to serve its goal of preserving a Jewish majority in East Jerusalem. This has been a decades old policy of Israel, acknowledged by the Jerusalem Municipality, to maintain a demographic balance of approximately 70 per cent Jewish to 30 per cent Palestinian in Jerusalem.[51]

37. Since 1996, an estimated 11,023 Jerusalem Palestinians have lost their resident status and right to live in occupied East Jerusalem.[52] During the period 2004-2013, a total of 479 housing units were demolished in East Jerusalem displacing 1,892 Palestinians. These figures account only for officially demolished housing units and do not include homes demolished by some owners after receiving a demolition order to avoid perverse heavy municipal penalties and demolition costs associated with the destruction of their own homes.[53]

38. The most problematic plan advanced in East Jerusalem in recent years has been the expansion of settlements and infrastructure around Har Homa, Gilo, and Givat Hamatos, as well as the E1 settlement bloc to the east, which threatens to cut off East Jerusalem from the rest of the West Bank.[54] Eventual peace depends crucially on ensuring that Palestinian rights in East Jerusalem are not further jeopardized.

  •      Corporate complicity in international crimes

39. Over the past two years, the Special Rapporteur focussed attention on companies involved in business and financial activities related to the Israeli settlement enterprise as well as the possibility of corporate complicity in international crimes related to Israeli settlements in the West Bank, including East Jerusalem.[55] .

40. The effort to focus on business activities in the settlements was made, in part, to bring a measure of accountability with respect to the human rights obligations of companies in conformity with international law and the United Nations Guiding Principles on Business and Human Rights. In so doing, the Special Rapporteur’s intention was not only to provide a sound legal basis upon which to assess the complicity of businesses in international crimes related to the settlements, but also in order to clearly set out the risks and associated costs in terms of reputation, as well as the potential legal consequences of doing business in the settlements.

41. The responses received from some of the 13 companies analysed in an earlier report (A/67/379) were mixed. Nonetheless, there have been a number of recent developments in relation to the involvement of other businesses involved in the settlements to indicate that public pressure and media attention does bring some ethical dividends, and has encouraged governments to be more vigilant.

42. Some positive developments in this regard include Royal HaskoningDHV, a Dutch company, which announced its decision to terminate a contract with the Jerusalem municipality to build a wastewater treatment plant in East Jerusalem in September 2013.[56] This was followed in December by the decision of Vitens, a Dutch water utility company, to cut its ties with Mekorot, the Israeli national water company, citing concerns in relation to the adherence of international laws.[57]  In August 2013, the Swedish-Norwegian bank Nordea excluded Cemex, one of the companies taken up in the Special Rapporteur’s earlier report from its investment portfolio, due to its extraction of non-renewable natural resources from occupied Palestine.[58] Such examples should lead the way for more countries and companies to follow suit, as well as alerting governments to their responsibility to urge companies subject to their authority to act in accordance with international law.

43. While due diligence on the part of businesses is an inherent aspect of corporate responsibility, Governments also have the obligation, as noted by the fact-finding mission on settlements, to take measures to ensure that they do not recognise an unlawful situation arising from Israel’s illegal activities.[59] In this regard, the European Union guidelines which establish that all agreements between Israel and the European Union for grants, prizes and financial instruments funded by the European Union must now unequivocally and explicitly indicate their inapplicability to the territories occupied by Israel in 1967 represents a step in the right direction.

44. The Special Rapporteur is also encouraged by the UK government’s recent issuance of guidelines to businesses, which for the first time outlines the risks of trading with Israeli settlements, and specifically warns of the legal and economic risks stemming from the fact that the Israeli settlements, according to international law, are built on occupied land and are not recognised as a legitimate part of Israel’s territory.[60]

  •      Trade with the settlements

45. The diligence shown by the European Union and some of its Member States on the responsibility of businesses operating in occupied Palestine naturally leads to the question: are the same human rights standards applied by countries when it comes to trade relations with the settlements? If the statements protesting the expansion of settlements issued by the European Union and the United States reiterate their illegality and illegitimacy, then their actions should also reflect a genuine commitment to human rights and respect for international law by ceasing trade with the settlements starting with a ban on imports of settlement produce.

46. While produce originating in the Israeli settlements are not entitled to benefit from preferential tariff treatment under the EU-Israel Association Agreement, fresh agricultural produce exported from the settlements – but mislabelled as ‘made in Israel’ – can still be found on many supermarket shelves across the European Union due to the voluntary nature of labelling requirements Considering the fact that the EU remains one of the most important trading partners for the settlements with annual exports worth $300 million, a ban on settlement produce would have a significant impact. It should also not be forgotten that trade with settlements has adverse ramifications for the Palestinian economy and is  linked to the violation of human rights with respect to Palestinian communities denied access to fertile agricultural land, water and other natural resources.

47. So long as illegal settlements are supported through trade, statements protesting the expansion of settlements from the main trading partners of Israel will have little resonance on the ground, and third party States will continue to be associated with the violation of human rights in occupied Palestine.

IV. The Gaza Strip

48. In the space of six years since this Special Rapporteur assumed this mandate, the population of the Gaza Strip has lived through two major Israeli military operations (Cast Lead in December 2008 to January 2009 and Pillar of Defense in November 2012), and endured Israel’s illegal blockade (in place since June 2007). Both conflicts inflicted disproportionate casualties and devastation on the Palestinian civilian population.  This has been well-documented by the United Nations.[61]

49. Since June 2013, the humanitarian situation in Gaza has worsened. In recent months, the destruction by the Egyptian authorities of most underground tunnels, which although problematic, had been a lifeline to the residents has had a particularly serious impact on the availability of fuel at affordable prices in Gaza. This has led to severe power shortages resulting in shut downs of sewage treatment facilities, and disruptions to specialized health services, such as kidney dialysis, operating theatres, blood banks, intensive care units and incubators, putting the lives of vulnerable patients in Gaza at risk.[62] The frequent closures of the Rafah crossing in recent months have generally prevented access to affordable health care in Egypt, which remains essential given the limitations of the Gaza health system.

50. The most egregious violations of human rights committed by Israel have been in its enforcement using excessive force, of arbitrary access to restricted areas at sea and on land, profoundly affecting the lives of Palestinian fishermen and agricultural farmers and   households dependent upon them. The more pervasive forms of human rights violations also linked to the blockade have been well documented by the Secretary-General (A/68/502), and include inter alia, severe movement restrictions into and out of Gaza from Israel and adverse impacts on the rights of Palestinians in Gaza to education, health and work. In addition, severe export restrictions (and limitations on imports) undermine the potential of the Gaza economy, and accentuate the impoverished conditions that prevail in Gaza.[63] The recent refusal of Israel to allow exports from Gaza to the West Bank, despite a Dutch donation of a container security scanner, is emblematic of the denial of the right to development in Gaza, and undercuts Israel’s claims that its actions are taken to serve genuine security concerns.[64]

  1. Question of apartheid and segregation

51. In 2011 (A/HRC/16/72), the Special Rapporteur reiterated the call made by his predecessor, John Dugard, in 2007 (A/HRC/4/17), for a referral to the ICJ for an advisory opinion on the question of whether “elements of the [Israeli] occupation constitute forms of colonialism and apartheid”.[65]More precisely, he recommended that the ICJ be asked to assess the allegations that the prolonged occupation of the West Bank and East Jerusalem possess elements of “colonialism”, “apartheid” and “ethnic cleansing” inconsistent with IHL in circumstances of belligerent occupation and unlawful abridgement of the right to self-determination of the Palestinian people”.[66] Since no advisory opinion has been sought following the aforementioned reports of successive Special Rapporteurs, the present report assumes part of the task of analysing whether allegations of apartheid in occupied Palestine are well-founded. It discusses Israeli policies and practices, through the lens of the international prohibition upon ethnic discrimination, segregation, and apartheid.

  •      Legal Framework

52. Apartheid is prohibited under international law, and Israel, as a State and an occupying power, is bound by this prohibition. Under the First Geneva Protocol, which is declaratory of international law and therefore widely regarded as universally binding, ‘practices of ‘ apartheid ‘ and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination’ are included as grave breaches[67]. Further, the International Law Commission (ILC) has recognised apartheid among the prohibitions that there seems to be “widespread agreement” constitute peremptory norms[68]. In addition, article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), provides that “States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction”[69]. At the second Universal Periodic Review of Israel in October 2013, South Africa recommended that Israel “Prohibit policies and practices of racial segregation that disproportionately affect the Palestinian population in the OPT”[70].

53. Apartheid involves the domination of one racial group over another, and some may argue that neither Israeli Jews nor Palestinians constitute racial groups per se. However, article 1 of CERD, in its definition of racial discrimination, makes it clear that “race” is in fact not the sole factor, but that racial discrimination may be based on “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin”. The CERD Committee has stressed that under the definition in article 1 “the Convention relates to all persons who belong to different races, national or ethnic groups or to indigenous peoples”[71].

54. The International Convention on the Suppression and Punishment of the Crime of Apartheid (AC) in article 2, provides a detailed definition of the crime of apartheid, providing that it “shall include similar policies and practices of racial segregation and discrimination as practised in southern Africa,” and applies to  “inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them”. The Rome Statute of the International Criminal Court (ICC) echoes these core elements (article 7.2(h)) and further specifies that for such acts to constitute “crimes against humanity” they must be “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. Without prejudice to any possible differences in the elements of apartheid as an international crime and an internationally wrongful act, apartheid will be treated as a single concept for the purpose of this report, which will be framed around the inhuman acts laid out in article 2 (a) – (f) AC[72].

  •      Acts potentially amounting to segregation and apartheid

55. Article 2 (a) concerns denial of the right to life and liberty of person, including by (i) murder; (ii) serious bodily and mental harm, infringement of freedom, and torture, and (iii) arbitrary arrest and illegal imprisonment. With respect to article 2(a)(i), continuing excessive use of force by Israeli Security Forces (ISF) and a lack of accountability for violations of IHL and international human rights law is well-documented by successive UN resolutions and reports[73]. Palestinians are killed as a result of regular Israeli military incursions into occupied Palestine; lethal use of force against demonstrators; official endorsement of targeted killings; and large-scale military operations.[74]

56. According to B’tselem, between 1987 and 2000 approximately 1,400 Palestinians were killed by ISF[75]. After the year 2000, deaths of Palestinians caused by the ISF accelerated with more than 6,500 deaths[76], as of October 2013. Of this number, over 3,000 were civilians not involved in hostilities. B’tselem’s statistics show that during Israel’s operation ‘Cast Lead’ in Gaza, of the 344 children reportedly killed, 318 did not take part in hostilities. During the same operation, of the 110 Palestinian women recorded as killed, two were police officers and the remaining 108 did not take part in the hostilities. During operation ‘Pillar of Defence’, approximately 100 Palestinian civilians were reportedly killed as a result of ISF actions, a third of whom were children.[77]

57. Additional deaths were caused by ISF’s policy of targeted killing which resulted in the killing of approximately 250 Palestinians in the aforementioned period. Moreover, on average, for every one person killed as a target of ISF, one or two other persons have been killed in any given operation. Thus, during the same period, more than 400 Palestinians who were not targets were also killed[78].

  1. 58.  Individual accounts by former Israeli Defence Force (IDF) soldiers, published by the Israeli NGO ‘Breaking the Silence’, bear witness to Israeli policy in respect to the occupied people: “Prevention of terror” is the stamp of approval granted to any offensive IDF action in the Territories, obscuring the distinction between the use of force against terrorists and the use of force against civilians. In this way, the IDF is able to justify actions that intimidate and oppress the Palestinian population overall.[79]

59. Under a simple interpretation the term murder, as referred to in the AC, signifies the unlawful taking of life. Therefore, the taking of lives – outside the limited circumstances in which IHL and international human rights law do not absolutely prohibit this – potentially constitutes an element of apartheid, in the context of a systematic and institutional regime in which these unlawful killings form part of acts carried out in order to maintain dominance over Palestinians. The relatively high proportion of civilian casualties caused by ISF in occupied Palestine is notable in this respect.

60. In regard to article 2(a) (ii) and (iii), detention by Israel of Palestinians is closely linked to the occurrence of torture and ill-treatment. According to the Prisoner Support and Human Rights Association, Addameer, in September 2013, there were some 5,000 Palestinian political prisoners, including 137 administrative detainees.[80]Many detainees are transferred to prisons in Israel, in violation of the Fourth Geneva Convention (art.76).[81]

61. In 2012, the CERD Committee urged Israel to end administrative detention, which is discriminatory and constitutes arbitrary detention under international human rights law. [82] Similar recommendations were made by a number of States during the most recent Universal Periodic Review of Israel.[83] The CERD Committee further recommended that Israel ensure equal access to justice for all persons living in territories under its effective control, noting that Jewish settlers in occupied Palestine are subject to a civil law regime, while a military regime applies to Palestinians in the West Bank, including East Jerusalem.

62. Despite the absolute prohibition of torture[84], Palestinians detained by Israel continue to be subjected to torture and ill-treatment[85]. Methods of torture and ill-treatment reportedly include: sleep deprivation; excessive use of handcuffs; beatings; verbal abuse; stress positions; solitary confinement; humiliation and threats of killing, sexual assault and house demolitions, against the detainee or his or her family[86].

63. In 1999 the Israeli High Court said that using certain methods of physical pressure for the purpose of “breaking” a detainee are unlawful and that interrogation methods must be fair and reasonable, and respectful of human dignity[87]. While representing an important recognition of the illegality of certain methods of torture employed against Palestinian detainees, the decision failed to outlaw torture by allowing the ‘ticking bomb’ or ‘necessity’ defence. According to Addameer, ‘necessity’ is used by interrogators as a blanket defence with little to no accountability[88].  The Public Committee against Torture in Israel reported that of 701 formal complaints of torture submitted from 2001-10, none resulted in a criminal investigation[89].

64. Palestinian children are not exempt. In 2013, UNICEF concluded that “Ill-treatment … appears to be widespread, systematic and institutionalized[90]” in the case of Palestinian children held in the Israeli Military detention system. Israeli authorities seem to have taken some limited steps towards meeting UNICEF’s recommendations[91], including by piloting test summons in two West Bank areas instead of conducting frightening night arrests of children[92]. While this is clearly a needed development, it also shows just how basic the denial and lack of protection of Palestinian children’s rights is under the Israeli military legal regime. By comparison, Israeli settler children in conflict with the law are subject to regular Israeli law. According to Defence for Children International, as of October 2013, 159 Palestinian children were in Israeli military detention[93]. On average, around 700 children are detained and prosecuted per year, most commonly on charges of throwing stones[94].

65. The regular denial by Israel of the right to life and liberty of significant numbers of Palestinians is reflected in its policies, laws and practices in occupied Palestine.

66. Article 2 (b) refers to the imposition of living conditions calculated to cause a group’s physical destruction in whole or in part. It seems unlikely that Israel’s policies, laws and practices can be said to have as their aim the physical destruction of the occupied people[95].

67. Article 2 (c) concerns measures calculated to prevent participation in the political, social, economic and cultural life of the country and the full development of a racial group, including and especially by denying them their rights to work, education, to leave and to return to their country, nationality, and freedoms of movement and residence, opinion and expression, and peaceful assembly and association.

Violations of many of these rights have already been touched on in preceding sections. For instance the violations by Israel of the rights to work, education, freedom of movement and residence, as well as freedom of expression and assembly have been illustrated in the context of discussing the wall and its associated regime, and policies and laws related to the development of settlements, including in East Jerusalem. The rights to work, and to freedom of movement, and to leave and return to one’s country, are particularly relevant to Gaza. In the West Bank, the denial of rights to Palestinians is made possible by the existence of parallel legal systems operating in the same territory: one set of civil and criminal laws for Israeli settlers and another for Palestinian Arabs, subject to Israeli military orders, as well as other laws. While the Israeli High Court of Justice formally exercises judicial oversight of the Israeli administration in occupied Palestine, according to NGOs, case law illustrates a trend whereby major policy decisions of government, e.g. relating to the wall and settlements, tend to be immune from judicial intervention, and that human rights and protection under international humanitarian law have not been adequately upheld by the High Court in its rulings[96].  The creation of Israeli legal zones for settlers and the resulting segregation was noted in the 2013 report by the independent fact-finding mission on settlements (A/HRC/22/63). The CERD Committee in 2012 expressed that it was “extremely concerned” at policies and practices amounting to de facto segregation and that it was “particularly appalled at the hermetic character of the separation of the two groups”[97].

68. It is clear that Israeli measures, in the form of policies, laws and practices, have the effect of preventing Palestinians from full participation in the political, social, economic and cultural life of Palestine and arguably also prevent their full development in both the West Bank and the Gaza Strip.

69. Article 2 (d) refers to measures, designed to divide the population along racial lines including by the creation of separate reserves and ghettos for the members of a racial group or groups, and the expropriation of landed property.

The expropriation of Palestinian land is an obvious part of the expansion of settlements and of the construction of the wall. The fragmentation of Palestinian land and creation of separate reserves and enclaves, including the plans threatening to cut off East Jerusalem from the rest of the West bank, is well-documented[98]. The final conclusions of the Russell Tribunal on Palestine (Russell Tribunal) state “Israel has through its laws and practices divided the Israeli Jewish and Palestinian populations and allocated them different physical spheres, with varying levels and quality of infrastructure, services and access to resources. The end result is wholesale territorial fragmentation and a series of separate reserves and enclaves, with the two groups largely segregated. The Tribunal heard evidence to the effect that such a policy is formally described in Israel as hafrada, Hebrew for “separation”[99]. The Special Rapporteur has previously drawn attention to the dual system of roads in the West Bank, as a clear example of segregation, where Palestinians are largely relegated to alternative roads and forced to take long detours[100].

70. It seems incontestable that Israeli measures do divide the population of OPT along racial lines, create separate reserves for Palestinians, and expropriate their land.

71. Article 2(e) refers to exploitation of the labour.

There exist historical reports[101]as well as current campaigns and reports[102] which address poor working conditions of Palestinian citizens working in Israel or in settlements. However, it is noted that there has been a sharp drop in Israeli use of Palestinian workers since the 1990s, especially as it is now impossible for Gazans to work in Israel and since in the West Bank the construction of the wall has further diminished the number of Palestinians working in Israel or for Israeli employers[103].

72. Article 2 (f) concerns persecution of those who oppose apartheid.

This provision potentially relates to a wide range of human rights violations against Palestinians in the OPT, who as a people desire self-determination and oppose the segregation, restrictions and discriminatory regime imposed by Israel on them. In this sense, the punitive response often meted out to those who demonstrate against the wall and its associated regime, or more oppose Israeli violations of human rights, arguably fall under this provision.

73. An individual case in point concerns the Palestinian human rights defender and a founder of non-governmental organizations Youth Against Settlements and Hebron Defenders, Issa Amro. In 2012, Mr. Amro was arrested and detained 20 times without charge[104]. At the time of writing, he had been detained multiple times in 2013 and had been hospitalised, allegedly following a beating by ISF while in detention. In August 2013, a number of Special Rapporteurs, including this Special Rapporteur, expressed deep concern at the alleged ongoing judicial harassment, intimidation and abusive treatment of him. According to the Special Rapporteur on the situation of Human Rights Defenders, Margaret Sekaggya: “This is an unacceptable campaign of harassment, intimidation and reprisals against Mr. Amro, and other human rights defenders who peacefully advocate for the rights of Palestinians in the West Bank, including by cooperating with UN human rights bodies”.

74. An example of an Israeli citizen, belonging to the Druze minority, who has reportedly been imprisoned for his conscientious objection to serving in the Israeli Army is Omar Saad. In an open letter to the Prime Minister and Minister of Defence he explained: “I couldn’t imagine myself wearing military uniform and participating in the suppression of my Palestinian people” and asking “How can I be a soldier standing at Qalandia checkpoint or any other checkpoint, after I experienced the injustices at these checkpoints? How can I prevent someone from Ramallah to visit his city, Jerusalem? How can I guard the apartheid wall? How can I be a jailer to my own people while I know that the majority of prisoners are freedom prisoners and seekers of rights and freedom?”[105].

75. It is strongly arguable that those who oppose Israeli measures amounting to apartheid risk persecution because of their opposition.

  •      Systematic oppression

76. None of the human rights violations discussed in the context of possibly constituting “inhuman acts” for the purpose of the AC or the Rome Statute can be said to be isolated events. Rather, their commission reflects systematic and discriminatory Israeli policies, laws and practices, which determine where in the occupied land Palestinians may or may not travel, live and work. Laws and policies have also institutionalised just how lightly a civilian Palestinian life may be weighed, when placed on the scales against claims of overarching security concerns, contrasting with the legal protection of the Israeli constitutional system given to unlawful Israeli settlers. The combined effect of the measures designed to ensure security for Israeli citizens; to facilitate and expand settlements; and it would appear, to annex land, is: “hafrada”, discrimination, and systematic oppression of, and domination over, the Palestinian people.

  1. Concluding Observations

77. Through prolonged occupation, with practices and policies of apartheid and segregation, ongoing expansion of settlements, and continual construction of the wall arguably amounting to de facto annexation of parts of the occupied Palestinian territory; the denial by Israel of the right to self-determination of the Palestinian people is evident. The ILC’s Draft Articles on State Responsibility provide guidance as to the consequences of serious breaches of peremptory norms under international law. In this respect there is authority[106] to suggest that the following prohibitions have attained the status of peremptory norms: Aggression through military occupation and imposition of military blockades on ports and coasts[107], racial discrimination and apartheid, and torture. In addition, the right to self-determination itself has been recognised as a peremptory norm[108] which applies erga omnes[109].

78. Under article 40(2) of the Draft Articles, for breaches of peremptory norms to be “serious”, they must “involve a gross or systematic failure of the responsible State to fulfil the obligation”. Without prejudice to an authoritative determination of whether the breaches of the discussed peremptory norms qualify as “serious”, it is noted that the violations discussed in the context of the prolonged occupation appear deliberate, organised, institutionalised and longstanding. ILC’s commentary considers it likely that competent international organizations, including the Security Council and the General Assembly address such serious breaches. The implications for Member States for serious breaches of this nature include an obligation to cooperate to bring an end to breaches; non-recognition of, and abstention from maintaining, the illegal situation[110].

79. Finally, from the point of view of international criminal law, with the General Assembly’s recognition of Palestinian statehood, the opportunity for Palestine to accept the jurisdiction of the ICC is now clear. While a declaration was already lodged by the Palestinian Minister of Justice in 2009 purporting to accept its jurisdiction “for acts committed on the territory of Palestine since 1 July 2002”[111], it seems the Court’s decision of 3 April 2012[112] on the question of jurisdiction, had the effect of closing the preliminary examination[113]. An acceptance of jurisdiction would potentially bring a measure of accountability for key individuals, and address violations related to the crime of apartheid and other issues flowing from the more than 400 communications on crimes allegedly committed in Palestine, received by the ICC Office of the Prosecutor since 2009[114].

  1. Recommendations

80. In this my final report, I take the opportunity to reiterate some past recommendations and add several new ones, namely that:

81. Palestinian legal rights, including the right of self-determination, be fully respected and implemented in attempts to reach a peaceful and just resolution of the conflict between these two peoples.

82. The General Assembly request the ICJ issue an advisory opinion on the legal status of prolonged occupation of Palestine, as aggravated by prohibited transfers of large numbers of persons from the occupying Power and the imposition of a dual and discriminatory administrative and legal system in the West Bank, including East Jerusalem, and further assess allegations that the prolonged occupation possesses legally unacceptable characteristics of “colonialism”, “apartheid” and “ethnic cleansing”.

83. The HRC appoint an expert group to propose a special protocol to the 4th Geneva Convention with the specific purpose of proposing a legal regime for any occupation that lasts for more than five years.

84. The international community comprehensively investigate the business activities of companies and financial institutions registered in their own respective countries, which profit from Israel’s settlements and other unlawful Israeli activities, and take appropriate action to end such practices and ensure appropriate reparation for affected Palestinians. Member States should consider imposing a ban on imports of settlement produce.

85. Future investigations consider whether other foreign corporate connections with unlawful occupation policies additional to settlements (e.g. separation wall, Gaza blockade, house demolitions, excessive use of force) should not be also deemed ‘problematic’ under international law,  and treated in a manner analogous to the recommendations pertaining to settlements.

86. The Government of Israel cease expanding and creating settlements in occupied Palestine, start dismantling existing settlements and returning its citizens to the Israeli side of the Green Line, provide appropriate reparations for the damage due to settlement and related activity since 1967, and act diligently to protect Palestinians living under Israeli occupation from settler violence.

87. The Government of Israel forthwith lift the unlawful blockade of Gaza, cease military incursions, allow Gazans to benefit fully from their natural resources situated within their borders or off the coast of Gaza, and take account of a deepening emergency in Gaza.

88. The HRC give increased attention to the failure by Israel to cooperate with the normal functioning of the United Nations by way of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967[115], and to the protection of Special Rapporteurs from defamatory attacks diverting attention from substantive issues integral to the mandate.


