Tag Archives: Hamas

UN Gaza Report Part II: Israel’s Counterinsuurgency Apologist: Colonel Richard Kemp

6 Jul

 

Retired British colonel, Richard Kemp, has been an ardent supporter of Israel’s three major military operations in Gaza conducted over the last six

years. He has collaborated on several occasions with the two notoriously pro-Israeli NGOs, UN Watch and NGO Monitor, serving on the Advisory Board of the latter and appearing as star witness under such auspices at the UN, most recently at a two-day side event at UN Headquarters in Geneva devoted to condemning the UN Commission of Inquiry Report on the Gaza War of 2014.

 

There is no doubt that Col. Kemp has the credentials to speak as a counterinsurgency specialist, having served as commander of British forces

in Afghanistan and elsewhere, where he acknowledges close cooperation with Mossad and the influence of Israeli tactics. In fairness, Kemp writes from such a militarist view with little effort to assess the relevance of international humanitarian law, treating ‘military effectiveness’ as determined by military commanders as the defining criterion of legality for a challenged battlefield practice. In his own words, “[i]t’s the dispassionate military perspective that I bring.” Of course, such an outlook ignores the relevance of international criminal law, which is to superimpose accountability as a constraining framework on this ‘military perspective.’ Actually, Kemp doesn’t so much ignore international criminal law as to (mis)interpret its rules so as to vindicate the tactics of the counterinsurgent side while condemning those of the insurgent.

 

On June 25, 2015 the New York Times published an opinion piece by Kemp assessing the UN Report. What I find scandalous and perverse on the part of this self-claiming authoritative media source, is to publish such a harsh and partisan dismissal of a prudent and overly balanced report without any kind of offsetting piece. I can only imagine the furor that would have been provoked if the NYT had published a piece by an expert in international criminal law, say William Schabas or John Dugard, calling for the indictment and prosecution of Israel’s political and military leaders on the basis of the Report. At least, if such a piece had been published alongside the Kemp article, NYT readers could have been exposed to the realities of controversy flowing from these UN allegations that Israel (and to a far lesser extent, Hamas) was guilty of war crimes.

 

Kemp begins his article with the claim that “..it pains me greatly to see words and actions from the UN that can only provoke further violence and loss of life.” As is ‘law’ imposed on the powerful and not their weaponry is responsible for violence and the loss of life in Gaza. We are not told exactly why reaches this perverse conclusion, but presumably Kemp believes that the condemnation of Israel’s use of indiscriminate and disproportionate force would embolden Hamas, and Palestinians generally, to continue to claim a right of resistance. What Kemp (and Israel) obviously seek is a circumstance in which whatever the dominant military forces do is validated by its effectiveness and what a population under domination does in opposition is condemned with the implication that resistance to Israel’s prolonged occupation is inherently unlawful.

 

Kemp’s puff piece is filled with bland endorsements of Israel’s most blatant propaganda. For instance, Kemp asserts, in complete disregard of the evidence, that Israel imposed the blockade on Gaza “only in response to attacks by Hamas.” While it is common knowledge, even in Israel, that the blockade has been maintained since 2007 as a ‘collective punishment’ imposed on the civilian population of Gaza, having little to do with security, which was mainly sustained by way of rigorous monitoring of all crossings to and from Gaza, and with Egypt’s cooperation at Rafah during the Mubarak era and since Sisi’s ascent. Kemp has nothing to say about Israel’s frequent lethal incursions into Gaza that have accompanied the occupation since it started in 1967, and he uncritically supports Israel’s distorted one-sided timeline that claims Israel only attacks in retaliation for missiles and mortar fire from Hamas, and never initiates violent interactions by on its own. Kemp also never refers to the ceasefires broken by Israel, as in the leadup to Operation Cast Lead at the end of 2008. Instead, as Kemp has written elsewhere of this earlier brutal attack on a vulnerable, cage population, “I can only say this: during Operation Cast Lead, the IDF did more to safeguard the rights of civilians in the combat zone than any other army in the history of warfare.”

 

Most disturbingly, Kemp writes in a condescending manner as follows: “The report is characterized by a lack of understanding of warfare,” as revealed by its failure to compare what Israel is doing with what the U.S. and Britain have done in Afghanistan, Iraq. In Kemp’s words, Israeli tactics are no different than those used extensively by American and British forces in similar circumstances.” What is most dangerous about this counterinsurgency worldview is its implicit reasoning that allows such conclusions to be set forth in good faith by professional soldiers. To begin with, Kemp is essentially correct that the counterinsurgency wars waged by the U.S. and Britain have relied on similar tactics, but does that make Israel’s pattern consistent with international law and morality? Most international law assessments of these uses of modern weaponry against densely populated civilian areas consider such tactics to be severe war crimes, not models to be invoked as validation.

Kemp’s state of play is revealed here: converting past crimes into authoritative precedents to justify present crimes, or to transform crimes into legitimate counterinsurgency tactics.

 

Beyond this, Israel’s tactics are worse in some instances than those of its predecessors. Whereas in Vietnam, the United States used its far less precise air power to inflict heavy casualties on the Vietnamese civilian population it refrained from attacking urban population centers as Israel did in the Gaza attack of 2014, as well as the earlier ones. Even in Falluja, the worst instance of American firepower directed at a city believed to be a center of insurgent opposition in Iraq to American occupation, the population was given ample time to vacate the city after warnings of impending attack. In contrast, except for the 800 Palestinians that held foreign passports who were allowed to leave Gaza, the remainder of the civilian population in Gaza was locked into the combat zone, losing even the desperate option of fleeing to safety by becoming a refugee. Col. Kemp, invoking his counterinsurgency experience and knowledge, never sees fit to mention such a damning ‘detail.’

Nor does he bother to point out that the whole of Gaza was a combat zone, and that civilians, including women and children, had no place of sanctuary and safety, other than to seek refuge in UN facilities and mosques, which then were turned into targets because of Israeli claims that weapons were stored in these places.

 

Parroting the worst elements of Israeli hasbara, Kemp sets forth this grotesque characterization of Hamas tactics: “Unable to inflict existential harm on Israel by military means, Hamas sought to cause large numbers of casualties among its own people in order to bring condemnation and unbearable diplomatic pressure against Israel.” To make such an extreme allegation without bothering to cite evidence is to portray Hamas as seeking the genocidal annihilation of its own people. This is an odd accusation in view of the evidence that Hamas became gained more popular support from the Gazan population after this Israeli attack than before, presumably because of its steadfastness under the most severe of pressures. Also, Kemp withholds comments on the repeated and strenuous efforts of Hamas to seek the renewal of the ceasefire prior to the initiation of the Israel onslaught in early July of 2014.

 

In effect, Kemp is appraising Israel’s behavior on the basis of the ‘new normal’ prevailing among counterinsurgency hawks that have led the West into war after war in its futile effort to defer the death of European colonialism, and its American sequel. What is done by the West is justified by military effectiveness (although without noticing that these wars have all been eventually lost), what is done by the forces of national resistance is criminalized if not demonized as ‘barbarism.’

 

 

It is not surprising that UN Watch and NGO Monitor organized an elaborate side event at the Palais des Nations in Geneva last week that featured Richard Kemp as its lead speakers, but included an array of other counterinsurgency specialists, with no attempt whatsoever to bring to bear the perspectives of international humanitarian law except in the spirit of Israeli apologetics. For description of this event held on June 29-30 see the home pages of either UN Watch or NGO Monitor. It is notable that unlike the response to the Goldstone Report in 2009 that featured denunciations of bias and personal attacks, the orchestrated reaction to COI report is more sophisticated, relying on a variety of substantive reports that set forth Israel’s claims of justification, a media blitz, along with major advocacy efforts by Israel’s well-trained NGO poodles.

 

A welcome contrasting vision, closer to law, morality, and reality is offered by Max Blumenthal in his new book, The 51 Day War: Ruin and Resistance in Gaza (2015). David Swanson, the noted anti-war activist, titles his review of Blumenthal’s book, “the 51-day Genocide” <http//davidswanson.org/node/4815> As Swanson puts it in his review of the book, “I can think of a few other words that characterized the 2014 assault on Gaza in addition to ‘war,’ among them, occupation, murder-spree, and genocide. Each serves a valuable purpose. Each is correct.”

 

UN Report on War Crimes during Israel’s 51 Day Assault on Gaza

6 Jul

 

 

Exactly a year ago, for 51 days between July 7 and August 26 Israel carried out its third major military assault (2008-09; 2012; 2014) on Gaza in the past six years. This last one, code named Operation Protective Edge by Israeli Defense Forces, was the most vicious, killing 2,251 Palestinians, of which 1,462 were civilians, and included 299 women and 551 children, as well as injuring 11,231, a number that includes 3,436 children, 10% of whom have permanent disabilities, and another 1,500 have been orphaned. Israel also suffered casualties: 73 killed of whom 67 were military personnel, and 1,600 injured. Additional to the human casualties, 18,000 Palestinian housing units were destroyed, along with substantial damage to Gaza’s electricity and sanitation systems, 500, 000 Palestinians (almost 1/3 of Gaza’s population) were forcibly displaced during the military operations and 100,000 remain so a year later, and 73 medical facilities and ambulances were destroyed or damaged. Due to the Israeli blockade, the aftermath of this onslaught has prevented a normal recovery, extending the period of suffering endured by the entire Gazan population. The magnitude of the Palestinian losses, as well as the comparison with Israeli losses, and the comparative ratio of civilians to military killed on the two sides, by itself suggests that the essential character of this Israeli undertaking is best understood as ‘state terror’ directed at Gaza’s population as a whole. Such conclusions are reinforced by Israel’s provocations during the month prior to the launch of the attack and by the refusal of its government even to consider frequent proposals by Hamas to establish long-term internationally supervised ceasefire proposals.

 

This one-sided impression of the events is not conveyed by the much anticipated UN Report of the Commission of Inquiry (COI) set up by the Human Rights Council to investigate violations of international human rights and international humanitarian law in July of 2014 that were occurring during Operation Protective Edge. The Commission was originally chaired by William Schabas, a leading world expert of international criminal law, but he resigned under pressure effectively mounted by Israel and the United States, centering on the discovery that Schabas has accepting a small consulting fee for some professional advice given to the Palestinian Liberation Organization a few years earlier. This unhappy development left the commission with only two members, Mary McGowan Davis from the United States and Doudou Déne from Senegal, with Judge McGowan being named as chair. Neither is considered expert in relation to the subject matter being investigated.

 

Balance amid Imbalance

 

The report strives for ‘balance’ carefully setting off violations by Israel against those of what it calls ‘Palestinian armed groups’ creating a profoundly false sense on the part readers as to equivalent responsibility for wrongful behavior by both Israel and Palestine. I agree with Ali Abunimah’s carefully formulated explanation for this misleading approach taken in the report and the deeper message being conveyed: “Despite the ‘balanced’ language that is now the habitual refuge of international officials hoping to avoid false accusations of anti-Israel bias, the evidence shows the scale and impact of Israel’s violence dwarfs anything allegedly done by Palestinians.” [See Ali Abunimah, “’Balance’ in UN Gaza Report can’t hide massive Israeli War Crimes,” Electronic Intifada, 22 June 2015] Or as the widely respected international NGO, BADIL, expresses a similar reaction: “In the language employed, there appears a desire to portray the adversaries as being on an equal footing, despite this being patently untrue, as revealed in the vast disparity in respective casualties and destructive capabilities…attempts to portray ‘balance’ where there is none is extremely problematic.” Typical of the imbalanced balance, the Report observes that “Palestinian and Israeli children were savagely affected by the events,” [§25] which is accurate in a literal sense, but a gross example of treating unequals equally, given the far greater severity of suffering endured by Palestinian children.

Looking for a glimmer of silver lining, some have endorsed this framing device of balance as justified to so as to persuade the mainstream media in the West, and especially the United States, to view the contents of the report more seriously as it cannot be dismissed simply by being called anti-Israeli, or worse, anti-Semitic.

 

As Abunimah emphasizes there is this strange mismatch between the strong evidence of Israeli disregard of legal constraints on military tactics that unduly imperil civilians and this rhetoric of balance, which in effect, assigns blame to both sides. This is not to argue that the criminality of resistance tactics employed by Hamas and associated military groups in Gaza should be entirely ignored, but rather that the primary human impact of Protective Edge was to leave Gaza bleeding and devastated, while Israel endured minimal damage and dramatically less destructive impacts on its societal order. Israeli damage was repaired almost immediately. In contrast, Israel’s refusal to allow ample reconstructions materials to enter has left substantial parts of Gaza in ruins, with many Gazans continuing to lack adequate shelter, remain homeless, displaced, and understandably traumatized.

 

 

 

 

Civilian Focus

 

Despite what might appear to be overly cautious language, a fair reading of the report supports three important conclusions:

  • that Israel’s supposed efforts to protect the civilian population of Gaza were grossly inadequate from the perspective of international humanitarian law, and probably constituted war crimes; and
  • that the military tactics employed by Israel on the battlefield were “reflective of broader policy, approved at least tacitly by decision-makers at the highest level of Government of Israel.”
  • that the focus was on the civilian victims rather than on a bland acceptance of arguments premised on ‘military necessity’ or ‘asymmetric warfare’: in the words of the report, “The commission considered that the victims and their human rights were at the core of its mandate.”

Such findings, coupled with the detailed evidence set forth in the body of the report, provide the International Criminal Court with a strong, if indirect, mandate to proceed further with its preliminary investigation of Israeli criminality in the Gaza War. Palestine is reinforcing this momentum by submitting its own body of evidence to back up allegations of Israeli criminality related to Protective Edge. The Commission makes clear that it is relying, as is customary for non-judicial inquiries of this sort, on a ‘reasonable grounds’ test of potential criminality [§11], which is not as rigorous as would be applied in an ICC trial of accused individuals where the test is often formulated “as guilty beyond reasonable doubt” or some wording to that effect.

 

The Report makes no pretension of making a professional determination as to whether criminal prosecution should follow from its findings, although in its Recommendations section it does urge both the ICC and national courts relying on Universal Jurisdiction to move forward with indictments and prosecutions if the apparent criminality of either side’s conduct is confirmed by further investigation. The ICC had already begun an investigation of its own in response to a Palestinian request after Palestine became a party to the Rome Treaty that provides the authoritative framework for addressing alleged international crimes at an international level. Whether the ICC can bring any perpetrators of Israel’s criminal policies to justice is extremely doubtful as Israel, a non-member, is certain to denounce the effort and the institution and refuse all forms of cooperation; it is relevant also to note that the ICC is not permitted to hold trials without the presence in the courtroom of those accused. Nevertheless, even the prospect of indictments and arrest warrants is itself a strong challenge to Israel’s approach to Gaza, and to the Palestinians generally, and it will further strengthen the BDS Campaign, as well as the wider global solidarity movement that rests on the delegitimizing of Israel’s policies and practices. It will also inhibit travel of Israeli political and military leaders to those countries that empower national courts to exercise universal jurisdiction in relation to well-evidenced allegations of violations of international criminal law.

 

Context

 

There are some definite positive elements in the Report beyond these general conclusions worth mentioning. Unlike prior assessments, including the Goldstone Report of 2009 dealing with Operation Cast Lead, the attack on Gaza that began on December 27, 2008, this new report specifies the context by referring to the Israeli blockade of Gaza as imposing “a continuing collective penalty against the population of Gaza,” [§15]. The Report fails to take the next logical step of identifying this penalty as a flagrant violation of Article 33 of the Fourth Geneva Convention that unconditionally prohibits any collective punishment, and hence is a continuing crime against humanity. Helpfully, though, the Report does say that “the impact of hostilities cannot be assessed separately from the blockade imposed by Israel.” This view is appropriately reinforced with the significant call for “a full and immediate lifting of the blockade,” [§24] although the relevance of the blockade is not stressed in the COI analysis of the combat tactics relied upon by both sides, which suffers from its resolve to appear ‘balanced.’

 

The Report also took innovative account of the fact that the Palestinians were suffering from ‘protracted occupation’ and that there was absent any prospect of peace between Israel and Palestine. [§14ff] Acknowledging that this defining reality has some bearing on the reasonableness of resistance tactics, and should be treated as relevant when assessing the severity of violations. In contrast, Israel as the occupier that has long not only failed to implement, but actively subverted, the unanimous Security Council injunction to withdraw from territory occupied in 1967, should be held to higher standards of compliance with international law by the UN. In the end, the incendiary question posed indirectly is “What are the Palestinians expected to do by way of resistance, considering that they lack precision weaponry and have long been victimized by a prolonged occupation that is oppressive and exploitative, and shows no sign of ending anytime soon?’

 

These contextual factors are also affected by a diplomatic context in which Israel insists on treating Hamas as a terrorist entity, despite the fact that Hamas has been offering long-term proposals for peaceful coexistence supervised by an international presence ever since it decided to pursue a political track to liberation when it participated successfully in 2006 elections in Gaza and the West Bank and effectively abandoned armed struggle, including suicide bombing, as its approach to liberation. Such a potential diplomatic path to Israeli security is not mentioned in the Report, or its legal correlative, that since World War II, recourse to war is legally valid only as a last resort even where legal claims of self-defense are well-grounded. In this regard, Israel’s refusal to explore a diplomatic alternative to war casts doubts on its claim to be acting in necessary self-defense. This diplomatic option for Israeli security should have been discussed in the Report even if it could not be definitively proven to exist. Also, not discussed, is whether given stage-setting Israeli anti-Hamas provocations in the West Bank, which are set forth in the Report, along with the absence of any substantial damage from Gaza rockets fired at Israel, the legal conditions for a claim of self-defense existed given the seeming absence of a prior armed attack as required by Article 51 of the UN Charter.

 

The Report relies on a methodology based on a reasonable interpretation of customary international law articulated by reference to three principles: of distinction (limiting attacks to discrete military targets) ; of proportionality (avoiding uses of force disproportionate to the value of the target); of precaution (taking reasonable measures to avoid civilian death and destruction). [§13] It is evident to the COI that Palestinian missiles, inaccurate and directed toward Israeli population centers, violate the principle of distinction even if they do little damage as do Israeli strikes directed at densely populated residential neighborhoods that inflict massive damage. For instance, the Report condemns the Israeli use of massive firepower against Rafah and Shuja’iya “in utter disregard of its devastating impact on the civilian population.” [§58] Although the Report finds that the use of human shields by either side is a violation of the laws of war, it fails to find sufficient evidence to reach any firm conclusion.

