Saturday, October 3, 2009

IS Palestine winning the legitimacy war? Mazin UPDATE with article by Richard Falk (On 575 pg. UN Report)

HOWEVER...there is a HUGE however which just came in Monday (please SEE END of this post)

The report of the United Nations Fact Finding Mission on the Gaza Conflict, headed by former judge of South Africa's Constitutional Court Richard Goldstone, was released on Sept. 15.

Despite the fact that it confirms widely reported and analyzed Israeli military practices during the Gaza War, the 575-page report has been greeted with alarm by Israel and given much attention in the world media.

Whatever happens in the UN system and at the Human Rights Council in Geneva, the weight of the report will be felt by world public opinion. Ever since the Gaza War, the solidity of Jewish support for Israel has been fraying at the edges and will likely now fray much further. More globally, a very robust boycott and divestment movement has been gaining momentum ever since the Gaza War, and the Goldstone Report will clearly lend added support to such initiatives.

There is a growing sense around the world that the only chance for the Palestinians to achieve some kind of just peace depends on shaping the outcome by way of the symbols of legitimacy, what I have called the Legitimacy War. Increasingly, the Palestinians have been winning this second non-military war. Such a war fought on a global political battlefield is what eventually and unexpectedly undermined the apartheid regime in South Africa and has become much more threatening to the Israeli sense of security than armed Palestinian resistance.

Enforcement of international criminal law

Another reason for Israeli worry stemming from the report is the green light given to national courts throughout the world to enforce international criminal law against Israeli suspects should they travel abroad. Such suspects could be detained for prosecution or extradition in a third country. These Israelis could be charged with war crimes arising from their involvement in the Gaza War, convicted and sentenced to imprisonment. Such an eventuality is unlikely, but its mere prospect gives rise to deep concern. The report in this way encourages a somewhat controversial reliance on what is known among lawyers as “universal jurisdiction,” that is, the authority of courts in any country to detain for extradition or to prosecute individuals for violations of international criminal law regardless of where the alleged offenses took place. Universal jurisdiction has long been relied upon to apprehend pirates and their vessels.

Reactions in the Israeli media reveal that Israeli citizens are already anxious about being apprehended during foreign travel. As one law commentator put it in the Israeli press, “From now on, not only soldiers should be careful when they travel abroad, but also ministers and legal advisers.” It is good to recall that Article 1 of the Geneva Conventions calls on states throughout the world “to respect and ensure respect” for international humanitarian law “in all circumstances.” The efforts in 1998 of several European courts to prosecute Augusto Pinochet for crimes committed while he was head of state in Chile are a reminder that national courts can be used to prosecute political and military leaders for crimes committed in places other than the territory of the prosecuting state.

Of course, Israel will fight back. It has already launched a media and diplomatic blitz designed to portray the report as so one-sided and inaccurate as to be unworthy of serious attention. The United States government has, without explanation, disappointingly endorsed this view and apparently rejected the central recommendation in the Goldstone Report that the UN Security Council be assigned the task of implementing its findings.

The US ambassador to the UN, Susan Rice, evidently told a closed session of the Security Council on Sept. 16, just a day after the report was issued, that “[w]e have serious concerns about many recommendations in the report.” Elaborating on this, Ambassador Rice indicated that the UN Human Rights Council, which has no implementing authority, is the only proper venue for any action to be taken on the basis of the report. The initial struggle will likely be whether to follow the recommendation of the report to have the Security Council seized of the issue so as to consider referring issues of individual accountability for war crimes to the International Criminal Court. Of course, such a referral could be blocked by a veto from the US or other permanent members, but even a discussion in the Security Council would be a severe setback for Israel.

There are reasons to applaud the forthrightness and comprehensiveness of the report, its care and scrupulous willingness to conclude that both Israel and Hamas seem responsible for behavior that appears to constitute war crimes, if not crimes against humanity. Although Israel has succeeded in having the issue of one-sidedness focus on fairness to Israel, there are also some reasons to insist that the report falls short of Palestinian hopes. For one thing, the report takes for granted the dubious proposition that Israel was entitled to act against Gaza in self-defense, thereby excluding inquiry into whether crimes against the peace in the form of aggression had taken place by the launching of the attack. In this respect, although the report takes notice of the temporary ceasefire that had cut the rocket fire directed at Israel practically to zero in the months preceding the attacks, it seems to avoid drawing any legal conclusions as to the bearing of this context in which the Gaza War was initiated.

The report also ignores Hamas' repeated efforts to extend the ceasefire indefinitely provided Israel lifted its unlawful blockade of Gaza. Israel disregarded this seemingly available diplomatic alternative to war to achieve security on its borders. Recourse to war, even if the facts justify self-defense, is according to international law, a last resort. By ignoring Israel's initiation of a one-sided war, the Goldstone Report implicitly accepts the dubious central premise of Operation Cast Lead and avoids making a finding of aggression.

Another shortcoming

Also disappointing was the failure of the report to comment upon the Israeli denial of a refugee option for the civilian population trapped in the tiny, crowded combat zone that constitutes the Gaza Strip. Israel closed all crossings during the period of the Gaza War, allowing only Gaza residents with foreign passports to leave. It is rare in modern warfare that civilians are not given the option to become refugees. Although there is no specific provision in the laws of war requiring a state at war to allow civilians to leave the combat zone, it seems to be an elementary humanitarian requirement and should at least have been mentioned, either as part of customary international law or as a gap in the law that should be filled. The importance of this issue is reinforced by many accounts of the widespread post-traumatic stress experienced by the civilians in Gaza, especially of the children that comprise 53 percent of the population. One might also notice that the report accords considerable attention to Gilad Shalit, the one Israeli Defense Forces (IDF) prisoner held by Hamas in Gaza, recommending his release on humanitarian grounds, while making only a very general recommendation that Israel release some of the thousands of Palestinians being held under harsh detention conditions, suggesting that children especially should be released.