[1] I.C.J. Reports 2004 (Advisory Opinion), p.136

[2] ES-10/14 (2003)

[3] Op. cit. footnote 1, para.163 (3)

[5]  Advisory Opinion, p.82

[6] Some decisions of the Israeli High Court have reconnected communities with the West Bank. OCHA, Barrier Update (July 2011), p.4

[8] A designated ‘closed military zone’ between the wall and the Green Line

[11]OCHA, Barrier Update (July 2011), p.7, http://www.hamoked.org/files/2013/1157660_eng.pdf.  Also V. Tilley, Beyond Occupation, 2012, p. 151-155

[12]  Advisory Opinion, p.136

[13] OCHA, Barrier Update( July 2011)  p.13

[14] Documentation collected by OHCHR.

[19] The Special Rapporteur believes both re-routings of sections of the wall, and Palestinians leaving due to the wall and its associated regime, have  affected the decrease in numbers.

[20] OCHA, Barrier Update, July 2011, p.10

[23] A/ES-10/599

[24] Rules and Regulations governing the registration of claims, article 11(1). http://www.unrod.org

[25] A/HRC/RES/22/28

 [26] A/68/513 (paras.4-5)

[27] A/HRC/22/63

[28] Outposts are settlements which although often established with some kind of Government support are not officially recognized under Israeli law.

[29] A/63/326, A/HRC/13/53/rev1, A/65/331, A/HRC/16/72, A/66/358, A/HRC/20/32

[31] A/HRC/25/38, A/HRC/25/40, A/68/502 and A/68/513.

[35] A/68/513

[36] Among 136 West Bank settlements listed by Peace Now, 25 settlements falls under the type ‘quality of life’, 35 settlements fall under the type ‘quality of life/ideological’, 70 settlements fall under the type ‘ideological’ and six settlements fall under the type ‘ultra-orthodox’; http://peacenow.org.il/eng/content/settlements-and-outposts

[37] Palestinian Centre for Human Rights submission to Special Rapporteur, 22 November 2013

[39] A/68/513 (paras. 42-52)

 [44] A/HRC/25/38 (para.6)

 [47] A/65/331(para.14) and A/HRC/20/32 (para.32)

[48] A/68/513 (paras.30-33)

[51] EU Heads of Mission Jerusalem Report 2012

 [52] Submission to Special Rapporteur by the Civic Coalition for Palestinian Rights in Jerusalem (November 2013)

[54] EU Heads of Mission Jerusalem Report 2012

[55] A/67/379, A/HRC/23/21, A/68/376

[58] Palestinian BDS National Committee, submission to Special Rapporteur (November 2013)

 [59] A/HRC/22/63 (paras.116-117)

[61] A/HRC/12/48, A/HRC/22/35/Add.1 and A/HRC/23/21

[65]A/HRC/16/72, para8, A/HRC/4/17,para.10

[66] A/HRC/16/72, para.32(b)

                                     [67] Art. 85(4)(c), A/HRC /16/72

[68] Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries 2001. Arts.40-41 and commentaries.

[69] Regardless of the possibility that CERD’s inclusion of apartheid applies exclusively to South Africa, CERD prohibits all forms of racial segregation. General Recommendation XIX,1995

[70] A/HRC/WG.6/17/L.12

[71] A/54/18 (Annex V)

[72] Israel is not a party to the AC and it is debated whether it was intended to apply exclusively to South Africa. Nonetheless, it continues to inform the prohibition of apartheid in international law.

[73] A/68/502, A/67/372, A/66/356, A/65/366, A/HRC/22/35 and A/RES/67/118, A/HRC/RES/22/28 and A/RES/19/16

[74] Russell Tribunal, (2011).

[76] Ibid.

[77] A/HRC/22/35/Add.1

[78] Ibid.

[79] http://www.breakingthesilence.org.il/testimonies/publications. Occupation of the Territories 2000-2010.

[82] CERD/C/ISR/CO/14-16

[83] A/HRC/WG.6/17/L.12

[84] ILC Draft Articles 2001.

[85] A/68/379

[89] http://www.stoptorture.org.il/files/PCATI_eng_web.pdf

The formal complaints may not be representative of the actual number of victims.

                                     [91]

http://www.unicef.org/oPt/UNICEF_oPt_Children_in_Military_Detention_Bulletin_No_1_October_

2013.pdf

                        [95] The United Nations has questioned whether Gaza will be a liveable place in 2020 ( “Gaza in 2020: a liveable                                     place?” 2012). Considering the situation in Gaza,  the Russell Tribunal found Israeli policies aimed at causing                                     displacement of Palestinians, rather than their physical destruction (2011).

                                     [96] Information from Diakonia

[97] CERD/C/ISR/CO/14-16

[98] A/HRC/22/63

[99] Russell Tribunal, Final Conclusions 2007-13.

[100] A/HRC/16/72 (section IV)

[103] Russell Tribunal, (2011).

[106] ILC Draft articles 2001, Chap.III

[107] A/RES/3314(XXIX) Definition of Aggression

[108] ILC Draft articles 2001, Chap.III

[109] Ibid.

[110] Ibid, art.41

[115] In 2013, the Special Rapporteur joined 26 other independent experts in an appeal to Member States to cooperate with their mandates.

http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14083&LangID=E


 [RF1]I agree but substituted ‘some’ for ‘better’ (as there was none)

Syria: What to Do Now

26 Feb

 

            There is a new mood of moral desperation associated with the ongoing strife in Syria that has resulted in at least 135,000 deaths, 9.3 millions Syrians displaced, countless atrocities, Palestinian refugee communities attacked, blockaded, and dispersed, and urban sieges designed to starve civilians perceived to be hostile. As the second round of negotiations in Geneva-2 ended as fruitlessly as the earlier round, there is a sense that diplomacy is a performance ritual without any serious intent to engage in conflict-resolving negotiations. Expectations couldn’t be lower for the as yet unscheduled, but still planned, third round of this Geneva-2 process.

 

The Damascus regime wants an end to armed opposition, while the insurgency insists upon setting up a transition process that is independently administered and committed to the election of a new political leadership.The gap between the parties is too big, and getting bigger, especially as the Damascus government correctly perceives the combat tide as turning in its favor, leading the main opposition forces seemingly to seek to achieve politically and diplomatically what they appear unable to do militarily. Also, it is unclear whether the opposition presence in Geneva has the authority to speak on behalf of several opposition groups in the field in Syria.

 

In light of these frustrations it is not surprising to observe an acrimonious debate unfolding between American interventionists who believe that only force, or at least its threat, can thread the needle of hope. The interventionists, invoking the responsibility to protect norm that was used effectively to mobilize support in the Security Council to mandate a no fly zone in Libya back in 2011, suggest that such an approach should be used again in 2014 either to establish a no fly zone opening a corridor that will allow humanitarian aid to flow to besieged cities or to achieve regime change in Syria as the only way to end the ordeal by ridding the country of a governing process guilty of repeated mass atrocities against its own people.

 

The anti-interventionists point out that the Libyan precedent of 2011 is tainted by the deliberate expansion of the humanitarian scope of what was authorized by the UN Security Council to undertake a much wider campaign with the clear intent of regime change, which in fact ended with the capture and execution of Qaddafi, then the head of state in Libya. It is also somewhat tarnished by the post-Qaddafi realities of widespread militia violence and the failure to develop a coherent and legitimate governance structure. The anti-interventionist argue that introducing external military force almost always makes matters worse, more killing, more devastation, and no politically sustainable outcome, and there is no good reason to think this will not happen in Syria. Furthermore, without a Security Council mandate such a use of military force would once again be undertaken in violation of the UN Charter and international law as it could not be justified as self-defense.

 

Providing humanitarian relief in a situation mainly free of internal political struggle should be sharply distinguished from the realities amid serious civil strife. The response to the Somali breakdown of governability during the presidency of George H. W. Bush in 1992, is illustrative of a seemingly pure humanitarian response to famine and disease characterized by a posture of political non-interference and by the shipment of food and medical supplies to a people in desperate need. This contrasted with the supposedly more muscular response to a troubled Somalia during the early stages of the Clinton presidency in 1993 when the humanitarian mission was fused with anti-‘warlord’ and political reconstruction goals. Difficulties soon emerged as robust national armed resistance was encountered culminating in the Blackhawk Down incident that resulted in 18 deaths of American soldiers, prompting an almost immediate American pullout from Somalia under a cloud of intense criticism of the diplomacy of ‘humanitarian intervention’ within the United States. This had the disastrous spillover effect of leading the supposedly liberal Clinton White House to discourage even a minimal humanitarian response to the onset of genocide in Rwanda in 1994, which might have saved hundreds of thousand of lives.  In the Rwanda context the United States Government even discouraged a modest upgraded response by the United Nations that already had a peacekeeping presence in the country, and whose commander urged reinforcements and authority to protect the targets of genocidal massacres. This failure to act in Rwanda remains a terrible stain on America’s reputation as a humane and respected world leader, and is frequently interpreted as a racist disregard of threats confronting an African population when no major strategic interest of Western countries were present on the side of the victims.

 

The Syrian reality since its inception was dominated by a political uprising, later an insurgency, demanding regime change in Damascus.  It was also beset with a leadership deficit and by factionalism that only became worse with the passage of time. It was further complicated and confused by its proxy dimensions, both in relation to the supply of arms and with respect to diplomatic alignment.

 

The humanitarian relief argument to be credible, much less persuasive, needs to deal with the complexities of Somalia 2, and not act as if the humanitarian response can be addressed in detachment from the political struggle as was the case in Somalia 1. When political objectives become intertwined with a humanitarian rationale, forces of national resistance are activated on the reasonable assumption that the real goal of the mission is the political one, and the humanitarian relief is being used as a cover. As we can foresee, this complexity makes for a stiffer climb facing an advocate of humanitarian intervention in the current Syrian tragedy. There exists a more difficult burden of persuasion, although not an impossible one. Indeed, against the background of recent failed interventions, every proposed intervention confronts such a burden at some level. The Syrian case makes this burden more formidable, given the record of past interventions in the region and considering the mixture of forces that make up ‘the opposition,’ which is so far from unified even in carrying on the struggle against the Assad regime, on occasion diverting attention to take action against a rival faction.

 

In fact, the Syrian situation has an originality that makes the Somalia template clarifying, but hardly definitive. The Syrian political struggle is more acute and vicious than was the case in Somalia 2. Also the humanitarian crisis is deeper and the plight of many Syrians caught in the maelstrom of this horrifying war that is both internal and contains regional proxy elements in ways that make it more confusing as to the probable effects of threats and uses of force on behalf of genuine humanitarian goals.

 

My basic contention is that there are no easy answers at this stage as to what should be done about the Syrian situation, and dogmatic discourse for or against intervention misses the deeply tragic nature of the policy predicament for all political actors. I would feel more comfortable about the intervention debate if it were expressed in a discourse that accords prominence to the virtue of humility. Too much in Syria remains unknowable to have any confidence that a clear line of advocacy will be historically vindicated.

 

For me the fundamental question is what it is best to do or not do in such a desperate situation of radical uncertainty. It is not only that the interventionists, and perhaps the anti-interventionists are motivated by a convergence of humanitarian/moral considerations with geostrategic ambitions, but that the nature of these hidden calculations are discussed in governmental circles behind locked doors and transcribed in secret policy memoranda. Until we address these questions of consequences and secret goals in the context of uncertainty and unknowability, the public discourse on what to do about Syria offers limited insight into how best to evaluate policy options being endorsed by policymakers and leaders. I hope that such a discussion will ensue, and replace the rather pointless and dogmatic self-righteous indignation of both interventionists and anti-interventionists.

 

I remember hearing the senior State Department diplomat, George Ball, speak just weeks after he left the government in the closing years of the Vietnam War. His primary message was that he only began to understand the war when he stopped reading the cables, that is the secret highly classified messages being sent by the military commanders and their civilian counterparts in the war zone. In effect, rather than make policy more transparent its counter-intuitive reality was to shroud the reality of Vietnam in greater obscurity. It is easy to explain why. Those in the field were committed to achieving victory, and were determined to provide reassurance, however false, to the leaders back in Washington so that they could deal with growing anti-war pressures that were a combination of public fatigue after almost a decade of engagement  and skepticism based on what became known as ‘the credibility gap’ between the claims of continuing progress in the war and what was actually taking place in Vietnam.  

 

A Meeting with Ayatollah Ruhollah Khomeini 35 Years Ago

9 Feb

 

 

Exactly thirty-five years ago I had the experience of a lengthy meeting Ayatollah Ruhollah Khomeni in his tent where he received visitors in the Paris suburb of Neuphle-le-Chateau. It was several days preceding his triumphal return to Iran after almost 14 years of exile, mostly spent in Najaf, Iraq. I was returning to the United States after spending two weeks in Iran during the turbulent final stage of the revolution in Iran that was on the verge of victory. My presence in Iran was in response to an invitation from Mehdi Barzargon. 

 

I was accompanied by Ramsey Clark the former American Attorney General, and still then a prominent although controversial political figure in the country, and Philip Luce, a highly respected leader of a religious NGO who had distinguished himself by much publicized nonviolent civil initiatives of opposition to the Vietnam War. At the time, I was chair of a small American committee opposed to American intervention in Iran, and it was the activities of this group that I assume led to the invitation to get a first-hand look at the revolution. We met with a wide spectrum of Iranian religious and secular personalities, including the Shah’s last prime minister, Shapour Bakhtiar, and the notorious counter-insurgency diplomat, William Sullivan, who was appropriately the last American ambassador to Iran (there have been no diplomatic relations with Iran since 1979). While we were in Iran, the Shah left the country signaling the end of his monarchy, which occasioned at the time the largest mass display of joy that I have ever witnessed, with millions peacefully marching on the streets of Tehran in a festive mood. It was a remarkable outcome of this almost completely nonviolent challenge mounted against what had been considered one of the strongest military regimes on the entire planet and enjoyed the undivided support of the United States that had major strategic assets (surveillance capabilities in relation to the Soviet Union and a large detachment of military forces in several large bases).

 

Leaving the turbulent scene in Iran, and having the opportunity to meet with Ayatollah Khomeini climaxed this experience of touching the living tissue of revolution. In Iran, with crowds chanting his name and carrying posters bearing his image, it was clear that Khomeini was the iconic inspiration of the revolution that had unexpectedly managed to gain a victory over the Shah. We had little sense, however, of the sort of future Khomeini envisioned for himself or what his hopes were for the revolution. What was obvious from the moment we were seated cross-legged on the ground within his tent was the strength of his arresting presence, especially his shining eyes that seemed almost black.

 

What struck us immediately was his active mind and sharp intelligence. He wanted to know what we thought were American intentions now that the Shah was gone, and given the CIA role in the 1953 events that restored the Shah to power, whether the United States was ready to respect the outcome of Iran’s revolution. In turn, we asked about his hopes for the ‘Iranian Revolution.’ His response fascinates me to this day. First of all, he immediately corrected us insistently pointing out that what had just been completed was ‘an Islamic Revolution,’ that is, asserting as primary an identity associated with religious and cultural affinities rather than emphasizing the nationalist agenda of regime change that was the common way of interpreting what had happened in Iran. Khomeini went on to say that the importance of the unfolding of events in Iran related to the entire region, and subsequent history vindicated this expectation of regional transformations. Prefiguring the future tensions in the region, Khomeini spoke disparagingly about the Saudi Arabian dynasty, calling it ‘decadent’ and out of touch with its people. His emphasis was on the unacceptability of monarchy rather than on what was later emphasized by way of sectarian tendencies between Shi’a and Sunni tendencies in Islam.

 

Khomeini, then, explained his own role in Iran, saying that he entered the political domain because the Shah had “created a river of blood between himself and the people.” He added that he was looking forward to “resuming the religious life” upon his return to Iran, and would leave the governing process to others outside of the religious community, but drawn exclusively from the ranks of the religiously oriented supporters of the revolution. At first, as we know, Khomeini resumed his residence in Qom, a religious city filled with madrasas (or seminaries), but as the new leadership seemed to falter, his political role became more and more pronounced. By the time of the hostage crisis in late 1979, the radicalization and theocratic nature of the new political order became manifest, and Khomeini himself emerged as ‘the supreme guide,’ with the elected political leadership discharging the functions of government, but subject to his veto and vision.

 

There were other important pronouncements made during the meeting. We asked about the fate of minorities, specifically, Jews and Baha’i’s, who were seen as aligned with the Shah, and in jeopardy. Khomeini’s response was thoughtful, and suggestive of what would follow. He said, “For us, the Jews are an authentic religion of the book, and if they are not too entangled with Israel, they are most welcome in Iran, and it would be a tragedy for us if they left.” In contrast, “the Baha’i’s are not a genuine religion, and have no place in Iran.” Such attitudes did foreshadow both the hostile confrontation with Israel that intensified over the years, and the discriminatory approach taken toward the Bahai’s that at one stage approached a genocidal threshold. Both minorities felt uncomfortable living in an Islamic theocracy, and if they possessed the resources, mainly emigrated to friendlier national habitats.

 

Khomeini spoke at some length about the crimes of the Shah’s government, and the responsibility of its political entourage, suggesting the importance of individual accountability. He mentioned the Nuremberg trials of surviving Nazi political figures and military commanders after World War II as a useful precedent that would underpin the approach taken by the new Iranian leadership toward those who had carried out the repressive policies of the Shah, which included widespread torture and massacres of unarmed demonstrators.

 

As we know, this Nuremberg path was never taken by the new Iranian rulers.  The most prominent members of the inner circle of the Peacock Throne who had not fled the country were summarily executed without either indictments or trials. This was aptly treated by the outside world as an indication that the new governing process in Iran would turn out to be repressive and contemptuous of the rule of law. After the fact, it seemed rather obvious why the regime resorted to rough justice. Many of those who had shaped the revolutionary process had studied in Europe or America, and were recipients of economic assistance from Western governments, included funding from the CIA, and maybe performed political roles. Remember that during the Cold War era, Islamically oriented groups and individuals were looked upon as valuable allies in the West. This was due in Iran to their deep dislike of Marxism and the Soviet Union. Sullivan informed us during our visit to the American Embassy that Washington had prepared 26 scenarios of potential political dangers for the Shah, and not one of them had posited Islamic opposition as a threat.

 

Reflecting on this meeting more than three decades ago several strong impressions remain. First, the almost archetypal reality of Khomeini as the embodiment of an Islamic religious leader, who despite a physical frailness, exhibited great strength of mind and will combined with a demeanor of austere severity. Secondly, his vision of an Islamic political future that was rooted in religious and civilizational affinities rather than based on national borders. Thirdly, the discrepancy between his assertions that upon returning to Iran he would resume the pursuit of his religious vocation and his emergence as the dominating political figure who moved from Qom to Tehran to preside over the drafting of a new and suppressive theocratic constitution and the formation of the government.

 

I have thought often, especially about this last observation, and discussed its core mystery with friends. This remains my question: did Khomeini change the conception of his role upon returning to Iran, or did he hide from us either consciously or unconsciously his real game plan? As far as I know, no one has provided a credible explanation. It may be that Khomeini during his long exile underestimated his popularity in Iran, which he reassessed after receiving such a tumultuous welcome when he returned or that he found that the liberal Islamists (such as Bani Sadr, Barzargon, Ghotbzadeh) he was relying upon to manage the government were not committed to the kind of revolutionary future that he believed to be mandated by the Iranian people or upon his return he was pushed by other imams ‘to save the revolution’ from this first wave of post-Shah politicians who had mainly lived in the West and were not trusted in Iran. However such issues are resolved, it is clear that the Islamic Republic that emerged in Iran resembled the kind of ideal design of Islamic government that Khomeini had depicted in a series of lectures on ‘Islamic Government,’ which was published in 1970.

 

There is one further reflection that bears on the present course of events in the Middle East in this period three years after the Arab Spring. Khomeini by insisting on all or nothing in the struggle against the Shah did create a transformative moment in which an Iranian transition to a truly new political order took place. In contrast the 2011 militants in Tahrir Square were content with the removal of the despotic leader and some soft promises of democratic reforms, and ended up succumbing to a counter-revolutionary tsunami that has reconstituted the repressive Mubarak past in a more extreme form. This does not imply that what has unfolded in Iran was beneficial, only that it was a decisive break with the past, and in this crucial sense, ‘revolutionary.’ In this respect, Ayatollah Khomeini was a true revolutionary even if his goal was to turn the clock back when it came to modernity, including secular values.

 

 

OMAR: Uncovering Occupied Palestine

4 Feb

 

            OMAR is the second film directed by Hany Abu-Assad to be a finalist among foreign language films nominated to receive an Oscar at the 2014 Academy Awards ceremony on March 2nd. The earlier film, PARADISE NOW (2005), brought to life the preoccupation at the time with suicide bombing as the principle tactic of Palestinian resistance by exposing the deep inner conflicts of those who partake, the tragic effects of such terror on its Israeli targets, and the hardened manipulative mentality of the leaders who prepare the perpetrators. Abu-Assad born in 1961 in Nazareth, emigrated to the Netherlands in 1980, writes the screen plays for his movies as well as directs. He has a profound gift for story telling that keeps an audience engaged with the human drama affecting the principal Palestinian characters while illuminating broader issues of profound moral and political concern without stooping to didactic means of conveying ‘the message.’ So understood, Abu-Assad’s achievement is artistic in the primary sense, yet attunes us to the dilemmas of oppression and servitude.

 

            In these respects OMAR is superior even to PARADISE NOW, telling the story of what life under Israeli occupation means for the way Palestinian lives are lived, the normalcy’s of romantic attraction contrasting with the abnormalities of humiliating lives lived behind prison walls. The film opens with Omar climbing the high domineering security wall to overcome the separation of Arab families living on either side, being detected by the Israeli guards who sound sirens and fire a shot. Omar manages to clamor back down and leap to safety. Israeli police on foot and in cars pursue Omar through the alleyways and streets of an impoverished Palestinian neighborhood. The underlying poignancy of Omar’s situation is to be at once ‘a freedom fighter’ and a sensitive young man deeply in love with Nadia, the younger sister of Tarek, his militia commander. In an unspoken realism, Omar is unconditionally bound to both causes, jeopardizing his chance to live a shadow life of acquiescence to the realities of occupation by his choice to dedicate himself at great risk and little hope to the liberation of the Palestinian people and their land.

 

            The wall reinforced by the Israeli security forces, portrayed as cunning and unscrupulous, with an occupiers’ fear and loathing for those who cower under the rigors of occupation, provides an unforgettable visual metaphor that captures the daily ordeal of the Palestinian people. In a subtle touch, the rope used by Omar throughout the film to avoid the checkpoints and overcome the separation of his home from that of Tarek and Nadia also conveys an understanding that the wall is much more about humiliation and land than it is about security. The rope remains untouched during the entirety of the film, although its presence and illegal use must have been obvious to the Israeli occupation forces that never bother to remove it.

 

            What emerges most vividly as the story unfolds is the dehumanizing effects of prolonged occupation. Omar and Nadia have charm and humor to give their love for another an unforgettable credibility that is brought to life by their awareness of what it means to live without the right to travel beyond the wall. They talk in the language of fantasy about where to go on their honeymoon: he proposes Mozambique, she counters with Bangla Desh, and then more truly, admits that Paris is her dream, while they both fully realize that they will never get the opportunity to get beyond the dingy confines of the West Bank. Nadia’s biggest trip outside of her immediate neighborhood was a visit to Hebron, the tensest, most humiliated city in occupied Palestine, notorious for daily settler violence against the large residentPalestinian community.

 

            The film conveys better than any book the interactive intimacies of occupier and occupied. The Israeli lead security agent, Rami, calls his mother to ask her to pick up his daughter from school, and when she asks why he can’t do it, he responds “I am stuck in the middle of the fucking West Bank.” Yet the most abiding realization is the horrible dehumanizing effects of this mixture of fear and hatred in contexts of unspeakable inequality, with total control seemingly on one side, and complete vulnerability on the other side. The torture scenes, like the wall, are both horrible in their own enactment, but also metaphors of what it means to live your entire life within master/slave structures of relationship.

 

            The reality of Palestinian violent resistance has two important consequences even though it seems currently futile from the perspective of challenging the occupation in any way that promises to liberation: it gives dignity to Palestinians who seem united in their will to live-unto-death despite their defenselessness and it makes Israelis vulnerable despite their seeming total control of the situation as a result of their weaponry, police, surveillance technology, and arrogant sense of racial superiority. In effect, the desperate slave when life is deprived of all personal meaning can sacrifice himself in a symbolic act of vengeance, and inflict pain and loss on the master. Seen from an Israeli perspective, there is no way to achieve total security (this side of total genocide) no matter how clever, sophisticated, and oppressive the systems of control put in place. Technology is incapable of doing the whole job, and for this reason, human fallibility always produces some sort of payback from the incompletely vanquished subjugated population.

 

            For this reason, from the Palestinian side, nothing is worse that becoming a collaborator, and yet only a hero among heroes, would have the super-human capacity to avoid such a fate given the brutality used by Israelis to acquire the information they need to enforce their will on a hostile population. For the occupier recruiting collaborators is a vital part of improving security; for the occupied, it is the final humiliation, making the fate of the traitor far worse than that of the slave. Omar is portrayed in a fascinating manner because he succumbs, and yet in the end he doesn’t succumb. Amjad, his friend collaborates with the Israelis to steal Omar away from Nadia, with the biopolitical insight that romantic longings may take lethal precedence over political loyalty and lifelong friendship. In this respect, the power of love is greater than the power of power. The film also is faithful to the traditional social norms that bind Palestinians to family relations in ways that also enslave, including the total disempowerment of women. Nadia is portrayed as strong in her dual attachments to love and resistance, and yet is deprived by Palestinian norms of freedom in relation to her body and choice of partner. In this sense, Nadia is doubly occupied.

 

            OMAR makes no effort to depict the larger issues of resistance tactics, to portray some vision of a realizable peace, or to bring into play the behavior of politicians, the UN, the international community. Such considerations are ignored, and seem irrelevant to the forces that impact daily on Palestinian lives. It takes the present as a seemingly permanent given, in effect, a society of prisoners sentenced for life with no hope for parole or escape. So understood, the actual Israeli prison that is depicted in the film is a prison within a prison, that is, a walled enclave that exists within a walled country.

 

            The great achievement of Hany Abu-Assad in this film is to make you feel and think, and maybe hopefully act. I left the theater with the overriding sense that the continuation of this occupation is intolerable for both sides, that it dehumanizes Israelis as much as it does Palestinians, two peoples caught in a vicious circle of subjugation and resistance. But not equally so caught as the masters live life in more satisfying ways than the slaves, at least for now, at least until the walls come tumbling down.

 

Imperiled Polities: Egypt and Turkey—Two Visions of Democracy

25 Jan

 

The Meaning of a 98.1% Vote

 

In mid-January there was a vote in Egypt as to whether to approve a constitution drafted by a 50-person committee appointed by the interim government put in place after the military coup carried out on July 3, 2013. The constitution was approved by 98.1% of those who voted, 38.6% of the eligible 53 million Egyptians. This compares with 63.8% support received by the constitution prepared during the presidency of Mohammed Morsi from the 32.9% of the Egyptian citizenry that participated in the vote. It should be observed that this new constitutional referendum was boycotted by both the Muslim Brotherhood and various of the youth groups that has been at the forefront of the anti-Mubarak upheaval in 2011. Also the validity of the vote was further discredited because of the atmosphere of intimidation in Egypt well conveyed by the pro-coup slogan: “You are either with me or with the terrorists.” Not only had the MB been criminalized, its assets seized, its leaders jailed, its media outlets shut down, but anyone of any persuasion who seemed opposed to the leadership and style of General el-Sisi was subject to arrest and abuse.

 

In the background here are questions about the nature of ‘democracy,’ and how to evaluate the views of people caught in the maelstrom of political conflict. On one level, it might seem that a vote of over 90% for absolutely anything is an expression of extraordinary consensus, and as a result el-Sisi’s constitution is far more popular than Morsi’s constitution, and hence more legitimate. Reflecting on this further makes it seem evident, especially when the oppressive context is to taken into account that the one-sided vote should be interpreted in the opposite manner, making Morsi’s vote more trustworthy because it reached plausible results. Any vote in a modern society that claims 98.1% support should be automatically disregarded because it must have been contrived and coerced. In effect, we cannot trust democratic procedures to reveal true sentiments in a political atmosphere that terrorizes its opponents, and purports to delegitimize its opposition by engaging in state crime. The consent of the governed can only be truly ascertained if the conditions exist for the free and honest expression of views for and against what present power-wielders favor.

 

Maybe, however, the connections made between democracy and legitimacy, seeking this populist signal of approval by the ritual of a vote, is itself a kind of blindfold. It would seem that a majority of Egyptians did, in fact, welcome the el-Sisi coup, believing that a military leadership would at least ensure food and fuel at affordable prices and restore order on the streets. In other words, most citizens in crisis situations posit order and economic stability as their highest political priorities, and are ready to give up ‘democracy’ if its leaders fail to meet these expectations. In my view, what has happened in Egypt is the abandonment of the substance of democracy by the majority of the Egyptian people, as reinforced by the suppression of a minority hostile to the takeover. This dynamic is hidden because the discourse and rituals of democracy are retained. It is this process that I believe we are witnessing as unfolding in Egypt. In effect, polarization of the first two-and-half years following the overthrow of Mubarak has been followed by the restoration of autocratic rule, but due to the intervening embrace of political freedom, however problematic, the new autocrat is even harsher than what was rejected at Tahrir Square three years ago.

 

The Politics of Polarization and Alienation  

 

Amid this political turmoil that has been spoiling the politics of the Middle East is a conceptual confusion that contributes to acute political alienation on the part of those societal elements that feel subject to a governmental leadership and policy agenda that is perceived as hostile to their interests and values. Such circumstances are aggravated by political cultures that have been accustomed to ‘one-man shows’ that accentuate tendencies toward adoration and demonization. Each national situation reflects the particularities of history, culture, values, national memories, personalities, and a host of other considerations, and at the same time there are certain shared tendencies that may reflect some commonalities of experience and inter-societal mimicry, as well as the deformed adoption of Western hegemonic ideas of modernity, development, constitutionalism, and governance, as well as of course the relationship between religion and politics.

 

The recent disturbing political turmoil in Turkey and Egypt, each in its own way, is illustrative. In both countries there are strong, although quite divergent, traditions of charismatic authoritarian leadership, reinforced by quasi-religious sanctification. Very recently, however, this authoritarian past is being challenged by counter-traditions of populist legitimacy putting forward impassioned demands for freedom, integrity, equity, and inclusive democracy, which if not met, justify putting aside governmental procedures, including even the results of national elections. Within this emergent counter-tradition is also a willingness to give up all democratic pretensions so as to restore a preferred ideological orientation toward governance, that is, resorting to whatever instruments are effecting in transferring control of the state back to the old order that had lost control of the governing process by elections, and had poor prospects of democratically winning power in the future.

 

In Egypt, this circumstance led to unconditional opposition to the elected leadership, especially to Mohammed Morsi, the president drawn from the ranks of the Muslim Brotherhood. The aim of this opposition, whether or not consciously espoused, seemed to have been to create a crisis of governability of sufficient depth to provoke a crisis of legitimacy, which could then produce a populist challenge from below that brought together ideological demands for a different orientation and material demands for a better life. It is true that Morse lent a certain credibility to this rising tide of opposition by a combination of incompetence and some clumsy repressive moves, but this was almost irrelevant as his secular and fulool opponents wanted him to fail and never allowed him even the possibility of success. For such opponents, the idea of living under a government run by the MB was by itself intolerable. In the end, many of those who had pleaded so bravely for freedom in Tahrir Square were two years later pleading with the armed forces to engage in the most brutal expressions of counter-revolutionary vengeance. Whether this will be the end of the Egyptian story for the near future is difficult to discern, the downward spiral suggests insurrection and strife for the foreseeable future.  

 

In Turkey, such a collision has recently produced turmoil and highlighting the dangers and passions that accompany lethal polarization, initially, in the encounters of the summer of 2013 at Gezi Park and some months later in a titanic struggle between Tayyip Recip Erdogan and Fetullah Gulan generating a rising tide of mutual recriminations and accusations that threatens the AKP dominance of the political process, a threat that will be soon tested in the March local elections, especially those in Istanbul and Ankara. Turkey is different than Egypt in at least two major respects. First of all, its economy has flourished in the past decade, producing a rising middle class, and a business community with lots to lose if investor confidence and currency exchange rates decline sharply. This reality is complicated by the fact that part of those that have gained economically have been aligned with the AKP, and by the degree to which the Turkish armed forces are also major stakeholders in the private sector. Secondly, a major achievement of the AKP leadership has been to depoliticize the role of the Turkish military, partly to protect itself against interference and partly to satisfy European Union accession criteria.

 

Alienation and emotional distress is more a symptom than an explanation of why there exist such strong political tensions. Better understood, these conflicts are about class, religion, status, political style, the benefits of governmental control, and availability of capital and credit. An additional source of public antagonism is the unresolved, and mostly unacknowledged, debate about the true nature of democracy as the legitimating ideal for good governance in the 21st century. One perplexing element is language, especially its use by politicians concerned with public opinion. There is this impulse on one side to base governmental legitimacy on pleasing the citizenry, and the impulse on the other side is to insist upon fidelity to law and constitutionalism. Both sides have powerful arguments that can be invoked to support their claims. There is no right and wrong, which is infuriating for polarized discourse that can only raise its voice to shout in higher decibels, but can never reach a conclusion of the sort that might resolve a scientific debate or solve a mathematical puzzle. Each side is motivated by unshakeable convictions, and has no disposition to listen, much less appreciate, what the others are saying. In effect, good governance is impossible in the absence of community, and what has become evident is that society unity is currently unattainable in the presence of the sort of alienation that has gripped the publics in Egypt and Turkey, and elsewhere. 

 

Part of the controversy, but only part, can be reduced to these differences over the very nature of democracy. Another part, as discussed in relation to the vote on the Egyptian constitution, involves the abandonment of democracy in substance while insisting on its retention in form.

 

Varieties of Democracy

 

The word democracy itself needs to be qualified in one of two ways: majoritarian or republican. And here is the central tension: the public myth in all countries that deem themselves ‘modern’ endorse the republican tradition of limited government and internal checks and balances, while the political culture is decidedly ambivalent. It can spontaneously legitimize the majoritarian prerogatives of a popular leader with strong backing on the street and among the armed forces, even at the cost of republican correctness. Because of this reality, there exists a tendency by those social forces being displaced through societal power shifts to view a newly ascendant leader through a glass darkly. They suddenly lament authoritarian tendencies that never troubled them in the past when their elites held the reins of governmental authority. Part of the recent confusion is that sometimes the authoritarian tendency gets so corrupted that it loses support even among those who share its class and ideological outlook, and a reformist enthusiasm emerges. This happened in Egypt, but its tenure was short lived as its adherents, drawn from the ranks of the urban educated elites, quickly realized that their interests and values were more jeopardized by the ‘new’ order than it had been by the excesses of the ‘old’ order. 

 

We find in Egypt this pattern played out through the wildly gyrations in the perception of the armed forces as a political player. In the Mubarak Era the armed forces were the central pillar of the state, and a major beneficiary of governmental corruption, neoliberal inequities, and a principal perpetrator, along with other security forces, of state crime. In the Morsi period of governance the armed forces seemed to stay in the background until either responding to or prompting the populist mandate of the opposition exhibited by mass demonstrations and media mobilization based on a paranoid image of Muslim Brotherhood rule and widespread genuine distress about economic stagnancy and political disarray.

 

After the July 3rd coup led by Morsi’s Minister of Defense, General Abdel Fattah el-Sisi, the armed forces set aside the constitution, installed a transitional government, promised new elections, and set about drafting a constitution that embodied the hegemony of the armed forces. What has taken place, however, is an undisguised exercise of authoritarian closure based on declaring the former choice of the citizenry, the Muslim Brotherhood, to be a ‘terrorist’ organization whose leadership were victims of several atrocities, imprisoned, forced underground, and fled the country. Nevertheless, despite these repressive measures, the armed forces are proceeding on a basis as if their action has been mandated by ‘democracy,’ that is, by majoritarian demands for change enacted on the streets of Egyptian cities and through the subsequent endorsement of the repressive steps to be undertaken by the regime, eventually validated through demonstrations, voting, and electoral ratification. In the background of such a counter-revolutionary turn, of course, were weak institutions of government accustomed to operate for decades within a strict authoritarian political space, and a governmental bureaucracy whose judiciary and police continued to ideologically aligned with the old order. Such an entrenched bureaucracy seems to have regarded the reemergence of authoritarian and militarized politics as natural, linked in their imaginary with Egypt’s ancient heritage of greatness and more comfortable with such domineering figures as Nasser and Mubarak as compared to the density and seeming incapacities of Morsi.

 

Challenging Democracy in Turkey

 

The situation in Turkey is much more subtle and less menacing, yet exhibits several analogous features. Despite the outcome of elections that brought the AKP to power initially in 2002, a development subsequently reinforced by stronger electoral mandates in 2007 and 2012, most of the opposition never accepted these results as politically acceptable, and immediately sought to undermine the elected leadership in a variety of legal and extra-legal ways. In the background of this alienation was the implicit and feared belief that the AKP was mounting a challenge to the hallowed legacy of Kemal Ataturk, as well as to the rigid Turkish style of secularism that was periodically reinvigorated by the armed forces that staged coups, which in 1982 had imposed a highly centralized, security oriented constitution on the country. With political acumen, the AKP maneuvered pragmatically in an impressive manner, creating a rapidly growing economy, seeking to play a conflict resolving role throughout the Middle East, and repeatedly proclaiming a fidelity to the secular creed as the foundation of public order, and by stages subjecting the armed forces to civilian control. Despite the magnitude of these achievements the AKP and Erdogan never gained an iota of appreciation or respect from the anti-religious Kemalist opposition that claimed to be the only legitimate guardians of Turkish ‘secularism.’  Strangely, this alienated opposition was never able to present a responsible political platform that could give the Turkish people a positive alternative, and so the prospects of mounting an electoral challenge remained poor, especially given the accomplishments of the AKP.

 

In such a setting this intensely alienated opposition seemed increasingly dependent on manufacturing a crisis of legitimacy that would restore the old state/society balance that had prevailed since the founding of the republic in 1923. The Ataturk legacy included a somewhat reluctance acceptance of procedural democracy in the form of free and fair elections with the apparent implied assumption that the outcome would remain faithful to his modernist orientation, modeled on Europe, that accompanied the founding of the republic. The range of opposition was limited by a law allowing the closure of political parties that seemed to be straying from the prescribed Kemalist path. When the AKP defied these expectations in 2002, the opposition became quickly fed up with the workings of  ‘democracy,’ and seemed early on to count on being rescued, as in the past, by a military intervention that they hoped would be encouraged by the U.S., which was assumed to be unhappy about the Islamist leanings attributed to the AKP political base and leadership.  The disappointment among the old secular elites arising from the failure of these expectations to materialize deepened the alienation and frustrations of opposition forces, especially on the part of urban elites in the main cities of Turkey in the western part of the country, which exaggerated the faults of the government and ignored its achievements.

 

With such considerations in mind it was understandable that there would be exhilaration among the opposition generated by the Gezi Park demonstrations in the summer of 2013, especially in its initial phases that were as much a protest against the AKP’s embrace of an environmentally rapacious neoliberalism as it was against the authoritarian excesses of the Erdogan leadership. This enthusiasm weakened when the Gezi movement was substantially hijacked in its subsequent phases by the most extreme tendencies of the alienated opposition, which seemed to believe that Gezi presented an opportunity to fashion a full-fledged crisis of governability out of this narrowly focused protest that might force the resignation of Erdogan, if not the collapse of the AKP. There was an attempt to take advantage of escalating public outrage that resulted after excessive force was used by the police to maintain order in the Gezi context. Of course, Erdogan’s harsh style of discourse, including off the cuff opinions that reflected his Islamic devoutness, were part of the broader political atmosphere, and were particularly alarming to an already alienated opposition, reinforcing their their underlying beliefs that any alternative would be better for Turkey than what the AKP was bestowing upon the country. The situation was aggravated  after the AKP electoral success in 2011. It seemed to give Erdogan confidence that he need no longer adhere to his earlier cautiously pragmatic approach to leadership, and he adopted the sort of swagger that both frightened and disgusted an opposition that was not inclined to give him any leeway.

 

Similarly, the more recent, unexpected, and still obscure and bitter public falling out between the AKP and the hizmet movement has injected a new virus into the Turkish body politic posing unpredictable threats. It may turn out that this conflict represent nothing more fundamental than a struggle for relative influence and power that calmer minds will resolve before long. Perhaps also Turkey is experiencing some of the almost inevitable mishaps associated with keeping one political party with a strong leader in power for too long. Such prolonged control of government almost always produces scandal and corruption, especially in a political culture where the rule of law and the ethics of civic virtue do not have a very strong grip on behavioral patterns. In the more distant Turkish past are the memories of Ottoman times when the country was a regional power center, governed by highly authoritarian figures, a hallowed past that was secularized in the last century but not challenged in its essential role in Turkish political culture.

 

Majoritarian and Republican Democracy Assessed

 

With this mix of considerations in mind, the distinction between ‘Majoritarian Democracy’ and ‘Republican Democracy,’ although simplifying the actual political texture, seems important.  In Majoritarian Democracy the leadership is essentially responsible to the electorate, and if its policies reflect the will of the majority, the views and values of opposed minorities need not be respected. Critical views treat such forms of government as susceptible to the ‘tyranny of the majority,’ which has subjective and objective realities distinguishing between what is perceived and what is actually taking place. Arguably after Morsi’s election in 2012, and given the embittered opposition that seemed unwilling to accept the outcome of the vote, the Muslim Brotherhood used the prerogatives of office in a failed attempt to impose the majoritarian will, and may itself have been prepared to change the rules of the political game so as to retain control. Part of the majoritarian mentality is to locate a check on its excesses in the will of the citizenry, and thus when the people are mobilized to demand a new leadership for the country without waiting upon the niceties of the next elections, the path is cleared for the sort of military takeover that occurred last July. Of course, majoritarian dynamics are subject to manipulation by anti-democratic forces whose zeal is directed toward gaining control of the state.

 

‘Republican Democracy’ in contrast starts with a generally skeptical view of human nature, and seeks above all to find procedures and support the nurturing of a political culture that prizes moderate government over efficiency and transcendent leadership. The American self-conscious adoption of Republican Democracy at the end of the 18th century, as spelled out for the ages in The Federalist Papers, is a classic instance of molding a constitutional system that was wary of majorities and protective of minorities and of individual rights ( although totally blind to the human claims of slaves and native Americans). Unlike Egypt or Turkey, Americans were seeking to arrange a different future for themselves than was associated with British royalism, and its absolutist pretensions. In the background, were political thinkers such as John Locke with a stress on the link between good governance and rights and Montesquieu who argued along analogous lines about the cardinal relevance of separation of powers to the avoidance of the concentration and excesses of state power. Delinking government from religious claims of certainty was also consistent with republican sensitivity to human flaws and the general ethos of Lord Acton’s famous saying ‘power corrupts, and absolute power corrupts absolutely.’

 

Because over time every political system faces crises, the American founders realized that the envisioned arrangements would only survive the tests of time if two conditions were realized: first, reverence for the constitution by both lawmakers and citizens, and secondly, judicial supremacy to override legislative and executive swings toward either implementing the momentary passions of the mob or aggrandizing power and authority, and thereby upsetting the delicate balance of institutions. Despite this self-conscious commitment to the republican approach, in times of war and crisis, the democratic feature of accountable power-wielding tends to yield to claims of national security and public expediency. And once such departures from republicanism become entrenched, as a result of a long period of warfare or in relation to nuclear weaponry, and now transnational terrorism, the authoritarian genie is able to escape from the constitutional bottle. As the American motto of ‘eternal vigilance’ reminds us, there are no safe paths to moderate government, and its most influential advocates realized that their wishes might be so defeated that they recognized that the people enjoyed ‘a right of revolution’ if despite all precautions the governing process had become despotic.

 

It need hardly be argued that neither Egypt nor Turkey are remotely similar to the United States or Europe, but the superficial embrace of democracy by these and other countries might benefit from examining more closely the menace of Majoritarian Democracy in a fragmented polity and the difficulties of establishing Republican Democracy in political cultures that have been so long dominated by militarism and authoritarianism. Egypt is experiencing the essentially anti-democratic restoration of authoritarian militarism, while Turkey is trying to preserve sufficient stability and consensus to enable the self-restrained persistence of procedural democracy and a successful process of constitutional renewal that rids the country of the 1982 militarist vision of governance, and moves toward creating the institutional and procedural frame and safeguards associated with Republican Democracy. Beyond this, however, will be the immense educational challenge of shaping a supportive political culture that entrenches republican values in public consciousness, above all a respect for individual and group rights and an inclusive approach to policy formation that seeks participation by and approval from stakeholding constituencies opposed to the majority. Such a vision of a democratic future for Turkey implies a process, not an event, and will require an ongoing struggle inevitably distracted by both manufactured and authentic crises of legitimacy. The hope is that moderate minds will prevail, serving the long-term interests of a state and its peoples that retain great potential to be a beacon of light for the region and beyond.

 

  

An American Idol: Should the United States ‘Govern’ the World?

21 Jan

(Prefatory Note: this post consists of a much expanded text of an opinion piece that was published by AJE on January 18, 2014; it seeks to discredit imperial and neoliberal claims that the United States is a benevolent hegemon, providing global public goods to the world as a whole, including  supposed geopolitical and ideological rivals)

 

 

            It might not have seemed necessary in the 21st century to ask or answer such a ridiculous question. After all, in the last half of the prior century European colonialism collapsed politically, morally, and even legally, its pretensions and cruelties thoroughly exposed and totally discredited. As well, the Soviet empire fell apart. And yet there are those who muster the temerity to insist that even now it is only the global governing authority of the United States that underpins the degree of security and prosperity that currently exists in the world. Without such a role played by the United States, this reasoning alleges, there would be widespread chaos, economic stagnancy, and far more frequent international warfare. Not surprisingly, the proponents of this conception of world order as dependent on U.S. military, economic, diplomatic, and ideological capabilities are themselves exclusively American. It is even less surprising that the most articulate celebrants of this new variant of a self-serving imperial approach to global security and prosperity are situated either in mainstream academic institutions or in supposedly liberal media outlets.

 

            I consider Michael Mandelbaum to be the most unabashed and articulate advocate of this American ‘global domination project’ that he felicitously calls ‘the world’s de facto government.’ He champions this role for his country in book after book starting with The Case for Goliath: how America acts as the world’s government in the twenty-first century (2005), followed by Democracy’s Good Name: the rise and risks of  the world’s most popular form of government (2007), and then by Frugal Superpower: America’s global leadership in a cash-strapped era (2010). Mandelbaum’s one-eyed approach has been repeatedly endorsed and embraced by the neoliberal media star, Thomas Friedman. They even partnered as guru and pundit to collaborate on a tract (That Used to be Us: how America fell behind in the world it invented and how we can come back (2012)) arguing ever so coyly that the world is far better off to the extent that others leave their political destiny in the trustworthy hands of White House and Pentagon policy planners. Such an outlook would certainly please the global snoopers in the National Security Agency (NSA). For those with some institutional memory, it adopts the general outlook in the notorious 2002 document of the Bush White House, entitled “The National Security Strategy of the United States of America.” Actually, the Bush text, while as self-serving as Mandelbaum/Friedman, is less pretentious, appealing to U.S. strategic interests and its tortured construction of China’s self-interest when explaining why it would be best for others to leave global security in American hands while limiting their own international ambitions to trade and development.

 

            Recently Mandelbaum has restated this grandiose argument in a short essay, “Can America Keep Its Global Role?” that appears in the January 2014 issue of Current History. His thesis is straightforward: “[America] provides to the whole world, not only its allies, many of the services that governments furnish to the countries they govern.” Or more simply, “..the United States stands alone as the world’s de facto government.” It is crucial to take note of the claim that unlike past empires and hegemonic states, the United States has undertaken a systemic or structural role, and is not to be understood as serving only those states that are allied by friendship, values, and binding arrangements. In this respect this novel form of world government although administered from its statist headquarters in Washington, is according to its promoters, meta-political, and unselfish. It should be appreciated by all people of good will as contributing to the betterment of humanity. It should be a cause of some embarrassment, then, to explain cross-national polling results that indicate time after time that the United States is viewed by virtually the entire world as the most dangerous country from the perspectives of peace, security, and justice.  I suppose the best riposte from the Mandelbaum true believers is that ‘they just don’t know how lucky they are!,” and like those who vote Republican in Kansas, non-Americans are unable to pursue their own interests in a rational manner.

 

            What makes Mandelbaum so cocky about the beneficence of the American global role? It is essentially the traditional realist conviction that it is American military power underwriting the established order that avoids wars and protects countries against aggressive behavior by states with revisionist foreign policy goals and irresponsibly aggressive leaders. More concretely, Europe can rest easy because of the American military presence, while Russia as well can be assured that a resurgent Germany will not again seek to conquer its territory as it tried to do twice in the last century. Similarly in the East Asian setting, China is deterred from imposing its will regionally to resolve island and territorial disputes, while at the same time being itself reassured that Japan will not again unleash an attack upon the Chinese mainland. There is some slight plausibility to such speculations, but it seems more like the supposed dividends of alliance relationships in historical settings when recourse to war as a solvent for international conflicts seems more and more dysfunctional. And it doesn’t pretend to work with a rogue ally such as Israel, which has insisted, for example, on its willingness to attack Iran whether or not the White House signals approval, presumably with the political clout in the U.S. to drag a disbelieving America in its bloody wake.

 

            The complementary claim about providing a template for global economic prosperity is also misleading at best, and likely flawed. The United States presides over a neoliberal world order that has achieved cumulative economic growth but at the cost of persisting mass poverty, gross and widening inequalities, unsustainable consumerism, cyclical instability, and a rate of greenhouse gas emissions that imperils the human future by giving rise to dangerous forms of climate change.  The management of the world economy, entrusted to groupings such as the G-20, seems unable to modify these inequities and dangers, and United States influence seems marginal and neither sensible on issues of sustainability or sensitive on questions of fairness and distributive justice.

 

            Beyond this, the American role is praised by Mandelbaum for using its capabilities “to counteract the most dangerous trend in twenty-first century security affairs: the spread of nuclear weapons to countries and non-state actors that do not have them and would threaten the international order if they did.” What is not mentioned by Mandelbaum, and suggests strongly the absence of anything resembling ‘world government’ is the inability of existing global policy mechanisms, whether under U.S. or other auspices, to solve the most urgent collective goods problems. I would mention several: poverty, nuclear weaponry, fair trade, and climate change. Neither imperial guidance nor the actions of state-centric policymaking initiatives have been able to uphold the human or global interest, which would demand at the very least nuclear disarmament, enforceable restraints on carbon emissions, and the end of agricultural subsidies in North America and Europe.

 

            The U.S. Government is not even able to get its own national act together, being constrained by the military-industrial-complex, vested economic interests in the energy field, and paralyzed by powerful lobbies (e.g. AIPAC) that pull many of the strings of American foreign policy in the Middle East. Considering that the United States it itself unable even to align its foreign policy with global equity, peace, and sustainability, how can it possibly pretend to do this for the entire world? Mandelbaum and followers suffer from a geopolitical malady that I would diagnose as ‘normative hubris,’ the false consciousness associated with being a planetary benefactor while in fact being unable even to adopt policies that serve national interests. It should not shock us that humility is the most unappreciated virtue in the imperial mentality.

 

            If we put aside this awkward inability of America to pursue a policy agenda that uphold its own national interests, an inability that Mandelbaum fails to acknowledge, and perhaps does not admit. Mandelbaum, and similar outlooks that conflate national and global interests, seem utterly blind to the tensions between what is good for the United States and its friends and what is good for the world and its peoples. And no more serious blindness, or is it merely acute myopia, exists than does the Mandlebaum contention that the greatest danger from nuclear weapons to the human future arises from those political actors that do not possess these weapons rather than from those that do, have used such weaponry in the past, and continue to deploy nuclear weapons in contexts of strategic concern. To obsess about proliferation risks while ignoring disarmament imperatives is to ensure the enduring illegitimacy of world order, whether or not led by the United States. To live contentedly with a world of nuclear haves and nuclear have not countries couples hierarchy with arrangements that over time embed unacceptable risks of an apocalyptic future.

 

            Aside from the use of the atomic bomb against Japanese cities in 1945, the American-led crusade against proliferation served as the main rationale for aggression against Iraq in 2003 and is the pretext for continuing unlawful threats of a military attack directed at Iran’s nuclear facilities over the course of the last decade. Recall also that some decades ago the United States had few qualms about the nuclear program of the Shah’s Iran, and even fewer, about Israel’s covert acquisition of capabilities and weaponry. Such discriminatory behavior confirms the primacy of America’s identity as an alliance leader, and the weakness of its credibility as a political actor inclined to act altruistically for the benefit of the whole rather than to promote the interests of its part. In discussing global security in the current historical moment, one can only wonder about the absence of the word ‘drone’ in Mandelbaum’s account of why the world should be grateful for the way the United States globally projects its power. A question is posed. Should Mandelbaum to be viewed as naïve or as a dogmatic advocate of empire? In effect, the wardrobe of world government seems to function as a disguise.

 

            Before dismissing Mandelbaum’s conceptions altogether, I would agree that he is convincing when he selects the United States rather than the UN as the political actor with the best global governmental capabilities, credentials, and ambition. The UN lacks the hard power capabilities to implement its decisions unless backed by relevant geopolitical forces; its constitutional makeup is also deferential to the sovereignty of states, and its formal role is to prevent war between states, but not to interfere with war within states. As a result, the UN has been largely a spectator in relation to the broad trends of security, democracy, and development, a handmaiden of the United States in most settings, but hampered in even this questionable undertaking by the veto power exercised by Russia and China in many peace and security situations, and obstructed by the United States whenever the Organization seeks to induce Israel to live up to its international obligations. When the United States and a few allies failed to persuade the Security Council to back its proposed attack on Iraq in 2003, the coalition of the willing went ahead anyway flaunting the authority of the UN and ignoring the constraints of its Charter.  As such, it underlined the weakness of the UN to fulfill its constitutional role and the willingness of the United States to behave as an unaccountable superpower whenever so disposed, a perception strengthened after the fact by the disastrous aftermath of the Iraq War during the lengthy occupation and withdrawal phases, and the strife-ridden country that the departing forces have left behind.

 

             There are additional difficulties with Mandelbaum’s global vision, including a glaring internal contradiction. He praises America for exerting a pro-democracy influence throughout the world, which is partially deserved, but fails to note either the inconsistencies in its application or the complete failure to consider the consent of the peoples and other governments in relation to U.S. de facto world government. I doubt that there would be many supporters of the Mandelbaum vision of governing the world in Moscow and Beijing despite the benefits that are supposedly bestowed upon Russia and China. Somehow, the politics of self-determination and procedural democracy are fine for state/society relations, but when it comes to governing the world, democratic values and procedures should be abandoned.  It is quite okay to base global government on an authoritarian logic that is not dependent on any kind of procedure of consent or approval, but governs by arbitrary and non-accountable fiat, relying heavily on military clout. The United States makes extensive use of killer drones, and refuses even to take responsibility for ‘accidents’ that end the lives of innocent civilians. This is a metaphoric message as to what kind of world government is being provided by the United States.

 

            In depicting the future Mandelbaum calls our attention to three scenarios that bear on how his thesis will play out. In what he calls “the most favorable of these,” those that have most to gain by receiving free protection, namely, Europe and Japan would assist the United States, and lighten the burdens of world government. Such a prospect is really a thinly disguised alliance-oriented approach, although in a presumably less overtly conflictual global setting. He does not view this pattern as the most likely one. The least favorable scenario would mount a challenge from China that would induce a return to balance of power world order in which countervailing alliances produce a security system that resembled international relations during the Cold War, but it is assumed by Mandelbaum contends that the Chinese are too wily to opt for such a risky future. What Mandelbaum views as the most likely future is a continuation of present arrangements without great help from allies or much hindrance from adversaries. He properly acknowledges as a major unknown whether the American public will continue to finance such a system of world government, given recent setbacks in Iraq and Afghanistan, as well as growing domestic pressures to cut public spending, reduce taxes in response to the burdens of a rapidly aging population, and the absence of much enthusiasm among the citizenry for devoting resources to internationally idealistic projects.

 

            It is well to appreciate that this new discourse of imperial duty and prerogative is framed as a matter of global scope. This is genuinely new. Yet it is quite old, present throughout the entire course of modernity. The West has always cast itself in the role of being the savior of the whole of humanity even if the actual reach of its influence was not previously capable of embracing the globe. In the colonial era Europeans described their gift to humanity  in the language of ‘white man’s burden’ or proclaimed their role to be the ‘civilizing mission’ of the West. As those throughout the global South are well aware, this lofty language provided the cover for a variety of sinister forms of violent exploitation of the non-West. For Mandelbaum the new rationale for Western dominance is ‘de facto world government.’ It purports to be a service institution for the world, yet at no point does Mandelbaum pause to admit that America bears responsibility for a disproportionate amount of the violence, militarism, and appropriation of resources that goes on under its hegemonic aegis.

 

            With a measure of historical perspective, American since its earliest beginnings claimed that its domestic reality and international behavior were superior to what Europe had to offer, with not even a thought as to whether non-Western ideas and actors might have anything to contribute to a more humane world order. In the last century is was Woodrow Wilson, in the aftermath of World War I, who projected an American vision of world order onto the global stage with disastrous results, although it too was motivated by the sense that what America represented, if globalized, would lead to a positive future for everyone. The disasters that befell the world, eventuating in World War II, death camps and atomic bombings, did not pour cold water on America’s global ambitions, giving rise to a more geopolitically humble United Nations that assigned the major tasks of keeping the peace to the leading states and their coalitions. In this respect, Mandelbaum’s preferred world builds on a long tradition of American hubris, which is tragically impervious to the historical record, and thus bound to repeat past mistakes.  In the meantime, Michael Mandelbaum and Thomas Friedman will likely be welcomed as honored guests of corporate gatherings and bankers’ retreats,whether at Davos or at the confidential meetings of the Bilderberg Group.

Interview on Palestine

15 Jan

Prefatory Note: What follows is an interview conducted by Frank Barat, well known as editor and coordinator of the Russell Tribunal sessions devoted to Palestine. The interview took place in London on 13 December 2013, and addresses a range of issues bearing on the Palestinian struggle for rights and justice.

 

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Frank Barat for LMaDO : I wanted to ask you about this article that you recently wrote on your blog « Nelson Mandela’s inspiration ». You mentioned that you met him 15 years ago in South Africa. What impression did he leave on you and what does, in your opinion, his death means for South Africa and the rest of the world?”

 

Richard Falk: I was fortunate to have the opportunity to meet Nelson Mandela. He was asked to greet a commission on the future of the oceans of which I was a member. The Vice Chair of this commission was Kader Asmal, who had been a member of Mandela’s first cabinet and was also one of the authors of the South Africa constitution and a close friend of mine. He asked me if I could prepare some remarks for Mandela to welcome this commission, which I did. Mandela used my text pretty much as I had written it. After the presentation, which was in the South Africa parliament, he came and talked to me and then to each of the members of the commission. I was very impressed by his ability and readiness to say something to each person from these 40 countries that was specific to their national situations. As I tried to express in my post he had this quality of moral radiance, a sense of authenticity and a spiritual grounding that gave him a particular presence that was strong and unforgettable. His death has been an opportunity to take some account on what his life has meant and how it bore on so many issues, including the Palestinians, a facet that I am particularly interested in. It is important to rescue the real Mandela from the one the liberal media has tried to project, which is one of reconciliation and nonviolence. Both of these characteristics were descriptive of his efforts to find a way to end South Africa apartheid without a bloody struggle but it should also be realized that he never renounced the idea of violence if it seemed a necessary instrument for achieving liberation from a structure of oppression. His main priority was what works in response to a particular condition of oppression. His release from prison was itself an effective demonstration that the global anti-apartheid campaign had forced the South African Afrikaner elite to re-calculate their interests and priorities. It was in that setting that he made this effort to find a solution to the conflict that would end political apartheid. It was to some extent a Faustian bargain because the situation of the mass of Africans has not improved economically or socially since the transformation of the constitutional system, so not surprisingly, there is some resentment about the way in which the conflict was ended, among portions of the South African population. The legacy is complicated by the fact that his successors as leaders did not really take on the job of creating a just society. There is no question that it is a post apartheid society in a political sense but it still represents a society in which the white minority and an emergent tiny black elite dominate the economy and the mass of the people are still enduring many of the deprivations that were associated with apartheid itself.

 

FB: You talked about the role of violence in emancipatory struggles for freedom. What does International Law says about this?

 

RF: As in many areas of International Law it can be interpreted from different perspectives. Still, there did emerge especially in the 1970s and 80s a general international law consensus that armed struggle in the course of national liberation from a colonial regime was a legitimate use of force. It did not mean that all types of violence were legitimate and legal. It had to be violence directed towards an appropriate target. International law never offered a way of sanitizing terrorist forms of actions directed at innocent civilians or protected targets such as hospitals or churches. Of course in many of the liberation struggles the violent instruments used did include random acts intending to disrupt colonial occupation and rule. “The Battle of Algiers”, the famous film, shows acts of resistance including throwing bombs in a crowded cafe in Algiers. In this historical process, those that sided with the anti-colonial struggle have accepted such indiscriminate violence as justified in some circumstances of oppressive rule. Defensive terrorism was also justified against the Nazi occupation of various European countries during WWII. Even those that uphold the legality of violence in wars of liberation do not go as far as to legitimize violence per se. Only violence against appropriate targets can claim the mantle of international law.

 

FB: In 2001 you had to answer this question in the context of the palestinian struggle during your term as the United Nation High Commissioner for Human Rights. What was your answer, or your findings at that time?

 

RF: Again, one has to acknowledge that International Law (I.L) is not clear on this subject. There is no authoritative treaty or customary rule of I.L or judicial determination that would resolve that question in a definitive way. What I suggested was in a way similar to what I have been saying about Mandela’s view of violence and the relation of violence to wars of national liberation. An oppressed and embattled people possess what amounts to a right to self-defense; it not only governments that can invoke such a right. When there is an oppressive set of circumstances there is an implicit right of self-defense or resistance on the part of a society. Such a right is limited to the use of violence against those who are associated with the oppressive structure. This right has not been codified or authoritatively endorsed as states control the lawmaking process. Nevertheless, it seems to me that such a right is expressive of the living law of international society in relation to the collective rights of people.

 

FB: Why do you think is this question about violence always asked to the oppressed, them being African Americans, Indian Americans, Palestinians when actually most of the violence is perpetrated by the oppressor, being the US or Israel in this case?

 

RF: I think it goes back to the notion of the modern state. The modern State, by many conventional definitions enjoys a monopoly over legitimate use of violence. Therefore, those that are not state actors and that resort to violence have to overcome a presumption of immorality and illegality attached to their behavior. The state has the obligation to maintain social order, establishing a political environment in which violence is used only to maintain the established order. I think that distinction is very important in explaining popular media presentations of these conflicts. The terminology of terrorism is used usually only with reference to anti-state violence. State violence is usually sanitized in various ways. Those of us that are not happy with this kind of discriminatory use of language speak about state terrorism. But it’s a relatively unusual discourse about the nature of permissible and impermissible violence. Therefore it is important not to fall into that kind of statist trap by regarding state violence as presumptively legitimate and anti-state violence as presumptively illegitimate.

 

FB: What role can International Law (I.L) really play to bring peace and justice around the world? Some Palestinians tend to laugh when you say that I.L is on their side because for them I.L is responsible to what has happened to them?

 

RF: Well, an adequate answer is more complicated than can be given here. There is no doubt in my mind that on the main unresolved issues, whether it is the settlements, the status of Jerusalem, the borders, the right to resources and land or the right of the refugees, I.L properly understood and applied is unambiguously on the Palestinian side. Such an interpretation of the relevance of IL has been repeatedly endorsed and upheld by the main organs of the U.N, especially the General Assembly. It also was reinforced in large measure by the ICJ in its advisory opinion dealing with the separation wall back that was issued in 2004. At the same time it is understandable that the Palestinians feel disillusioned. I.L and the U.N authorities are on their side but their situation is getting worse and worse. Israelis enjoy impunity for their crimes. So it would appear that I.L and the U.N authorities being on their side has provided a kind of cover that has enabled the behavioral unlawfulness to actually work against them. That disparity accounts for the perception. What I think is forgotten and has been the burden of my own recent thinking is that in the current phase of the Palestinian struggle and national movement, there has been a shift of tactics away from a primary reliance on armed struggle, in the direction of waging a world wide campaign to discredit the Israeli occupation and general approach to the conflict. In other words an effective social mobilization of global civil society has taken place in recent years, including the sessions of the Russell tribunal. It’s all part of a process that I call ‘waging a legitimacy war.’ Such an outlook makes I.L very important because where it is persuasive and does affect behavior over time is on the level of people and societies. The perception helps mobilizes people around the idea that the Palestinians have been acutely victimized by unjust policies and unjust structures. If you look at the historical trend since the end of WWII, the side in a conflict that wins the legitimacy war, has generally prevailed politically. Although not without a high cost paid in lives lost and the scale of destruction. But in war after war and struggles between regimes and societies, it’s not the stronger side militarily that has prevailed but rather the side that has the superior soft power instruments of conflict resolution at its disposal. All the anti-colonial wars, the liberation of the East European societies from the regimes that they were under Soviet hegemonic control, the South African anti-apartheid campaign are exemplary of such a trend, as is the Indian liberation from British power, all these conflicts were won by the side that was decisively weaker from a realist hard power perspective. This was also dramatically the case in the Vietnam war in which the U.S won every battle yet lost the war. One has to ask, what happens to make that happen. One of the things that happens is that the side that is weaker militarily can prevail if it can gain the heights of legal and moral discourse, changes the balance of forces in a way that is very effective at the end of the conflict and produces results that are unexpected and difficult to explain. The Afghans have a saying: “You have the watches, we have the time”. That distinction between the technology and the people with unlimited time at their disposal is explanatory. That people have the ability to liberate their own country represents a decisive feature of the decolonizing and post-colonial political atmosphere. Such a reality was not true during the colonial period where a small quantum of militarily superiority could be transformed into political control. The national mobilization of societies and the sense of people power really altered this sense of the balance of forces. Further, I am claiming that part of what mobilizes people power is having I.L, U.N authority, international moral persuasion as sources of an equalizing soft power.

 

FB: Israel has now been occupying part of Palestine for more than 65 years. Can we still call this today, legally, an occupation, and if we can’t, what name should we give it?

 

RF: It’s an important question. I’ve argued in my role as UN Special Rapporteur that any occupation that lasts longer than 5 years enters a different phase of relationship between the occupying power and the occupied people and that we need a different kind of legal framework to address such a reality. The Geneva Conventions were implicityly designed for temporary occupations, circumstances lasting 5 years or less. In the specifics of the Israeli occupation it has become increasingly misleading to use language of occupation. It is definitely more descriptive to talk about creeping annexation or a policy of permanent occupation. Such altered language signals the unwillingness of Israel to withdraw from the territory or to show respect for the character of the society as it existed when it was initially occupied. The whole settlement phenomenon is dramatically inconsistent with any idea that this is temporary situation or that Israel contemplates ever fully withdrawing and complying with U.N resolution 242 that was passed in 1967 and called for complete withdrawal and reminded Israel and the world that one of the underlying principle upon which the U.N Charter rests is the non-acquisition of territorial rights by conquest or by the use of force. So the failure to implement resolution 242 is a sign of the failure of the U.N to be able to impose the kind of obligations that it had itself expressed as a core element of a just and peaceful world.

 

FB: John Dugard, your predecessor, was part of a team that wrote a report in 2009, in which he called what was happening in the West Bank, apartheid. What do you make about this concept, that is used more and more in various campaigns around the world?

 

RF: I think ‘apartheid’ is more descriptive than any other way of talking about the current situation. Each context of subjugation of a people has its own originality. There is a kind of temptation on the part of critics of those who invoke the idea of apartheid to say that it’s not like what existed in South Africa (S.A), it’s not based on race, there are differences. But if you look more closely you see that in certain respects its worse than South African apartheid. For instance South Africa never constructed settler only roads. They did not ever create such a pervasive structure of discrimination as the one that exists in the West Bank. The dual legal structure is very expressive of an ethnically based form of domination that deprives the Palestinians of rights while it endows the unlawful Israeli settlers with the full panoply of civic rights as inscribed in Israeli law as applicable to Jewish nationals. The Palestinians don’t even have the right to have rights on one side and the Israeli that are present in the Occupied territories in a manner that the International Court of Justice almost by a unanimous opinion said was unlawful having this full legal protection under the rule of law that prevails in Israel for Jewish Israelis.

 

FB: On 27th of October a campaign called “Free Marwan Barghouti and all political prisoners” was launched in Cape Town, South Africa. How important are the political prisoners and their releases in the context of Israel/Palestine?

 

RF: Barghouti’s importance cannot be exaggerated. As I said in the Mandela post on my blog that if the Israeli leadership decides at some point that they want a just and peaceful future for both peoples they might signal such a change of heart that by releasing Barghouti from prison. In that sense the importance of the release of Mandela was not so much that he was suddenly and unexpectedly given his political freedom, but rather that he was given freedom because the Afrikaners changed their mind radically as to how they wanted to pursue their own security. The whole thrust of what I call a legitimacy war is to make the Israelis change their mind as to what would bring them security and fulfill their own aspirations. Therefore a campaign to free Barghouti will at least help concentrate the Israeli mind on what is at stake by keeping him in prison. Whether he should be considered a political prisoner or not is itself a question I do not have enough knowledge to answer. He certainly has acted like one. The charges brought against him are charges associated with violent crimes, on the other hand his actual role seems to have been as the main architect of the second intifada, not as someone who perpetrated particular acts of violence that were the basis of his indictment and conviction. So whether he should reasonably be treated as a political prisoner is something that needs to be explored in greater detail and if that is the basis of the campaign for his release, then the argument should be made in the strongest way as possible.

 

FB: You were appointed in 2008 as UN special rapporteur to Israel/Palestine. If you had to sum it up, what would you say about this role of yours during this period?

 

RF: What I have been saying when I have been ask this question recently is to say that I am very happy that I was given the opportunity to do this for the past 6 years despite all the problems involved but I am also happy for selfish and personal reasons that my term is coming to an end and I will be able to resume a more normal life. Of course, I will remain engaged with the Palestinian movement to the extent of my abilities and in light of opportunities to contribute to the goal of a just peace. I think I learned a lot about both the complexities of the Palestinian struggle and the difficulties of working within a politically contested terrain. I also learned about the strengths and weaknesses of the U.N as a political bureaucracy. There is great unevenness in the ability and motivation of the personnel. One of my problems was to be burdened with inadequate staff backup that made my own performance problematic. There are some advantages in this position being  unpaid and undertaken in a voluntary spirit. The great benefit of such a status is to be politically independent. I discovered that even the U.N Secretary General is of course free to criticize, even irresponsibly and in a hurtful manner, but still he lacks the authority on his own initiative to dismiss or punish me in any way. Only the Human Rights Council itself could do this. The burden of the work and doing the job in an effective and responsible way does require competent and loyal staff support. When that’s not forthcoming it is very difficult and frustrating to try to do the job. In the last years this problem has happily disappeared and I have been fortunate to have excellent staff back up and I think this has led to the position have a greater impact and is reflected in the quality of the reports and the utility of their recommendations. The job calls not only for semi-annual reports but also involves dealing with specific and frequent challenges that arise. At present the emergency in Gaza that has been generated by the change in political atmosphere in Egypt, which has put unbearable pressure on the people living in Gaza, is illustrative. It has been difficult for years for the people entrapped in Gaza, but now you can only describe Gaza as a place of habitation fit only for the wretched of the earth. The International community fails terribly inby being silent in the face of a situation. Only the Turkish government has made a financial contribution of $80,000 million to ease some of the problems but it is very minor input if compared to the scale of the problem. You may recall the very self-righteous invocation of the so called responsibility to protect norm in relation to Libya back in 2011 which was manipulated geopolitically at the time to create the basis for a military intervention that was not only humanitarian, but clearly was intended to change the political structure of Libya in a way that misled the governments who states in the Security Council that were opposed such a policy. In Gaza there exists a situation in which the humanitarian case for some kind of international emergency relief seems overwhelming and yet there is complete silence on the relevance on the R2P (Right to Protect) diplomacy. It suggests two things. One is the primacy of geopolitics in the way in which the U.N crafts responses to various claims for assistance based on humanitarian necessity. There are pervasive double standards in the practice of the U.N and a great deal of moral hypocrisy on the part of the liberal democracies that talk one way when their foreign policy pushes them towards an interventionist posture and talk a very different way when they do not want to do anything. This is true even when the underlying circumstances are more or less similar. The other is that the extent of humanitarian necessity is not very relevant in explaining the pattern of geopolitical action and inaction.

 

FB: What does normal life means for Richard Falk? What’s next?

 

RF: We will see! I think I will try to take more time to do some writing and will hopefully be able to reflect on these experiences. I hope that my successor as Special Rapporteur has less trials and tribulations than I had but also does a better job than I did because I do think this is such an important position. It is sadly only truly independent voice that the Palestinians have within the U.N system. This position of Special Rapporteur, partly because it is an unpaid and not subject to the discipline imposed on UN civil servants, has gained in iinfluence and stature during the last decade. It offers an individual the opportunity to help the Palestinians in their struggle merely by being truthful. It also allows one to promote a just outcome for this conflict that has lasted far too long and has victimized the Palestinian people living under occupation, as refugees, and in exile, dispersed around the world for far too long. This Palestinian ordeal represents a great failure of the international community and it should be remembered that unlike all the other liberation struggles against various types of colonial rule the U.N has more unfulfilled responsibility for this one that any other one. The issue was dumped in the U.N’s lap by the League of Nations and then by the British in the form of abandoning their role as the mandatory power. It was the U.N that decreed in 1947 a partition plan that was adopted by a commission that never consulted the wishes of the Palestinian people or the residents of historic Palestine. In recent years the road map and U.S political leaders continues to claim the prerogative to tell the world what was good for the Palestinians and in all these contexts the actual experience has been a downhill one for peace and justice. Against such a background, the international community bears a huge responsibility for tto overcome this record of failure, however belatedly. When people complain as they very frequently do that the U.N and the Human Rights Council spend too much time on the Palestinian issues compared to other issues around the world, my response is that it does not spend enough time, that it has failed to follow through in a way that is effective in bringing peace and justice to the peoples of Palestine, and until it does, it has no ethical or basis for not trying its utmost to do so.

 

 

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