Category Archives: Crimes against humanity (writings, documents)

A Peaceful, Silent, Deadly Remedy: The Ethics of Economic Sanctions

A Peaceful, Silent, Deadly Remedy: The Ethics of Economic Sanctions

by Joy Gordon

in Ethics and International Affairs 04/2006

Joy Gordon is Assistant Professor of Philosophy at Fairfield University. She received a Ph.D. in philosophy from Yale and a J.D. from Boston University. Prior research interests include Latin American political thought. Her recent work is in Third World and leftist critiques of Western theories of human rights. Currently, she is writing a book on economic sanctions and their role within the larger context of international governance.

ABSTRACT

Economic sanctions are emerging as one of the major tools of international governance in the post-Cold War era. Sanctions have long been seen as a form of political intervention that does not cause serious human damage, and therefore does not raise pressing ethical questions. However, the nature of sanctions is that they effectively target the most vulnerable and least political sectors of society, and for this reason they must be subject to ethical scrutiny.This essay looks at sanctions in the context of three ethical frameworks: just war doctrine, deontological ethics, and utilitarianism. It argues that sanctions are inconsistent with the principle of discrimination from just war doctrine; that sanctions reduce individuals to nothing more than means to an end by using the suffering of innocents as a means of persuasion, thereby violating the Kantian principle that human beings are “ends in themselves”; and that sanctions are unacceptable from a utilitarian perspective because their economic effectiveness necessarily entails considerable human damage, while their likelihood of achieving political objectives is low
A Peaceful, Silent, Deadly Remedy: The Ethics of Economic Sanctions (PDF Download Available). Available from: http://www.researchgate.net/publication/229658377_A_Peaceful_Silent_Deadly_Remedy_The_Ethics_of_Economic_Sanctions [accessed Jul 23, 2015].

Dutch government refuses to reveal ‘secret deal’ into MH17 crash probe

http://www.strategic-culture.org/news/2014/11/20/dutch-government-refuses-to-reveal-secret-deal-into-mh17-crash-probe.html

Dutch government refuses to reveal ‘secret deal’ into MH17 crash probe
EDITOR’S CHOICE | 20.11.2014

The Dutch government has refused to reveal details of a secret pact between members of the Joint Investigation Team examining the downed Flight MH17. If the participants, including Ukraine, don’t want information to be released, it will be kept secret.

The respected Dutch publication Elsevier made a request to the Dutch Ministry of Security and Justice under the Freedom of Information Act to disclose the Joint Investigation Team (JIT) agreement, along with 16 other documents. The JIT consists of four countries – the Netherlands, Belgium, Australia and Ukraine – who are carrying out an investigation into the MH17 disaster, but not Malaysia. Malaysian Airlines, who operated the flight, has been criticized for flying through a war zone.

Part of the agreement between the four countries and the Dutch Public Prosecution Service, ensures that all these parties have the right to secrecy. This means that if any of the countries involved believe that some of the evidence may be damaging to them, they have the right to keep this secret.

“Of course [it is] an incredible situation: how can Ukraine, one of the two suspected parties, ever be offered such an agreement?” Dutch citizen Jan Fluitketel wrote in the newspaper Malaysia Today.

Despite the air crash taking place on July 17 in Eastern Ukraine, very little information has been released about any potential causes. However, rather than give the public a little insight into the investigation, the Dutch Ministry of Security and Justice is more worried about saving face among the members of the investigation.

“I believe that this interest [international relations] is of greater importance than making the information public, as it is a unique investigation into an extremely serious event,” the Ministry added, according to Elsevier.

Other reasons given for the request being denied included protecting investigation techniques and tactics as well as naming the names of officials who are taking part in the investigation. The Ministry said it would be a breach of privacy if they were revealed. “If the information was to be released then sensitive information would be passed between states and organizations, which would perhaps they would be less likely to share such information in the future,” said the Ministry of Security and Justice.

Dutch MP Pieter Omtzigt, who is a member of the Christian Democratic Party, has made several requests for the information to be released to the public.

“We do not know what the Netherlands has committed itself to. The government neither published the agreement when we asked for it, nor did it show it to parliament,” he said in reaction to the ministry’s decision. “It is perfectly normal that the Netherlands cooperate with other countries in this complex investigation. Yet they even kept the existence of the agreement secret a first and that was unnecessary.”

Journalists walk behind parts of the Malaysia Airlines plane Flight MH17 as Dutch investigators (unseen) arrive near at the crash site near the Grabove village in eastern Ukraine on November 11, 2014 (AFP Photo)

Malaysia is the only country to have directly negotiated with the anti-Kiev militias in the East of Ukraine, while the country’s Ambassador to the Netherlands said he was unhappy that Malaysia had not been included within the JIT. Dutch Prime Minister Mark Rutte flew to Kuala Lumpur on November 5, but Malaysia says it still did not receive an invitation to join.
“We must first be included in the JIT, otherwise it would be hard for us to cooperate in the investigation. The parties inside the investigation must include us in the team, right now we are just a participant,” said the Malaysian Inspector-General of Police Khalid Abu Bakar in Kuala Lumpur on Wednesday, which was reported by the New Straits Times.
A preliminary report by the Dutch Safety Board, which was released September said the MH17 crash was a result of structural damage caused by a large number of high-energy objects that struck the Boeing from the outside.
Dutch investigators added that “there are no indications” that the tragedy was triggered “by a technical fault or by actions of the crew.”
RT

Palestinian Recourse to the International Criminal Court: The Time has Come

http://richardfalk.wordpress.com/2014/07/21/palestinian-recourse-to-the-international-criminal-court-the-time-has-come/

Palestinian Recourse to the International Criminal Court: The Time has Come
By Prof. Richard Falk

[Prefatory Note: “Palestine’s Dilemma: To Go or Not to Go to the International Criminal Court” was published on July 13, 2014 on the website of Middle East Eye, a site I strong recommend to all those with an interest in Middle East issues; this post represents a somewhat revised text, but within the framework of the original; the political plausibility of invoking the Inteernational Criminal Court to investigate allegations of criminality directed at Israel increases with each passing day.]

Ever since this latest Israeli major military operation against Gaza started on July 8, there have been frequent suggestions that Israel is guilty of war crimes, and that Palestine should do its best to activate the International Criminal Court (ICC) on its behalf. The evidence overwhelmingly supports basic Palestinian allegations—Israel is guilty either of aggression in violation of the UN Charter or is in flagrant violation of its obligations as the Occupying Power under the Geneva Convention to protect the civilian population of an Occupied People; Israel seems guilty of using excessive and disproportionate force against a defenseless society in the Gaza Strip; and Israel, among an array of other offenses, seems guilty of committing Crimes Against Humanity in the form of imposing an apartheid regime in the West Bank and through the transfer of population to an occupied territory as it has proceeded with its massive settlement project.

Considering this background of apparent Israeli criminality it would seem a no brainer for the Palestinian Authority to seek the help of the ICC in waging its struggle to win over world public opinion to their struggle. After all, the Palestinians are without military or diplomatic capabilities to oppose Israel, and it is on law and global solidarity must rest their hopes for eventually realizing their rights, particularly the right of self-determination and the right of return. Palestinian demonstrators in the West Bank are demanding that their leaders in the Palestinian Authority adhere to the Rome Statute, and become members of the ICC without further delay. It has become part of the message of Palestinian street politics that the Palestinians are being criminally victimized, and that the Palestinian Authority if it wants to retain the slightest shred of respect as representatives of the Palestinian people must join in this understanding of the Palestinian plight and stop ‘playing nice’ with Israeli authorities.

Such reasoning from a Palestinian perspective is reinforced by the May 8th letter sent by 17 respected human rights NGOs to President Mahmoud Abbas urging Palestine to become a member of the ICC, and act to end Israel’s impunity. This was not a grandstanding gesture dreamed up on the irresponsible political margins of liberal Western society. Among the signatories were such human rights stalwarts as Human Rights Watch, Amnesty International, Al Haq, and the International Commission of Jurists, entities known for their temporizing prudence in relation to the powers that be.

Adding further credence to the idea that the ICC option should be explored was the intense opposition by Israel and United States, ominously threatening the PA with dire consequences if it tried to join the ICC, much less to seek justice through its activating its investigative procedures. The American ambassador to the UN, Samantha Power, herself long ago prominent as a human rights advocate, revealed Washington’s nervous hand when she confessed that the ICC “is something that really poses a profound threat to Israel.” I am not sure that Power would like to live with the idea that because Israel is so vulnerable to mounting a legal challenge that its impunity must be upheld whatever the embarrassment to Washington of doing so. France and Germany have been more circumspect, saying absurdly that recourse to the ICC by Palestine should be avoided because it would disrupt ‘the final status negotiations,’ as if this pseudo-diplomacy was ever of any of value, a chimera if there ever was one, in the elusive quest for a just peace.

In a better world, the PA would not hesitate to invoke the authority of the ICC, but in the world as it is, the decision is not so simple. To begin with, is the question of access, which is limited to states. Back in 2009, the PA tried to adhere to the Rome Statute, which is the treaty governing the ICC, and was rebuffed by the prosecutor who turned the issue over to the Security Council, claiming a lack of authority to determined whether the PA represented a ‘state.’ Subsequently, on November 29th the UN General Assembly overwhelmingly recognized Palestine as ‘a nonmember observer state.’ Luis Moreno–Ocampo who had acted in 2009 for the ICC, and now speaking as the former prosecutor, asserted that in his opinion Palestine would now in view of the General Assembly action qualify as a state enjoying the option of becoming an ICC member. Normally, ICC jurisdiction is limited to crimes committed after the state becomes a member, but there is a provision that enables a declaration to be made accepting jurisdiction for crimes committed at any date in its territory so long as it is after the ICC itself was established in 2002.

Is this enough? Israel has never become a party to the Rome Statute setting up the ICC, and would certainly refuse to cooperate with a prosecutor who sought to investigate war crimes charges with the possible intention of prosecution. In this regard, recourse to ICC might appear to be futile as even if arrest warrants were to be issued by the court, as was done in relation to Qaddafi and his son in 2011, there would be no prospect that the accused Israeli political and military figures would be handed over, and without the presence of such defendants in the court at The Hague, a criminal trial cannot go forward. This illustrates a basic problem with the enforcement of international criminal law. It has been effective only against the losers in wars fought against the interests of the West and, to some extent, against those whose crimes are in countries located in sub-Saharan Africa. This biased form of international criminal law implementation has been the pattern since the first major effort was made after World War II at Nuremberg and Tokyo. Surviving German and Japanese leaders were prosecuted for their crimes while exempting the winners, despite Allied responsibility for the systematic bombing of civilian populations by way of strategic bombing and the American responsibility for dropping the atomic bombs on Hiroshima and Nagasaki.

Unfortunately, up to this time the ICC has not been able to get rid of this legacy of ‘victors’ justice,’ which has harmed its credibility and reputation. All ICC cases so far have involved accused from sub-Saharan African countries. The refusal of the ICC to investigate allegations of war crimes of the aggressors in relation the Iraq War of 2003 is a dramatic confirmation that leading states, especially the United States, possess a geopolitical veto over what the ICC can do. The ICC failure to investigate the crimes of Bush and Blair, as well as their entourage of complicit top officials, vividly shows the operations of double standards. Perhaps, the climate of opinion has evolved to the point where there would be an impulse to investigate the charges against Israel even if procedural obstacles preventing the case from being carried to completion. Any serious attempt to investigate the criminal accountability of Israeli political and military leaders would add legitimacy to the Palestinian struggle, and might have a positive spillover effect on the global solidarity movement and the intensifying BDS campaign.

Yet there are other roadblocks. First of all, the PA would definitely have to be prepared to deal with the wrath of Israel, undoubtedly supported by the United States and more blandly by several European countries. The push back could go in either of two directions: Israel formally annexing most or all of the West Bank, which it seems determined to do in any event, or more likely in the short run, withholding the transfer of funds needed by the PA to support its governmental operations. The U.S. Congress would be certain to follow the lead of Tel Aviv even if the Obama presidency might be more inclined to limit its opposition to a diplomatic slap on the PA wrist as it did recently in reacting to the June formation of the interim unity government, an important step toward reconciling Fatah and Hamas, and overcoming the fragmentation that has hampered Palestinian representation in international venues in recent years.

A second potential obstacle concerns the jurisdictional authority of the ICC, which extends to all war crimes committed on the territory of a treaty member, which means that leaders of Hamas would also likely be investigated and indicted for their reliance on indiscriminate rockets aimed in the direction of Israeli civilian targets.There is even speculation that given the politics of the ICC such that crimes alleged against Hamas might be exclusively pursued.

If we assume that these obstacles have been considered, and Palestine still wants to go ahead with efforts to activate the investigation of war crimes in Gaza, but also in the rest of occupied Palestine, what then? And assume further, that the ICC reacts responsibly, and gives the bulk of its attention to the allegations directed against Israel, the political actor that controls most aspects of the relationship. There are several major crimes against humanity enumerated in Articles 5-9 of the Rome Statute for which there exists abundant evidence as to make indictment and conviction of Israeli leaders all but inevitable if Palestine uses its privilege to activate an investigation and somehow is able to produce the defendants to face trial: reliance on excessive force, imposing an apartheid regime, collective punishment, population transfers in relations to settlements, maintenance of the separation wall in Palestine.

The underlying criminality of the recent aggression associated with Protective Edge (Israel’s name for its 2014 attack on Gaza) cannot be investigated at this point by the ICC, and this seriously limits its authority. It was only in 2010 that an amendment was adopted by the required 2/3 majority of the 122 treaty members on an agreed definition of aggression, but it will not become operative until 2017. In this respect, there is a big hole in the coverage of war crimes currently under the authority of the ICC.

Despite all these problems, recourse to the ICC remains a valuable trump card in the PA thin deck, and playing it might begin to change the balance of forces bearing on the conflict that has for decades now denied the Palestinian people their basic rights under international law. If this should happen, it would also be a great challenge to and opportunity for the ICC finally to override the geopolitical veto that has so far kept criminal accountability within the tight circle of ‘victors’ justice’ and hence only accorded the peoples of the world a very power-laden and biased experience of justice.

Sanctions against Iran Like a Slow Poison Injected into Society

Sanctions against Iran Like a Slow Poison Injected into Society

With its concept of targeted sanctions against Iran, the West has found a narrative with which it – and, ironically, the Iranian regime – can live. The people of Iran cannot. Sanctions are destroying the economy and harming the people.

By Ali Fathollah-Nejad

Sanctions aim to bring recalcitrant tyrants to their senses, to put an end to their external as well as internal malefaction. With surgical precision, they pull the noose ever closer around the tyrant’s neck, so that in hopeless despair, he is compelled to behave reasonably in foreign affairs while, enfeebled, he lifts his bloodied hands from the throat of the oppressed people. It is a morally justified decapitation of evil, the salutary removal of a swelling tumour.

Undoubtedly, in this description, sanctions are an extremely attractive option for killing two birds with the one stone: the culprit is hunted down, and the maltreated people are freed and released onto the path of democracy.

To maintain the moral high-ground, at each and every round of ever-tightening sanctions, Western leaders hasten to highlight that the measures adopted are not aimed at the people of Iran who, they never fail to add, deserve a better life than under the present regime.

A noble gesture of goodwill

But how do Iranians themselves feel about the “free world’s” noble gesture of emphatical goodwill? Did the honourable cavalry of sanctions ever consider what it is like for those people “who deserve a better life than under the present regime” to actually live in a country that is under a severe sanctions regime?

What it feels like, when the cost of rent and basic foodstuffs are constantly on the rise; when the country’s currency loses half of its value; when the spectre of unemployment is boundlessly rising due to an economy virtually cut off from the ever so vital international trade; when international banking transactions, be it for personal or commercial purposes, if possible at all, can only be made at much higher fees via an increasingly limited number of third countries; when every boarding of an aircraft resembles a gamble with your life due to the lack of spare parts; when food supplies from abroad cannot be unloaded because of a lack of insurance; and when the stock of life-saving medication and equipment is rapidly depleting, with the spectre of a humanitarian crisis clearly emerging on the horizon?

Choked by sanctions, many Iranians are reliant on subsidised food: the impact of economic sanctions on the people of Iran is growing. Inflation has risen drastically and with it the price of medicine, food, rent and electricity. Iran has also lost between 25 and 40 per cent of its income as a result of the oil embargo.

This is only one of the gigantic dimensions of their “targeted sanctions against the regime”. Similar reports from Iran are reaching us at an accelerated rate day by day. They are accompanied by voices of desperation, people in a repressive system for whom the air they breathe is being made even thinner by sanctions.

Silent hope

The sanctions narrative is predicated on the idea that there is a positive relationship between sanctions and democratisation: the tyrant is tamed, and the people are empowered.

Furthermore, there is a silent but nevertheless clearly heard hope that seems to unite Western politicians and some exiled Iranians alike: the economic hardship caused by sanctions will direct the people’s anger towards the regime and ultimately bring it down in an act of extreme popular resentment.

After all, there can be no freedom without sacrifice, echoes the loud heckling from parts of the Iranian diaspora from Los Angeles to London. “The price is high but the time has come to pay it,” writes “Ramin” on Facebook. Almost spitting, “Sara” replies, “We are paying the price for our freedom: in case you’ve missed it, Evin prison is overcrowded!”

Seen from the comfort of the West, this concept, which exhibits a fascistic dimension, hailing the principle “The greater the suffering, the greater the hope!” may have a certain charm. However, the underlying assumption is that it is acceptable to collectively punish Iranian society for the sake of a greater good – however ill-defined the latter may be.

On the ground, however, there is a connection whose logic we would never dare to doubt within the Western hemisphere: sustainable and socially just democratic change is dependent not only on the energies of the middle class, but also on the intervention of working people and the poor. It is precisely this middle class, the workers and the poor that are sanctioned to death in Iran.

To put it another way, a person struggling for economic survival hardly has the luxury of engaging as a citizen in the struggle for democracy.

Mistaken belief

All along, these same politicians have displayed the apodictic certainty that Iranians would ultimately blame their own government for their economic malaise. In the improbable case that this would not happen, the sanctions policy should be better “explained” to the Iranians, they insist. What does such a belief structure reveal about our appreciation of Iranians’ cognitive capability to adequately direct the blame for their increasingly desolate economic situation to either the pillages of a kleptocratic regime or the sanctions of the Western imposers?

Grist to the mill of the hardliners: academic studies conclude that when sanctions drive authoritarian regimes into a corner, they usually react by ratcheting up the repression of opposition bodies and offloading the costs of sanctions onto the people, thereby prolonging their rule

Taking into consideration the academic findings about the impact of sanctions, the Iranian case can potentially qualify as a prime showpiece: authoritarian regimes driven into a corner usually step up their repression of all kinds of opposition and are also able to shift the costs of sanctions onto the population, as a result of which they can prolong their rule.

The sanctions-imposing governments can hardly be unaware that entities connected to the ruling system, such as the Revolutionary Guards’ economic empire, profit from the sanctions. With legal trade virtually illegalised, civilian economic sectors across the board are damned to head-shakingly observe how black market operations run by powerful circles of corruption and nepotism flourish. Hence, as a precise negative image of the above narrative, the regime can even extend its power over civil society as a result of sanctions.

Aware of such fatal consequences, civil-society representatives in Iran have consistently opposed sanctions. The West, which is always boasting of its support for the cause of democracy in Iran, has simply preferred to ignore these voices.

The nuclear reason

The pronouncement by German Foreign Minister Guido Westerwelle on the occasion of another round of sanctions reflects the prior concern of the West’s political class: “The point is that we cannot accept that Iran rushes towards the nuclear bomb.”

Hardly anyone, however, recalls that since the massive tightening of sanctions in 2006, the number of centrifuges spinning in Iran has more than decupled. It is a fair assumption that the nuclear programme has in fact much to do with a sense of uncertainty. After all, the country, literally besieged by enemy troops, has been threatened with war since its revolution – a perception that can hardly be extinguished by way of sanctions.

In addition, sanctions aim to force concessions from Iran. Rather than adopting the Western cost–benefit calculation – i.e. giving in when the costs of sanctions become unbearable – Iran’s leaders react with defiance and proclaim their will to “resist” as long as it takes. Sanctions also feed the regime’s propaganda machinery about the malicious West that seeks to subjugate the Iranian people.

It is as if the Iraqi tragedy – a historical chapter of utter disgrace for Western civilisation – never happened. Throughout the 1990s, this erstwhile cradle of civilisation was barbarically destroyed. The sanctions imposed by the UN Security Council and pushed for by Washington and London, were soon condemned as genocidal by one UN humanitarian co-ordinator (Denis Halliday) after the other (Hans von Sponeck).

The disastrous effects of a currency slump: the collapse of the Iranian rial (it has lost two-thirds of its dollar value since the end of 2011) has fuelled inflation, raised the price of imports and led to a fall in living standards in Iran

Nothing less than the social fabric of Iraq was shattered; food supply, the health and education systems all collapsed, as did the infrastructure. While women and children – the most fragile members of society – suffered the most, the tyrant remained firmly in his seat. It was a “different kind of war” waged against Iraq, as Von Sponeck later chronicled in his book.

The fallacy of “smart sanctions”

The fact that the concept of “targeted” or “smart” sanctions, which is an inextricable feature of the dominant political discourse, has been adopted unaltered and uncritically by the public discourse in general and many intellectuals in particular is a testimony of our complacency, our unwavering belief in the benign nature of any actions taken by the democratic West. It seems as if we prefer a convenient lie to an inconvenient truth. This self-deception is in fact a necessary act, if we seek to keep wagging the moralising finger, both domestically and internationally.

Most importantly, what does this tell us about our moral constitution, if we are ready to sacrifice entire societies for our purported Realpolitik interests? Thus, in the righteous fight against tyranny, we hide our own barbarity. For our sanctions are a brutal assault on an entire country and its more than century-old struggle for democracy and self-determination, whose survival has now become dependent on the drip of our incessant and crippling sanctions regime. Tumour-like, the sanctions have infected all areas of Iranian life, acting like a slow poison injected into society.

Therefore, two prospects are currently to be feared if the opportunity presented by the election of the centrist Hassan Rouhani as next Iranian president is not seized by the West to bring about détente: either a suffering populace will have to battle for sheer survival within a securitised system that will not cease to be cemented through the external threat of force and sanctions alike; or, in the wake of an officially proclaimed policy failure of “targeted sanctions”, the call for “targeted bombs” will swiftly follow. Needless to say, war would bury any prospect of democracy and a decent life for decades to come.

All in all, the West has put together a narrative with which both itself and the Iranian regime can live; but the people of Iran cannot. We should ask ourselves two honest questions: firstly, does not everybody enjoy the same human and social rights regardless of the political system in which they live? And secondly, if sanctions keep tyrants alive, what would happen if they were removed in toto?

Ali Fathollah-Nejad

© Qantara.de 2013

Ali Fathollah-Nejad is a German-Iranian political scientist educated at universities in Germany, France and the Netherlands. He is currently finalising his Ph.D. thesis at the School of Oriental and African Studies (SOAS), University of London.

The asphyxiation of Gaza: a crime against humanity

http://www.informationclearinghouse.info/article32968.htm
To humiliate and degrade
Impressions of Gaza
By Noam Chomsky

November 07, 2012 “Information Clearing House” –  Even a single night in jail is enough to give a taste of what it means to be under the total control of some external force. And it hardly takes more than a day in Gaza to begin to appreciate what it must be like to try to survive in the world’s largest open-air prison, where a million and a half people, in the most densely populated area of the world, are constantly subject to random and often savage terror and arbitrary punishment, with no purpose other than to humiliate and degrade, and with the further goal of ensuring that Palestinian hopes for a decent future will be crushed and that the overwhelming global support for a diplomatic settlement that will grant these rights will be nullified.
The intensity of this commitment on the part of the Israeli political leadership has been dramatically illustrated just in the past few days, as they warn that they will “go crazy” if Palestinian rights are given limited recognition at the UN. That is not a new departure. The threat to “go crazy” (“nishtagea”) is deeply rooted, back to the Labor governments of the 1950s, along with the related “Samson Complex”: we will bring down the Temple walls if crossed. It was an idle threat then; not today.

The purposeful humiliation is also not new, though it constantly takes new forms. Thirty years ago political leaders, including some of the most noted hawks, submitted to Prime Minister Begin a shocking and detailed account of how settlers regularly abuse Palestinians in the most depraved manner and with total impunity. The prominent military-political analyst Yoram Peri wrote with disgust that the army’s task is not to defend the state, but “to demolish the rights of innocent people just because they are Araboushim (“niggers,” “kikes”) living in territories that God promised to us.”

Gazans have been selected for particularly cruel punishment. It is almost miraculous that people can sustain such an existence. How they do so was described thirty years ago in an eloquent memoir by Raja Shehadeh (The Third Way), based on his work as a lawyer engaged in the hopeless task of trying to protect elementary rights within a legal system designed to ensure failure, and his personal experience as a Samid, “a steadfast one,” who watches his home turned into a prison by brutal occupiers and can do nothing but somehow “endure.”

Since Shehadeh wrote, the situation has become much worse. The Oslo agreements, celebrated with much pomp in 1993, determined that Gaza and the West Bank are a single territorial entity. By then the US and Israel had already initiated their program of separating them fully from one another, so as to block a diplomatic settlement and punish the Araboushim in both territories.

Punishment of Gazans became still more severe in January 2006, when they committed a major crime: they voted the “wrong way” in the first free election in the Arab world, electing Hamas. Demonstrating their passionate “yearning for democracy,” the US and Israel, backed by the timid European Union, at once imposed a brutal siege, along with intensive military attacks. The US also turned at once to standard operating procedure when some disobedient population elects the wrong government: prepare a military coup to restore order.

Gazans committed a still greater crime a year later by blocking the coup attempt, leading to a sharp escalation of the siege and military attacks. These culminated in winter 2008-9, with Operation Cast Lead, one of the most cowardly and vicious exercises of military force in recent memory, as a defenseless civilian population, trapped with no way to escape, was subjected to relentless attack by one of the world’s most advanced military systems relying on US arms and protected by US diplomacy. An unforgettable eyewitness account of the slaughter — “infanticide” in their words — is given by the two courageous Norwegian doctors who worked at Gaza’s main hospital during the merciless assault, Mads Gilbert and Erik Fosse, in their remarkable book Eyes in Gaza.

President-elect Obama was unable to say a word, apart from reiterating his heartfelt sympathy for children under attack — in the Israeli town Sderot. The carefully planned assault was brought to an end right before his inauguration, so that he could then say that now is the time to look forward, not backward, the standard refuge of criminals.

Of course, there were pretexts — there always are. The usual one, trotted out when needed, is “security”: in this case, home-made rockets from Gaza. As is commonly the case, the pretext lacked any credibility. In 2008 a truce was established between Israel and Hamas. The Israeli government formally recognizes that Hamas observed it fully. Not a single Hamas rocket was fired until Israel broke the truce under cover of the US election on November 4 2008, invading Gaza on ludicrous grounds and killing half a dozen Hamas members. The Israeli government was advised by its highest intelligence officials that the truce could be renewed by easing the criminal blockade and ending military attacks. But the government of Ehud Olmert, reputedly a dove, chose to reject these options, preferring to resort to its huge comparative advantage in violence: Operation Cast Lead. The basic facts are reviewed once again by foreign policy analyst Jerome Slater in the current issue of the Harvard-MIT journal International Security.

The pattern of bombing under Cast Lead was carefully analyzed by the highly informed and internationally respected Gazan human rights advocate Raji Sourani. He points out that the bombing was concentrated in the north, targeting defenseless civilians in the most densely populated areas, with no possible military pretext. The goal, he suggests, may have been to drive the intimidated population to the south, near the Egyptian border. But the Samidin stayed put, despite the avalanche of US-Israeli terror.

A further goal might have been to drive them beyond. Back to the earliest days of the Zionist colonization it was argued across much of the spectrum that Arabs have no real reason to be in Palestine; they can be just as happy somewhere else, and should leave — politely “transferred,” the doves suggested. This is surely no small concern in Egypt, and perhaps a reason why Egypt does not open the border freely to civilians or even to desperately needed materials

Sourani and other knowledgeable sources observe that the discipline of the Samidin conceals a powder keg, which might explode any time, unexpectedly, as the first Intifada did in Gaza in 1989 after years of miserable repression that elicited no notice or concern,

Merely to mention one of innumerable cases, shortly before the outbreak of the Intifada a Palestinian girl, Intissar al-Atar, was shot and killed in a schoolyard by a resident of a nearby Jewish settlement. He was one of the several thousand Israelis settlers brought to Gaza in violation of international law and protected by a huge army presence, taking over much of the land and scarce water of the Strip and living “lavishly in twenty-two settlements in the midst of 1.4 million destitute Palestinians,” as the crime is described by Israeli scholar Avi Raz. The murderer of the schoolgirl, Shimon Yifrah, was arrested, but quickly released on bail when the Court determined that “the offense is not severe enough” to warrant detention. The judge commented that Yifrah only intended to shock the girl by firing his gun at her in a schoolyard, not to kill her, so “this is not a case of a criminal person who has to be punished, deterred, and taught a lesson by imprisoning him.” Yifrah was given a 7-month suspended sentence, while settlers in the courtroom broke out in song and dance. And the usual silence reigned. After all, it is routine.