In the end, the Goldstone Report is unlikely to break the intergovernmental refusal to challenge the Israeli blockade of Gaza or to induce the UN to challenge Israeli impunity in any meaningful way. Depending on backroom diplomacy, the US may or may not be able to avoid playing the public role of shielding Israel from accountability for its behavior during the Gaza War or its continuing refusal to abide by international humanitarian law by lifting the blockade that continues to impinge daily upon the health of the entire population of Gaza.

Despite these limitations, the report is a historic contribution to the Palestinian struggle for justice, an impeccable documentation of a crucial chapter in their victimization under occupation. Its impact will be felt most intensely in the growing civil society movement throughout the world with moves to impose cultural, sporting and academic boycotts, as well as to discourage investment, trade, and tourism with Israel. It may yet be the case that, as in the anti-apartheid struggle, the shift in the relation of forces in the Palestinian favor will occur not through diplomacy or as a result of armed resistance, but on the symbolic battlefield of legitimacy that has become global in scope, what might be described as the new political relevance of moral and legal globalization.

*Richard Falk is a professor emeritus of international law and practice at Princeton University.

UPDATE on Monday, October 5th from Mazin:
(Come back or look for another posting on today's Ramallah protest)

It is hard to describe our emotions in the past three days in Palestine since we heard of the Palestinian "leadership" withdrawal of the discussions at the UN Human Rights Council about the Goldstone report. Can those who made the decision look straight in the eyes of the families of the 400 children butchered in Gaza and tell them that this was politically necessary because Hillary Clinton asked them to do it (the same administration that failed to even get the rapist to have a short pause in his rape!)? Maybe just one family (attached picture)? And will the rest of us (and yes each of us is responsible) be able to look into these same eyes and tell them we were satisfied with expressing sympathy and uttering words? Who decreed that popular civil action cannot be directed at those who harm the cause and happen to also be Palestinian? Will our shame, anger and revulsion be NOW moved to civil action? Will we really have a democratic civil society or one ruled by a clique of elites? Will decent people in Fateh stand-up to correct this trend? Will we say enough is enough and this was the straw that broke the camel's back? Demonstration in AlManara Square Ramallah today (monday) at noon.

Palestinians drop endorsement of Goldstone report on Gaza war

Justice Delayed is Justice Denied: Decision of Palestinian Leadership and International Pressure an Insult to the Victims

Adalah * Addameer * Aldameer * Al Haq * Al Mezan * Badil * Civic Coalition for Jerusalem * DCI-Palestine * ENSAN Centre * Independent Commission for Human Rights * Jerusalem Legal Aid and Human Rights Centre * Palestinian Centre for Human Rights * Ramallah Centre for Human Rights Studies * Women’s Centre for Legal Aid and Counselling *

As human rights organisations we strongly condemn the Palestinian leaderships’ decision to defer the proposal endorsing all the recommendations of the Fact Finding Mission, and the pressure exerted by certain members of the international community. Such pressure is in conflict with States international obligations, and is an insult to the Palestinian people.

And below is the urgent statement by the The Palestinian NGOs Network (PNGO)
On this issue, I will send more in Arabic to our Arab readers

Mazin Qumsiyeh

A Bedouin in cyberspace, a villager at home or click here

PNGO condemns PA request of delaying endorsement of Goldstone recommendations

PNGO expresses its bewilderment and strongly condemns the Palestinian Authority’s withdrawal of its draft resolution supporting the recommendations contained in the Goldstone Report, resulting in a deferral of a vote to endorse the report in the Human Rights Council to March 2010. The report suggests that war crimes and possibly crimes against humanity were committed by the Israeli military during its 23-day offensive in Gaza from 27 December 2008 to 18 January 2009.

PNGO considers that this move by the Palestinian Authority (PA) is an insult to the victims of Operation Cast Lead, and actively facilitates the ongoing impunity of suspected Israeli war criminals; while the siege on Gaza enters its 28th month, Israeli military attacks on the Palestinian population are ongoing and settlement expansion in the West Bank, including East Jerusalem, continues unabated. PNGO is shocked at the suggestion by the PA that accountability for the victims in Gaza could adversely affect the peace process.

PNGO asks Palestinian political parties to immediately adopt a clear position about the PA decision and to request from the PA a public explanation. This decision has triggered embarrassment and disappointment among Palestinians and activists in the international community, who have made efforts to bring perpetrators of war crimes in Gaza to justice. The Palestinian Authority has wasted an important opportunity towards ensuring accountability of the State of Israel for their war crimes and human rights violations.

In the words of Justice Goldstone at the presentation of his report at the HRC on 29 September: "This is the time for action. The lack of accountability for war crimes and possible crimes against humanity has reached a crisis point; the ongoing lack of justice is undermining any hope for a successful peace process and reinforcing an environment that fosters violence."

The Palestinian NGOs Network(PNGO)
Tel: +972-2-2975320/1
Fax: +972-2-2950704


Connie L. Nash said...

Jewish Voice for Peace has placed 336 Promises here for the Jewish New Year & they relate to this post:

Connie L. Nash said...

American Palestine Public Affairs Forum - a constantly updating site: