#UN, post-colonial #colonialism + 9-11: Arundhati Roy on #Palestine!

Arundhati Roy on Palestine. ~ Palestine Diary.

Segment from the film “We..” where Arundhati Roy speaks about the Israeli occupation and the Palestinian struggle in the middle east. Historic references, who funds it, and more.

We is a fast-paced 64 minute documentary that covers the world politics of power, war, corporations, deception and exploitation.

It visualizes the words of Arundhati Roy, specifically her famous Come September speech, where she spoke on such things as the war on terror, corporate globalization, justice and the growing civil unrest.

It’s witty, moving, alarming and quite a lesson in modern history.

We is almost in the style of a continuous music video. The music used sets the pace and serves as wonderful background for the words of Ms. Roy and images of humanity in the world we live all in today.

We is a completely free documentary, created and released anonymously on the internet.

Links:
http://www.weroy.org/
http://www.weroy.org/arundhati.shtml

Full documentary on youtube:
http://www.youtube.com/watch?v=63wPSS…

TRANSCRIPT

September 11 has a tragic resonance in the Middle East, too.  On September 11, 1922, ignoring Arab outrage, the British government proclaimed a mandate in Palestine, a follow-up to the 1917 Balfour declaration, which imperial Britain issued, with its army massed outside the gates of the city of Gaza.  The Balfour declaration promised European zionists a national home for Jewish people.  Two years after the declaration, Lord Balfour, the British foreign secretary said: ‘In Palestine we do not propose to go through the form of consulting the wishes of the present inhabitants of the country.  Zionism, be it right or wrong, good or bad, is rooted in age-old traditions, in present needs, in future hopes of far profounder import than the desires or prejudices of the 700,000 Arabs who now inhabit this ancient land’.

How carelessly imperial power decreed whose needs were profound and whose were not.  How carelessly it vivisected ancient civilizations.  Palestine and Kashmir are imperial Britain’s festering, blood-drenched gifts to the modern world.  Both are fault-lines in the raging international conflicts of today.

In 1937 Winston Churchill said of the Palestinians: ‘I do not agree that the dog in a manger has the final right to the manger even though he may have lain there for a very long time.  I do not admit that right.  I do not admit for instance that a great wrong has been done to the red Indians of America or the black people of Australia.  I do not admit that a wrong has been done to these people by the fact that a stronger race, a higher grade race, a more worldly wise race to put it that way, has come in and taken their place’.  That set the trend for the Israeli state’s attitude towards Palestinians.  In 1969, Israeli Prime Minister Golda Meir said: ‘Palestinians do not exist’.  Her successor, Prime Minister Levi Eshkol, said: ‘What are Palestinians?  When I came here [to Palestine] there were 250,000 non-Jews, mainly Arabs and Bedouins.  It was desert, more than underdeveloped.  Nothing’.  Prime Minister Menachem Begin called Palestinians ‘two-legged beasts’.  Prime Minister Yitzhak Shamir called them ‘grasshoppers’ who could be crushed.  This is the language of heads of state, not the words of ordinary people.

In 1947 the UN formally partitioned Palestine and allotted 55% of Palestine’s land to the zionists.  Within a year they had captured 78%.  On May 14, 1948, the state of Israel was declared.  Minutes after the declaration, the US recognized Israel.  The West Bank was annexed by Jordan.  The Gaza strip came under Egyptian military control.  Formally, Palestine ceased to exist except in the minds and hearts of the hundreds of thousands of Palestinian people who became refugees.

In the summer of 1967, Israel occupied the West Bank and the Gaza Strip.  Settlers were offered state subsidies and development aid to move into the occupied territories.  Almost every day more Palestinian families are forced off their lands and driven into refugee camps.  Palestinians who continue to live in Israel do not have the same rights as Israelis and live as second-class citizens in their former homeland.

Over the decades there have been uprisings, wars, intifadas.  Tens of thousands have lost their lives.  Accords and treaties have been signed, ceasefires declared and violated.  But the bloodshed doesn’t end.  Palestine still remains illegally occupied.  Its people live in inhuman conditions, in virtual Bantustans, where they are subjected to collective punishments, 24-hour curfews, where they are humiliated and brutalised on a daily basis.  They never know when their homes will be demolished, when their children will be shot, when their precious trees will be cut, when their roads will be closed, when they will be allowed to walk down to the market to buy food and medicine.  And when they will not.  They live with no semblance of dignity.  With not much hope in sight.  They have no control over their lands, their security, their movement, their communication, their water supply.  So when accords are signed and words like ‘autonomy’ and even ‘statehood’ are bandied about, it’s always worth asking: What sort of autonomy?  What sort of state?  What sort of rights will its citizens have?  Young Palestinians who cannot contain their anger turn themselves into human bombs and haunt Israel’s streets and public places, blowing themselves up, killing ordinary people, injecting terror into daily life, and eventually hardening both societies’ suspicion and mutual hatred of each other.  Each bombing invites merciless reprisals and even more hardship on Palestinian people.  But then suicide bombing is an act of individual despair, not a revolutionary tactic.  Although Palestinian attacks strike terror into Israeli civilians, they provide the perfect cover for the Israeli government’s daily incursions into Palestinian territory, the perfect excuse for old-fashioned, 19th century colonialism, dressed up as a new-fashioned, 21st century ‘war’.

Israel’s staunchest political and military ally is and always has been the US government.  The US government has blocked, along with Israel, almost every UN resolution that sought a peaceful, equitable solution to the conflict.  It has supported almost every war that Israel has fought.  When Israel attacks Palestine, it is American missiles that smash through Palestinian homes.  And every year Israel receives several billion dollars from the US.

What lessons should we draw from this tragic conflict?  Is it really impossible for Jewish people who suffered so cruelly themselves — more cruelly perhaps than any other people in history — to understand the vulnerability and the yearning of those whom they have displaced?  Does extreme suffering always kindle cruelty?  What hope does this leave the human race with?  What will happen to the Palestinian people in the event of a victory?  When a nation without a state eventually proclaims a state, what kind of state will it be?  What horrors will be perpetrated under its flag?  Is it a separate state that we should be fighting for, or the rights to a life of liberty and dignity for everyone regardless of their ethnicity or religion?

Palestine was once a secular bulwark in the Middle East.  But now the weak, undemocratic, by all accounts corrupt but avowedly non-sectarian PLO, is losing ground to Hamas, which espouses an overtly sectarian ideology and fights in the name of Islam.  To quote from their manifesto: ‘We will be its soldiers, and the firewood of its fire, which will burn the enemies’.

The world is called upon to condemn suicide bombers.  But can we ignore the long road they have journeyed on before they arrived at this destination?  September 11, 1922 to September 11, 2002 — 80 years is a long long time to have been waging war.  Is there some advice the world can give the people of Palestine?  Some scrap of hope we can hold out?  Should they just settle for the crumbs that are thrown their way and behave like the grasshoppers or two-legged beasts they’ve been described as?  Should they just take Golda Meir’s suggestion and make a real effort to not exist?

In another part of the Middle East, September 11 strikes a more recent chord.  It was on September 11, 1990 that George W Bush Sr, then president of the US, made a speech to a joint session of Congress announcing his government’s decision to go to war against Iraq.

The US government says that Saddam Hussein is a war criminal, a cruel military despot who has committed genocide against his own people.  That’s a fairly accurate description of the man.  In 1988 he razed hundreds of villages in northern Iraq and used chemical weapons and machine-guns to kill thousands of Kurdish people.  Today we know that that same year the US government provided him with $500m in subsidies to buy American farm products.  The next year, after he had successfully completed his genocidal campaign, the US government doubled its subsidy to $1bn.  It also provided him with high quality germ seed for anthrax, as well as helicopters and dual-use material that could be used to manufacture chemical and biological weapons.

So it turns out that while Saddam Hussein was carrying out his worst atrocities, the US and the UK governments were his close allies.  Even today, the government of Turkey which has one of the most appalling human rights records in the world is one of the US government’s closest allies.  The fact that the Turkish government has oppressed and murdered Kurdish people for years has not prevented the US government from plying Turkey with weapons and development aid.  Clearly it was not concern for the Kurdish people that provoked President Bush’s speech to Congress.

What changed?  In August 1990, Saddam Hussein invaded Kuwait.  His sin was not so much that he had committed an act of war, but that he acted independently, without orders from his masters.  This display of independence was enough to upset the power equation in the Gulf.  So it was decided that Saddam Hussein be exterminated, like a pet that has outlived its owner’s affection.

The first Allied attack on Iraq took place in January 1991.  The world watched the prime-time war as it was played out on TV. (In India those days, you had to go to a five- star hotel lobby to watch CNN.)  Tens of thousands of people were killed in a month of devastating bombing.  What many do not know is that the war did not end then.  The initial fury simmered down into the longest sustained air attack on a country since the Vietnam war.  Over the last decade American and British forces have fired thousands of missiles and bombs on Iraq.  Iraq’s fields and farmlands have been shelled with 300 tons of depleted uranium.  In countries like Britain and America depleted uranium shells are test-fired into specially constructed concrete tunnels.  The radioactive residue is washed off, sealed in cement and disposed off in the ocean (which is bad enough).  In Iraq it’s aimed — deliberately, with malicious intent — at people’s food and water supply.  In their bombing sorties, the Allies specifically targeted and destroyed water treatment plants, fully aware of the fact that they could not be repaired without foreign assistance.  In southern Iraq there has been a four-fold increase in cancer among children.  In the decade of economic sanctions that followed the war, Iraqi civilians have been denied food, medicine, hospital equipment, ambulances, clean water — the basic essentials.

About half a million Iraqi children have died as a result of the sanctions.  Of them, Madeleine Albright, then US Ambassador to the United Nations, famously said: ‘It’s a very hard choice, but we think the price is worth it.’ ‘Moral equivalence’ was the term that was used to denounce those who criticised the war on Afghanistan.  Madeleine Albright cannot be accused of moral equivalence.  What she said was just straightforward algebra.

A decade of bombing has not managed to dislodge Saddam Hussein, the ‘Beast of Baghdad’.  Now, almost 12 years on, President George Bush Jr has ratcheted up the rhetoric once again.  He’s proposing an all-out war whose goal is nothing short of a regime change.  The New York Times says that the Bush administration is ‘following a meticulously planned strategy to persuade the public, the Congress and the allies of the need to confront the threat of Saddam Hussein’.

Weapons inspectors have conflicting reports about the status of Iraq’s weapons of mass destruction, and many have said clearly that its arsenal has been dismantled and that it does not have the capacity to build one.  However, there is no confusion over the extent and range of America’s arsenal of nuclear and chemical weapons.  Would the US government welcome weapons inspectors?  Would the UK?  Or Israel?

What if Iraq does have a nuclear weapon, does that justify a pre-emptive US strike?  The US has the largest arsenal of nuclear weapons in the world.  It’s the only country in the world to have actually used them on civilian populations.  If the US is justified in launching a pre-emptive attack on Iraq, why, then any nuclear power is justified in carrying out a pre-emptive attack on any other.  India could attack Pakistan, or the other way around.  If the US government develops a distaste for the Indian Prime Minister, can it just ‘take him out’ with a pre-emptive strike?

Recently the US played an important part in forcing India and Pakistan back from the brink of war.  Is it so hard for it to take its own advice?  Who is guilty of feckless moralizing?  Of preaching peace while it wages war?  The US, which George Bush has called ‘the most peaceful nation on earth’, has been at war with one country or another every year for the last 50 years.

Wars are never fought for altruistic reasons.  They’re usually fought for hegemony, for business.  And then of course there’s the business of war.  Protecting its control of the world’s oil is fundamental to US foreign policy.  The US government’s recent military interventions in the Balkans and Central Asia have to do with oil.  Hamid Karzai, the puppet president of Afghanistan installed by the US, is said to be a former employee of Unocal, the American-based oil company.  The US government’s paranoid patrolling of the Middle East is because it has two-thirds of the world’s oil reserves.  Oil keeps America’s engines purring sweetly.  Oil keeps the free market rolling.  Whoever controls the world’s oil controls the world’s market.  And how do you control the oil?

Nobody puts it more elegantly than the New York Times columnist Thomas Friedman.  In an article called ‘Craziness Pays’ he says ‘the US has to make it clear to Iraq and US allies that…America will use force without negotiation, hesitation or UN approval’.  His advice was well taken.  In the wars against Iraq and Afghanistan as well as in the almost daily humiliation the US government heaps on the UN.  In his book on globalisation, The Lexus and the Olive Tree, Friedman says: ‘The hidden hand of the market will never work without a hidden fist.  McDonald’s cannot flourish without McDonnell Douglas….  And the hidden fist that keeps the world safe for Silicon Valley’s technologies to flourish is called the US Army, Air Force, Navy, and Marine Corps’.  Perhaps this was written in a moment of vulnerability, but it’s certainly the most succinct, accurate description of the project of corporate globalisation that I have read.

After September 11, 2001 and the War Against Terror, the hidden hand and fist have had their cover blown, and we have a clear view now of America’s other weapon — the free market — bearing down on the developing world, with a clenched unsmiling smile.  The task that never ends is America’s perfect war, the perfect vehicle for the endless expansion of American imperialism.  In Urdu, the word for profit is fayda.  Al-qaida means the word, the word of God, the law.  So, in India some of us call the War Against Terror, Al-qaida vs Al-fayda — the word vs the profit (no pun intended).

For the moment it looks as though Al-fayda will carry the day.  But then you never know…

In the last 10 years of unbridled corporate globalisation, the world’s total income has increased by an average of 2.5% a year.  And yet the numbers of the poor in the world has increased by 100 million.  Of the top hundred biggest economies, 51 are corporations, not countries.  The top 1% of the world has the same combined income as the bottom 57% and the disparity is growing.  Now, under the spreading canopy of the War Against Terror, this process is being hustled along.  The men in suits are in an unseemly hurry.  While bombs rain down on us, and cruise missiles skid across the skies, while nuclear weapons are stockpiled to make the world a safer place, contracts are being signed, patents are being registered, oil pipelines are being laid, natural resources are being plundered, water is being privatised and democracies are being undermined.

In a country like India, the ‘structural adjustment’ end of the corporate globalisation project is ripping through people’s lives.  ‘Development’ projects, massive privatisation, and labour ‘reforms’ are pushing people off their lands and out of their jobs, resulting in a kind of barbaric dispossession that has few parallels in history.  Across the world as the ‘free market’ brazenly protects Western markets and forces developing countries to lift their trade barriers, the poor are getting poorer and the rich richer.  Civil unrest has begun to erupt in the global village.  In countries like Argentina, Brazil, Mexico, Bolivia, India the resistance movements against corporate globalisation are growing.

To contain them, governments are tightening their control.  Protestors are being labelled ‘terrorists’ and then dealt with as such.  But civil unrest does not only mean marches and demonstrations and protests against globalisation.  Unfortunately, it also means a desperate downward spiral into crime and chaos and all kinds of despair and disillusionment which, as we know from history (and from what we see unspooling before our eyes), gradually becomes a fertile breeding ground for terrible things — cultural nationalism, religious bigotry, fascism and of course, terrorism.

All these march arm-in-arm with corporate globalisation.

There is a notion gaining credence that the free market breaks down national barriers, and that corporate globalisation’s ultimate destination is a hippie paradise where the heart is the only passport and we all live together happily inside a John Lennon song (Imagine there’s no country…)  This is a canard.

What the free market undermines is not national sovereignty, but democracy.  As the disparity between the rich and poor grows, the hidden fist has its work cut out for it.  Multinational corporations on the prowl for ‘sweetheart deals’ that yield enormous profits cannot push through those deals and administer those projects in developing countries without the active connivance of state machinery — the police, the courts, sometimes even the army.  Today corporate globalisation needs an international confederation of loyal, corrupt, preferably authoritarian governments in poorer countries, to push through unpopular reforms and quell the mutinies.  It needs a press that pretends to be free.  It needs courts that pretend to dispense justice.  It needs nuclear bombs, standing armies, sterner immigration laws, and watchful coastal patrols to make sure that it’s only money, goods, patents and services that are globalised — not the free movement of people, not a respect for human rights, not international treaties on racial discrimination or chemical and nuclear weapons, or greenhouse gas emissions, climate change, or God forbid, justice.  It’s as though even a gesture towards international accountability would wreck the whole enterprise.

Close to one year after the War Against Terror was officially flagged off in the ruins of Afghanistan, in country after country freedoms are being curtailed in the name of protecting freedom, civil liberties are being suspended in the name of protecting democracy.  All kinds of dissent is being defined as ‘terrorism’.  All kinds of laws are being passed to deal with it.  Osama Bin Laden seems to have vanished into thin air.  Mullah Omar is said to have made his escape on a motor-bike.  The Taliban may have disappeared but their spirit, and their system of summary justice is surfacing in the unlikeliest of places.  In India, in Pakistan, in Nigeria, in America, in all the Central Asian republics run by all manner of despots, and of course in Afghanistan under the US-backed Northern Alliance.

Meanwhile, down at the mall there’s a mid-season sale.  Everything’s discounted — oceans, rivers, oil, gene pools, fig wasps, flowers, childhoods, aluminum factories, phone companies, wisdom, wilderness, civil rights, ecosystems, air — all 4,600 million years of evolution.  It’s packed, sealed, tagged, valued and available off the rack.  (No returns).  As for justice — I’m told it’s on offer too.  You can get the best that money can buy.

Donald Rumsfeld said that his mission in the War against Terror was to persuade the world that Americans must be allowed to continue their way of life.  When the maddened king stamps his foot, slaves tremble in their quarters.  So, standing here today, it’s hard for me to say this, but the American way of life is simply not sustainable.  Because it doesn’t acknowledge that there is a world beyond America.

Fortunately power has a shelf life.  When the time comes, maybe this mighty empire will, like others before it, overreach itself and implode from within.  It looks as though structural cracks have already appeared.  As the War Against Terror casts its net wider and wider, America’s corporate heart is hemorrhaging.  For all the endless empty chatter about democracy, today the world is run by three of the most secretive institutions in the world: The International Monetary Fund, the World Bank, and the World Trade Organisation, all three of which, in turn, are dominated by the US.  Their decisions are made in secret.  The people who head them are appointed behind closed doors.  Nobody really knows anything about them, their politics, their beliefs, their intentions.  Nobody elected them.  Nobody said they could make decisions on our behalf.  A world run by a handful of greedy bankers and CEOs who nobody elected can’t possibly last.