 

Recommendations

 

In the conclusions and recommendations of the Report there are various calls made for greater vigilance in following through, arguing that imposing accountability for violations of international criminal law is relevant to avoiding a repetition of the Protective Edge experience. In this spirit the Report indicates that the victims, in particular, stressed examining “the root causes of the conflict” as an essential step toward future. [§75] There was also a determined emphasis placed on overcoming impunity with respect to such crimes, and in particular, “Israel must break with its lamentable record in holding wrongdoers responsible.” [§76] There is also a specific call to support the work of the ICC, and for Israel to accede to the Rome Treaty that controls the operation of the ICC.[§86(e); 89(d)]

 

The recommendations that are most relevant are set forth in §86(d):

 

“To address structural issues that fuel the conflict and have a negative impact on a wide range of human rights, including the right to self-determination; in particular, to lift, immediately and unconditionally, the blockade on Gaza; to cease all settlement-related activity, including the transfer of Israel’s own population to the occupied territory; and to implement the advisory opinion rendered on 9 July 2004 by the International Court of Justice on the legal consequences of the construction of a wall in the Occupied Palestinian Territory.”

This enumeration is a departure from the tone and substance of balance, and calls upon Israel to bring its behaviour as Occupier into conformity with international humanitarian law. It refrains from mandating the dismantling of the unlawful settlements, but otherwise goes quite far in relation to human rights, including self-determination, settlement expansion, and the wall to address the most fundamental Palestinian grievances.

 

 

 

Conclusion

 

As might have been anticipated, despite the balance of the Report, it was attacked as biased even before being made public by Israel and the United States, and its presentation in an open debate at the Human Rights Council was boycotted. Israel went further, issued extensive report prepared under the aegis of the Israel Defense Forces that exonerated Israel on all counts. [Special Report, ‘Operation Protective Edge,’ Israel Defense Forces, June 2015; “The 2014 Gaza Conflict: Factual and Legal Aspects,” Israel’s Ministry of Foreign Affairs, June 2015] It also invited a group of ‘high-level’ military officers and diplomats to review the allegations, which also vindicated Israel’s claims in its consensus report. [“Key Preliminary Findings of the High Level International Military Group on the Gaza Conflict,” June 12, 2015, UN Watch home page] In effect, the familiar battle lines are drawn at inter-governmental levels, making it clear that nothing can be expected to flow from this Report beyond a further recognition that if the Palestinian struggle is to advance at this stage it will depend on the activism of civil society rather than on the policies of governments or the implementation of the Report’s recommendations by the United Nations.

At the same time, as with the earlier Goldstone Report, it is important that this COI fully documented the essential charges with elaborate evidence, and legitimates the coercive tactics of Palestinian resistance and the nonviolent militancy of the global solidarity movement. As the COI noted, Israel again refused cooperation with the investigative efforts from their outset. The political weight of the Report is augmented by the fact that its findings and recommendation were formally received with approval by a vote of 41-1 in the Human Rights Council.

As could be anticipated, the United States was the lone member of the HRC that refused support to the Report. Even Europe, voting as a unit, gave its positive endorsement. Human Rights Watch made the following observation: “The lack of support by the United States—the only state to vote against shows a disappointing unwillingness to challenge impunity for serious crimes during the Gaza conflict and to stand up for the victims of war crimes during the conflict.”

 

It is sad that despite the abusive attitudes exhibited by the Netanyahu government toward the Obama presidency there is no willingness on the part of Washington to back international criminal law in such circumstances of gross violation. When the United States Government, still the world’s most influential political actor, gives such precedence to the most cynical aspects of alliance politics it sends a powerful message that governments can freely abandon principled foreign policy whenever it conflicts with hard power calculations of geopolitics (and in this instance, more relevantly, with the soft power dynamics of American domestic politics).

 

 

 

Did Israel Commit Genocide in Gaza?

9 Oct

[Prefatory Note: the post below is a somewhat revised version of a text published by The Nation, and to be found at the following link. I should also point out that in these proceedings in Brussels under the auspices of the Russell Tribunal I served as a member of the jury]

 

 

In a special session of the Russell Tribunal held in Brussels on September 24th, Israel’s military operation Protective Edge was critically scrutinized from the perspective of international law, including the core allegation of genocide. The process featured a series of testimonies by legal and weapons experts, health workers, journalists and others most of whom had experienced the 50 days of military assault.

 

A jury composed of prominent individuals from around the world, known for their moral engagement with issues of the day that concerned their societies, and also the wellbeing of humanity, assessed the evidence with the help of an expert legal team of volunteers that helped with the preparation of the findings and analysis for consideration by the jury, which deliberated and debated all relevant issues of fact and law, above all the question of how to respond to the charge of genocide.

 

 

It should be acknowledged that this undertaking was never intended to be a neutral inquiry without any predispositions. It was brought into being because of the enormity of the devastation caused by Protective Edge and the spectacle of horror associated with deploying a high technology weaponry to attack a vulnerable civilian population of Gaza locked into the combat zone that left no place to hide. It also responded to the failures of the international community to do more to stop the carnage, and condemn Israel’s disproportionate uses of force against this essentially helpless and beleaguered civilian population. Israel’s contested military operations targeted many legally forbidden targets, including UN buildings used as shelters, residential neighborhoods, hospitals and clinics, and mosques. In defense of these tactics, Israel claimed that rockets and ammunition were stored in these buildings and that Hamas rocket launchers were deliberately placed in the structures that had been singled out for attack. The evidence presented did not confirm these Israeli claims.

 

Although the Russell Tribunal proceeded from the presumed sense that Israel was responsible for severe wrongdoing, it made every effort to be scrupulous in the presentation of evidence and the interpretation of applicable international law, and relied on testimony from individuals with established reputations as persons of integrity and conscience. Among the highlights of the testimony were a report on damage to hospitals and clinics given by Dr. Mads Gilbert, a Norwegian doctor serving in a Gaza hospital during the attacks, Mohammed Omer, a widely respected  journalist who daily reported from the combat zone, Max Blumenthal, the prize winning journalist who was in Gaza throughout Protective Edge and analyzed for the jury the overall political design that appeared to explain the civilian targeting patterns, and David Sheen, who reported in agonizing detail on the racist hatred exhibited by prominent Israelis during the period of combat, widely echoed by Israelis in the social media, and never repudiated by the leadership or public in Tel Aviv.

 

The jury had little difficulty concluding that the pattern of attack, as well as the targeting, amounted to a series of war crimes that were aggravated by the commission of crimes against humanity, most centrally the imposition of a multi-faceted regime of collective punishment upon the entire civilian population of Gaza in flagrant and sustained violation of Article 33 of the Fourth Geneva Convention. A further notable legal finding was the rejection of the central Israel claim of acting in self-defense against rocket attacks directed at Israel.

 

There were several reasons given for reaching this conclusion: the claim of self-defense does not exist in relation to resistance mounted by an occupied people, and Gaza from the perspective of international law remains occupied due to Israeli persisting effective control despite Israel’s purported disengagement in 2005 (more properly characterized as a military redployment); the rockets fired from Gaza were partly at least in response to prior Israeli unlawful provocations, including the mass detention of several hundred persons loosely associated with Hamas in the West Bank and incitement to violence against Palestinians as revenge for the murder of the three kidnapped Israeli settler children; and finally, the minimal damage done by the rockets, seven civilian deaths over the entire period, is too small a security threat to qualify as “an armed attack” as is required by the UN Charter to uphold a claim of self-defense. At the same time, despite these mitigating factors, the jury did not doubt the unlawfulness of firing of numerous rockets into Israel that were incapable of distinguishing between military and civilian targets. This form of unlawful resistance was attributed to both Hamas and independent Palestinian militias operating within the Gaza Strip.

 

A focus of concern in the jury deliberations before and after the proceedings themselves was how to address the allegation of ‘genocide,’ which has been described as ‘the crimes of crimes.’ The jury was sensitive to the differences between the journalistic and political uses of the word ‘genocide’ to describe various forms of collective violence directed at ethnic and religious minorities, and the more demanding legal definition of genocide that requires compelling and unambiguous evidence of a specific ‘intent to destroy’.

 

The testimony made this issue complex and sensitive. It produced a consensus on the jury that the evidence of genocide was sufficient to make it appropriate and responsible to give careful consideration as to whether the crime of genocide had actually been committed by Israel in the course of carrying out Protective Edge. This was itself an acknowledgement that there was a genocidal atmosphere in Israel in which high officials made statements supporting the destruction, elimination, and subjugation of Gazans as a people, and such inflammatory assertions were at no time repudiated by the Netanyahu leadership or subject to criminal investigation, let alone any legal proceedings. Furthermore, the sustained bombardment of Gaza under circumstances where the population had no opportunity to leave or to seek sanctuary within the Gaza Strip lent further credibility to the charge of genocide. The fact that Protective Edge was the third large-scale, sustained military assault on this unlawfully blockaded, impoverished, and endangered population, also formed part of the larger genocidal context.

 

Further in the background, yet perhaps most relevant consideration of all, Israel failed to exhaust diplomatic remedies before its recourse to force, as required by international law and the UN Charter. Israel had the option of lifting the blockade and exploring the prospects for long-term arrangements for peaceful co-existence that Hamas had proposed numerous times in recent years. Such initiatives were spurned by Israel on the ground that it would not

deal with a terrorist organization.

 

Despite the incriminating weight of these factors, there were legal doubts as to the crime of genocide. The political and military leaders of Israel never explicitly endorsed the pursuit of genocidal goals, and purported to seek a ceasefire during the military campaign. There was absent a clear official expression of intent to commit genocide as distinct from the intensification of the regime of collective punishment that was convincingly documented. The presence of genocidal behavior and language even if used in government circles is not by itself sufficient to conclude that Protective Edge, despite its scale and fury, amounted to the commission of the crime of genocide.

 

What the jury did agree upon, however, was that Israeli citizens, including officials, appear to have been guilty in several instances of the separate crime of Incitement to Genocide that is specified in Article 3(c) of the Genocide Convention. It also agreed that the additional duty of Israel and others, especially the United States and Europe, to act to prevent genocide was definitely engaged by Israeli behavior. In this regard the Tribunal is sending an urgent message of warning to Israel and an appeal to the UN and the international community to uphold the Genocide Convention, and act to prevent any further behavior by Israel that would cross the line, and satisfy the difficult burden of proof that must be met if the conclusion is to be reached that the crime of genocide is being committed. At some point, the accumulation of genocidal acts will be reasonably understood as satisfying the high evidentiary bar that must be reached so as to conclude that Israel had committed genocide.

 

Many will react to this assessment of Protective Edge as lacking legal authority and dismiss the finding of the jury as merely recording the predictable views of a biased ‘kangaroo court.’ Such allegations have been directed at the Russell Tribunal ever since its establishment in the mid-1960s by the great English philosopher, Bertrand Russell, in the midst of the Vietnam War. These first sessions of the Russell Tribunal similarly assessed charges of war crimes associated with U.S. tactics in Vietnam, and in Russell’s words, represented a stand of citizens of conscience ‘against the crime of silence.’ This latest venture of the tribunal has a similar mission in relation to Israel’s actions in Gaza, although less against silence than the crime of indifference.

 

It is my view that such tribunals, created almost always in exceptional circumstances of defiance of the most elemental constraints of international law, make crucial contributions to public awareness in situations of moral and legal outrage where geopolitical realities preclude established institutional procedures such as recourse to the International Criminal Court and the UN Security Council and General Assembly. That is, these kind of self-constituted tribunals only come into being when two conditions exist: first, a circumstance of extreme and sustained violation of fundamental norms of morality and international law and secondly, a political setting in which governmental procedures and UN procedures are inoperative.

 

When the interests of the West are at stake, as in the Ukraine, there is no need to activate unofficial international law initiatives through the agency of civil society. However in circumstances involving Israel and Palestine, with the United States Government and most of Western Europe standing fully behind whatever Israel chooses to do, the need for a legal and moral accounting is particularly compelling even if the prospects for accountability are virtually nil. The long suffering people of Gaza have endured three criminal assaults in the past six years, and it has left virtually the whole of the population, especially young children, traumatized by the experience of such sustained military operations.

 

It should be acknowledged that the UN Human Rights Council has appointed a Commission of Inquiry to investigate allegations of war crimes associated with Protective Edge, but its report is not due for several months, Israel has indicated its unwillingness to cooperate with this official UN initiative, and it is almost certain that any findings of criminality and related recommendations will not be implemented due to the exercise of a geopolitical veto by the United States, and perhaps, other members of the Security Council. In view of these circumstances, the argument for convening the Russell Tribunal remains strong, especially if one recalls the fate of the Goldstone Report prepared in analogous conditions after the 2008-09 Israeli attacks on Gaza known as Operation Cast Lead.

 

The Russell Tribunal is filling a normative vacuum in the world. It does not pretend to be a court. In fact, among its recommendations is a call on the Palestinian Authority to join the International Criminal Court, and present Palestinian grievances to the authorities in The Hague for their investigation and possible indictments. Even then the realities of the world are such that prosecution will be impossible as Israel is not a party to the treaty establishing the ICC and would certainly refuse to honor any arrest warrants issued in The Hague, and no trial could be held without the physical presence of those accused. The value of an ICC proceeding would be symbolic and psychological, which in a legitimacy war would amount to a major ‘battlefield’ victory. It is notable that Hamas has joined in urging recourse to the ICC despite facing the distinct possibility that allegations against its launch of rockets would also be investigated and its officials indicted for its alleged war crimes.

 

As with the Nuremberg Judgment that documented the criminality of the Nazi experience, the process was flawed, especially by the exclusion of any consideration of the crimes committed by the victors in World War II, the Russell Tribunal can be criticized as one-sided in its undertaking. At the same time it seems virtually certain that on balance this assessment of Israel’s behavior toward the people of Gaza will be viewed as supportive of the long struggle to make the rule of law applicable to the strong as well as the weak. It is also reflective in the disparity of responsibility for the harm done by the two sides.

 

I recall some illuminating words of Edward Said uttered in the course of an interview with Bruce Robbins, published in Social Text (1998): “The major task of the American or the Palestinian or the Israeli intellectual of the left is to reveal the disparity between the so-called two sides, which appear to be rhetorically and ideologically to be in perfect balance, but are not in fact. To reveal that there is an oppressed and an oppressor, a victim and a victimizer, and unless we recognize that, we’re nowhere.”

 

After ‘Protective Edge’: What Future for Palestine and Israel

21 Sep

 

 

The 50-day Israeli military operation that killed over 2100 Palestinians, wounded another 11,000, and undoubtedly traumatized the entire Gazan population of 1.7 million also took the lives of 70 Israelis, of which 65 were soldiers. This last violent encounter has ended without a clear victory for either side. Despite this, Israel and Hamas are each insisting that ‘victory’ was achieved. Israel points to the material results, tunnels and rocket sites destroyed, targeted assassinations completed, and the overall weakening of Hamas capacity to launch an attack. Hamas, for its part, claims political gains, becoming far stronger politically and psychologically in both Gaza and the West Bank than before the fighting began, refusing to give in on the basic Israeli demand of the ‘demilitarization’ of Gaza, as well as further tarnishing Israel’s international reputation.

 

The UN Human Rights Commission has taken what for it is an exceptional step of appointing a commission of inquiry to investigate allegations of war crimes. The fact that William Schabas, a renowned expert on international criminal law, especially on the crime of genocide, was selected to chair the investigation is of great symbolic significance, and potentially of major relevance to the ongoing legitimacy struggle being successfully waged by the Palestinian people. Some have referred to this new initiative as ‘Goldstone 2.0’ referring back to the earlier high visibility fact finding undertaking of the HRC prompted by the Israeli military operation against Gaza in 2008-09 that had shocked the world by its ferocity and disregard for the international laws of war. Unlike Richard Goldstone, who was an amateur in relation to international law and ideologically aligned with Zionism, Schabas is a leading academic expert without any known ideological inhibitions, and with the strength of character to abide by the expected findings and recommendations of the report that the inquiry produces.

 

As earlier, the United States will use its geopolitical muscle to shield Israel from censure, criticism, and above all, from accountability. This lamentable limitation on the implementation of international criminal law does not mean that the Schabas effort lacks significance. The political outcome of prior anti-colonial struggles have been controlled by the side that wins the legitimacy war for control of the commanding heights of international law and morality.

This symbolic terrain is so important as it strengthens the resilience of those seeking liberation to bear the burdens of struggle and it deepens the global solidarity movement that provides vital support. In this respect, the Goldstone Report exerted a major influence in delegitimizing Israel’s periodic ‘mowing of the lawn’ in Gaza, especially the grossly disproportionate uses of force against a totally vulnerable and essentially helpless and entrapped civilian population.

 

The most startling result of this latest onslaught by Israel, which seems less an instance of ‘warfare’ than of ‘orchestrated massacre,’ is strangely ironic from an Israeli perspective. Its ruthless pursuit of a military victory had the effect of making Hamas more popular and legitimate than it had ever been, not only in Gaza, but even more so in the West Bank. Israel’s military operation seriously undermined the already contested claims by the Palestinian Authority (PA) to be the authentic representative of the aspirations of the Palestinian people. The best explanation of this outcome is that Palestinians as a whole prefer the resistance of Hamas, however much suffering it produces, to the passive compliance of the PA with the will of the occupier and oppressor.

 

For its part, Israel has signaled a less disguised refusal to move toward a negotiated peace under present conditions. Prime Minister Netanyahu has told the Palestinians once again that they must choose between ‘peace and Hamas,’ without mentioning that his use of the word ‘peace’ made it indistinguishable from ‘surrender.’ Netanyahu repeated his often proclaimed position–Israel will never negotiate with a terrorist organization that is committed to its destruction. Putting another nail in what appears to be the coffin of a two-state solution, Israel announced the largest confiscation of land for settlement expansion in more than 20 years, taking nearly 1000 acres of public land near Bethlehem to be added to the small settlement of Gvaot near the Etzion bloc south of Jerusalem. Some ask, “Why now?” rather than the more perceptive “Why not now?”

 

From these perspectives, the real impact of the Gaza carnage may be less the physical devastation and humanitarian catastrophe, imminent dangers of disease epidemic and $12 billion in damage taking at least 20 years to overcome, than the political effects. It looks like the suspension of inter-governmental diplomacy as a means of conflict resolution. Even the PA, seeking its political rehabilitation, is now talking about demanding that the UN establish a three year timetable for Israeli withdrawal from the West Bank. It is also threatening recourse to the International Criminal Court to empower an investigation of charges that the occupation of the West Bank itself involves the commission of crimes against humanity.

 

From these perspectives, the situation seems hopeless. The Palestinian prospects for their own state, which was the hope of moderates on both sides for many years, now seems irrelevant. Only the two-state template, however enacted, could reconcile the conflicting claims of Israeli Zionism and Palestinian nationalism. Of course, increasingly Palestinian critics questioned whether Zionism was consistent with the human rights of the Palestinian minority and its large refugee and exile communities, and tended to view the two state outcome as a triumph for the Zionist project and a sugar-coated defeat for Palestinian national aspirations. Now that it is ‘game over’ for the two-state solution, and the real struggle is more clearly being waged between competing versions of a one-state solution.

 

What can we expect? Even a sustainable ceasefire that allows the people of Gaza to recover somewhat from the dreadful ordeal of a cruel regime of collective punishment seems unlikely to persist very long in the present atmosphere. There is every reason to suppose that Israeli frustrations with the failure of its attack to subdue Hamas, and Hamas’ refusal to accept without acts of resistance the harsh realities of its continuing subjugation.

 

And yet there are flickers of light in the darkened skies. The stubbornness of Palestinian resistance combined with the robustness of a growing global solidarity movement is likely to exert intensifying pressure on the Israel public and some of its leaders to rethink their options for the future, and from an Israeli point of view, the sooner the better. The BDS (Boycott, Divestment, and Sanctions) campaign is gaining political and moral traction by the day. The kind of nonviolent international movement that unexpectedly helped cause the abrupt collapse of the apartheid regime in South Africa seems as though it might at some point push Israelis toward reconsidering whether an accommodation is not in Israel’s interest even if it requires a rethinking of what is the core reality of ‘a Jewish homeland,’ and even if it falls short of a complete reconciliation. As the experience in South Africa, and also Northern Ireland suggest, the side with the upper hand militarily does not acknowledge mounting political pressure until it is ready for a deal with its enemy that would have seemed inconceivable just shortly before it was made.

 

The outcome of the Israel-Palestine struggle is presently obscure. From the territorial perspective it appears that Israel is on the verge of victory, but from a legitimacy struggle perspective the Palestinians are gaining the upper hand. The flow of history since the end of World War II suggests a hopeful future for the Palestinians, yet the geopolitical strength of Israel may be able to withstand the intensifying pressure to acknowledge the fundamental Palestinian right of self-determination.

 

 

 

Three Questions for Hamas

24 Aug

 

 

There is no doubt that Hamas has exhibited extraordinary resilience under the most difficult of conditions that have bedeviled its period of political leadership in the Gaza Strip that started in 2007. It also seems clear as persuasively argued by Sandy Tolan in a valuable Common Dreams article [Tolan, “Blown Chances in Gaza: Israel & U.S. Miss Many Chances to Avoid War, Aug. 13, 2014] that Hamas pursued multiple initiatives starting in 2006 designed to achieve calm and quiet in its relations with Israel, and that these initiatives, including back channel reassurance about peaceful intentions, were rebuffed without even being acknowledged by either Israel or the United States. It also seems the case that Israel acted to provoke the three most sustained military onslaughts directed at Gaza since 2008, and in each has relied on disproportionate force, inflicted numerous civilian casualties, and acted in a manner defiant of international humanitarian law. For these reasons Israel deserves to be treated as an ‘outlaw state’ for reasons set forth by Akbar Ganji and I argued in a two-part article appearing in the online pages of AlJazeera English [“The Outlaw State of Israel,” Aug. 20,21, 2014].

 

And yet Hamas also has some explaining to do if it wishes to be more widely accepted throughout the world as entitled to full respect as a legitimate political actor. This respect is crucial in the ongoing politics of enabling Hamas to play a major role in representing the national movement of the Palestinian people in all diplomatic settings. The announcement of a unity government between Fatah and Hamas was an important legitimating step in this direction. The following hard questions deserve convincing responses from those advocating the further legitimation of Hamas:

 

  • Why provide Israel with an argument for its massive military assaults by firing thousands of rockets that do minimal damage and give Israel a credible argument for recourse to defensive force applied disproportionately and causing intolerable levels of suffering for the people of Gaza? Are there not alternatives and better ways to sustain the spirit and substance of Palestinian resistance?

 

  • Is it not overdue to modify the language, tone, and substance of the Hamas Charter or Covenant of 1988 so as to reconcile such a foundational document with the more moderate diplomatic postures articulated by Hamas leaders in recent years? Why leave this gap that Israel can exploit to justify its refusal to deal with Hamas or respond to its frequently articulated political proposal of long-term peaceful co-existence? Either Hamas stands by this exterminist language or it must supersede it by a new formulation of goals and vision.

 

 

  • Can Hamas expect to be viewed favorably by public opinion and in diplomatic circles when it engages in grisly forms of revolutionary justice when dealing with Palestinians suspected of collaborating with Israel? As many as 21 Palestinians were reported to have been hung in prominent public places in Gaza on August 22nd on charges of collaborating with the enemy. Similar issues of summary execution arose in the context of the earlier Israeli aggressions in 2008-09 and 2012, and such behavior was then widely condemned by Palestinian human rights groups and many others in Gaza. Admittedly, the problems posed by collaborators is a great security threat given the realities of the blockade and vulnerability of Gaza, but Hamas jeopardizes its reputation and claim to be a legitimate political actor by so behaving, and to some extent nullifies the strong effort of its leaders in recent years to project a moderate ethically responsible image by word and deed. Putting the question differently, ‘why is it necessary?’ Many of us are aware that Israel uses all manner of ‘dirty tricks’ to induce collaboration when it recruits informers in Gaza, which should be the basis of empathy on the part of Hamas for compromised individuals or at the very least cause the wheels of justice to await the outcome of an evidence-based trial before imposing death sentences, and then not doing so in such dehumanizing and degrading manner?

 

I do not raise here the accusations associated with charges and counter-charges relating to the use of ‘human shields’ in the course of the fighting. The evidence is cloudy as to such behavior, and as to whether it occurrence reflects policy, or is a deviation therefrom. There are difficult issues of applying international criminal law in circumstances of asymmetric urban warfare, and an overall caveat about striking a self-righteous position with respect to the tactics used by either side is that military expediency has consistently prevailed over the constraints of law and morality throughout the history of warfare. A reading of Kurt Vonnegut’s Slaughterhouse-Five (1969) or a consideration of strategic bombing of German and Japanese cities during World War II, including the use of atomic bombs to incinerate Hiroshima and Nagasaki despite their irrelevance to the outcome of the war and the horrendous impact on the large civilian populations.

 

In the last several years I have received much criticism, and worse, for urging the adoption of a positive attitude toward the Hamas effort to be treated as a political actor with legitimate grievances, and by observing that the behavior of Hamas in relation to Israel has been of a generally defensive nature in the face of constant harassment, unacceptable abuse, and an extreme campaign of delegitimation, even criminalization. It remains my judgment on the basis of evidence available to me that Hamas has sought a quiet border with Israel, and that Israel has been principally responsible for the violence, and beyond this, for virtually all of the death and destruction on the Gaza side of the border that has occurred in this period. It is also encouraging to take note of Hamas agreement to seek recourse to the International Criminal Court in pressing Palestinian grievances against Israel even though if an investigation of allegations goes forward it will include looking into contested aspects of Hamas’ behavior from the perspective of international criminal law.

 

The efforts of the international community and the UN to impose solutions, up through the failed Kerry initiative that collapsed last April, have not contributed to peace and justice either between Israel and Palestine, or in the wider region. Whether wittingly or not, the international diplomacy of the West has produced dispossession, violence, and seemingly irreconcilable conflict with disastrous and tragic consequences for the indigenous population of Palestine ever since the end of World War I.

 

Gaza Interview

20 Aug

(Prefatory Note: I have had several requests to post an interview published in CounterPunch on the Gaza crisis; it covers a wide range of issues, but is not up to date in relation to a rapidly changing situation in which adversaries are engaged in a misleading blame game while the bodies and rubble continue to pile up on the Gaza side of the border)

 

An Interview with Richard Falk on the Crisis in Gaza

by KEN KLIPPENSTEIN

 

Richard Falk is an American professor Emeritus of International Law at Princeton University. He just completed a six-year term as United Nations Special Rapporteur on Palestinian human rights. He was appointed to this role by the UN Human Rights Council, in 2008.

Ken Klippenstein: Could you describe Sisi’s [Egypt’s new leader] relationship with Hamas?

Richard Falk: The [Sisi] government is determined to destroy the Muslim Brotherhood and they view Hamas as an extension of the Brotherhood. So they’re, in a certain way, on the same side as Israel on this particular confrontation.

KK: Has the aerial bombardment campaign adopted by Israel done anything to decrease the rocket fire coming from Gaza?

RF: There’s no evidence that it has. It certainly has caused some damage and some deaths to those involved in either making or deploying and firing the rockets. But there’s no discernable effect in stopping Hamas’ and other militias’—it’s not only Hamas, there are other militias, some of which Hamas doesn’t control—that have engaged in this kind of rocket fire. The only alternative to using these rockets for defenseless people like those living in Gaza is to absolutely do nothing—to be completely passive. They have no military capability to resist Israel on the ground or in the air or from the sea. So it’s a very one-sided war; and one-sided wars are, in my view, by their very nature unlawful and constitute crimes against humanity.

KK: Since Palestine lacks statehood, does that deny them recourse to the protections afforded by international law?

RF: The UN General Assembly on Nov. 29, 2012 passed a resolution recognizing the statehood of Palestine as a non-member observer state of the UN. That has been interpreted as giving Palestine the status of being a state in international society for most purposes. They have joined UNESCO, for instance, as a member state, and they’ve adhered to more than 15 international treaties open only to states. They’re recognized by, I think, 130 governments as a state. They could at this point seek redress at the International Criminal Court, a step that Israel and the United States have declared would be very provocative from their point of view and would lead to adverse consequences.

In effect, the United States and Israel are saying it’s not acceptable to use international criminal law to uphold your legal rights.

KK: What is the US role in the aerial bombardment campaign?

RF: The US is definitely complicit and legally accountable, at least in theory, in that this weaponry is not supposed to be used except in accordance with international law; and if the whole undertaking is a violation of international law, then the United States is responsible, and should diplomatically have been seeking to restrain and censure Israel, rather than to lend its support.

Beyond that, there is the sense that Congress itself—again at least theoretically—restricts military assistance to foreign countries in a way that is supposed to be compatible with international law and the UN Charter. So by the guidelines that are embedded in American law itself, this is an unlawful and unacceptable policy that the US government has been pursuing.

KK: Could you talk about the legality of the siege of Gaza?

RF: The siege of Gaza is clearly a form of collective punishment that is prohibited by Article 33 of the 4th Geneva Convention, which unconditionally prohibits any recourse to collective punishment. A blockade that has been maintained since the middle of 2007 is directed at the entire civilian population of Gaza. It includes many items that are needed for health, subsistence, and minimum requirements of a decent life. So in my view, Israel—as the occupying power (under international law) of Gaza—is supposed to protect the civilian population, rather than subject it to a punitive blockade of the sort that’s been in existence these past 7 years.

KK: Israel sometimes phones warnings ahead of time before bombing buildings. Do you believe that this constitutes a serious effort to minimize civilian deaths?

RF: One would have to look carefully at each context. My impression is that Gaza is a place where there’s no real opportunity to escape from impending attacks. There may have been some lives saved as a result of these warnings. My impression is they’re not given consistently and comprehensively; and furthermore, that in the wider context of Gaza, there’s no opportunity for people to become refugees or to even move from points of danger to points of relative safety. It’s unusual in a wartime situation where almost always there is an option of crossing borders during a period of combat and finding some sort of sanctuary. Israel again, as the occupying power, has an obligation to see to it that the civilian population [of Gaza] is protected. They deny any kind of exit right to Palestinians living in Gaza, except those holding foreign passports (there are about 800 Palestinians with dual passports who have been allowed to cross the border into Israel). 150 of those have American citizenship and the US consulate has been facilitating their departure if those people want to.

But in general, for the 1,700,000 Gazans, they are denied the option of becoming refugees or even of becoming internally displaced persons. And therefore they cannot escape from the fire zone that Israel has created. And even if they’re not direct casualties being killed or injured, they are living under the cloud of state terrorism maintained day and night over this period, in a way that psychiatrists and psychologists and mental health experts say is inducing mass trauma on the part of the Palestinian people, particularly among the children.

Even before this attack there exists a highly anxious atmosphere because there are Israeli planes flying over all the time; and it’s never clear when they will do something that is hostile. People of Gaza, as I’ve been saying, are completely vulnerable. They have no way of fighting back. They are at the mercy of the Israelis. And the Israelis show very little mercy.

KK: What is Israel’s legal rationale for denying Gazans the displaced persons status that you mentioned before?

RF: As far as I know, they haven’t articulated any justification for this policy. They just close the borders and the international community has by and large been scandalously silent; and has remained so up to this time.

KK: What is the US role in blocking a UN resolution condemning Israeli violence in Gaza?

RF: As I understand it, the US did indicate its readiness to veto any resolution that blamed Israel, and there was support for such a resolution on the part of the majority of the members of the Security Council. What the UN ended up doing was issuing a statement that called for a ceasefire but it is a statement that has no binding legal effect and did not in any way censure Israel for its role.

KK: Do you believe the Security Council should be reformed in any way, given the US’ propensity for vetoing otherwise unanimous Security Council resolutions?

RF: I think it would be a helpful move from the perspective of global justice and the implementation of international law; but as matters now stand, it’s a very impractical step because no amendment to the UN charter can be made without the consensus of the 5 permanent members of the Security Council, each of whom has a veto. The United States and probably Russia and maybe China would veto any effort to deprive them of their veto rights. So it’s more or less gridlocked with respect to reform.

KK: Would you support a call for an arms embargo on Israel?

RF: Yes I would. I think it would be an appropriate move at this point. Israel has consistently defied international law in many different ways. It shows no sign of respecting the wishes of the international community, at this time, for an immediate ceasefire. So I think that the only way the world can show that it’s at all serious about protecting vulnerable peoples—in this case the Palestinians—would be to impose an arms embargo.

Of course Israel has a very robust arms industry itself. It’s one of the ten leading exporters of arms. And it’s of course inconceivable that, at this stage, the US and several of the West European countries would respect such an embargo. Nevertheless, it would be an important symbolic step in the direction of delegitimizing the kind of behavior that Israel has been engaged in.

KK: In the case of Israeli kidnappings and murder of Palestinians in Palestinian territory, can the perpetrators be brought before a Palestinian court or must Palestinians simply accept an Israeli court? 

RF: At this point they would have to accept the formal authority of the Israeli courts because the crime was committed in an area under Israeli legal administration. And the accused are in the possession of the Israelis and therefore they have the authority under international law to prosecute.

If there’s not a serious assessment of the crime, it could be questioned as an evasion of the obligation to prosecute; and if found guilty, punish those that engage in this kind of behavior. Remembering that, as far as we know, this was purely private criminal activity. It was not something that the government can be shown to have authorized—although the background of incitement after the kidnapping of the 3 Israeli teenagers on Jun 12th is part of the broader context in which this crime occurred.

KK: Are allegations of Hamas using human shields credible?

RF: There hasn’t been, as far as I know, serious evidence that this has taken place. In fact there is evidence that the Israelis used Palestinians as human shields when they mounted the ground offensive back in 2008-2009. And even if the Palestinians did do this, it would still not vindicate Israelis shooting directly at civilians, unless there was some kind of argument of absolute military necessity, which is pretty remote from this situation.

KK: Do you believe that Israel has been committing war crimes in Gaza?

RF: Yeah. I think certainly there’s the basis for alleging war crimes. It requires a formal legal judgment to reach the conclusion that there have been war crimes committed. There is a presumption of innocence until proven guilty—that’s important to maintain. But certainly the evidence that I’m aware of suggests the commission of serious crimes against humanity and war crimes in the course of this operation.

KK: Could you discuss the background of the crisis? Western media’s accounts usually begin with the kidnapping and murder of the three Israeli boys, omitting important contexts: the siege of Gaza, for instance.

RF: The timeline for these justifications that are made by Israel is very self-serving and not very convincing. Of course, you have a complex pattern of interaction. On the other hand, Israel is the occupying power, and has the international responsibility to protect the civilian population [of Gaza]. And in the case of the kidnapping on Jun 12, they had the opportunity to limit the response to an enforcement action that was done in a reasonable way. Instead they used it as a pretext for seeking to destroy Hamas as a political actor present in the West Bank; and then extending that anti-Hamas policy to the attack on Gaza. So it was clearly a way of using this initial criminal act as a means to pursue a much wider political agenda that focuses on Israel’s national ambition to control the West Bank—at least most of the West Bank, where the settlements are—and to eliminate from that reality the only viable Palestinian opposition force (because the Palestinian Authority that is nominally in control on behalf of the Palestinians of the West Bank, is in a semi-collaborationist relationship with Israel). So the attempt to get rid of Hamas as a political influence on the West Bank particularly, and to punish it severely in Gaza where it’s in control of the governing process, is a crime.

KK: Why did Netanyahu not take Abbas up on his offer to cooperate with the investigation into the kidnapping and killing of the three Israeli boys?

RF: I think it’s part of Netanyahu’s political escalation of the Israeli approach at this point. They repudiated the direct negotiations—which didn’t make much sense in the first place—but they repudiated them as a way of stating that they would no longer seriously engage in diplomacy but would impose their own solution on the conflict. And that solution involves consolidating control over the whole of Jerusalem and taking all or the most valuable parts of the West Bank and in effect annexing them to Israel.

KK: Under the Arms Control Act of 1976, governments that receive weapons from the US are required to use them for legitimate self-defense. Does the US’ arms aid to Israel violate that law?

RF: Yes, definitely. From everything I’ve been saying, there’s no legal, political or moral argument that would uphold the claim that Israel is acting in legitimate self-defense. There’s been no armed attack by Hamas or Gaza; in any event, Gaza from an international law point of view, is not a foreign state but an occupied territory. It’s not clear that you can exercise self-defense in relation to a territory that you are responsible for administering in accordance with international humanitarian law.

Ken Klippenstein is a journalist based in Madison, Wisconsin, USA. He can be reached via twitter @kenklippenstein or email: kenneth.klippenstein@gmail.com

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Strange Regional Alignments in the Gaza Massacre

11 Aug

Neighborly Crimes of Complicity in Gaza

 

[Prefatory Note: my post below, an earlier version of which was published in AlJazeera English as an opinion piece. It was written before I had the opportunity to read an illuminating assessment of the regional and global turmoil that culminated for now in the massacre carried out by Israeli armed forces in Gaza. I highly recommend “The Tragedy of Great Power: The Massacre of Gaza and the Inevitable Failure of the Arab Spring” written by the learned Islamic jurist and scholar, Khaled Abou El Fadl, a distinguished professor at UCLA School of Law, with the link to the article below:

http://www.abc.net.au/religion/articles/2014/08/08/4064106.htm

 What makes Professor El Fadl profound essay particularly valuable is his ability to fit the regional pieces together in a convincing manner, showing how and why governments that rule in Saudi Arabia and the UAE, encouraged the overthrow of Egypt’s elected government headed by Mohamed Morsi in mid-2013 and more recently encouraged Israel to destroy Hamas. He also shows that Hamas is not accurately perceived as a byproduct of the Egyptian Muslim Brotherhood, but has its own “very distinct pedagogies, objectives and methodologies.” In depicting the forces of resistance and transformation as opposed to the geopolitics of counterrevolution as constituting the core struggle taking place throughout the region it becomes clear why the alignments in the Middle East are assuming their current configurations.

 It is telling and provocative for Professor El Fadl to situate the Palestinian Liberation Organization (and by implication, the Palestinian Authority) as de facto allies of Sisi’s Egypt, Saudi Arabia, and the UAE as well as being existential partners of the United States and Israel in subjugating the region to Western goals. What has developed further since the end of the Cold War rivalry that long dominated the region should be considered a geopolitical protection racket that gained political salience in the aftermath of the Arab Spring. The upheavals of 2011 shook the foundations of the old order, and led to renewals throughout the region of Faustian Bargains by which various authoritarian regimes receive protection, including help with the destruction of any political actor, whether Islamic or not, that dares to challenge this established order composed of ultra-rich native elites claiming dynastic privileges conferred by colonial powers then seeking native collaborators to manage exploited and oppressed populations. While these elites appease Israel, the masses in the same political space remain passionately and symbolically dedicated to the Palestinian struggle as became evident in the September 9, 2011 attack by several thousand Egyptians on the Israeli Embassy shortly while the heroic memories of the overthrow of Hosni Mubarak were still fresh.]

 

Of all the complexities surrounding the reaction of the world to the horrifying spectacle of Israel’s severe criminality in Gaza none is more perplexing than the complicity of most governments throughout the Arab world. What makes their political posture particularly bewildering is the degree of ethnic, religious, cultural, and historical commonality that creates such close ties of identity among the peoples of the region. And no single issue has been as unifying over the decades for these people than has their long intensely felt opposition to the injustice, suffering, and exploitation that the Palestinian people have endured for the past century as a result of the encroachments of the Zionist movement on their lands. It should be recalled that at earlier stages of the Palestinian ordeal, the governments of the neighboring Arab countries did exhibit strong, if ineffectual, solidarity with the Palestinian struggle. Several Arab states jointly attacked Israel, initially in 1948 to prevent the establishment of Israel, and later in the failed wars of 1967 and 1973 that challenged Israel’s existence. These defeats together with Egypt’s accommodation via the peace treaty of 1979 was a defining moment at which the Arab neighbors of Israel abandoned the Palestinians politically, but not yet diplomatically or economically. At this time any tangible form solidarity at the level of Arab governments is now a distant and ironic memory, and has been supplanted in the main by active hostility to Palestinian aspirations and implicit sympathy with, or at least acquiescence in Israel’s regional ambitions in conjunction with U.S. grand strategy in the region .

 

Some official formal hostility to Israel and sympathy for the Palestinian struggle persists at rhetorical levels, but rings hollow. It is true that many Arab countries to this day refuse entry to anyone with an Israeli entry or exit stamp in their passport. Anwar Sadat’s assassination in 1981 was widely interpreted at the time as a populist response in Egypt to his willingness to sign a peace treaty with Israel without simultaneously securing justice for the Palestinians, thereby crossing what was then a red line of betrayal. It was observed by the Western media that few Egyptians bothered to leave their apartments as a show of respect as Sadat’s funeral procession as it passed through the streets of Cairo because the slain leader was so reviled for shamelessly appeasing the enemy of the Palestinian people.

 

Above all, the ongoing struggle for Palestinian self-determination is understood by the peoples of the Middle East, and indeed the world over, as a struggle for the empowerment and liberation of the Palestinian people in the face of severe injustices done unto them over a long period of time, and involving such crimes against humanity as apartheid and massacre, verging on genocide. Increasingly, and never more than in reaction to this recent Gaza horror show, the Palestinian struggle will have to be waged not only against Israel, and its American and European allies, but also against the Arab collaborationist governments in the region that have betrayed their own larger religious and cultural identities, and more revealingly, the most fundamental ideas of justice and compassion associated with ideals of humanity and the ethical underpinnings of Islamic unity.

 

It is notable that only non-Arab Turkey and Qatar have acted responsibly in response to the Israeli attacks that commenced on July under the IDF code name of Protective Edge. The Turkish Prime Minister, Recep Tayyip Erdoğan, has spoken movingly, without hiding his condemnation of Israeli behavior behind the euphemisms of diplomacy, in characterizing Israel’s behavior in Gaza as criminal. Even a group of distant Latin American countries, including Brazil and Chile, have at least shown the depth of their disapproval of Israel’s conduct by withdrawing their ambassadors from Israel. This symbolic expression of disapproval is something that not one government in Europe or North America, the self-proclaimed centers of world civilization, has yet done. The countries of the South have by and large also turned their backs to the Palestinians and the confrontation in Gaza, with the exception of South Africa.

 

Taken together these considerations make it morally distressing and politically mystifying to observe that almost every Arab governments has seemed either to be flashing a green light in Israel’s direction or pointedly looking away. Given the criminality of the Israeli attack and the tragic suffering inflicted on the Palestinian people, complicity by way of such diplomatic endorsements, or even stony silent acquiescence, is at the very least a breach in Arab and Islamic identity, and worse, seems to be an unimaginable case of aiding and abetting genocidal political violence directed at the Palestinian people. Such a diplomacy of indifference is especially notable as expressed toward Gaza, which is governed by a Moslem-oriented leadership. Israel’s persistence in a massacre mode despite the near universal calls for a responsibly negotiated ceasefire was widely attributed to the fact that the Netanyahu government was being encouraged behind the scenes by Egypt and Saudi Arabia ‘to finish the job,’ not of the tunnels and rockets that served as the security pretext, but of Hamas itself as ‘the head of the snake,’ the one Palestinian actor that continued to believe in a politics of resistance. For these Arab governments to act so opportunistically, particularly given the frequency and magnitude of Israeli atrocities is shocking to all but the most numbed of political imaginations.

 

To be sure, the behavior of these Arab governments as mystifying, legally and morally unacceptable, and politically self-destructive warrants condemnation, but it also needs to be understood and explained as clearly as possible. What quirks of political realism led these Arab regimes to so calculate their future?

           

The Enemy of my Enemy

 

The core explanation of Arab complicity (excepting Qatar) has to do with the Arab governments hating and fearing the Muslim Brotherhood (MB) far more than they resent Israel. This logic is then extended to Hamas, which is misleadingly treated as nothing other than a branch of this supposedly poisonous tree. This hostility to an Islamic movement authenticated from below overshadows Israel’s encroachment on their region, and even its appropriation and control of Muslim sacred places in Jerusalem. In effect what is going on in these top heavy monarchies is a passionate search for protection from possible uprisings by their own populations, which are feared as potential adversaries. Such an initial assessment pushes the question one step further but it does not give us any insight into why this should be so.

 

What are the sources of this hatred of the MB? The MB is perceived as the essential expression in the Arab world of bottom up political Islam that is viewed as toxic by the established order because of its grassroots legitimacy. This reality has induced panic among these Arab regimes that goes back at least as far as the explosive regional reverberations unleashed by the revolution that overthrew the Shah’s supposedly secure imperial rule in Iran (1979). This revolutionary process caused high intensity tremors, especially throughout the Arab world, and especially among the monarchies nurturing privileged and unscrupulous elites that have long kept their populations cruelly repressed and in backward conditions of mass misery. These regimes, generally aligned with the United States, remain obsessed with the maintaining stability of their own rule, and seem to feel that stifling all voices calling for change is a vital ingredient of their own survival.

 

Hamas as an active resistance movement is in this sense perceived as an acute threat to the kind of future that these Arab governments are intent of achieving no matter what the costs in lives and societal wellbeing. First of all, Has has historical ties to the Egyptian MB, the older organization of Muslim activists that has kept the flame of political Islam burning despite enduring harsh suppression dating back to decades before Israel came into existence. Secondly, Hamas demonstrated its legitimacy, and credibility as a voice of the Palestinians living in Gaza by its electoral victory in 2006, and more recently by its resilience (sumud) and resistance to Israeli tactics of aggression and massacre. Thirdly, Sunni Hamas crossed sectarian boundaries by having its closest political ties with Shiite Iran and Hezbollah, and the Alawite regime in Syria, and although these relationships have grown weaker as a result of recent regional developments, their very existence further alarms the Sunni supremacists in Riyadh whose second source of anxiety is associated with a sectarian/nationalist struggle that pits Saudi Arabia and its allies against Iran and its allies. The terrible carnage in Syria is one expression of this sectarian dimension of the regional struggle that complements efforts to crush any expression of political Islam with a strong societal base of support.

 

Egypt’s Betrayal

 

Of course, in the foreground is the experience of the Arab anti-authoritarian upheavals in 2011, especially the dislodging of Hosni Mubarak in Egypt, followed by expressions of far greater popular electoral support for the Muslim Brotherhood and Salafi candidates throughout Egypt than had been expected by the anti-Mubarak liberals and progressive youth who had earlier dominated the crowds in Tahrir Square. The Gulf countries made no secret of their disappointment with Washington’s refusal to do more to beat back this populist tide that swept over the Mubarak regime, who like the Shah in Iran 30 years earlier, had seemed to offer leaders of these Arab monarchies a model of invulnerability in relation to popular upheavals.

 

And so two years later in 2013 when the chance came, as it did during the faltering presidential term of Mohamed Morsi, it is no secret that the counterrevolutionary coup led by General Ahmed Fattah el-Sisi was most warmly welcomed by Israel and Saudi Arabia. The Sisi coup won immediate aid bestowed in huge quantities (at least $8 billion) from Saudi Arabia and the UAE, hoping that such a large infusion of cash would create a soft economic landing for the new regime, and set up a contrast with the economic failures of the Morsi government. It was hoped that a rapid economic recovery would reassure the majority of Egyptians that they were experiencing a change for the better even if there was little effort by the new leaders to hide the return to the methods and style of the previously despised Mubarak rule that had prompted the earlier upheaval. What is startling is that these Arab supporters never blinked in the face of the crimes of Sisi’s military leadership in Cairo, which featured a bloody crackdowns of anti-government demonstrations in Cario, including even the killing of many MB members while they were at prayer. Sisi proceeded to move against the MB as an organization, having it criminalized and defined legally as ‘a terrorist organization,’ encouraging judicial action that included imposing mass death sentences on many of its members, and generally engaging in state crime on a scale that far exceeded the abuses of the Mubarak period. Even Washington was embarrassed by these excesses, although it maintained a pragmatic silence that overlooked the tensions between its calls for democracy and its actual strategic goal of restoring the regionalstability of the pre-Arab Spring status quo.

 

 

 

Iran Explodes the Myth of Regional Stability

 

Until this pattern became evident I didn’t appreciate the relevance of some remarks made to me by Ayatollah Khomeini while in Paris just as he was about to return to Iran from exile to lead the new Islamic Republic in January 1979. This austere religious leader was very clear about rejecting the then prevailing idea that a national revolution was taking place in Iran. He said again and again during the meeting, “This is an Islamic revolution, not an Iranian revolution.” He went on to observe that the dynastic regime in Saudi Arabia was decadent and oriented toward the West. In his view it was as illegitimate a source of governance as was the Shah’s regime that had just been overthrown in Iran, and a justifiable target for further political initiatives by those societal forces that were infused with Islamic values.

 

The revolution in Iran, whether understood as a national or ideological phenomenon, was deeply threatening to political stability of the region. It was a political movement from below that shattered a monarchic power structure in Iran that was viewed in the region and by the West as invulnerable to internal challenge, once described by Kissinger “as that rarest of things, an unconditional ally.” In other words, it was not just that the foundations of the status quo gave way in Iran, but that their crumbling was brought about by populist tremors that enjoyed widespread cultural legitimacy. It was this cultural legitimacy that again surfaced in the immediate aftermath of the Arab upheavals in 2011, and sent tremors of fear throughout the region, and could not be dismissed on sectarian grounds.

 

The explosive emergence of the Islamic State of Iraq and Levant (ISIS) reinforces Ayatollah Khomeini’s central message. Its proclamation of a new caliphate is precisely in line with this type of thinking. The whole carving up of the Arab world into a series of sovereign states is seen from these perspectives as an imposition of European civilization, destroying and destabilizing the only true political community, that of the Islamic uma.

 

Israel’s Parallel Universe

 

Israeli strategists over the years have been divided about their regional priorities, but agreed on the general contour of principal goals. Israel’s preferred Middle East would consist of governments that were both friendly and stable, which made Iran a favorite until it unexpectedly fell apart in 1978-79. Next best, were governments that were formally cool, or even hostile, but remained mostly on the sidelines in relation to the conflict of with the Palestinians, such as King Hussein’s Jordan, Mubarak’s Egypt, and the Gulf states, especially Saudi Arabia. If such stability was not attainable, then strife in a country that was politically hostile was viewed as next best, which is the story of Syria, and to a degree Iraq, in recent years. In other words, Israel could live with regional actors that were rhetorically hostile, as with passport exclusions or UN speeches, but not with states that were politically hostile, and perceived as allies of Palestinian resistance struggle. In that sense, Israel pushed behind the scenes for the American attack on Iraq after 2001 and has done its best to push the United States into a belligerent encounter with Iran in recent years.

 

When it comes to Gaza, and Hamas, the convergence of the Israeli approach and the Arab governmental consensus is an invaluable political blessing for Tel Aviv. It gives Israel unlimited space to push its militarist agenda, however great the carnage and devastation, and even if much the rest of the world may lament the assault upon international law and morality. Even the United States, and its ‘subaltern’ UN Secretary General, have felt the pressure to use their influence to establish a ceasefire, although without daring to lift a critical finger in Israel’s direction and following an Egyptian-oriented peremptory diplomacy that seems more concerned about PR dimensions than achieving an end to the violence. This skeptical reflection was confirmed by the initial ceasefire proposal that was presented to Hamas on a take it or leave it basis, and quite incredibly, that its leaders were informed about only through its media publication. The newer ceasefire approach, based on a sequence of 72 hour truces, follows the same pattern with Israeli and American negotiators refusing to sit at the same table as the representative of Hamas, and yet claiming to seek an agreement that would end the violence.

 

While Israel talks about rockets and tunnels, its massive military operation is being increasingly interpreted by knowledgeable commentators as punitive, and directed not only at Hamas but at Palestinians generally. Some Israeli leaders and their prominent supporters seem to believe that Gazans deserve to die because they voted for Hamas back in 2006, although many Gazans who are dying didn’t back Hamas then or now, and certainly not the Palestinian children who were not even born when Hamas won the elections. A second punitive motivation, and more explicitly endorsed, is a punishment directed at Palestinians in general for daring to form a unity government back in early June, thus challenging ever so slightly the illusion that Israelis had successfully crushed Palestinian political ambition to pursue self-determination by any means other than the futile charade of periodic spurts of diplomacy. Crushing Hamas is seen as a way to make Palestinians submit to the permanence of occupation, the annexation of most of the West Bank, the realities of apartheid administrative and detention policies, and the burial of any prospect of an independent Palestinian state. The Palestinian Authority had been awkwardly docile until it timidly went forward with the unity government, and now must be disciplined by Israel for getting out of line, being taught a lesson once and for all that if it has any future it is to collaborate with Israel, as it had done in the past, with the suppression of Palestinian resistance, above all Hamas, as a telltale sign of its political outlook.

 

A Concluding Word

 

More than anything else, these terrible happenings in Gaza should lead to a realization that the future of the Palestinian people and of the region as a whole depends on finding a just solution of the conflict. The abysmal failure of the Kerry induced talks showed definitively that Israel has lost all interest in a diplomacy that promises the Palestinians a viable and independent sovereign state at the end of the road. With a show of self-confidence the Knesset made clear its own rejection of the two-state diversion by choosing an ardent Likud one-stater, Reuven Rivlin, to replace Shimon Peres, as President of Israel. It is past time for the peoples of the world to wake up to the real nature of the challenge and support a more militant international campaign of solidarity with the Palestinian struggle, and insist on boycott and divestment in all venues, working to support arms embargoes and sanctions on the part of as many governments as possible.

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