Soviet-style communism failed, not because it was intrinsically evil but because it was flawed.  It allowed too few people to usurp too much power.  Twenty-first century market-capitalism, American-style, will fail for the same reasons.  Both are edifices constructed by human intelligence, undone by human nature.

The time has come, the walrus said.  Perhaps things will get worse and then better.  Perhaps there’s a small God up in heaven readying herself for us.  Another world is not only possible, she’s on her way.  Maybe many of us won’t be here to greet her, but on a quiet day, if I listen very carefully, I can hear her breathing.

PalC

 

| No, Israel Does Not Have the Right to Self-Defense In International Law Against Occupied Palestinian Territory!

No, Israel Does Not Have the Right to Self-Defense In International Law Against Occupied Palestinian Territory ~ Noura Erakat, Jadaliyya.

[In view of Israel’s assertions that its current attacks on the Gaza Strip are an exercise in legitimate self-defense, Jadaliyya re-posts an analysis of this claim by Co-Editor Noura Erakat initially published in 2012.]

On the fourth day of Israel’s most recent onslaught against Gaza’s Palestinian population, President Barack Obama declared, “No country on Earth would tolerate missiles raining down on its citizens from outside its borders.” In an echo of Israeli officials, he sought to frame Israel’s aerial missile strikes against the 360-square kilometer Strip as the just use of armed force against a foreign country. Israel’s ability to frame its assault against territory it occupies as a right of self-defense turns international law on its head.

A state cannot simultaneously exercise control over territory it occupies and militarily attack that territory on the claim that it is “foreign” and poses an exogenous national security threat. In doing precisely that, Israel is asserting rights that may be consistent with colonial domination but simply do not exist under international law.

[Smoke over Gaza following an Israeli airstrike. Image by Scott Bobb. From Wikimedia Commons.]
[Smoke over Gaza following an Israeli airstrike. Image by Scott Bobb. From Wikimedia Commons.]

Admittedly, the enforceability of international law largely depends on voluntary state consent and compliance. Absent the political will to make state behavior comport with the law, violations are the norm rather than the exception. Nevertheless, examining what international law says with regard to an occupant’s right to use force is worthwhile in light of Israel’s deliberate attempts since 1967 to reinterpret and transform the laws applicable to occupied territory. These efforts have expanded significantly since the eruption of the Palestinian uprising in 2000, and if successful, Israel’s reinterpretation would cast the law as an instrument that protects colonial authority at the expense of the rights of civilian non-combatants.

Israel Has A Duty To Protect Palestinians Living Under Occupation 

Military occupation is a recognized status under international law and since 1967, the international community has designated the West Bank and the Gaza Strip as militarily occupied. As long as the occupation continues, Israel has the right to protect itself and its citizens from attacks by Palestinians who reside in the occupied territories. However, Israel also has a duty to maintain law and order, also known as “normal life,” within territory it occupies. This obligation includes not only ensuring but prioritizing the security and well-being of the occupied population. That responsibility and those duties are enumerated inOccupation Law.

Occupation Law is part of the laws of armed conflict; it contemplates military occupation as an outcome of war and enumerates the duties of an occupying power until the peace is restored and the occupation ends. To fulfill its duties, the occupying power is afforded the right to use police powers, or the force permissible for law enforcement purposes. As put by the U.S. Military Tribunal during the Hostages Trial (The United States of America vs. Wilhelm List, et al.)

International Law places the responsibility upon the commanding general of preserving order, punishing crime, and protecting lives and property within the occupied territory. His power in accomplishing these ends is as great as his responsibility.

The extent and breadth of force constitutes the distinction between the right to self-defense and the right to police. Police authority is restricted to the least amount of force necessary to restore order and subdue violence. In such a context, the use of lethal force is legitimate only as a measure of last resort. Even where military force is considered necessary to maintain law and order, such force is circumscribed by concern for the civilian non-combatant population. The law of self-defense, invoked by states against other states, however, affords a broader spectrum of military force. Both are legitimate pursuant to the law of armed conflict and therefore distinguished from the peacetime legal regime regulated by human rights law.


When It Is Just to Begin to Fight 

The laws of armed conflict are found primarily in the Hague Regulations of 1907, the Four Geneva Conventions of 1949, and their Additional Protocols I and II of 1977. This body of law is based on a crude balance between humanitarian concerns on the one hand and military advantage and necessity on the other. The post-World War II Nuremberg trials defined military exigency as permission to expend “any amount and kind of force to compel the complete submission of the enemy…” so long as the destruction of life and property is not done for revenge or a lust to kill. Thus, the permissible use of force during war, while expansive, is not unlimited.

In international law, self-defense is the legal justification for a state to initiate the use of armed force and to declare war. This is referred to as jus ad bellum—meaning “when it is just to begin to fight.” The right to fight in self-defense is distinguished from jus in bello, the principles and laws regulating the means and methods of warfare itself. Jus ad bellum aims to limit the initiation of the use of armed force in accordance with United Nations Charter Article 2(4); its sole justification, found in Article 51, is in response to an armed attack (or an imminent threat of one in accordance with customary law on the matter). The only other lawful way to begin a war, according to Article 51, is with Security Council sanction, an option reserved—in principle, at least—for the defense or restoration of international peace and security.

Once armed conflict is initiated, and irrespective of the reason or legitimacy of such conflict, the jus in bellolegal framework is triggered. Therefore, where an occupation already is in place, the right to initiate militarized force in response to an armed attack, as opposed to police force to restore order, is not a remedy available to the occupying state. The beginning of a military occupation marks the triumph of one belligerent over another. In the case of Israel, its occupation of the West Bank, the Gaza Strip, the Golan Heights, and the Sinai in 1967 marked a military victory against Arab belligerents.

Occupation Law prohibits an occupying power from initiating armed force against its occupied territory. By mere virtue of the existence of military occupation, an armed attack, including one consistent with the UN Charter, has already occurred and been concluded. Therefore the right of self-defense in international law is, by definition since 1967, not available to Israel with respect to its dealings with real or perceived threats emanating from the West Bank and Gaza Strip population. To achieve its security goals, Israel can resort to no more than the police powers, or the exceptional use of militarized force, vested in it by IHL. This is not to say that Israel cannot defend itself—but those defensive measures can neither take the form of warfare nor be justified as self-defense in international law. As explained by Ian Scobbie:

To equate the two is simply to confuse the legal with the linguistic denotation of the term ”defense.“ Just as ”negligence,“ in law, does not mean ”carelessness” but, rather, refers to an elaborate doctrinal structure, so ”self-defense” refers to a complex doctrine that has a much more restricted scope than ordinary notions of ”defense.“

To argue that Israel is employing legitimate “self-defense” when it militarily attacks Gaza affords the occupying power the right to use both police and military force in occupied territory. An occupying power cannot justify military force as self-defense in territory for which it is responsible as the occupant. The problem is that Israel has never regulated its own behavior in the West Bank and Gaza as in accordance with Occupation Law.
Israel’s Attempts To Change International Law 

Since the beginning of its occupation in 1967, Israel has rebuffed the applicability of international humanitarian law to the Occupied Palestinian Territory (OPT). Despite imposing military rule over the West Bank and Gaza, Israel denied the applicability of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (the cornerstone of Occupation Law). Israel argued because the territories neither constituted a sovereign state nor were sovereign territories of the displaced states at the time of conquest, that it simply administered the territories and did not occupy them within the meaning of international law. The UN Security Council, the International Court of Justice, the UN General Assembly, as well as the Israeli High Court of Justice have roundly rejected the Israeli government’s position. Significantly, the HCJ recognizes the entirety of the Hague Regulations and provisions of the 1949 Geneva Conventions that pertain to military occupation as customary international law.

Israel’s refusal to recognize the occupied status of the territory, bolstered by the US’ resilient and intransigent opposition to international accountability within the UN Security Council, has resulted in the condition that exists today: prolonged military occupation. Whereas the remedy to occupation is its cessation, such recourse will not suffice to remedy prolonged military occupation. By virtue of its decades of military rule, Israel has characterized all Palestinians as a security threat and Jewish nationals as their potential victims, thereby justifying the differential, and violent, treatment of Palestinians. In its 2012 session, the UN Committee on the Elimination of Racial Discrimination described current conditions following decades of occupation and attendant repression as tantamount to Apartheid.

In complete disregard for international law, and its institutional findings, Israel continues to treat the Occupied Territory as colonial possessions. Since the beginning of the second Palestinian intifada in 2000, Israel has advanced the notion that it is engaged in an international armed conflict short of war in the West Bank and the Gaza Strip.  Accordingly, it argues that it can 1) invoke self-defense, pursuant to Article 51 of the United Nations Charter, and 2) use force beyond that permissible during law enforcement, even where an occupation exists.
The Gaza Strip Is Not the World Trade Center

To justify its use of force in the OPT as consistent with the right of self-defense, Israel has cited UN Security Council Resolution 1368 (2001) and UN Security Council Resolution 1373 (2001).  These two resolutions were passed in direct response to the Al-Qaeda attacks on the United States on 11 September 2001. They affirm that those terrorist acts amount to threats to international peace and security and therefore trigger Article 51 of the UN Charter permitting the use of force in self-defense. Israel has therefore deliberately characterized all acts of Palestinian violence – including those directed exclusively at legitimate military targets – as terrorist acts. Secondly it frames those acts as amounting to armed attacks that trigger the right of self-defense under Article 51 irrespective of the West Bank and Gaza’s status as Occupied Territory.

The Israeli Government stated its position clearly in the 2006 HCJ case challenging the legality of the policy of targeted killing (Public Committee against Torture in Israel et al v. Government of Israel)The State argued that, notwithstanding existing legal debate, “there can be no doubt that the assault of terrorism against Israel fits the definition of an armed attack,” effectively permitting Israel to use military force against those entities. Therefore, Israeli officials claim that the laws of war can apply to “both occupied territory and to territory which is not occupied, as long as armed conflict is taking place on it” and that the permissible use of force is not limited to law enforcement operations.  The HCJ has affirmed this argument in at least three of its decisions:Public Committee Against Torture in Israel et al v. Government of Israel, Hamdan v. Southern Military Commander, and Physicians for Human Rights v. The IDF Commander in Gaza. These rulings sanction the government’s position that it is engaged in an international armed conflict and, therefore, that its use of force is not restricted by the laws of occupation. The Israeli judiciary effectively authorizes the State to use police force to control the lives of Palestinians (e.g., through ongoing arrests, prosecutions, checkpoints) and military force to pummel their resistance to occupation.

The International Court of Justice (ICJ) dealt with these questions in its assessment of the permissible use of force in the Occupied West Bank in its 2004 Advisory Opinion, Legal Consequences on the Construction of a Wall in the Occupied Palestinian Territory. The ICJ reasoned that Article 51 contemplates an armed attack by one state against another state and “Israel does not claim that the attacks against it are imputable to a foreign state.” Moreover, the ICJ held that because the threat to Israel “originates within, and not outside” the Occupied West Bank,

the situation is thus different from that contemplated by Security Council resolutions 1368 (2001) and 1373 (2001), and therefore Israel could not in any event invoke those resolutions in support of its claim to be exercising a right of self-defense. Consequently, the Court concludes that Article 51 of the Charter has no relevance in this case.

Despite the ICJ’s decision, Israel continues to insist that it is exercising its legal right to self-defense in its execution of military operations in the West Bank and the Gaza Strip. Since 2005, Israel slightly changed its position towards the Gaza Strip. The government insists that as a result of its unilateral disengagement in 2005, its occupation has come to an end. In 2007, the government declared the Gaza Strip a “hostile entity” and waged war upon the territory over which it continues to exercise effective control as an Occupying Power.  Lisa Hajjar expounds on these issues here.

In effect, Israel is distorting/reinterpreting international law to justify its use of militarized force in order to protect its colonial authority. Although it rebuffs the de jure application of Occupation Law, Israel exercises effective control over the West Bank and Gaza and therefore has recourse to police powers. It uses those police powers to continue its colonial expansion and apartheid rule and then in defiance of international law cites its right to self-defense in international law to wage war against the population, which it has a duty to protect. The invocation of law to protect its colonial presence makes the Palestinian civilian population doubly vulnerable. Specifically in the case of Gaza,

It forces the people of the Gaza Strip to face one of the most powerful militaries in the world without the benefit either of its own military, or of any realistic means to acquire the means to defend itself.

More broadly, Israel is slowly pushing the boundaries of existing law in an explicit attempt to reshape it. This is an affront to the international humanitarian legal order, which is intended to protect civilians in times of war by minimizing their suffering. Israel’s attempts have proven successful in the realm of public relations, as evidenced by President Obama’s uncritical support of Israel’s recent onslaughts of Gaza as an exercise in the right of self-defense. Since international law lacks a hierarchal enforcement authority, its meaning and scope is highly contingent on the prerogative of states, especially the most powerful ones. The implications of this shift are therefore palpable and dangerous.

Failure to uphold the law would allow states to behave according to their own whim in furtherance of their national interest, even in cases where that is detrimental to civilian non-combatants and to the international legal order. For better or worse, the onus to resist this shift and to preserve protection for civilians rests upon the shoulders of citizens, organizations, and mass movements who can influence their governments enforce international law. There is no alternative to political mobilization to shape state behavior.

 

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| Human Rights: Why Palestinians have a right to return home!

Why Palestinians have a right to return home ~ Mark LeVine, professor of history at UC Irvine, Al Jazeera. Last Modified: 23 Sep 2011

A thorough examination of the legal rights of all those displaced by the creation of the state of Israel in 1948.

Mark LeVine asked three leading scholars of the “refugee problem” – Karma Nabulsi (lecturer in international relations, Oxford University), Susan Akram (Boston University Law School and founder of the Asylum and Human Rights Clinic at Greater Boston Legal Services) and Ingrid Jaradat Gassner (Director of BADIL, Resource Centre for Palestinian Residency and Refugee Rights) – to address some of the key arguments surrounding the right of return. Some of the answers are quite detailed and technical, but given the importance of this debate, we have not edited them, so as to offer the most complete information possible on this issue.

There are approximately 6 million Palestinians who live outside the pre-1967 borders [EPA]

 

ML: Can you explain at its base what “right of return” means? Is is merely a political concept or is it an accepted legal concept as well? Is there one definition accepted by all Palestinians or is the term contested within Palestinian society?

Everyone has the right to leave any country, including his own, and to return to his country.

– Article 13(b) UDHR

KN: The right of return is a universal right that is binding under international law, enjoyed by every people regardless of where they come from. The idea of universal rights is an ancient one, but one of its first international expressions is found in the Universal Declaration of Human Rights (UDHR), which was proclaimed by the United Nations in 1948 “as a common standard of achievement for all peoples and all nations”. One of the core rights set out in the UDHR is the right of return. Article 13(b) of the UDHR states: “Everyone has the right to leave any country, including his own, and to return to his country.” Palestinian refugees are entitled to this binding universal right, in the same way that all other refugees are, whether they come from Bosnia, Rwanda, South Africa or anywhere else.

In spite of ill-founded – and quite frankly racist – arguments concerned with denying this universal right to them, the United Nations has frequently insisted on its particular applicability to Palestinian refugees, who constitute the world’s largest refugee population. For instance, General Assembly (UNGA) Resolution 2535, passed in 1969, recognises “that the problem of Palestine Arab refugees has arisen from the denial of their inalienable rights under the Charter of the United Nations and the Universal Declaration of Human Rights”. In the same vein, UNGA resolution 3236 reaffirms “the inalienable right of the Palestinians to return to their homes and property from which they have been displaced and uprooted, and calls for their return.”

UNGA Resolution 194

What is particular to the Palestinian case is the exceptional frequency with which the right of return was insisted upon, time and again, by the United Nations and the international community. UNGA Resolution 194 clearly resolves that “the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the governments or authorities responsible”. Israel’s admission as a member of the UN was made conditional on its acceptance and implementation of resolutions including UN Resolution 194; this demonstrates that without question, the UN and the international community saw Israel as fully responsible for the complete implementation of this right. This right was further reaffirmed by the UNGA on more than 135 occasions, clearly reflecting the consistent will of the international community on this matter.

The majority of the Palestinian people were forcibly displaced and uprooted from their homes and lands in 1948.”

– Karma Nabulsi

Of course, as well as being a universal right that is clearly applicable to Palestinian refugees on an individual basis, the right of return is conceptualised and understood by most contemporary international jurists as a collective right. The most recent expression of this can be found in Professor Guy Goodwin Gill’s recent opinion piece and further note of August and September 2011, on the issue of refugees’ representation at the UN. As one of the world’s leading international lawyer for refugee rights, he emphasised the commonly understood legal position that the Palestinians’ inalienable right of self determination and their right of return are both collective rights.

Broad consensus

Of course, the right of return is also a political and moral concept holding enormous importance for the Palestinian people. There is broad consensus that the right of return, along with the right of self-determination, is the foundation of the 63-year-old struggle of the Palestinian people. The majority of the Palestinian people were forcibly displaced and uprooted from their homes and lands in 1948 and modern Palestinian politics begins with the establishment of popular movements, parties, and associations concerned with claiming and struggling for the right of return. Dozens of these groupings, voluntarily founded and supported by thousands of refugees, had the term Al-Awda [“return”] in their name. The foundation document of every major Palestinian party, regardless of its ideology – ranging from Fatah’sBayan Harakatuna (1958) and the Declaration of the Foundation of the PFLP (1967) to the Hamas Charter (1988) – enshrines return as its first and foremost principle. Above all, the PLO’s Palestine National Covenant, the basis of all Palestinian law, defines the Palestinian people’s struggle as striving for the following objectives: “to retrieve its homeland, liberate and return to it and exercise the right to self-determination in it…” (Article 26).

The principle of return goes well beyond politics and extends to the realm of culture. The Palestinian artistic canon – comprising countless works, from the novels of Ghassan Kanafani to the paintings of Ismail Shamout – created and shaped what is commonly known as Thaqafat al-Awda [the “culture of return”]. In this cultural realm, as with the political one, the right of return is understood as return to the original homes, lands, cities and villages found in the entirety of historic, mandate Palestine.

The national Palestinian consensus on this matter cannot be doubted.

– Karma Nabulsi

Finally, Palestinians throughout the world have responded to the perceived threat to the right of return posed by the Oslo process by founding hundreds of civic associations concerned with defending this right wherever Palestinian refugees now live across the world, as well as active legal committees and resource centres, such asBadil. The unwavering commitment of refugees to this simple right has been illustrated time and again, most comprehensively in the Civitas Register of 2006– which engaged the mobilisation of thousands of Palestinian refugees in 26 countries, all reaffirming their unwavering commitment to this right. In short, the national Palestinian consensus on this matter cannot be doubted.

Contextualising

ML: Can you put the right of return into the context of the expected UN vote to recognise Palestine as a state?

KN: Palestinian legal advisors, associations, and movements have highlighted various concerns pertaining to the right of return that arise out of the September initiative at the UN as it is currently formulated. In particular, they have asserted the need for maintaining the PLO’s status as the sole legitimate representative of the Palestinian people at the UN, and have warned of the dangers of replacing it with the state of Palestine as its representative in the seat. As I noted above, the legal aspects of these concerns have been discussed in detail in a significant opinion by Professor Guy Goodwin-Gill in his recent briefs on the subject.

The right of return per se is not threatened by the current initiative. It is, as highlighted earlier, an inalienable universal right enshrined in international law and held fast to by the Palestinian people. The concern is that changing the representative at the UN from the PLO to the State of Palestine would adversely affect the ability of Palestinian representatives at the UN to claim and advocate that right, and that all Palestinians [should] have their representation at the UN. The PLO is the national representative of the Palestinian people as a whole, representing those inside and outside the 1967 occupied Palestinian territories. Being confined to the 1967 boundaries, the State of Palestine (which is yet to attain actual sovereignty on the ground), cannot claim to represent the refugees, unlike the PLO.

Since the Oslo process began, the PLO has been consistently undermined.”

– Karma Nabulsi

This is not a question of names nor of titles. Indeed, the designation “Palestine” is currently used by our representatives at the UN. In its resolution 43/177, the UNGA acknowledged “the proclamation of the State of Palestine by the Palestine National Council on 15 November 1988” and it decided that, “effective as of 15 December 1988, the designation ‘Palestine’ should be used in place of the designation ‘Palestine Liberation Organisation’ in the United Nations system, without prejudice to the observer status and functions of the Palestine Liberation Organisation within the United Nations system…” Significantly, this wording ensured that the status of the PLO as the sole legitimate representative of the Palestinian people was preserved and reaffirmed by the UN. This formulation can be preserved by the leadership, whether or not it chooses to seek an upgrade to our representative status at the UN.

In any case, recent events, including the September initiative, have raised the vital question of representation and democracy. Since the Oslo process began, the PLO has been consistently undermined, and political fragmentation has been imposed upon the Palestinian people through the establishment of the Palestinian Authority (PA). In theory and on paper, the Palestinian Authority is a subsidiary body of the PLO – and the West Bank and Gaza’s Legislative Council is incorporated into the Palestinian National Council (PNC) so there is one legislative body for all Palestinians, and all are equal politically under the law. In practice however, the PA is emerging as a parallel structure which excludes the refugees who constitute the majority of the Palestinian people. It is essential that this parallel structure not take the PLO seat at the UN, as the Palestinian refugees would be politically disenfranchised and legally and institutionally disempowered from making their claims to their rights at the only place that matters, the United Nations.
 

The PLO and the PNC

Furthermore, it is essential that the PLO and the PNC recover their legitimate role in Palestinian politics. Article 7(a) of the Fundamental Law of the PLO states: “The Palestine National Council is the highest authority of the Palestinian Liberation Organisation, and it is the body that draws the policy of the PLO and its plans and programs.” Moreover, Article 5 of the Fundamental Law states that the PNC is to be directly elected by the Palestinian people. The electoral system, issued on 17 July 1965, states: “Every Palestinian has the right to vote in PNC elections if he/she is 18 years old, if his/her name has been recorded in the final electoral registers, if he/she is of sound mind, and has not been convicted of a crime against national honour.”

In line with these fundamental laws of the Palestinian people, there has been broad Palestinian mobilisation in recent months, and especially in the wake of the Arab Spring and in response to theSeptember initiative , to reclaim and democratise the PLO and the PNC . In particular, there is a growing movement for holding direct elections to the Palestine National Council, which is the highest Palestinian legislative body, and which represents all Palestinians, whether they are refugees or not. The PNC is the body that creates the national strategies, platforms and policies of the Palestinian people, which the PLO executive committee should implement. Only a rejuvenated, democratically elected PNC can lay the foundation for effective representation of Palestinian rights, including the right of return.

A young demonstrator bears the Arabic numerals ‘194’ on his forehead, referring both to Palestine becoming the 194th UN member and UNGA resolution 194 [EPA]

 

 

 

ML: When Palestinians demand that Israelis recognise the right of return it is not always clear whether what is being demanded of Israel is that it merely “recognise” that Palestinians have this right, without committing to actually letting hundreds of thousands – or millions – of Palestinians move into Israel, or whether Palestinians are demanding the actual implementation of this right? Is there agreement among Palestinians on this issue and if not, what are the main areas of debate?

 
KN
: Palestinians do not simply demand the recognition of their right to return, but also its implementation, its exercise, and its translation into reality. This is not merely a moral theoretical stance, but a lived and concrete one, agreed upon by both the Palestinian people and the many host countries in the Arab world which they currently live, including Jordan, Syria, and Lebanon and the Gulf. In accordance with international law, all refugees must be allowed to return. Whether they choose to exercise that right or not is a matter for each individual refugee to decide for themselves.

ML: If the broad consensus is to demand an implementation of the right, is there a general understanding of which and how many Palestinians would be expected to move within Israel’s 1967 border? Which groups would be prioritised?

IJG: The right to return is a right held by all Palestinians who were forced to leave their homes and properties, as well as their descendants. Two groups of Palestinians would exercise their right of return in what is today Israel: the so-called 1948 refugees who live outside Israel’s pre-June 1967 borders (approximately 6 million persons today), and Palestinians who have become internally displaced persons (IDP) since 1948 (approximately 300,000 persons today).

There is no understanding of how many Palestinian refugees and IDPs would actually decide to return to their homes and properties in Israel, because such understanding would require that these refugees and IDPs are offered an opportunity to make a free choice about whether or not they want to return, based on detailed information about the conditions of return, including the procedure for reclaiming their property and available support, and other options available for them. No such opportunity has ever been offered to Palestinian refugees or IDPs since 1948.

The question of whether certain groups would be prioritised during return is part of the numerous technical matters that could be agreed upon by the PLO and Israel in conjunction with the international agencies responsible, with the aim of ensuring a smooth and sustainable process of return and absorption.

ML: Would Palestinian returnees who became Israeli citizens also have Palestinian citizenship?

IJG: In a scenario where the right of return is implemented, all 1948 Palestinian refugees who decide exercise their right to return are entitled to Israeli citizenship. The question whether they should also be offered Palestinian citizenship is outside of the scope of the right to return. It is a sovereign matter of the state of Palestine, and its practical legal implications for Palestinians who opt for such dual citizenship would be subject to bilateral diplomatic agreements with Israel.

SA: Although it is true that citizenship is an internal matter for the Palestinian state, it does have ramifications for Palestinian refugees, Palestinians in the diaspora, and those who are Israeli citizens. There are many options for defining who is entitled to citizenship, each with its own set of ramifications. The main criteria for determining nationality are set out in the Nottebohm (Guatemala v Lichtenstein) case, which focuses on a “genuine link” between the individual and the territory. Palestine would have great latitude under international law in defining the scope of the link for its nationals, and what the criteria would be for obtaining or claiming citizenship.
 

Defining nationals

Consider some of the ramifications, however, of the state defining its “nationals” in one of the two main ways that states grant citizenship: by jus sanguinis, blood relationship, or by jus soli, birth on the territory. As to the first, Palestine might define as its nationals anyone whose parent, grandparent or great-grandparent was born on the territory of historic Palestine, or whose ethnic origin was Palestinian during any (defined) period. If these were the criteria, without more, the risk is that states in which Palestinians fitting that criteria reside could determine that they are Palestinian citizens, remove whatever temporary status they have in that state, and deport them to the Palestinian territory. In the worst-case scenario, if Palestinians who are citizens of other states are subject to laws disallowing dual citizenship, or disallowing dual citizenship with states that have a conscription law, they could also be deprived of their second-state citizenship and removed to Palestine. As a matter of international law, this would be legal, as no individual has a “right” to more than one citizenship.

The citizenship/nationality question also has a significant bearing on the refugee issue.

– Susan Akram

Consider some of the ramifications of the state defining its “nationals” as including those born in the territory of Palestine. Under international law, a successor state (or a new state) must grant citizenship to all habitual residents of the territory, and it cannot arbitrarily withhold citizenship or denationalise any segment of the population habitually residing on the territory (“arbitrary” is defined on the basis of race, sex, ethnicity or religion). If Palestine were to be consistent with international law, it may be required to confer citizenship on Israeli settlers, if they are considered “habitual residents of the territory” – this, however, is highly ambiguous when settlers already have Israeli citizenship, and the uncertainty of whether prolonged occupation and settler implantation can “ripen” into habitual residence.

The citizenship/nationality question also has a significant bearing on the refugee issue, as I will discuss further.

ML: Let’s look at some of the key Israeli objections to the right of return. First, Israelis argue that there is in fact no “right” of return because: 1) UN General Assembly Resolution 194 is non-binding since it’s only a GA and not a Security Council Resolution, and 2), the language of the resolution itself merely states that Palestinians “should be” allowed to return, rather than what they argue is the more forcible and legally binding “shall be” allowed to return. Indeed, the phrase “right of return” was, according to the documentary record, removed from an earlier draft of 194 – precisely because the GA would not pass a resolution with that language. In trying to counteract this claim, an article by Salman Abu Sitta argues that UNGAR 194 “has been affirmed by the international community 135 times in the period 1948-2000. There is nothing like it in UN history. This universal consensus elevates the weight of this resolution from a ‘recommendation‘ to an expression of the determined will of the international community”. But this language doesn’t actually challenge the argument that it’s non-binding. “Determined will” is not the same thing as international law, is it?

IJG: Israeli arguments of the above kind are flawed mainly because the right of return is not some “special right” claimed by Palestinians, but rather a universally recognised human right of all persons, irrespective of the reason why they have left their country. The right of return is not created by this or that UN resolution, but enshrined in numerous bodies of international law, including customary and treaty law. For refugees, who are persons who left their country involuntarily, this right is so widely respected and recognised as key to resolving refugee situations, that it is hardly ever questioned. Israeli efforts to argue that Palestinians are different have, therefore, no basis in international law. The language of UN General Assembly Resolution 194 and the more than 100 UN resolutions which affirm the right to return of Palestinian refugees, including UN Security Council Resolution 237 of 1967 which affirms this right for the 1967 Palestinian refugees, must be understood in this context. The real problem is the lack of political will of powerful UN member states to enforce Israel’s respect of the right of return of Palestinians. Israel has used this kind of flawed argument in order to deflect debate about its own legal responsibility towards the Palestinian refugees.

SA: Argument one misconstrues the significance of General Assembly versus Security Council resolutions. The binding nature of any resolution from the UN depends, not on whether it is issued by the GA or the SC, but whether it rests on existing international law. The difference between GA and SC resolutions is a matter of the way powers are allocated within the UN organs. Only the SC can “enforce” a resolution through the use of armed intervention – the GA has no such power. That has nothing to do with the binding nature of international law, however, and if a GA resolution rests on binding principles of law, then whether those are enforced or not through the UN is a political, not a legal, issue.

Customary law

Palestinian refugees have an absolute right to return to their original places of origin and obtain full restitution.

– Susan Akram

Resolution 194 incorporated what was already customary international law in 1948, and has become an even stronger set of principles through widespread state practice to the present. Paragraph 11 of UNGA resolution 194 means that Palestinian refugees must be permitted to return to their precise homes and lands if they so choose. This is obligatory because only the return to one’s place of origin is required of a state, since no state is obliged to absorb or resettle a refugee in a place not of his origin. That was law in 1948, and remains the state of the law today. Paragraph 11’s requirements that Palestinian refugees have an absolute right to return to their original places of origin and obtain full restitution and compensation for properties taken or destroyed, were all binding legal principles at the time the resolution was drafted, and were meant to preclude political solutions that did not meet these legally required criteria for Palestinian refugees.

It is curious that states such as the United States now challenge the ‘legality’ of resolution 194. When the original draft of paragraph 11 was submitted to the General Assembly, the United States delegate confirmed that no new rights were being created. He commented that 194, paragraph 11, “endorsed a generally recognised principle and provided a means for implementing that principle”.

Quite aside from 194 being a specific source of the right of return for Palestinian refugees, the right of return in general represents a complex interrelated set of rights grounded in distinct bodies of treaty and customary international law. The right of return is found in the major treaties and rules protecting individuals and groups in times of armed conflict under humanitarian law and the laws of war; it is found in treaties and principles governing issues of nationality and state succession; and it is found in the core human rights conventions governing state obligations in both war and peacetime, particularly in refugee provisions.

State practice

Since 1948, the evidence is overwhelming that the right of return for refugees – as an aspect of nationality, humanitarian, human rights and, specifically, refugee law – has become one of the strongest of existing state obligations. The widespread incorporation of the principle in international treaties and regional instruments has been reinforced by incorporation in peace agreements and state practice in virtually every part of the globe. State practice reflects this in the millions of refugees that have returned to their countries and homes of origin on the basis of bilateral and tripartite agreements involving both states and specialised agencies such the Office of the UN High Commissioner for Refugees, without states questioning their right to do so.

As for Argument two, this is inaccurate. Resolution 194 requires that refugees be allowed to return immediately as a matter of right, and without preconditioning such return on a general peace agreement or other criteria. Earlier proposed language intended to weaken, rather than strengthen, the notion of absolute right to return, was rejected by the drafters. This is apparent in the drafting history, in which amendments to make return contingent, for example, on the signing of a comprehensive peace agreement, were rejected.

The UN Secretariat, answering the question: “What is the meaning of the term ‘at the earliest practicable date?’ reviewed the record of UN proceedings. The proceedings reflect that the UK draft resolution included the word “possible” rather than “practicable”. The Guatemalan delegation proposed the phrase “after the proclamation of peace between the contending parties in Palestine, including the Arab States…” In opposing this amendment, the UK delegate and the US delegates stated that proclamation of peace should not be prerequisites to the refugees’ right to return, as their return must be immediate and obligatory. As the US delegate stated: “these unfortunate people should not be made pawns in the negotiations for a final settlement”. The word, “practicable” was substituted for “possible”, and the Guatemalan amendment watering down the absolute and immediate right to return was rejected by 37 votes to 7. The UN Secretariat concluded that there could be no doubt that once the Armistice agreements were signed, the conditions of stability required the return of the refugees.

Population transfer has happened before, but almost all such forced migrations have been regarded as illegal [EPA]

ML: Another objection is that the international humanitarian law, such as the fourth Geneva Convention or the Universal Declaration of Human Rights, which recognise the right of people fleeing war to return to their homes after cessation of hostilities, were enacted after 1948 and referred to “international conflict” rather than intercommunal/civil war, and therefore do not cover Palestinian refugees from that war. Can a Palestinian be considered “denationalised” or possessing the right to return to “his own country” when he or she was not living in a recognised state in 1948?

IJG: Palestinian refugees can be considered to be “denationalised” and possessing the right to return to their “own country” because they held the citizenship of Palestine under the British Mandate. They were citizens of their country, and their country was to be led to independence by the British, in line with the mandate of the League of Nations. Israel is the “successor state” in part of British Mandate Palestine, and under international law governing state succession, Israel is obliged to permit return and grant citizenship to all Palestinians who had lived there previously and to respect their right to their property.

‘Israel’s ethnic cleansing’

Moreover, although drafting and enacting the fouth Geneva Convention and the Universal Declaration of Human Rights coincided with Israel’s ethnic cleansing of Palestine, a strong legal argument can be made for the applicability of their provisions, due to Israel’s continuing policy of forcible displacement of Palestinians, and because all wars in Palestine since 1948, including Israel’s occupation since 1967, are recognised as international armed conflicts by the United Nations. The drafting history of the Universal Declaration of Human Rights, moreover, indicates that the language on “the right to leave and to return to one’s country” was adopted because the drafters were conscious of the coinciding tragedy in Palestine.

SA: These are actually separate arguments: 1) whether the Fourth Geneva Convention (GC IV) applies to Israel’s occupation of Palestinian territory (on several grounds); 2) whether Palestinians were ever “nationals” of “Palestine” for purposes of their citizenship/nationality status for application of the right of return. As to the first, Israel and a few Israeli academics have argued that GCIV is not applicable to the West Bank, East Jerusalem or Gaza because these were not territories under the sovereignty of any state, hence when they were captured by Israel, they were not captured from a recognised sovereign. They thus did not fall under GC IV provisions and should not be considered occupied territories.

This view has never been accepted by legal consensus and was firmly rejected by the International Court of Justice in its 2004 Advisory Opinion on the Wall. The High Contracting Parties to GC IV in December 2001 reaffirmed their position on this, stating that they “have always affirmed the … applicability of the Fourth Geneva Convention to the territories occupied since 1967 by the state of Israel, including East Jerusalem”.

The law of state succession required that all persons who are habitual residents of a territory be granted citizenship/nationality in a successor state.

– Susan Akram

As to the second, this relates to the interpretation of two provisions, Art. 13(2) of the UDHR and Art. 12(4) of the International Convention on Civil and Political Rights (ICCPR), which states that everyone has the right to return to “his own country”. But the drafting history of these provisions shows that the phrase “one’s country” was chosen precisely to include those persons who are not nationals of that country de jure but fit the established criteria of the “genuine link” that, by that time, was the criteria for determining “nationality” under the Nottebohm case. The phrase “the country of which one is a national” was specifically rejected in favour of the phrase “one’s own country” for that very reason.

As noted above, the law of state succession required that all persons who are habitual residents of a territory be granted citizenship/nationality in a successor state, and that such successor state could not legally “denationalise” such habitual residents on arbitrary grounds. These principles have been incorporated into treaties to which Israel is a party, including the ICCPR and the Convention on the Elimination of Racial Discrimination (CERD).

ML: Israelis also argue, based on the 1952-67 UN Convention on Refugees, that the internationally accepted definition of a refugee does not include their descendents – or to refugees who have taken on another nationality (eg, Jordanian, British, or Canadian). Is this true?

IJG: The notion that the 1951 Refugee Convention and its 1967 Protocol do not cover the descendants of refugees has no basis in these instruments and international law in general. In fact, UNHCR as the responsible agency, treats all descendants of refugees as refugees, until they have obtained voluntary durable solutions, including revolutionary repatriation (return), integration in host countries and resettlement in third countries.

Different refugees

SA: In addition to this, Palestinian refugees have a different status under international law than other refugees, by reason of their distinct definitions in the relevant treaties, resolutions and agency mandates. The first definition is that incorporated into UNGA resolution 194, which defines the population for whom the UNCCP was given responsibility and the obligation to find durable solutions. This is the definition incorporated into the “Palestinian clause” of the Refugee Convention, Article 1D, and which applies to the global population of Palestinian refugees, no matter where they were located. This definition is linked to paragraph 11 of resolution 194, which requires the durable solution of return, restitution and compensation, and maintains refugee status (regardless of generation) until that solution is accomplished. This definition is also incorporated into the second definition, meeting UNRWA’s eligibility guidelines.

UNRWA’s definitions of “refugee” and “displaced persons”, but with the additional criteria of “need”, that applies to the approximately 5 million UNRWA-registered refugees. This needs-based definition is also not generationally linked, but continues as long as the person remains a 194-defined refugee, who is in need of assistance. Because of the unique character of Palestinian refugees under international law, there is no generation-limitation to the status.

ML: They also argue, variously, that the right of refugees to return to their homes is an individual right, not a collective right. Moreover, the example of large scale population exchanges – Poland and the Soviet Union after World War II, India and Pakistan after Partition, Greece and Turkey after World War I – point to the international legitimacy of forcibly transferring people outside a new state, in order to ensure demographic coherence of that new state.

SA: As to your first point, in all of the provisions in which aspects of the right of return are found, no distinction is made between its applicability to individuals or groups.

As to your second point, although transfers of populations have taken place historically, they have been almost universally considered illegal under modern principles of international law. A concise statement of the state of the law on this issue is that of the UN Special Rapporteur on the Prevention of Discrimination and Protection of Minorities: “International law prohibits the transfer of persons, including the implantation of settlers, as a general principle.”

The governing principle is that the transfer of populations must be done with the consent of the population involved – because [these transfers are] subject to consent, this principle reinforces the prohibition against such transfer. Aside from the historical-factual question of whether there ever was a “population exchange”, any prior justification for population exchanges involving coerced movement of peoples was put to rest by the entry into force of the International Military Tribunal which established the Nuremburg Tribunal, and the Fourth Geneva Convention. These established forced movement of populations as a “grave breach” [of law]. Since then, the International Criminal Court has classified forced population transfers as a war crime.

Mark LeVine is a professor of history at UC Irvine and senior visiting researcher at the Centre for Middle Eastern Studies at Lund University in Sweden. He also is the author of Heavy Metal Islam: Rock, Resistance, and the Struggle for the Soul of Islam and the soon-to-be-published An Impossible Peace: Israel/Palestine Since 1989.

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palestine_state_un194A

Laying the foundation for Palestinian statehood ~ Redress Information & Analysis.

Palestinian statehood

By Ruth Tenne

Until now the Palestinian leadership has avoided taking any significant steps to build on the resounding endorsement Palestine received from the UN whose members voted by an overwhelming majority in November 2012 to accord it the status of non-member observer state.

However, following the collapse of the latest round of talks between Israel and the Palestinian Authority (PA), which was prompted by Israel’s reneging on an agreement to release Palestinian prisoners, the PA applied – and was accepted – to join 15 international conventions. These are:

1. The Four Geneva Conventions of 12 August 1949 and the First Additional Protocol.
2. The Vienna Convention on Diplomatic Relations.
3. The Vienna Convention on Consular Relations.
4. The Convention on the Rights of the Child and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in armed conflict.
5. The Convention on the Elimination of All Forms of Discrimination against Women.
6. The Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations Concerning the Laws and Customs of War on Land.
7. The Convention on the Rights of Persons with Disabilities.
8. The Vienna Convention on the Law of Treaties.
9. The International Convention on the Elimination of All Forms of Racial Discrimination.
10. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
11. The United Nations Convention against Corruption.
12. The Convention on the Prevention and Punishment of the Crime of Genocide.
13. The International Convention on the Suppression and Punishment of the Crime of Apartheid.
14. The International Covenant on Civil and Political Rights.
15. The International Covenant on Economic, Social and Cultural Rights.

According to the secretary-general of the Palestine Liberation Organization (PLO), Yasser Abed Rabbo, the decision to join the conventions is the first step towards joining all UN agencies.

Undoubtedly, being a state party to UN conventions and treaties would solidify the international stand of the state of Palestine by putting it on the world map. But this has to be preceded by enshrining the democratic principles of the UN conventions in a modern constitution or bill of rights to serve as the basis of a globally recognized modern Palestinian state. This would help Palestine pursue claims against Israel in international courts.

However, the main task in this respect is to bring Hamas under the umbrella of the PLO and make it a party to the signed conventions under an elected unity government. But the PLO will need to re-establish its legitimacy by holding long overdue parliamentary election in the West Bank and Gaza. According to the PLO’s internal regulations, the elected members of the Palestinian Legislative Council are automatically members of the Palestine National Council, which in turn elects the PLO’s executive committee. Once elections take place inside the occupied state of Palestine, elections for the remaining delegates would take place in other locations where Palestinians live.

 

The International Covenant on Civil and Political Rights wassigned and ratified by Israel in 1992, and Israel also signed the Fourth Geneva Convention in 1951. Yet, Israel continues to breach with impunity the rights affirmed by both conventions.

 

The conventions to which the state of Palestine has acceded embody the principles of modern democratic states as enshrined by international law and the UN Charter.

The International Covenant on Civil and Political Rights could be seen as most pertinent to laying the ground for Palestinian statehood. Article 1 of the convention states clearly that “all peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” Clause 3 of that article refers to the right of non-self-governed territories by stating that “the States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the Unite Nations”.

The International Covenant on Civil and Political Rights was signed and ratified by Israel in 1992, and Israel also signed the Fourth Geneva Convention in 1951. Yet, Israel continues to breach with impunity the rights affirmed by both conventions. In view of the inaction of world leaders, it is incumbent on Palestinian leaders to prosecute Israel in the International Criminal Court. Pressure on President Abbas to take this crucial step is mounting both inside and outside Palestine (see my article, “The way ahead: taking Israel to the ICC”). Such a step requires Abbas to sign and ratify the Rome Statute on which the ICC is based, thereby enabling Palestine to access the ICC and prosecute Israel for war crimes.

However, Israel is not a party to the Rome Statute, which may prevent any legal investigation of crimes committed by it (see the part on Territorial Jurisdiction here). Furthermore, ratifying the Rome Statute and making it legally binding requires the assent of the Palestinian legislature in both the West Bank and Gaza Strip. Otherwise, Abbas’s signature of the Rome Statute may not have binding legal power.

Despite this, the signing of international treaties and conventions by President Abbas is likely to enhance the recognition of the Palestinian state as an observer and enforcer of human rights and lead to greater transparency and accountability of governance. Signing those treaties, including the Geneva Conventions and the Rome Statute, would be a significant step towards becoming a sovereign state that pursues independence through its own actions rather than being entirely dependent on actions by civil society groups.

Civil society groups such as the Boycott, Divestment and Sanctions movement have their place. However, without reconciliation between Fatah and Hamas under the PLO umbrella, and without seeking justice through international courts, a sovereign Palestinian state free of Israel’s occupation would remain a remote prospect.

Postscript

This article was written just before the announcement of reconciliation between Fatah and Hamas in Gaza on 23 April. This, I believe, is a monumental historic event which will advance the long-held Palestinian yearning for self-determination and increase the prospect of a sovereign and independent Palestinian state becoming a reality.


Ruth Tenne is an Israeli human rights activist.

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| Stealing Palestine: Interview with Richard Falk!

Stealing Palestine: interview with Richard Falk ~ Stuart LittlewoodRedress Information & Analysis.

Creeping annexation, ethnic cleansing and “the politics of fragmentation” inflicted by criminals who strut the world stage and thumb their noses at international law.

As the international conspiracy to rob Palestinians of their freedom and homeland is exposed a little more each day, observers and activists still puzzle over the duplicity of the United Nations in the decades-long illegal occupation and ethnic cleansing of the Palestinian territories, not to mention the true intent of Palestinian leaders. So when Richard Falk, Professor of International Law at Princeton and UN Special Rapporteur on Human Rights in Occupied Palestine, visited Norwich recently, I took the opportunity to put some questions to him.

“Peace process”

[Stuart Littlewood] Can we start with the so-called “peace process”, please? Does the resignation of the Palestinian negotiation team, and the reasons given, effectively end the already discredited “peace talks”? Should the Palestinians walk away or carry on playing a pointless game for another six months?

[Richard Falk] It is difficult to know how to assess the current suspension of peace talks. The Palestinian Authority (PA) seems always ready to bend to pressure, although with some outer limits. In this respect, the future of this phase of “peace talks” will be determined not in Ramallah, but in Washington and Tel Aviv. It should be evident 20 years after Oslo that the peace talks serve Israel’s interest in “creeping annexation” of the West Bank and ethnic cleansing in East Jerusalem, while diminishing Palestinian prospects, and even harming the Palestinian image by disinformation that blames the Palestinian side for the breakdown of the process when and however it occurs. It would be a welcome sign of PA independence if they come forth and denounce this peace process for what it is.

The sad reality is that this is almost certain not to happen, and more likely than not the period of negotiations will be extended beyond the nine months set aside, on the entirely false claim that the parties are on the verge of resolving all their differences, and with a little patience, the prospects for a deal are quite bright.

[Question] The negotiators said they were resigning because of the “unprecedented escalation” of settlement building and because the Israeli government wasn’t serious about a two-state solution and had failed to fulfil commitments given before the present talks were resumed. I now read that [Palestinian negotiator Saeb] Erekat has already been back to Washington for more talks with Tzipi Livni (Israel’s lead negotiator), [US Secretary of State John] Kerry and US envoy [Martin] Indyk. Far from denouncing the process they are once again endorsing it, which makes your point.

In any case, how acceptable is it for a weak, demoralized and captive people like the Palestinians to be forced to the negotiation table with their brutal occupier under the auspices of a US administration seen by many people as too dishonest to play the part of peace broker?

[Answer] Even if the United States was acting in good faith, for which there is no evidence, its dual role as Israel’s unconditional ally and as intermediary would subvert the credibility of a negotiating process. In fact, the US government signals its partisanship by White House appointments of individuals overtly associated with the AIPAC [American Israel Public Affairs Committee] lobbying group as special envoys to oversee the negotiations such as Dennis Ross and Martin Indyk. It is hard to imagine the fury in the West that would exist if the conditions were reversed, and the UN proposed a one-sided “peace process” biased in favour of the Palestinians. The unsatisfactory nature of the current framework of negotiations is further flawed by weighting the process in favour of Israel, which enjoys a position of hard power dominance.

Palestinians’ main grievances are all reinforced by an objective interpretation of international law

[Q] There can be no peace without justice, so is it right for final status “negotiations” to be held before competing claims are tested in the courts and the many outstanding rulings under international law and UN resolutions are implemented? In any case, shouldn’t a neutral UN peace commission be supervising the final settlement of this long struggle, rather than the US or the Quartet?

[A] Yes, if the priority were to attain a just and sustainable peace, a framework would be developed that had two characteristics: neutral as between the two sides and sensitive to the relevance of rights under international law. Such sensitivity would favour the Palestinians as their main grievances are all reinforced by an objective interpretation of international law, including in relation to settlements, Jerusalem, refugees, borders, water.

Mahmoud Abbas’s legitimacy

[Q] How much legitimacy does Palestinian President Abbas enjoy, having overstayed his term of office?

[A] This question of political legitimacy of President Abbas turns on the subjective mood of the Palestinian people. Because the PA is a political entity so vulnerable to pressures and manipulation, the status of its presiding leader seems to be widely seen as a secondary matter of limited significance. When President Abbas has articulated the case for Palestinian statehood during the last three years at the United Nations he gained considerable personal respect among most governments and for many Palestinians. He seems a leader caught between the realities of his compromised position and the occasional opportunities to express the national ambitions and support the rights of the Palestinian people. The division with Hamas, and the failure to find a formula to restore Palestinian unity in relation to the West, is a further source of weakness for PA claims to represent the Palestinian people as a whole. The failure to hold scheduled elections highlights the insufficiency of PA and Palestinian leadership.

Two-state solution

[Q] Do you believe a two-state solution is still feasible?

[A] No. I think Oslo has been dead for some years, primarily due to Israeli policies designed to encroach upon the remnant of Palestinian territorial and symbolic rights, especially by the continuously expanding settlement archipelago, the unlawful separation wall built on occupied territory, and the demographic manipulations in East Jerusalem. The pretence that Oslo plus the Roadmap point the only way to peace serves American and Israeli purposes in quieting growing complaints about the persistence of the conflict. It represents a diplomatic attempt to deflect criticism, and to divert attention from Palestinian grievances and a growing global solidarity movement.

[Q] The 1947 UN Partition was unworkable as well as immoral. Shouldn’t the whole territory [of historic Palestine] be returned to the melting pot and shared out more sensibly? Shouldn’t Jerusalem and Bethlehem become an international city, or corpus separatum, as the UN originally intended?

[A] For me the fundamental flaw with the partition proposals contained in GA [UN General Assembly] Resolution 181 was the failure to consult the people resident in Palestine at the time. A secondary flaw was the unfairness of awarding 55 per cent of the territory to the Jewish presence as represented by the Zionist movement, which in 1947 represented an estimated 7 per cent of Palestine’s population. This idea of determining the future of Palestine by outsiders, even if well intentioned, which seems not to have ever been the case, is incompatible with the historical trend toward resolving the future of peoples by way of the dynamics of self-determination. In Palestine’s case, at least from the issuance of the Balfour Declaration onwards, this effort to control the future of Palestine has been justly condemned as the last major example of “settler colonialism”. It is a particularly acute example as the settlers have no mother country to which to return, and take a poker player’s high risk posture of “all in”.

International Criminal Court

[Q]  Turning to the role of the International Criminal Court [ICC], this is an organ of the UN. So why doesn’t the ICC initiate its own prosecution of Israeli crimes based on UN reports and the mountain of evidence available to it, especially in view of Palestine’s upgraded status?

There is no authoritative explanation of ICC passivity in face of the Israeli criminal violation of fundamental Palestinian rights.

[A] There is no authoritative explanation of ICC passivity in face of the Israeli criminal violation of fundamental Palestinian rights. As a matter of speculation, it is plausible to assume an absence of political will on the part of the prosecutor’s office to initiate an investigation that would be deeply opposed by Israel and the United States. The ICC has been recently criticized for its Western bias, and its failure, for instance, to consider whether the United Kingdom and the United States violated the Rome Statute’s enumeration of international crimes by initiating and conducting the Iraq War. The African Union has complained about the seeming focus on the criminality of African leaders, and the bypassing of grievances directed at Western behaviour.

Responsibility to protect in Palestine

[Q] We hear you and others calling for intervention to prevent humanitarian catastrophes, e.g. the Gaza water crisis. Who exactly are you calling on? What is the chain of responsibility for intervening.

[A] There has been evolving within the UN and in international society more generally a sense that there is a “responsibility to protect” [R2P] peoples subject to severe threats of humanitarian catastrophes or natural disasters. Such sentiments are part of a process I have described as “moral globalization”.

In fact, R2P diplomacy has been discredited by being used as a geopolitical instrument, most dramatically as the normative foundation for the UN endorsement of the NATO 2011 military intervention in Libya. With respect to Libya the justification was protection against a feared massacre of civilians in the city of Benghazi, but the actual military operation from its outset seemed designed to achieve regime change in Tripoli. When it comes to Gaza where the present crisis has passed into a zone of desperation, the UN and world community are silent as if stone deaf to this deepening human crisis of survival.

So long as it is useful for Israel and Washington to treat Hamas as “a terrorist organization” the UN will be limited in its role to being a provider of a subsistence existence for the Gazan people…

[Q] We have just seen the UN intervening to bring fuel into Gaza as it teetered on the brink of a full-blown public health crisis. There are many such emergencies thanks to Israel’s continuing blockade. Why doesn’t the UN take over the supply of fuel full-time? And indeed the supply of medicines, drugs, medical equipment and spares?

[A] The tragic situation in Gaza cannot be understood without taking account of the political context, above all the split between Fatah and Hamas, and the Israeli posture toward Gaza after its “disengagement” in 2005 and the imposition of a punitive blockade in mid-2007 after Hamas took over the governance of Gaza. The UN has no capability to override geopolitical priorities, and so long as it is useful for Israel and Washington to treat Hamas as “a terrorist organization” the UN will be limited in its role to being a provider of a subsistence existence for the Gazan people, long victims of unlawful Israel policies of “collective punishment”, unconditionally prohibited by Article 33 of the Fourth Geneva Convention.

After the Egyptian coup of 3 July this year [reference to the mass popular uprising against the Muslim Brotherhood’s President Muhammad Morsi], the subsistence regime evolved in Gaza is itself in jeopardy. The tunnel network has been substantiallydestroyed by Egyptian military action and the Rafah crossing from Gaza to Egypt has been mainly closed, isolating the people, and creating emergency conditions due to fuel shortages that have made electricity available only in very limited amounts.

The results are horrifying: sewage in the streets, insufficient power to run machines needed to keep the terminally ill alive, fuel shortages that virtually preclude economic activity, and closed borders that seal the fate of 1.6 million Gazans. Long before this dramatic further deterioration of life circumstances, observers were calling Gaza the largest open air prison in the world.

Israeli theft of Palestinian water and gas

The wrongful appropriation by Israel of Palestine’s water, land and energy resources has been a massive crime against the Palestinian people…

[Q] What is the UN doing to protect Palestine’ s precious aquifers and offshore gas field from being plundered by the Israelis?

[A] Again, the UN has no independent capability, or ever will, to challenge Israel or to protect Palestinian rights. It is a case of geopolitical manipulation and Palestinian victimization. The wrongful appropriation by Israel of Palestine’s water, land and energy resources has been a massive crime against the Palestinian people that has been continuous with the occupation that commenced in 1967.

[Q] Why is the requirement, often repeated, to allow Palestinians free and unfettered movement in and out of Gaza not implemented? Gaza and the West Bank are supposed to be a contiguous territory but, for example, Palestinian students in Gaza are prevented from attending their excellent universities in the West Bank. And why are Gazan fishermen still restricted to a mere fraction of their territorial waters, despite agreements to the contrary, and regularly fired on? Why is Israel not prosecuted for acts of piracy in international waters against humanitarian traffic to Gaza?

Israeli military dominance, as politically reinforced by American geopolitical muscle, overrides all of these Palestinian claims of right… Such injustice and suffering can only be challenged by Palestinian resistance and international solidarity.

[A]  As earlier, the hard power realities of Israeli military dominance, as politically reinforced by American geopolitical muscle, overrides all of these Palestinian claims of right. In this respect, such injustice and suffering can only be challenged by Palestinian resistance and international solidarity. The specific abuses can and should be delimited to raise public awareness and contribute to the mobilization of support for the Palestinian struggle, but it is pointless to expect the UN to do more than its capabilities allow. The whole structure of the organization, combined with the method of funding, gives geopolitical pressures great leverage in relation to specific situations. The veto power given to the permanent members of the Security Council is a major expression of this weakness that was built into the constitutional structure of the UN from the moment of its establishment.

“Nuremberg Promise has not been kept”

[Q] People reading what you say here will be alarmed that US geopolitical power and Israeli military might can so easily override international and humanitarian law. After Nuremburg our legal institutions were strong enough to bring Nazi era criminals to book, but present-day war criminals walk free and thumb their noses. What hope is there for mankind and our brave new world if this is allowed to continue?

The bottom line is that we live in a world in which the primacy of hard power prevails in the relationship among states.

[A] The Nuremberg experience was based on “victors’ justice”, holding the defeated leaders after World War II criminally accountable, while exempting the crimes of the victors from accountability. There was a promise made at Nuremberg that in the future the rules by which the Germans were judged would be applicable to all who committed state crimes in the future. This Nuremberg Promise has not been kept. The political and military leaders of the main states enjoy impunity while the leaders of defeated countries (e.g. Saddam Hussein, Slobodan Milosevic) or sub-Saharan African countries are prosecuted by international tribunals. Double standards prevail, and it is questionable whether an international criminal law that punishes the weak and exempts the strong is to be treated as legitimate, even if those accused receive a fair trial and are convicted and punished only if they were guilty of grave misconduct.

The bottom line is that we live in a world in which the primacy of hard power prevails in the relationship among states. Geopolitical leverage enables Israel to defy the most basic principles of international law, and yet their leaders are not held accountable. There are only two paths available that challenge this result. National courts can be empowered by what is called “universal jurisdiction” to investigate, indict, prosecute, convict and punish anyone accused of state crime that can be personally delivered to the relevant court. In 1998 the Chilean dictator was detained in London after the Spanish government requested that [Augusto] Pinochet be extradited. After lengthy litigation it was found that Pinochet could be extradited for torture committed during part of his reign, but in the end he was sent back to Chile because of health reasons, and never faced trial in Spain. Yet such a possibility exists in relation to Israeli political and military leaders, and seems to have discouraged their travel to countries whose criminal law contains the authority to invoke universal jurisdiction.

The other possibility is by convening a peoples tribunal of the sort constituted in the past by the Bertrand Russell Foundation in Brussels and the Lelio Basso Foundation in Rome. The Russell Foundation sponsored four sessions devoted to various allegations of criminality attributed to the government of Israel. It produced convincing documentation of the charges, and issued judgements that called for civil society initiatives. Such a tribunal, although acting on evidence and in accord with the relevant provisions of international criminal law, possesses no formal authority and lacks implementing capabilities. Its role is limited to documenting the case against a government, and providing symbolic support to those who contend that there have been violations of international criminal law. Such outcomes may influence public opinion, and help change the balance of political forces by undermining the legitimacy of an established order of oppression as exists with respect to Israel’s relationship to the Palestinian people and the denial of their collective right of self-determination.

Palestinian disunity

[Q]  What are the chances as you see them for achieving unity between Fatah and Hamas, and how should the Palestinians play their cards in future?

The “politics of fragmentation” designed to undermine Palestinian unity… has been alarmingly successful.

[A] There is a near unanimous belief among Palestinians and their supporters that unity is needed to move the struggle forward. Such unity existed throughout the early decades of the Palestinian national movement, despite many ideological differences relating to tactics and goals, but within a shared resolve to achieve national liberation. The unifying image provided by Yasser Arafat’s uncontested leadership was also important.

Israel has pursued a policy I describe as “the politics of fragmentation” designed to undermine Palestinian unity, and it has been alarmingly successful. Oslo contributed to this end by dividing up the West Bank into Areas A, B and C, by splitting the administration of Gaza off from the rest of Palestine. The emergence of Hamas highlighted Palestinian fragmentation, a result welcomed by Israel even as it was condemned. Fatah appears to have been inhibited in reaching some kind of functional unity with Hamas by pressures to refrain from such moves mounted in Israel and the United States. So long as Hamas is treated as a terrorist organization, even in the face of its turn from armed struggle and entry into the political process back in 2006, there will be strong opposition to moves towards unity…

Deflection by defamation

[Q]  Finally, Richard, your robust defence of Palestinian rights has ruffled many feathers and led to demands from “the usual suspects” for your dismissal. Should the people you speak up for be concerned about this?

[A] The attacks on me, and others who have tried to bear witness to the directives of international law and political justice, are part of a deliberate campaign by Israel, and its cadres in civil society, to deflect attention from the substantive grievances of the Palestinian people. It is what I have described as “the politics of deflection”, go after the messenger so as to deflect attention from the message. The media have been largely compliant as have Israel’s powerful governmental friends, including the United Kingdom, US and Canadian governments. Of course, many NGOs and elements of the public push back against such tactics. In my case the defamatory efforts of UN Watch, in particular, have been unpleasant, but have not altered my effort to do the job of witnessing to the best of my ability and in accordance with the canons of truth telling.

Those of us living in comfort should not turn our gaze away from the children of Gaza this Christmas.

[Q] Thank you for being so generous with your time and sharing your assessment of the situation. But before you go, what sort of Christmas can the children of Gaza look forward to?

[A] We can only imagine the horror of Christmas this year in Gaza for young and old alike: from life amid raw sewage to freezing cold, scarcities, desolation and a sense that the world is elsewhere, indifferent to such acute suffering, such sustained injustice, such blind hate.

And yet also knowing many Gazans makes me believe that even in such dire circumstances there remains space for some laughter, and much love, and that such a spirit of resistance lives on among the children of this place haunted by the evils of our world. If present these days in Gaza it would likely make me feel a mystifying blend of sadness and inspiration.

At the very least, those of us living in comfort should not turn our gaze away from the children of Gaza this Christmas: we should demand empathy from our leaders and be as personally attentive as possible, whether by commentary, prayer, donations, a compassionate scream! We should not allow these days of celebration and renewal to pass this year without moments of reflection on selfish joys and cheerful carols, as contrasting with the miserable destiny bestowed upon the innocent and abused children of Gaza

Let us look the children of Gaza in the eye if we can. And if we can’t, as I could not, seize the moment to reflect on what it means to be (in)human during this holiday season.

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| Israel GUILTY of Genocide: Tribunal issues landmark verdict!

USInternationalLaw1Tribunal Issues Landmark Verdict against Israel for Genocide ~ Yoichi Shimatsu, Global Research.

To a crowded courtroom on the late afternoon of November 25, presiding Judge Lamin Mohd Yunus announced the verdict by an international panel of seven jurists:

The Tribunal is satisfied, beyond reasonable doubt, that the first defendant, (General) Amos Yaron, is guilty of crimes against humanity and genocide, and the second defendant, the State of Israel, is guilty of genocide.”

The landmark ruling against Israel for its genocide against the Palestinian people rendered by the Kuala Lumpur War Crimes Tribunal is significant for several reasons:

–          In contrast to other non-official courts of conscience on Palestinian rights, for example, the Russell Tribunal on Palestine (New York 2012), the prosecution in Kuala Lumpur took a step beyond war crimes and crimes against humanity to the higher and broader charge of genocide.

–          The decision was rendered during the ongoing commission of the alleged crime by the defendant, rather than after the fact as in earlier genocide cases.

–          Instead of limiting its ruling to individuals who ordered genocidal actions, the jurists also charged the state as a defendant.

–          As a consequence, this case breaks the tradition of immunity of nation-states from criminal prosecution under international law.

–          The decision introduces a legal basis for international action to protect minorities from genocide as a lawful alternative to the current response of so-called humanitarian intervention, invasion, occupation and regime change, which have often been as illegitimate and more destructive, and in some cases as genocidal as the original violation being punished.

The Kuala Lumpur Tribunal based its momentous decision on the 1948 Genocide Convention, which prohibits and punishes the killing, causing of harm and deliberate infliction of conditions of life calculated to bring about the physical destruction of a group of people, targeted for their ethnicity, religion or race. In instances of genocide, these criminal acts are done with the specific intent of destroying as a part or in whole of the targeted group, as in this plight the Palestinian people.

The defendants, Gen. Yaron and the Israeli State , through its representatives, refused to accept the Tribunal summons and appear in court.

Prominent Israeli legal scholars also refused invitations to serve as defense counsel. The Tribunal therefore appointed an Amicus Curae (defense counsel, referred to by the Latin term for “friends of the court”), including attorneys Jason Kay Kit Leon, Larissa Cadd, Dr. Rohimi Shapiee and Matthew Witbrodt, to defend the accused. Even absent Israeli participation, the defense proved to be forceful and often made heated remarks in Israel’s defense, especially during the cross-examinations of expert witnesses.

Why Not New York , London , Paris or Berlin

One point to note is that the sponsoring Kuala Lumpur Commission on War Crimes and its associated international Tribunal is unrelated to Malaysia and its legal system, aside from the participation of some Malaysian jurists and citizens in its proceedings. Malaysian laws are in many areas quite different from and sometimes in diametric opposition to the legal opinions of the international Tribunal. The independence of this “court of conscience” allows an approach to international law unconstrained by local norms, but this also means that the Tribunal lacks an enforcement capability.

That the first-ever Tribunal to prosecute Israel for genocide was initiated in Southeast Asia offers some indication of the continuing sensitivity within the traditional “center” of international law, Western Europe and North America, toward the circumstances behind Israel’s creation.

The Kuala Lumpur proceedings are bound to raise controversy and discomfort, especially among a reluctant West, since the historical motive behind creating a modern Jewish state in 1948 was largely a response to the abandonment of European Jewry to the pogroms and extermination program of the Third Reich, which in its early stages went unopposed by Western governments and prominent opinion leaders in the Atlantic community.

The courage to finally confront Israel after nearly seven decades of eviction and merciless brutality against the Palestinian people was summoned not by the Atlantic community but in faraway Southeast Asia , where a law case could be pursued with critical distance, logical dispassion and an absence of historical complicity. In short, an evidence-based fair trial found Israel to be guilty of genocide.

Why Israel

Why then was Israel singled out by the Kuala Lumpur War Crimes Commission on genocide charges before its Tribunal, when many other states have gone unpunished? Chief prosecutor Gurdial Singh explained:

“Other settler states, for example Australia, have offered compensation and apologized for the dispossession and harm to their indigenous populations, while Israel remains unapologetic and continues its campaign of destruction against Palestinians and to make their conditions unlivable inside and outside its borders.”

In contrast with previous special courts involving genocide charges, this Tribunal left the time frame of events open-ended, by starting just before the creation of the State of Israel until the present and, presumably, into the future until Israel ceases its expansionist campaign against the Palestinians and offers instead justice and reconciliation. By comparison in prior cases invoking the Genocide Convention, including those against former Yugoslavia, Rwanda, Cambodia and Sierra Leone, the mass killings of civilians were perpetrated within a short time-frame by political leaders of the then-governing regime or by a major political faction.

The Kuala Lumpur Tribunal asserted that the modern Jewish state, in contrast to other cases, had since even before its inception pursued a genocidal program as a consistent feature and indeed a foundation of state policy. Therefore, genocide in the Israeli case cannot be solely attributed as the isolated action of a leader, political party or elected government but remains the responsibility of the state itself.

Genocide as Response

The specific intent of Israeli state policy, since even before the founding of Israel, was discussed in a live-video transmission by expert witness Ilan Pappe, an Israeli historian at University of Exeter in the UK and the director of the European Centre for Palestine Studies. His research has revealed that a planning group of top-ranking Jewish military leaders in the Haganah militia, led by David Ben Gurion (who later became Israel’s first prime minister) devised an ethnic-cleansing program to rid the future Israel of its Arab predecessors. Called Plan Dalet (the letter “D” indicating the fourth plan of a colonialist agenda) was to be activated as soon as the British suspended the Palestine Mandate.

With the declaration of Israeli statehood in 1948, a coordinated armed campaign by Israeli military forces and paramilitary units against hundreds of Palestinian urban neighborhoods and rural villages led to the flight of an estimated 700,000 refugees from Palestine and parts of neighboring Trans-Jordan, including Jerusalem . Although the Israeli intent was intended to intimidate the Palestinians into relocating outside the borders, but before long village populations that refused to flee were mass murdered.

The forcible deportation of indigenous inhabitants from their homes and land was a criminal act of ethnic cleansing, Pappe said. That policy, however, soon metamorphosed into a systematic campaign to destroy Palestinians, that is, genocide. Under cross-examination by defense team, the historian explained, that as an Israeli citizen and son of Jewish refugees who escaped Nazi-ruled Germany , it is morally, ethically and historically inconsistent to condemn the genocide against Jews while endorsing a new one against Palestinians.

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 Cumulative Record of Crimes

The Israeli record of massacres, extrajudicial killings and daily harassment of Palestinian comprises a continuum of criminal behavior over the past 67 years. Given the overwhelming evidence, the prosecution team therefore decided to focus on key cases, which were extensively reported in the news media and/or were subject of investigations. These included:

–          the September 1982 massacre of Palestinians, mainly women and children, at the Sabra and Shatilla refugee camps in a southwest district of Beirut, Lebanon;

–          lethal firing of teargas canisters and “rubber” bullets by Israeli Defense Forces that resulted in the deaths of unarmed civilians during the Intifada campaigns and subsequent protests; and

–          intensive and indiscriminate aerial bombing and artillery shelling of civilian quarters in the Gaza Strip in 2008.

Among the witnesses who testified in person or via video transmission included:

–          a former university student who was shot without warning at a peaceful protest by an Israeli sniper firing a fragmentary bullet that caused extensive and permanent damage to his internal organs;

–          a Christian resident of the West Bank who was repeatedly imprisoned and tortured on grounds of subversion;

–          a female resident of Nablus who suffered mental anxiety due to her imprisonment and subsequent social ostracism; and

–          two men from the Al Sammouni clan of Gaza, which lost 21 family members, mainly children and women, in an Israeli commando raid on their home.

–          a Palestinian physician who conducted studies on the psychological trauma inflicted, particularly on children, as result of constant intimidation, massive violence and state terror during and following the second Intifada;

–          Expert witness Paola Manduca, an Italian chemist and toxicologist, who found extreme levels of toxic contamination of the soil and water across the Gaza Strip caused by Israeli weapons made of heavy metals and cancer-causing compounds.

 Killing Fields

Professor Pappe said that the mass killing of defenseless civilians trapped without avenues of escape within a cordon or enclosure is clear evidence of genocidal policy, as happened inside the Beirut refugee camps surrounded by Israeli tanks and hostile Phalangist militiamen and inside Gaza cities that are ringed by a wall-fence.

For the Beirut atrocity, Israeli Defense Force commander General Amos Yaron was charged in absentia for crimes against humanity and genocide. Among the witnesses who testified in person on the Camps Sabra and Shatilla events were:

–          Chahira Abouardini, a widow whose husband and three children were murdered by Israeli-allied militiamen at Camp Shatilla, provided a graphic account of the carnage, describing piles of bullet-riddled bodies and, in one case, of a pregnant women whose belly had been slit open and with her dead unborn child left on top of her corpse. She recounted how refugees were rounded up from their homes and lined against walls for summary execution by automatic weapons fire.-

–          Dr. Ang Swee Chai, a London-based Singaporean surgeon and medical volunteer at the time at a hospital run by the Palestinian Red Crescent Society, with the aid of the International Committee of the Red Cross, testified that another Beirut hospital had been bombed by Israeli jets, all Palestinian facilities including schools and hospitals were deliberately destroyed by artillery barrages and explosive charges, and ambulances were intercepted and their drivers shot dead. She stated that an Israeli observation post positioned in the 7-storey Kuwaiti Embassy, located on a hilltop, had an unobstructed view of the refugee camp, indicating that the Israeli forces were directing a joint operation to exterminate the refugees left behind under the international plan to withdraw the PLO from Lebanon . In her forensic investigation of the bullet wound that injured a male nurse at her hospital, Dr. Ang determined that the sniper fire had come from the Israeli-occupied Embassy building

Considering the Israeli checkpoints on roads and its vantage points, Brigadier General Amos Yaron as field commander of the Beirut incursion and occupation, had effective control over the camps. His close liaison with the local militia leader meant that Yaron had condoned the 36-hour rampage by militiamen, which led to an estimated 3,500 civilian deaths. No orders were issued to prevent the one-sided violence, prosecutor Aziz Rahman argued before the Tribunal. A 1983 special commission report, under its chairman Nobel Laureate Sean MacBride, concluded that Israel had “complicity in genocide”. Research findings gathered since then indicate that Yaron was not merely complicit but held personal responsibility for the massacre.

A point contested by the Amicus Curae defense team was that then Israeli Defense Minister Ariel Sharon, an official of superior rank, should have been prosecuted instead of Gen. Yaron. (The prosecution had earlier declined to serve notice on Sharon, who has been in a coma for many years and is unable to testify in hisown defense. Moreover, Yaron had wide sway of authority as field commander in a battle zone outside the borders of Israel .) Prosecutor Gurdial Singh pointed out that Israel not only failed to file criminal charges against Yaron and his subordinates but subsequently awarded and repeatedly promoted the general and his circle. Yaron was therefore found guilty as accused.

Responsibility of the State

International law has traditionally taken for granted the immunity of states from prosecution by a court in another country. There are several reasons for immunity of states, even for high crimes such as genocide and serious violations of various humanitarian codes.

–          International law and the treaty system are based on the principle of equality among states, which are parties to and enforcers of international agreements. The criminal conviction of a state for serious crimes would automatically weigh against the accused party, thereby causing an imbalance in relations and introducing unfairness to the international system.

-The sovereignty of states is a fundamental protection against aggression or undue interference by a foreign state or alliance of nation-states.

–          As argued by defense counsel Matthew Witbrodt, prosecution of and penalties imposed on a state would result in collective punishment of all of its citizens. (Since the Treaty of Versailles that ended World War I, the international community has tried to avoid forms of collective punishment, including heavy war reparations.)

On the other side of the coin, total immunity for the state can encourage violations of international law by dictatorial, racist and/or bigoted regimes. The absence of legal challenge by foreign courts therefore leaves few legitimate means to pressure the offending state. The more “peaceful” methods include economic sanctions, which can be interpreted as a type of collective punishment against a victimized citizenry.

With no legal recourse to counter mass atrocities, other states then must launch interventions through extralegal and often illegal strategies of covert warfare,  proxy insurgencies or biased peacekeeping operations. The subsequent invasion and occupation by self-appointed saviors can be more harmful to the people, and to the principles of law, than the original violations of the offending regime.

Thus,  quoting its opinion upon the verdict, a “reason the Tribunal wishes to reject the doctrine of absolute state immunity from prosecution in matters of genocide, war crimes and crimes against humanity is that the existing international law on war and peace, and humanitarianism, is being enforced in a grossly inequitable manner. Small, weak nations, mostly in Africa and Asia , are periodically subjected to devastating sanctions, military interventions and regime changes. At the same time, unbearable atrocities and brutalities are inflicted on the military weak nations of Latin America, Africa and Asia by powerful nations in the North Atlantic and their allies go unscrutinized and unpunished.”

The alternative to the law of the jungle applied by self-appointed unilateral powers or coalitions of the willing is the reform of international law to balance sovereignty with the responsibility of the state for high crimes such as genocide.

Restricting Sovereignty

In its opinion on the ruling, the Tribunal therefore offered a rational method for limiting sovereignty in cases of gross crimes: “Where there is a conflict between two principles of law, the one hierarchically higher in importance should prevail. To our mind, the international law doctrine against impleading (suing) a foreign state, being lower than that that of the prohibition against genocide, resulted in the charge against the State of Israel.”

The Tribunal did not spell out how a genocide ruling can be enforced or provide a model for a reconstitution of state. Presumably and theoretically, the general effect of genocide-based restrictions on sovereignty would be to dissuade and deter state administrations from perpetrating mass atrocities with impunity. Under a legal standard for common action to stop genocide, a preventive intervention could then proceed under accepted rules of engagement and with safeguards against unwarranted violence by peacekeepers. When an inherently extreme policy in embedded in the constitution or state regulations, a lawfully grounded international authority could then abolish that state structure and reconstitute a legitimate state subject to a referendum. A legal process for constitutional change is far preferable to the current method of arbitrary regime change favorable to the interests of and politically subservient to an occupation authority. This remains hypothetical, showing only that the international community is yet to seriously consider the alternative to the present unlawful model.

Restriction of state sovereignty, as the Tribunal noted, is a new and evolving trend in international law. The U.S. permits its citizens to file lawsuits in federal court against states that harbor terrorists, and although this is covered under tort law, such cases inherently restrict the sovereignty of foreign countries. The European Union has also constrained the sovereignty of member states. Under the 1978 State Immunity Act, the British privy council ruled that vessels owned by foreign governments are subject to the same liability laws as commercial vessels.

As argued by the Tribunal panel in their opinion, “We find it rather mind-boggling when some courts can consider commercial disputes as a reason for not allowing a state to be shielded by the state immunity principle and yet strenuously protect such a state in cases of genocide or other war crimes. Human lives cannot be less important than financial gain.”

The vigorous and often well-founded arguments by the Amicus Curae team in defense of Israel were constructive criticism that greatly helped to focus the Tribunal on the complexities of international law. In heated courtroom debate, defense counsel Jason Kay Kit Leon opined that “the elephant in the room” was Palestinian terrorism against Israeli civilians, for instance, the launching of unguided rockets at settlements, and that Israeli forces have acted in self-defense. The thrust of his claim was based on “In Defense of Israel” by Harvard law scholar and attorney Alan Dershowitz.

The jurists, however, accepted the prosecution argument. “It is our finding that much of the Palestinian-generated violence is not on Israel’s own territory, but from and on Israeli-occupied Palestinian land. Much of the violence perpetrated by Palestinians in a reaction to the brutalities of the vicious racism and genocide that is a tragic feature of Palestinian life.”

The opinion went further, by stating: “We also hold that the force of the IDF is excessive, totally disproportionate and a violation of international humanitarian law. The methods used are unspeakably inhumane and amount to war crimes.”

Internal Disputes

Earlier disputes within the Commission had led to a two-month adjournment of trial proceedings due to harsh and sometimes bitter accusations between participants. In the conflicted process, several judges recused themselves or were absent due to schedule conflicts and one prominent prosecutor resigned in protest of suspected tampering of the judicial panel. These controversies fortunately served to clarify rather than muddy the legal issues and court procedures, resulting in stronger arguments on both sides. Taking Israel to task is never an easy proposition.

Thereby, a stunning precedent in international law was achieved with the Tribunal’s unanimous decision to charge a state for the high crime of genocide. The arguments and verdict against the State of Israel will undoubted be a hotly debated test case for legal scholars over years to come. Since its Charter does not allow an appeal process, the case of “The Kuala Lumpur War Crimes Commission Against the State of Israel” will stand as the nub of controversy for human-rights law and the principle of sovereignty for nation-states.

While citing several precedents, the strongest argument for implication of the state is outlined in the 2007 genocide case of Bosnia and Herzegovina v. Yugoslavia , which covered the Sebrenica massacre of Bosnian Muslms by Serb-dominated federal armed forces. As Canadian jurist John Philpot, who earlier served on the Rwanda Tribunal, pointed out following the reading of the verdict “Bosnia/Herzegovina clearly laid out the culpability of the state and thus served as the precedent for our judgment against Israel .”

According to the Bosnia/Herzogovina ruling, “Genocide is a international crime entailing national and international responsibility on the part of individuals and states” and “if an organ of the state, or a person or group whose acts are legally attributable to the state, commits any of the acts proscribed by Article 3 of the (Genocide) Convention, the international responsibility of that state is incurred.

A point to note: The Rwanda and Yugoslavia genocide cases, are considered by some legal experts to be flawed by the underlying covert and illegal factor of great-power interference. These cases were cited infrequently and judiciously by the Kuala Lumpur Tribunal, which exercised proper case in selection of appropriate passages, while relying on a much wider range of legal precedents in regard to liability of the state.

Critique: Going Beyond Reparations

Until this genocide ruling by the Kuala Lumpur Tribunal, offending states and their foreign sponsors have evaded responsibility while the entire burden of guilt has been placed on the individual agents of weak nation-states. Under the Tribunal ruling, both the core state apparatus – including the executive office, military command, intelligence agencies, supportive ministries and, in many cases, the judiciary and police – bear as much and, in some cases, more criminal responsibility for genocide as individual leaders or military officers.

Yet that is still insufficient when the primary responsibility should rest on powerful sponsor states that move from supporting the offending regime toward punishing its rebellious hubris. The nexus of powerful and ruthless states and global elites, with their machinery for war-making and arms production, creates the political state of siege, the economic strangulation and the covert weapons trade that prompt weaker states to perpetrate genocide.

Barely addressed in just one paragraph of the Tribunal opinion is the reality that powerful states oppose any dilution of their absolute state immunity with the unspoken objective of preserving their war-making powers. The dominant Atlantic allies have cited genocide solely as a pretext to expand their global domain though invasions under a broad and vague “responsibility to protect” principle and have imposed new constitutions on defeated adversaries authored by foreign legal scholars while guised as the ideals of domestic political revolutions. Meanwhile, their own genocidal state structures, centered in the national-security structure and military command, categorically reject any international controls over extralegal interventions operated under the cover of humanitarian operations.

Also, in limiting its call for remedial action to reparations from Israel , the Tribunal wasted a precious opportunity to demand full justice for the Palestinian nation. What is realistically required is an international peacekeeping force to guarantee the withdrawal of the Israeli miltary and police force from Palestinian territory until a domestic law-enforcement and security force can take over; the elimination of wall-fences, checkpoints and other barriers to the free movement of citizens; the return of occupied land in Palestine; financial restitution for the loss of lands and property inside the boundaries of Israel; and an official apology for the countless crimes committed.

Furthermore, the continuity of genocide perpetrated by the core state structure and abetted by the complicity of much of the Israeli population demands that the offending state must be reorganized under a new constitution free of religious bias and racial discrimination to ensure legal norms that prevent a repetition of genocide. This objective should require an international occupation of Israel in event that powerful elements in Israeli society refuse to comply with international law. Israel should be spared the violence unleashed against the Third Reich, but stern justice and strong rule of law are nonetheless required in situations of ideological conformity based on the goals of genocide.

  Courage and Wisdom

Whatever its few shortcomings, the Kuala Lumpur Tribunal demonstrated immense courage, foresight and wisdom in leveling the long-overdue charge of genocide against the State of Israel. The Tribunal correctly framed genocide in the context of international law rather than merely as a localized violation. The verdict along with the sophisticated judicial opinion provides an important initiative toward deterring the great powers from promoting and exploiting genocides among weaker nations and victimized peoples.

The Tribunal verdict raised not only a legal challenge to supporters of the Zionist cause in the United States and Europe but also appealed to universal moral principles in the tradition of high-minded rhetoric. “Much as we condemn violence and pray for peace, it must be stated that no power on Earth can douse the flame of freedom from the human spirit. As long as there is suppression, there will always be people prepared to die on their feet rather than live on their knees.”

 The precedent-setting decision by the Kuala Lumpur Tribunal is a giant step forward not only for dispossessed Palestinians but also for humanity as a whole.

Author: Yoichi Shimatsu, an East and Southeast Asia focused journalist, is former editor of The Japan Times Weekly in Tokyo.

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Collective Punishment 1

Testimony by Dr. Ilan Pappe on Genocide in Palestine by Israel

The Kuala Lumpur War Crimes Tribunal Hearing on Palestine–Testimony by Dr. Ilan Pappe.

On November 22, 2013, the Kuala Lumpur War Crimes Tribunal (KLWCT) went into the third day of the hearing on genocide and war crimes charges against the State of Israeland Amos Yaron, a retired Israeli army general.

The tribunal heard the testimony of renowned historian and socialist activist, Prof Ilan Pappe, who informed the tribunal about the systematic ethnic cleansing via expulsion and killing of the Palestinians from their homeland since 1948. Three witnesses from West Bank also gave an account of their trials and tribulations under the Israelis.

The testimony of Dr. Pappe was an interesting and revealing account of the Israeli leadership strategy to rid the Palestinians from their homeland since the 1940s. He testified that the expulsions were not decided on an ad hoc basis, as other historians have argued, but constituted the ethnic cleansing of Palestine, in accordance with Plan Dalet drawn up in 1947 by Israel’s leaders then.

He testified that the expulsion of the Palestinians in 1948 constituted ethnic cleansing, as the Zionists movement was not concerned with the native people. He revealed that it was as early as in the 1940s when it began deliberating the fate of the indigenous people of Palestine and that they wanted to take over Palestine with as little Palestinians in it by having them leave voluntarily or be forced out.

He further revealed that from 1948 until 1949, the plan was enforced by Israeli forces to cleanse villages and towns of Palestinians by encircling the villages/towns from three flanks to intimidate the residents into leaving by leaving one flank open. Some 530 villages were wiped out physically. Under the partition plan, 56% of the land was to be handed to Israel wherein the 2/3 of the population was Palestinians. In the end, 93% of the land came under the control of Israel and 750,000 Palestinians were left out as refugees in neighbouring countries, in Gaza and West Bank. After the 1967 war, Gaza and West Bank were occupied.

He added that having taken over most of Palestine territories, the policy changed from expelling to destroying the Palestinians. Hence, the Sabra & Shatilla massacre was an attempt to destroy Palestinians in Lebanon.

He told the tribunal that the use of military action against Palestinians in Gaza and West Bank was considered genocidal against people who cannot defend themselves. Military operations such as Summer Rains, Autumn Clouds, and Cast Lead were just to kill the Palestinians and destroy the economy, culture and their spirit.

In cross-examination by Amicus Curiae Jason Kay, Prof Pappe agreed that his view of history is a minority view and that while he is grateful that the Zionist movement had saved his parents from the Nazi holocaust for which he is grateful; however, the moral way is to live together with the Palestinians, not expel and kill them.

kill generation human meat1

 

Moreover, most of the Israel’s supporters wanted to believe that almost three years of revolutions in the Arab world and two years of fighting in Syria have pushed the Palestinian issue to the sidelines. Israel rejoiced that the focus shifted from the Palestinian issue, which united everyone, to the Syrian conflict, which became a bone of contention for the entire world.

Contrary to Israel’s expectations of two months ago, the Tribunal is not trying Assad for crimes against the Syrian people. Instead, it is trying Israel for genocide of the Palestinians. All of a sudden, Israel has lost its momentum. The Palestinians are back in the political spotlight, and the trap designed to lure Assad has turned into a trap for Israel.

JusticeDenied2

| Michael Mansfield QC denounces Egypt coup for Rule of Law!

Michael Mansfield explains to MEMO why it is important to prosecute the perpetrators of the Egyptian coup ~ Dr Sarah Marusek, MEMO.

“The Middle East is a crucible for what is going on” in the world.

Afghanistan, Guantanamo Bay, Iraq and Palestine. These are among some of the territories that hegemonic world powers have been trying to construct as spaces of exception, where international law does not apply and crimes against humanity take place with impunity.

Since last summer, Egypt has now joined this list. However, as is the case in all of these territories, the effort to deny people their basic rights is being met with strong resistance in Egypt.

On Saturday, a group of international lawyers convened a press conference to present the initial findings of their investigation into the Egyptian military regime’s crimes against humanity since the coup d’état on 3 July that ousted Egypt’s first democratically elected president and parliament.

The high profile legal team has been appointed by Egypt’s Freedom and Justice Party (FJP) as well as other members of the country’s deposed parliament. Led by Tayab Ali, a solicitor and partner of the human rights law firm ITN Solicitor, the team comprises some of the world’s most distinguished legal minds, including: the former Director of Public Prosecutions, Lord Ken Macdonald QC; South African International Lawyer and former UN Human Rights Special Rapporteur, Professor John Dugard SC; and renowned human rights barrister, Michael Mansfield QC.

At the conference Ali and Mansfied joined Dr Abdul Mawgoud Dardery, a member of Egypt’s suspended parliament, and Professor Richard Falk, the UN Special Rapporteur on the situation of human rights in Palestine, to discuss the preliminary findings of their report and to call upon the international community to name these crimes and actively oppose them.

Indeed, the speakers repeatedly stressed that we all share this historical burden and that our collective future, including the rights that we all cherish, depends on the outcome in Egypt.

Ever since the tragedy of 11 September 2001, Western eyes, and especially those of Americans, have been focused on the Middle East to try to understand why the attacks happened. However, as American scholar Derek Gregory points out in his book The Colonial Present, by searching for the answer “over there” rather than “over here”, the US and its European allies have created spaces of exception, where following the logic of the colonialist and Orientalist projects, the lives “over there” are imagined to be governed by a different set of ethical and legal principles than “over here”. This post-colonial gesture note only reproduces difference, but also undoes the rights-based achievements of the post-colonial era. Gregory suggests that “it is this asymmetry—accepting the privilege of contemplating ‘the other’ without acknowledging the gaze in return… that marks this as a colonial gesture of extraordinary contemporary resonance.”

More recently, Western eyes have watched the unfolding of the Arab uprisings, inspired by ordinary people mobilising in the streets to bravely demand an end to decades of dictatorship in order to make way for the rule of law and democracy. But while the revolutionary uprisings captured the Western imagination, even this was not enough to disrupt that colonial gaze and collapse the constructed difference that Gregory speaks of, as the West has been largely silent ever since Egypt’s democracy was crushed and the Egyptian people were terrorised by a military coup.

Those fighting to restore their democracy in Egypt are now demanding that the time has come for the international community to finally acknowledge their gaze. Oppressed by a military regime that is armed and supported by Western countries, Egyptians are now calling upon the international community to actively support their democratic struggle and to help them hold the military coup regime accountable for its crimes against humanity.

Before the press conference convened, Mansfield, who has worked on numerous international civil rights struggles for more than four decades, and who recently sat as a juror for the Russell Tribunal for Palestine, spoke at length with MEMO about this effort.

Outraged by our collective silence, Mansfield pointedly asked why “nobody’s making the point that President Mohamed Morsi is actually making himself,” which is that “he’s been deposed by a military coup.” He also stressed that the case against the perpetrators of the Egyptian coup is important because “the Middle East is a crucible for what is going on” in the world.

Mansfield explained to MEMO that using international jurisdiction to seek justice in Egypt is not without precedent. He cited other cases that “demonstrate the need to enforce international law” elaborating that, “One that I quite like using is one that the Israelis did. The Israelis, you may remember, in 1961 retrieved Adolf Eichmann, a war criminal, from South America and took him back to Jerusalem for trial on the basis that nobody else was going to do it.”

Since Eichmann had committed war crimes for which he would not have faced justice otherwise, Israel was indeed entitled to try him. Of course, many, including the Jewish scholar Hannah Arendt, critiqued Israel for trying Eichmann in the name of Jewish suffering rather than in the name of all. As critical theorist Judith Butler has observed “the destruction and displacement of whole populations was an attack not only on those specific groups, but on humanity itself.”

During Saturday’s press conference, Professor Falk also remarked that as citizens of conscience in the modern era, “it’s not just a matter of deferring to governments and states as the implementers of the rule of law. If we really believe in the premises of democratic society, we all have that right and obligation” to speak out against those who commit crimes against humanity, “because this is not a territorial crime; it’s a crime against people. And in a certain, very fundamental sense, we are all humans before we are nationals of any state, or we belong to any religion or ethnicity. Our humanity calls for a response to outrages of this dimension, this scale.”

Of course, Mansfield agrees on the ethical imperative here, but he also adds a practical layer by insisting that, “we all have an interest, a vested interest, in ensuring self-determination for the peoples in the Middle East, including Palestine and Egypt.”

Anybody who doubts this self-interest needs look no further than his or her own shores. In the UK, Mansfield pointed to the police’s efforts to spy on students at Cambridge University, as recently uncovered by the Guardian. In the US, there is the continued expansion of the Patriot Act, as well as the mass surveillance of Muslim Americans, which journalist Trevor Aaronson claims has resulted in the FBI’s manufacture of terrorists simply to justify the infringement of civil liberties.

And while Dr Dardery poignantly stated that, “Egypt is at the crossroads,” he too added that, “What is happening in Egypt now has serious ramifications on the future [of us all]. What type of future do we want? Do we want a future of war of all against all? Or do we want a future of democracy, rule of law and human rights?”

I asked Mansfield how his own past experiences shape the way that he sees the struggle for justice and democracy in Egypt, and he replied that, “I’ve recognised that fighting in court, the struggle inside the court to get justice, is only part of a bigger picture. You’re not going to get justice inside the courts unless you’ve created a climate outside the court, even a culture possibly, in which people recognise the rule of law, recognise the need for conventions on human rights, don’t disregard them, and further recognise that it makes a difference in individual, particular lives on the street. And once they realise that these rights are not ethereal, that they are not abstract, and that they are actually important for rights of assembly, speech and association and all that,” people will stop taking their activities for granted and recognise that their freedoms “have only survived because somebody has been bothered to clothe them, if you like, in the rights culture.”

He further explained: “The over-arching problem here is that, unless there is respect for the rule of law by nation-states who are otherwise acting like terrorists, and I include Israel in this, but obviously Egypt is the same; if, in fact, they are just going to stick their fingers up to all of this, and say we don’t care, carry on, it provides an example to others. Whatever their rationale is, they will be saying to themselves, so what? You know, if states do the same, then why can’t we do that? And so it sets a terrible example and it means that all the hard work that has been put in by lawyers and politicians over centuries to construct a civilised basis for conduct, it’s just undermined in one fell swoop. You just take over, because might is right.”

Mansfield and the others are all making an important point that in today’s world, our rights are always contingent upon others’ rights. While the current framework to ensure our rights may be imperfect, it remains a framework that we have struggled to create, and continually struggle to reform, for strong ethical reasons. And however imperfect, this framework must uphold the rule of law without discrimination or else the whole effort becomes meaningless.

According to Mansfield, “The problem that everybody’s got, is that the key decisions are taken by the UN Security Council, which is dominated by five permanent members, all of whom have the power of veto. And the US, in particular, vetoes regularly, certainly everything to do with Israel, but in all sorts of other spheres, if it thinks it is inimical to their national interest, whatever they are. And I definitely think that the veto has got to go and that the Security Council must be changed.” However Mansfield also stressed that, “On the other hand, bringing pressure to bear shouldn’t stop. So, for example, like when individual governments, such as the UK, approach the Security Council.”

And this is not the only way to act. Mansfield elaborated that, “I think every effort to isolate the Egyptian illegal government and bring pressure to bear to terminate the proceedings against President Morsi at the moment would be useful. So you start with politicians in the Senate and politicians in the UK parliament, and so on. But there has to be, you know, a form of solidarity between all these people who are willing to do it. There has to be.”

There are other cases that inform the international legal effort to seek justice in Egypt, for example the trial in Spain against former Chilean dictator Augusto Pinochet, as well as a UK court’s recent effort to arrest Israeli politician Tzipi Livni in relation to her role in the war crimes committed during the 2008-2009 invasion of Gaza. But while each case is different both legally and politically, Mansfield pointed out that all of these cases are sending out the same message “to people who are potential war criminals, or who are committing crimes against humanity, that you can run, but there is nowhere for you to hide. There is no safe haven, or there shouldn’t be a safe haven, for you.”

As Dr Dardery also warned the coup leaders in Egypt, “We as Egyptian people, we are determined to say clearly and widely, never again. Never again we will allow those who killed us to get away with it.”

While it is imperative that the Egyptian people always remain in control of their own destinies, what the international legal effort to seek justice in Egypt makes very clear is this: whether or not any safe haven exists for those who perpetrate crimes against humanity, including the war criminals in Egypt, depends not only on the will of the Egyptian people, our international bodies and our respective nations, but also on each and every one of us.

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| Quisling: Appeasement dooms Palestinians to misery!

Appeasement dooms Palestinians to misery ~Stuart Littlewood, Redress Information & Analysis.

UN’s precious gift empowering legal action is squandered while Israel, with US/UK/EU acquiescence, continues to seize land and resources with impunity.

PALESTINE, UN observer state

PALESTINE, UN observer state

Later this month Palestinians will be celebrating an important anniversary, namely the decision by the UN General Assembly a year ago to recognise Palestine as a non-member observer state.

But not with much joy, I suspect.

Its upgraded status enables Palestine to now take part in UN debates and join bodies like the International Criminal Court (ICC). Predictably, Israel flew into a rage at the prospect and said the move pushed the peace process “backwards”, while the US said it was “unfortunate”.

So what has the Palestinian leadership done with this precious gift of empowerment from the international community?

Nothing.

RUSSELL TRIBUNAL ON PALESTINE - MARCH, 2013

RUSSELL TRIBUNAL ON PALESTINE – MARCH, 2013

In March this year the Russell Tribunal on Palestine, concluding four years of investigations, called for the ICC to investigate “crimes” committed by Israel in the occupied territories. The Tribunal said it would “support all initiatives from civil society and international organisations aimed at bringing Israel in front of the International Criminal Court”. Since Palestine was awarded observer status at the UN the previous November, it could file complaints on its own behalf against Israel with the Court.

The tribunal also called on the ICC to recognize Palestinian jurisdiction and for an extraordinary session of the United Nations Special Committee against Apartheid, set up for South Africa, to examine the Israeli case.

The International Criminal Court

The International Criminal Court

Also in March the United Nations Human Rights Council said Israeli settlements in the West Bank were  a “creeping form of annexation” and the international community should take steps to halt business ties with those communities.  Their report claimed that Israel could be culpable for these acts before the International Criminal Court. The mission asked Israel to withdraw its settlers from the West Bank and East Jerusalem and urged the international community to comply with their obligation under international law to act.

In April senior Palestinian officials were saying that if Israel began construction in the area designated “E-1″ , a piece of land in the West Bank adjacent to Jerusalem seized by Israel in 1967, Palestinian Authority President Mahmoud Abbas would join the ICC and seek indictments on war crimes charges. It is believed that Israel’s administration had just given provisional permission to build some 3,300 Jewish homes on E-1.

Palestinians say that Israeli construction there would make an independent Palestinian state virtually impossible because it would cut off East Jerusalem (which is Palestinian) from the rest of the West Bank.

But why is Abbas waiting for the bulldozers to go into E-1 when there’s a long list of other examples of criminal settlement building and atrocities that Israel ought to be charged with?

Palestinians say the Israelis' attempt to paint them as consenting in any way to settlement expansion are fallacious.

Palestinians say the Israelis’ attempt to paint them as consenting in any way to settlement expansion are fallacious.

In June Dr. Saeb Erekat, Palestine’s chief negotiator, was criticizing the policies being pushed by Israeli PM Netanyahu “including aggressive settlement activity, home demolitions, evictions and ID revocations. This is part of Israel’s plan to destroy any possibility for a Palestinian State, by annexing and changing the status quo of Jerusalem, the Jordan Valley and other vast areas of the Occupied State of Palestine”.

The Israeli government, with its destructive policies, was determined to make US Secretary Kerry’s efforts fail, he said. Israel’s actions made it clear they were declaring the end of the two-state solution. The international community should be pushing Israel to implement previous agreements and adhere to international law instead of calling for a resumption of negotiations. 

“There is a new urgency to face reality and finally hold Israel accountable for destroying the prospects of justice and peace.”

Israel was turning up its aggression against the Palestinian people while we were trying to reach a negotiated solution, grumbled Erekat. “After the announcement to intensify negotiations made by US Secretary John Kerry, Israel destroyed the village of Khirbet Makhoul for the fourth time and approved further settlement expansion aimed at sealing Occupied East Jerusalem from Ramallah.”

Palestinian leadership shows no sign of starting the justice ball rolling

Israeli settlements in Palestine are illegal…  and undermine the prospects of a negotiated two-state solution. If Israel is serious about peace, they must cease all settlement activities.” Erekat again demanded action by the rest of the world “to make Israel pay the price for its institutionalized defiance of international law and UN resolutions”.

But there was still no sign of his own people – the Palestinian Authority and the PLO – taking action on their own account, or at least starting the ball rolling, even though the international community had given them the wherewithall to do so.

Now I hear that Israel is drilling into 3.5 billion barrels of oil reserves straddling the armistice  ‘green line’, most of it lying under the West Bank. According to official agreements, says Al-Jazeera, “Israel is obligated to coordinate any exploration for natural resources in shared territory with the Palestinian Authority, and reach agreements on how to divide the benefits.”

Ashraf Khatib, an official at the Palestinian Authority’s negotiations support unit, described the oil field as part of Israel’s “general theft of Palestinian national resources…  the occupation is not just about settlements and land confiscation. Israel is also massively profiting from exploiting our resources. There’s lots of money in it for Israel, which is why the occupation has become so prolonged.”

And, of course, the world knows how the Palestinians are prevented from benefiting from their offshore gas field and how, if Israel has its way, they’ll never get a sniff of their own gas either.

‘Life in Palestine is subject to the rule of the jungle’

Since the beginning of the Oslo process over 20 years ago, the rights of the Palestinian people have been sacrificed on the altar of so-called political progress, the glittering prize being ‘peace and security’. But that was never really on the cards. All we’ve seen is a continuous slide downhill for the Palestinians while the Israelis’ colonisation and expansion programme goes from strength to strength. “In the West Bank, including East Jerusalem, the expansion of settlements continues relentlessly, while the illegal Annexation Wall creates a situation that is completely at odds with both international law and the stated goals of the peace process,” says Shawan Jabarin in an excellent article Time for the ICC to act on Palestine http://www.aljazeera.com/indepth/opinion/2013/10/time-icc-act-palestine-20131015113944266410.html

“Life in Palestine is subject to the rule of the jungle: generals and politicians know that they can violate the law with impunity, fuelling a continuous cycle of violations and suffering. The result has been an increase in war crimes committed against innocent civilians. Throughout Palestine we are struggling for the right to live, and the right to live in dignity.”

Palestine children Obama hope

Talking of the right to live in dignity, only today I was reading how some of the Palestinian villages are used by Israel for military training exercises in which soldiers enjoy virtual impunity with regard to their cruel behavior in the Occupied West Bank and Gaza Strip, the pretext being that the Israeli military is the sovereign authority over the whole territory. “This edict contradicts international law and numerous United Nations resolutions that question the Israeli claim to sovereignty over all Palestinian land,” reports IMEMChttp://www.imemc.org/article/66358.

The Israeli military frequently invades Palestinian towns and villages, with soldiers running through streets and alleys with loaded automatic weapons, ransacking homes and terrorizing residents, for the purposes of ‘training’. Residents and the human rights groups representing them have provided numerous examples of the soldiers tearing through homes and yards, breaking into houses, running up and down stairs and taking over rooftops of family homes as part of these exercises.

It’s bad enough that villages experience actual Israeli military invasions on a regular basis. Now, since the military makes no attempt to differentiate between an invasion and a ‘training exercise’, the villagers are just as terrorized as they are during real raids.

Wasting that all-important empowerment on a dumb promise

ICC Prosecutor Fatou Bensouda. Photo by Max Koot Studio

ICC Prosecutor Fatou Bensouda.
Photo by Max Koot Studio

International justice remains out of reach for millions of civilians because the corrupt US, UK and EU political establishments conspire to ‘persuade’ Palestine not to join the ICC or press war crimes charges and other complaints against racist Israel.

The Office of the Prosecutor at the ICC, meanwhile, is waiting for Palestine to ratify the Statute of the International Criminal Court and become a full member if it wishes to commence proceedings.

To pretend there is something wrong with pursuing a brutal oppressor for war crimes through the proper channels – that is, the ICC – while talking peace, is absurd. No peace is sustainable unless it’s underpinned by international law and justice.

So a week ago I sent a ‘press enquiry’ to the Palestinian Embassy in London, addressed to Ambassador Hassassian. It said:

“What is the PA/PLO doing, please, to regularise its position regarding the ICC statute and satisfy any remaining requirements for exercising its membership rights and bringing charges against Israel for its crimes?

“What still remains to be done and why the continuing delay after the international community cleared the way and unpgraded Palestine’s status?”

No reply, no acknowledgement, despite follow-up phone messages. Silence speaks volumes and is par for the course when dealing with Palestinian officials.

However, I’ve heard it said that Abbas promised Kerry not to seek justice through the ICC during the nine months or more the going-nowhere peace talks will be… well, going nowhere. That takes us by my reckoning to May next year, or beyond. And he gave the undertaking without wringing from the Israelis a corresponding promise to halt settlement planning, construction and enlargement.

Welcome to the Palestinian School of Appeasement.

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| Indicting the US Govt: Columbus Day Promotes Genocide!

Columbus Day Promotes Genocide ~ Francis A. BoyleCountercurrents.org.

Indictment of the Federal Government of the U.S. for the commission of international crimes and petition for orders mandating its proscription and dissolution as an international criminal conspiracy and criminal organization, 18 September 1992

Introduction

All citizens of the World Community have both the right and the duty under public international law to sit in judgment over a gross and consistent pattern of violations of the most fundamental norms of international criminal law committed by any member state of that same World Community. Such is the case for the International Tribunal of Indigenous Peoples and Oppressed Nationalities in the United States of America that convenes in San Francisco during the weekend of October 1-4, 1992. Its weighty but important task is to examine the long history of international criminal activity that has been perpetrated by the Federal Government of the United States of America against the Indigenous Peoples and Peoples of Color living in North America since it was founded in 1787.

Toward that end, I have the honor to present to the Members of this Tribunal the following charges against the Federal Government of the United States of America under international criminal law. In light of the gravity, severity, and longstanding nature of these international crimes and also in light of the fact that the Federal Government of the United States of America appears to be irrevocably committed to continuing down this path of lawlessness and criminality against Indigenous Peoples and Peoples of Color living in North America and elsewhere, I hereby petition the Members of this Tribunal to issue an Order proscribing the Federal Government of the United States of America as an International Criminal Conspiracy and a Criminal Organization under the Nuremberg Charter, Judgment, and Principles as well as the other sources of public international law specified below. For that reason, I also request that the Members of this Tribunal issue an Order dissolving the Federal Government of the United States of America as a legal and political entity. Finally, I ask this Tribunal to declare that international legal sovereignty over the Territories principally inhabited by the Native American Peoples, the New Afrikan People, the Mexicano People, and the People of Puerto Rico resides in the hands of these respective Peoples Themselves.

In this regard, I should point out that the final Decision of this Tribunal will qualify as a judicial decision within the meaning of article 38(1)(d) of the Statute of the International Court of Justice and will therefore constitute a subsidiary means for the determination of rules of law for international law and practice. The Statute of the International Court of Justice is an integral part of the United Nations Charter under article 92 thereof. Thus, this Tribunal’s Decision can be relied upon by some future International Criminal Court or Tribunal, as well as by any People or State of the World Community that desires to initiate criminal proceedings against named individuals for the commission of the following international crimes. The Decision of this Tribunal shall serve as adequate notice to the appropriate officials in the United States Federal Government that they bear personal criminal responsibility under international law and the domestic legal systems of all Peoples and States in the World Community for designing and implementing these illegal, criminal and reprehensible policies and practices against Indigenous Peoples and Peoples of Color living in North America. Hereinafter, the Federal Government of the United States of America will be referred to as the Defendant.

BILL OF PARTICULARS AGAINST THE FEDERAL GOVERNMENT OF THE UNITED STATES OF AMERICA

The Native American Peoples

1. The Defendant has perpetrated innumerable Crimes Against eace, Crimes Against Humanity and War Crimes against Native American Peoples as recognized by the Nuremberg Charter, Judgment, and Principles.

2. The Defendant has perpetrated the International Crime of Genocide against Native American Peoples as recognized by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.

3. The Defendant has perpetrated the International Crime of Apartheid against Native American Peoples as recognized by the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid.

4. The Defendant has perpetrated a gross and consistent pattern of violations of the most fundamental human rights of Native American Peoples as recognized by the 1948 Universal Declaration of Human Rights.

5. The Defendant has perpetrated numerous and repeated violations of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination against Native American Peoples.

6. The Defendant has systematically violated 371 treaties it concluded with Native American Peoples in wanton disregard of the basic principle of public international law and practice dictating pacta sunt servanda.

7. The Defendant has denied and violated the international legal right of Native American Peoples to self-determination as recognized by the 1945 United Nations Charter, the 1966 International Covenant on Civil and Political Rights, the 1966 International Covenant on Economic, Social and Cultural Rights, fundamental principles of customary international law, and jus cogens.

8. The Defendant has violated the seminal United Nations Declaration on the Granting of Independence to Colonial Countries and Territories of 1960 with respect to Native American Peoples and Territories. Pursuant thereto, the Defendant has an absolute international legal obligation to decolonize Native American Territories immediately and to transfer all powers it currently exercises there to the Native American Peoples.

9. The Defendant has illegally refused to accord full-scope protections as Prisoners-of-War to captured Native American independence fighters in violation of the Third Geneva Convention of 1949 and Additional Protocol I thereto of 1977. The Defendant’s treatment of captured Native American independence fighters as common criminals and terrorists constitutes a grave breach of the Geneva Accords and thus a serious war crime.

10. The Defendant has deliberately and systematically permitted, aided and abetted, solicited and conspired to commit the dumping, transportation, and location of nuclear, toxic, medical and otherwise hazardous waste materials on Native American Territories across North America and has thus created a clear and present danger to the lives,
health, safety, and physical and mental well-being of Native American Peoples in gross violation of article 3 and article 2(c) of the 1948 Genocide Convention, inter alia: Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; …

The New Afrikan People

11. The Defendant has perpetrated the International Crime of Slavery upon the New Afrikan People as recognized in part by the 1926 Slavery Convention and the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery. The Defendant has illegally refused to pay reparations to the New Afrikan People for the commission of the International Crime of Slavery against Them in violation of basic norms of customary international law requiring such reparations to be paid.

12. The Defendant has perpetrated innumerable Crimes Against Humanity against the New Afrikan People as recognized by the Nuremberg Charter, Judgment, and Principles.

13. The Defendant has perpetrated the International Crime of genocide against the New Afrikan People as recognized by the 1948 Genocide Convention.

14. The Defendant has perpetrated the International Crime of Apartheid against the New Afrikan People as recognized by the 1973 Apartheid Convention.

15. The Defendant has perpetrated a gross and consistent pattern of violations of the most fundamental human rights of the New Afrikan People as recognized by the 1948 Universal Declaration of Human Rights and the two aforementioned United Nations Human Rights Covenants of 1966.

16. The Defendant has perpetrated a gross and consistent pattern of violations of the 1965 Racism Convention against the New Afrikan People. The Defendant is the paradigmatic example of an irremediably racist state in international relations today.

17. The Defendant has denied and violated the international legal right of the New Afrikan People to self-determination as recognized by the United Nations Charter, the two United Nations Human rights Covenants of 1966, customary international law, and jus cogens.

18. The Defendant has illegally refused to apply the United Nations Decolonization Resolution of 1960 to the New Afrikan People and to the Territories that they principally inhabit. Pursuant thereto, the Defendant has an absolute international legal obligation to decolonize New Afrikan Territories immediately and to transfer all powers it currently exercises there to the New Afrikan People.

19. The Defendant has illegally refused to accord full-scope protections as Prisoners-of-War to captured New Afrikan independence fighters in violation of the Third Geneva Convention of 1949 and Additional Protocol I thereto of 1977. The Defendant’s treatment of captured New Afrikan independence fighters as common criminals and terrorists constitutes a grave breach of the Geneva Accords and thus a serious war crime.

The Mexicano People

20. In 1821, Mexico obtained its independence from colonial Spain as a sovereign Mestizo State, extending from Yucatan and Chiapas in the south, to the northern territories of California and New Mexico, which areas the Defendant today calls the states of Texas, California, Arizona, Nevada, Utah, New Mexico, and Colorado. Nevertheless, in 1836 so-called settlors under the sponsorship of the Defendant began the division of the Mexicano People and State by causing the division of the Mexican state of Coahuila-Texas into the Mexican state of Coahuila and the so-called republic of Texas.

21. In 1846, the Defendant perpetrated an unjust, illegal and unjustifiable war upon the remainder of the sovereign People and State of Mexico that violated every known principle of public international law in existence at that time, including, but not limited to, the Christian Doctrine of just war, which was the then reigning standard of customary international law. As a result thereof, the Defendant illegally annexed close to 51% of the territories of the sovereign State of Mexico by means of forcing it to conclude the 1848 Treaty of Guadalupe-Hidalgo under military duress. For these reasons, this Treaty was and still is null and void ab initio as a matter of public international law. The Defendant acquired more Mexican territory through the Gadsen Treaty (Purchase) of 1854.

22. Since these 1848 and 1854 Treaties, the Defendant has perpetrated the International Crime of Genocide against the Mexicano People living within these occupied territories, as recognized by the 1948 Genocide Convention.

23. The Defendant has perpetrated the International Crime of Apartheid against the Mexicano People living within these occupied territories, as recognized by the 1973 Apartheid Convention.

24. The Defendant has perpetrated a gross and consistent pattern of violations of the most fundamental human rights of the Mexicano People living within these occupied territories, as recognized by the 1948 Universal Declaration of Human Rights and the two aforementioned United Nations Human Rights Covenants of 1966.

25. The Defendant has perpetrated a gross and consistent pattern of violations of the 1965 Racism Convention against the Mexicano People living within these occupied territories.

26. The Defendant has denied and violated the international legal right of the Mexicano People living within these occupied territories to self-determination, as recognized by the United Nations Charter, the two United Nations Human Rights Covenants of 1966, customary international law, and jus cogens.

27. Since the militarily-imposed division of the Mexican State, the Defendant and its agents have militarily occupied other portions of the Mexican State, have sought to influence the outcome of the Mexican Revolution of 1910, have practiced a consistent pattern of intervention into Mexico’s internal affairs, all of which have resulted in the arresting distortion and deformation of the Mexican social and economic order. In this regard, Defendant’s so-called North American Free Trade Agreement (NAFTA) constitutes nothing more than an attempt to impose its hegemonial imperialism, economic colonialism, and human exploitation upon the People and State of Mexico.

28. The Defendant has illegally refused to apply the United Nations Decolonization Resolution of 1960 to the Mexicano People and to these occupied territories that they inhabit. Pursuant thereto, the Defendant has an absolute international legal obligation to decolonize both the Mexican occupied territories and the Republic of Mexico immediately, and to transfer all powers it currently exercises there to the Mexicano People.

The People and State of Puerto Rico

29. Since its illegal invasion of Puerto Rico in 1898, the Defendant has perpetrated innumerable Crimes against Peace, Crimes against Humanity and War Crimes against the People and State of Puerto Rico as recognized by the Nuremberg Charter, Judgment, and Principles.

30. The Defendant has perpetrated the International Crime of Genocide against the Puerto Rican People as recognized by the 1948 Genocide Convention.

31. The Defendant has perpetrated the International Crime of Apartheid against the Puerto Rican People as recognized by the 1973 Apartheid Convention.

32. The Defendant has perpetrated a gross and consistent pattern of violations of the most fundamental human rights of the Puerto Rican People as recognized by the 1948 Universal Declaration of Human rights and the two aforementioned United Nations Human Rights Covenants of 1966.

33. The Defendant has perpetrated a gross and consistent pattern of violations of the 1965 Racism Convention against the Puerto Rican People.

34. The Defendant has denied and violated the international legal right of the Puerto Rican People to self-determination as recognized by the United Nations Charter, the two United Nations Human Rights Covenants of 1966, customary international law, and jus cogens.

35. The Defendant has illegally refused to apply the United Nations Decolonization Resolution of 1960 to Puerto Rico. Pursuant thereto, the Defendant has an absolute international legal obligation to decolonize Puerto Rico immediately and to transfer all powers it currently exercises there to the Puerto Rican People.

36. The Defendant has illegally refused to accord full-scope protections as Prisoners-of-War to captured Puerto Rican independence fighters in violation of the Third Geneva Convention of 1949 and Additional Protocol I thereto of 1977. The Defendant’s treatment of captured Puerto Rican independence fighters as common criminals and terrorists constitutes a grave breach of the Geneva Accords and thus a serious war crime.

An International Criminal Conspiracy and a Criminal Organization

37. In light of the foregoing international crimes, the Defendant constitutes an International Criminal Conspiracy and a Criminal Organization in accordance with the Nuremberg Charter, Judgment, and Principles and the other sources of public international law specified above. The Federal Government of the United States of America is legally identical to the Nazi government of World War II Germany. Indeed, the Defendant’s President, George Bush, has proclaimed a so-called New World Order that sounds and looks strikingly similar to the New Order proclaimed by Adolph Hitler over fifty years ago.

Conclusion

Like unto a pirate, the Defendant is hostis humani generis: The enemy of all humankind! For the good of all humanity, this Tribunal must condemn and repudiate the Federal Government of the United States of America and its grotesque vision of a New World Order that is constructed upon warfare, bloodshed, violence, criminality, genocide, racism, colonialism, apartheid, massive violations of fundamental human rights, and the denial of the international legal right of self-determination to the Indigenous Peoples and Peoples of Color living in North America and elsewhere around the world. Consequently, this Tribunal must find the Defendant guilty as charged on all of the counts specified above beyond a reasonable doubt. This Tribunal must also issue an Order that formally proscribes the Federal Government of the United States of America as an International Criminal Conspiracy and a Criminal Organization. This Tribunal must also issue a separate Order mandating the dissolution of the Federal Government of the United States of America as a legal and political entity. Finally, this Tribunal must declare that international legal sovereignty over the Territories principally inhabited by the Native American Peoples, the New Afrikan People, the Mexicano People, and the People of Puerto Rico resides, respectively, in the hands of these Peoples Themselves. The very lives, well-being, health, welfare, and safety of the Indigenous Peoples and Peoples of Color living in North America and elsewhere around the world depend upon the ultimate success of your deliberations.

Professor Francis A. Boyle is an international law expert and served as Legal Advisor to the Palestine Liberation Organization and Yasser Arafat on the 1988 Palestinian Declaration of Independence, as well as to the Palestinian Delegation to the Middle East Peace Negotiations from 1991 to 1993, where he drafted the Palestinian counter-offer to the now defunct Oslo Agreement. His books include “ Palestine, Palestinians and International Law” (2003), and “ The Palestinian Right of Return under International Law” (2010).

See USA on Trial: The International Tribunal on Indigenous Peoples’and Oppressed Nations in the United States. The Book and Verdict are available from Editorial El Coqui, 1671 N. Claremont,Chicago Illinois 60647. Or you can try calling the Puerto Rican Cultural Center in Chicago at 312-342-4295. The Video can be obtained from Mission Creek Video, PO Box 411271 San Francisco CA 941141 (phone:415-695-0931).

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| Will Syria Go on Offense at The Hague?

 Will Syria Go on Offense at The Hague? ~ Franklin Lamb, Al-Manar TV Lebanon.

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A “legal intifada” appears likely for more than just the Palestinians
La Maison d’Avocats, Damascus, a local website reported.

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Even before the historic 139 to 8 vote of the UN General Assembly on November 29 of this year which opened up a plethora of legal remedies for Palestinians, a “legal intifada” — to borrow a phrase from Francis Boyle, Professor of International Law and a longtime advocate of advancing resistance to the illegal occupation of Palestine through the rule of law — has been taking form in this region.

The reasons include nearly seven decades of countless Zionist crimes against Muslims and Christians in occupied Palestine and far beyond. As Professor Boyle has suggested, the opportunities presented to the PLO by the lopsided UN vote “…can mean numerous available legal remedies ranging from the securing of a fair share of the gas deposits off the shores of Gaza, control of Palestinian airspace and telecommunications and, crucially, bringing the Zionist regime to account at the International Criminal Court and the International Court of Justice.

Syria too, currently under enormous pressure from international interference into the internal affairs of the country and the subject of an intense regime change project led by the US and France, has international legal remedies immediately available to it stemming from the actions of the US, UK, France and others in imposing on Syria’s civilian population one of the most severe and clearly illegal layers of sanctions. Were Syria and others to file an Application for an Advisory Opinion with the ICJ few in the international legal community have much doubt that targeting civilians economically and attempting to destroy the Syrian economy — for no other purpose than to ignite rebellion — would be considered a violation of international law at the International Court of Justice.

Granted there are some potential jurisdictional problems given that Syria has not yet accepted the Article 36 Compulsory Jurisdiction of the World Court, as provided in the Statute of the Court, and the strong campaign at the UN that would certainly be waged by the Obama Administration to challenge ICJ jurisdiction to hear a case on behalf of Syria and its civilian population, but they can be overcome. As a general rule, an Advisory Opinion requires a simple majority affirmative vote by the UN General Assembly or an Application by one of the designated UN Specialized Agencies. This might be a tough job to secure the former but it is doable with the latter. Moreover, should Syria accept the compulsory jurisdiction of the ICJ it could likely quickly resolve the issue of sanctions by claiming a legal dispute with one or more states that also accept CJ and are supporters of sanctions. For example, the UK, France and their NATO and Gulf allies.

Aspects of a possible filing at the International Court of Justice on the legality of US-led sanctions are currently being researched by seasoned international lawyers and academics, at various Western and International law centers. Supporting efforts being worked on include drafting amicus curie briefs on the issue of the legality of the US-led sanctions to be submitted to the Court, plans for securing the widest possible political support for challenging the US-led sanctions from among Non-Aligned Movement countries, international peace groups, NGO’s, pro-peace websites, bloggers, social media and online activists as well as organizing a skilled media center to disseminate information about the case including quickly publishing, in paperback book form, one of the key Annexes to be submitted to the ICJ upon filing the Application. This volume will present Syrian government and International NGO prepared data on the inhumane effects of the US led sanctions in all their aspects, including by not limited to children, the elderly and the infirm, plus the effects of the US-led sanctions on the Syrian economy generally, i.e. consumer goods, medical delivery systems, financial institutions, currency values and related aspects of the lives of the civilian population of Syria.

Were Syria, and others, to take the illegal and immoral US-led sanctions case to the World Court and other available venues, they would shift their diplomatic position from a defensive status to taking the offense. Such a bold initiative would advance accountability under international law and, because the ICJ would likely grant a Petition for Interim Measures of Protection, the US-led sanctions could be suspended during the course of the judicial proceedings. Obviously this lifting/freezing of the sanctions would immediately and directly inure to the benefit of the Syrian civilian population, including the half million Palestinian refugees in Syria as well as thousands from Iraq.

This would work in concert with the “THREE B’s”, to borrow a phrase from Russia’s top middle east envoy, Deputy Foreign Minister Mikhail Boganov, referring to Mr. Brahimi, Mr. Bogdanov, and Undersecretary William Burns, a former ambassador to Moscow, who would be urged to intensify their focus on achieving a diplomatic resolution of the Syrian crisis based on modified June 2011 Geneva formulation of a transition period leading to the 2014 elections.

According to several International lawyers surveyed between October andDecember, 2012, Syria clearly has the facts of the US sanctions case in its favor and there are ample solid legal theories to argue to and convince the World Court. Under the ICJ Statute, the Court must decide cases solely in accordance with international law. Hence the ICJ must apply: (1) any international conventions and treaties; (2) international custom; (3) general principles recognized as law by civilized nations; and (4) judicial decisions and the teachings of highly qualified publicists of the various nations. From this body of international law the International Court of Justice would find ample basis to support Syria’s claims not only for the benefit of its civilian population but also to advance the rule of law in the global community.

The ICJ is made up of 15 jurists from different countries. No two judges at any given time may be from the same country. The court’s composition is static but generally includes jurists from a variety of cultures. Among the Principles, Standards and Rules of international law that Syria may well argue to the World Court, may include but not be limited to, the following:

The US led sanctions violate international humanitarian law due to the negative health effects of the sanctions on the civilian population of Syria. This renders the sanctions illegal under international customary law and the UN Charter for their disproportionate damage caused to Syria’s civilian population;

The US led severe sanctions regime constitutes an illegitimate form of collective punishment of the weakest and poorest members of society, the infants, the children, the chronically ill, and the elderly;

The US, France and the UK, as well as their allies, have violated the UN Charter by their imposition of severe economic sanctions and threats of military force. The United States, Israel, and some of their allies, regularly threaten Damascus with the “option” of a military strike. The ICJ has ruled previously that “A threat or use of force is contrary to Article 2, paragraph 4, of the UN Charter and fails to meet all the requirements of Article 51, is therefore unlawful”. It has further ruled that “A threat of use of force must be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules of humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with threats to members of the United Nations.”

Moreover, unilateral US sanctions, without the imprimatur of the United Nations are blatantly illegal under International Law because they are in fact multilateral and impose penalties on any country which opposes the sanctions or does not choose to participate in them;

The US led sanctions amount to an Act of War given their effects including hardships on the general public and that Syria therefore has a legal right to Self-Defense.

The US led sanctions, given their design and intent, constitute acts of aggression against Syria in violation of Article 2 (4) of the UN charter.

The indisputable facts of the US led sanctions case warrant the imposition by the ICJ of Restraining Orders designed to prevent any type of blockade or no-fly zones in Syria and the immediate cessation of the imposition of further economic sanctions against Syria, and also their efforts of securing more sanctions against Syria at the United Nations Security Council. The Restraining Orders, under the umbrella of Interim Measures of Protection, would presumably also seek to prohibit the US and its allies from the Persian Gulf region and elsewhere, from advocating aggressive military actions against Syria, including supplying funding, weapons, and jihadists, as well as Western “Special Forces” currently pouring into Syria from its northern border with Turkey and to negotiate with the Syrian government in good faith to end the current crisis.

Syria can legitimately claim, and would presumably argue at the ICJ and other international forums that the bi-lateral or multilateral economic sanctions, led by the US and its Gulf allies, Qatar and Saudi Arabia, are illegal, indeed criminal due to their assault on international humanitarian law and required state practice.

Syria could successfully argue, according to a recent survey of international lawyers conducted in Brussels and The Hague, as well as within Syria’s Maison d’Avocats, that the US led sanctions violate the international law principle of Non-intervention in the internal affairs of UN member states and that the stewards of these sanctions could themselves be subject to international sanctions plus compensatory and punitive damages for the benefit of their victims.

In summary, as Germany’s Green Party, and increasingly, legal scholars and human rights organizations generally are insisting, sanctions against Syria’s civilian population fundamentally violate international law.

Should NATO sets up a no-fly zone and were to launch airstrikes against Damascus, it can and should immediately be sued at The Hague and if the situation deteriorates NATO can and should be held to account for targeting Alawites and Christians on the basis of the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide. All participating countries, 142 to date, are obliged to prevent and punish actions of genocide in war and in peacetime. Article 2 of the Convention defines genocide as any of the following acts committed with intent to destroy, in whole or in part, elements of a national, ethnic, racial, or religious group including killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.

Despite Syria’s strong case on both the facts and the law, and the diversity in structure and composition of the International Court of Justice, the International Tribunal has a few times over the years been criticized for favoring established powers. Under articles 3 and 9 of the ICJ Statute, the judges on the ICJ should represent “the main forms of civilization and principal legal systems of the world.” This definition suggests that the ICJ does not represent the interests of developing countries. Nevertheless, the World Courts record has been by and large exemplary in applying principles, standards and rules of international law both in contested cases and advisory opinions and Syria has an excellent opportunity to protect its citizens, thwart US and Israeli designs on the region, and advance international accountability — all to the inestimable benefit of all people and nations.

Syria, which the US and Israel and their allies are today working to keep off balance and on the defensive diplomatically, should consider immediately filing an application with the International Court of Justice, and use all other available international legal, political and humanitarian tribunals, to directly challenge and boldly confront the US led sanctions campaign against its people. The Syrian Arab Republic, by taking the offensive at the World Court and elsewhere, will help relieve the enormous pressures on its civilians and advance the principles, standards and rules of international law—for the benefit of all mankind.

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