And so it is. As Yifrah was freed, the Israeli press reported that an army patrol fired into the yard of a school for boys aged 6 to 12 in a West Bank refugee camp, wounding five children, allegedly intending only “to shock them.” There were no charges, and the event again attracted no attention. It was just another episode in the program of “illiteracy as punishment,” the Israeli press reported, including the closing of schools, use of gas bombs, beating of students with rifle butts, barring of medical aid for victims; and beyond the schools a reign of more severe brutality, becoming even more savage during the Intifada, under the orders of Defense Minister Yitzhak Rabin, another admired dove.

My initial impression, after a visit of several days, was amazement, not only at the ability to go on with life, but also at the vibrancy and vitality among young people, particularly at the university, where I spent much of my time at an international conference. But there too one can detect signs that the pressure may become too hard to bear. Reports indicate that among young men there is simmering frustration, recognition that under the US-Israeli occupation the future holds nothing for them. There is only so much that caged animals can endure, and there may be an eruption, perhaps taking ugly forms — offering an opportunity for Israeli and western apologists to self-righteously condemn the people who are culturally backward, as Mitt Romney insightfully explained.

Gaza has the look of a typical third world society, with pockets of wealth surrounded by hideous poverty. It is not, however, “undeveloped.” Rather it is “de-developed,” and very systematically so, to borrow the terms of Sara Roy, the leading academic specialist on Gaza. The Gaza Strip could have become a prosperous Mediterranean region, with rich agriculture and a flourishing fishing industry, marvelous beaches and, as discovered a decade ago, good prospects for extensive natural gas supplies within its territorial waters.   

By coincidence or not, that is when Israel intensified its naval blockade, driving fishing boats toward shore, by now to 3 miles or less.

The favorable prospects were aborted in 1948, when the Strip had to absorb a flood of Palestinian refugees who fled in terror or were forcefully expelled from what became Israel, in some cases expelled months after the formal cease-fire.

In fact, they were being expelled even four years later, as reported in Ha’aretz (25.12.2008), in a thoughtful study by Beni Tziper on the history of Israeli Ashkelon back to the Canaanites. In 1953, he reports, there was a “cool calculation that it was necessary to cleanse the region of Arabs.” The original name, Majdal, had already been “Judaized” to today’s Ashkelon, regular practice.

That was in 1953, when there was no hint of military necessity. Tziper himself was born in 1953, and while walking in the remnants of the old Arab sector, he reflects that “it is really difficult for me, really difficult, to realize that while my parents were celebrating my birth, other people were being loaded on trucks and expelled from their homes.”

Israel’s 1967 conquests and their aftermath administered further blows. Then came the terrible crimes already mentioned, continuing to the present day.

The signs are easy to see, even on a brief visit. Sitting in a hotel near the shore, one can hear the machine gun fire of Israeli gunboats driving fishermen out of Gaza’s territorial waters and towards shore, so they are compelled to fish in waters that are heavily polluted because of US-Israeli refusal to allow reconstruction of the sewage and power systems that they destroyed.

The Oslo Accords laid plans for two desalination plants, a necessity in this arid region. One, an advanced facility, was built: in Israel. The second one is in Khan Yunis, in the south of Gaza. The engineer in charge of trying to obtain potable water for the population explained that this plant was designed so that it cannot use sea water, but must rely on underground water, a cheaper process, which further degrades the meager aquifer, guaranteeing severe problems in the future. Even with that, water is severely limited. The United Nations Relief and Works Agency (UNRWA), which cares for refugees (but not other Gazans), recently released a report warning that damage to the aquifer may soon become “irreversible,” and that without remedial action quickly, by 2020 Gaza may not be a “liveable place.”

Israel permits concrete to enter for UNRWA projects, but not for Gazans engaged in the huge reconstruction needs. The limited heavy equipment mostly lies idle, since Israel does not permit materials for repair. All of this is part of the general program described by Israeli official Dov Weisglass, an adviser to Prime Minister Ehud Olmert, after Palestinians failed to follow orders in the 2006 elections: “The idea,” he said, “is to put the Palestinians on a diet, but not to make them die of hunger.” That would not look good.

And the plan is being scrupulously followed. Sara Roy has provided extensive evidence in her scholarly studies. Recently, after several years of effort, the Israeli human rights organization Gisha succeeded to obtain a court order for the government to release its records detailing plans for the diet, and how they are executed. Israel-based journalist Jonathan Cook summarizes them: “Health officials provided calculations of the minimum number of calories needed by Gaza’s 1.5 million inhabitants to avoid malnutrition. Those figures were then translated into truckloads of food Israel was supposed to allow in each day … an average of only 67 trucks — much less than half of the minimum requirement — entered Gaza daily. This compared to more than 400 trucks before the blockade began.” And even this estimate is overly generous, UN relief officials report.

The result of imposing the diet, Mideast scholar Juan Cole observes, is that “[a]bout ten percent of Palestinian children in Gaza under 5 have had their growth stunted by malnutrition … in addition, anemia is widespread, affecting over two-thirds of infants, 58.6 percent of schoolchildren, and over a third of pregnant mothers.” The US and Israel want to ensure that nothing more than bare survival is possible.

“What has to be kept in mind,” observes Raji Sourani, “is that the occupation and the absolute closure is an ongoing attack on the human dignity of the people in Gaza in particular and all Palestinians generally. It is systematic degradation, humiliation, isolation and fragmentation of the Palestinian people.” The conclusion is confirmed by many other sources. In one of the world’s leading medical journals, The Lancet, a visiting Stanford physician, appalled by what he witnessed, describes Gaza as “something of a laboratory for observing an absence of dignity,” a condition that has “devastating” effects on physical, mental, and social wellbeing. “The constant surveillance from the sky, collective punishment through blockade and isolation, the intrusion into homes and communications, and restrictions on those trying to travel, or marry, or work make it difficult to live a dignified life in Gaza.” The Araboushim must be taught not to raise their heads.

There were hopes that the new Morsi government in Egypt, less in thrall to Israel than the western-backed Mubarak dictatorship, might open the Rafah crossing, the sole access to the outside for trapped Gazans that is not subject to direct Israeli control. There has been slight opening, but not much. Journalist Laila el-Haddad writes that the re-opening under Morsi, “is simply a return to status quo of years past: only Palestinians carrying an Israeli-approved Gaza ID card can use Rafah Crossing,” excluding a great many Palestinians, including el-Haddad’s family, where only one spouse has a card.

Furthermore, she continues, “the crossing does not lead to the West Bank, nor does it allow for the passage of goods, which are restricted to the Israeli-controlled crossings and subject to prohibitions on construction materials and export.” The restricted Rafah crossing does not change the fact that “Gaza remains under tight maritime and aerial siege, and continues to be closed off to the Palestinians’ cultural, economic, and academic capitals in the rest of the [occupied territories], in violation of US-Israeli obligations under the Oslo Accords.”

The effects are painfully evident. In the Khan Yunis hospital, the director, who is also chief of surgery, describes with anger and passion how even medicines are lacking for relief of suffering patients, as well as simple surgical equipment, leaving doctors helpless and patients in agony. Personal stories add vivid texture to the general disgust one feels at the obscenity of the harsh occupation. One example is the testimony of a young woman who despaired that her father, who would have been proud that she was the first woman in the refugee camp to gain an advanced degree, had “passed away after 6 months of fighting cancer aged 60 years. Israeli occupation denied him a permit to go to Israeli hospitals for treatment. I had to suspend my study, work and life and go to set next to his bed. We all sat including my brother the physician and my sister the pharmacist, all powerless and hopeless watching his suffering. He died during the inhumane blockade of Gaza in summer 2006 with very little access to health service. I think feeling powerless and hopeless is the most killing feeling that human can ever have. It kills the spirit and breaks the heart. You can fight occupation but you cannot fight your feeling of being powerless. You can’t even dissolve that feeling.”

Disgust at the obscenity, compounded with guilt: it is within our power to bring the suffering to an end and allow the Samidin to enjoy the lives of peace and dignity that they deserve.

Prof. Noam Chomsky – Professor Emeritus in Linguistics at MIT; world renowned author and leading intellectual visited the Gaza Strip on October 25-30, 2012.

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Iraq records huge rise in birth defects. A crime against humanity?

http://www.independent.co.uk/life-style/health-and-families/health-news/iraq-records-huge-rise-in-birth-defects-8210444.html


Iraq records huge rise in birth defects

New study links increase with military action by Western forces
Sarah Morrison
Sunday 14 October 2012

It played unwilling host to one of the bloodiest battles of the Iraq war. Fallujah’s homes and businesses were left shattered; hundreds of Iraqi civilians were killed. Its residents changed the name of their “City of Mosques” to “the polluted city” after the United States launched two massive military campaigns eight years ago. Now, one month before the World Health Organisation reveals its view on the legacy of the two battles for the town, a new study reports a “staggering rise” in birth defects among Iraqi children conceived in the aftermath of the war.

High rates of miscarriage, toxic levels of lead and mercury contamination and spiralling numbers of birth defects ranging from congenital heart defects to brain dysfunctions and malformed limbs have been recorded. Even more disturbingly, they appear to be occurring at an increasing rate in children born in Fallujah, about 40 miles west of Baghdad.

There is “compelling evidence” to link the increased numbers of defects and miscarriages to military assaults, says Mozhgan Savabieasfahani, one of the lead authors of the report and an environmental toxicologist at the University of Michigan’s School of Public Health. Similar defects have been found among children born in Basra after British troops invaded, according to the new research.

US marines first bombarded Fallujah in April 2004 after four employees from the American security company Blackwater were killed, their bodies burned and dragged through the street, with two of the corpses left hanging from a bridge. Seven months later, the marines stormed the city for a second time, using some of the heaviest US air strikes deployed in Iraq. American forces later admitted that they had used white phosphorus shells, although they never admitted to using depleted uranium, which has been linked to high rates of cancer and birth defects.

The new findings, published in the Environmental Contamination and Toxicology bulletin, will bolster claims that US and Nato munitions used in the conflict led to a widespread health crisis in Iraq. They are the latest in a series of studies that have suggested a link between bombardment and a rise in birth defects. Their preliminary findings, in 2010, prompted a World Health Organisation inquiry into the prevalence of birth defects in the area. The WHO’s report, out next month, is widely expected to show an increase in birth defects after the conflict. It has looked at nine “high-risk” areas in Iraq, including Fallujah and Basra. Where high prevalence is found, the WHO is expected to call for additional studies to pinpoint precise causes.

The latest study found that in Fallujah, more than half of all babies surveyed were born with a birth defect between 2007 and 2010. Before the siege, this figure was more like one in 10. Prior to the turn of the millennium, fewer than 2 per cent of babies were born with a defect. More than 45 per cent of all pregnancies surveyed ended in miscarriage in the two years after 2004, up from only 10 per cent before the bombing. Between 2007 and 2010, one in six of all pregnancies ended in miscarriage.

The new research, which looked at the health histories of 56 families in Fallujah, also examined births in Basra, in southern Iraq, attacked by British forces in 2003. Researchers found more than 20 babies out of 1,000 were born with defects in Al Basrah Maternity Hospital in 2003, a number that is 17 times higher than recorded a decade previously. In the past seven years, the number of malformed babies born increased by more than 60 per cent; 37 out of every 1,000 are now born with defects.

The report’s authors link the rising number of babies born with birth defects in the two cities to increased exposure to metals released by bombs and bullets used over the past two decades. Scientists who studied hair samples of the population in Fallujah found that levels of lead were five times higher in the hair of children with birth defects than in other children; mercury levels were six times higher. Children with defects in Basra had three times more lead in their teeth than children living in non-impacted areas.

Dr Savabieasfahani said that for the first time, there is a “footprint of metal in the population” and that there is “compelling evidence linking the staggering increases in Iraqi birth defects to neuro-toxic metal contamination following the repeated bombardments of Iraqi cities”. She called the “epidemic” a “public health crisis”.

“In utero exposure to pollutants can drastically change the outcome of an otherwise normal pregnancy. The metal levels we see in the Fallujah children with birth defects clearly indicates that metals were involved in manifestation of birth defects in these children,” she said. “The massive and repeated bombardment of these cities is clearly implicated here. I have no knowledge of any alternative source of metal contamination in these areas.” She added that the data was likely to be an “underestimate”, as many parents who give birth to children with defects hide them from public view.

Professor Alastair Hay, a professor of environmental toxicology at Leeds University, said the figures presented in the study were “absolutely extraordinary”. He added: “People here would be worried if there was a five or 10 per cent increase [in birth defects]. If there’s a fivefold increase in Fallujah, no one could possibly ignore that; it’s crying out for an explanation as to what’s the cause. A rapid increase in exposure to lead and mercury seems reasonable if lots of ammunition is going off. I would have also thought a major factor would be the extreme stress people are under in that period; we know this can cause major physiological changes.”

A US Defense Department spokesperson said: “We are not aware of any official reports indicating an increase in birth defects in Al Basrah or Fallujah that may be related to exposure to the metals contained in munitions used by the US or coalition partners. We always take very seriously public health concerns about any population now living in a combat theatre. Unexploded ordnance, including improvised explosive devises, are a recognised hazard.”

A UK government spokesperson said there was no “reliable scientific or medical evidence to confirm a link between conventional ammunition and birth defects in Basra”, adding: “All ammunition used by UK armed forces falls within international humanitarian law and is consistent with the Geneva Convention.”

Dr Savabieasfahani said she plans to analyse the children’s samples for the presence of depleted uranium once funds have been raised. She added: “We need extensive environmental sampling, of food, water and air to find out where this is coming from. Then we can clean it up. Now we are seeing 50 per cent of children being born with malformations; in a few years it could be everyone.”

Metal hazards

Lead

Throughout pregnancy, lead can pass from a woman’s bones to her child; the levels of lead in maternal and foetal blood are almost identical. Children and particularly the unborn are more susceptible to lead than adults. At high levels of exposure, lead attacks the brain and central nervous system, causing comas, convulsions and even death, according to the WHO. Children who survive acute lead poisoning are typically left with mental defects and behavioural problems.

Mercury

Exposure to metallic, inorganic or organic mercury can permanently damage the brain, kidneys and developing foetus. Mercury can enter the air, water and soil. Its harmful effects can be passed from mother to the unborn child, leading to brain damage, mental defects, blindness, seizures, muteness and lack of co-ordination.

Depleted uranium

A toxic heavy metal, depleted uranium is what is left over after natural uranium has been enriched, either for use in weapons or for reactor fuel. While the US and UK acknowledge that the dust can be dangerous if inhaled, the jury is still out when it comes to long-term damage to people and their children. Scientists have suggested that its molecules can travel to the sperm and eggs, increasing the probability of cancer and damage to genes.

Collective punishment and crimes against humanity in Eastern Ethiopia

Collective punishment and crimes against humanity in Eastern Ethiopia

Report by Human Rights Watch, 11 June 2008
Download this Report 

Summary

Tens of thousands of ethnic Somali civilians living in eastern Ethiopia’s SomaliRegionalState are experiencing serious abuses and a looming humanitarian crisis in the context of a little-known conflict between the Ethiopian government and an Ethiopian Somali rebel movement. The situation is critical. Since mid-2007, thousands of people have fled, seeking refuge in neighboring Somalia and Kenya from widespread Ethiopian military attacks on civilians and villages that amount to war crimes and crimes against humanity. 

For those who remain in the war-affected area, continuing abuses by both rebels and Ethiopian troops pose a direct threat to their survival and create a pervasive culture of fear. The Ethiopian military campaign of forced relocations and destruction of villages reduced in early 2008 compared to its peak in mid-2007, but other abuses-including arbitrary detentions, torture, and mistreatment in detention-are continuing. These are combining with severe restrictions on movement and commercial trade, minimal access to independent relief assistance, a worsening drought, and rising food prices to create a highly vulnerable population at risk of humanitarian disaster.

Although the conflict has been simmering for years with intermittent allegations of abuses, it took on dramatic new momentum after the Ogaden National Liberation Front (ONLF) attacked a Chinese-run oil installation in Somali Region in April 2007, killing more than 70 Chinese and Ethiopian civilians. The Ethiopian People’s Revolutionary Democratic Front (EPRDF) government, led by Prime Minister Meles Zenawi, responded by launching a brutal counter-insurgency campaign in the five zones of Somali Region primarily affected by the conflict: Fiiq, Korahe, Gode, Wardheer, and Dhagahbur. In these zones the Ethiopian National Defense Forces (ENDF) have deliberately and repeatedly attacked civilian populations in an effort to root out the insurgency.

Ethiopian troops have forcibly displaced entire rural communities, ordering villagers to leave their homes within a few days or witness their houses being burnt down and their possessions destroyed-and risk death. Over the past year, Human Rights Watch has documented the execution of more than 150 individuals, many of them in demonstration killings, with Ethiopian soldiers singling out relatives of suspected ONLF members, or making apparently arbitrary judgments that individuals complaining to soldiers or resisting their orders are ONLF supporters. These executions have sometimes involved strangulation, after which their bodies are left lying in the open as a warning, for villagers to bury. The information confirmed by Human Rights Watch is only a glimpse of what is taking place-real figures are likely to be higher. 

Mass detentions without any judicial oversight are routine. Hundreds-and possibly thousands-of individuals have been arrested and held in military barracks, sometimes multiple times, where they have been tortured, raped, and assaulted. Confiscation of livestock (the main asset among the largely pastoralist population), restrictions on access to water, food, and other essential commodities, and obstruction of commercial traffic and humanitarian assistance have been used as weapons in an economic war aimed at cutting off ONLF supplies and collectively punishing communities that are suspected of supporting the rebels.

These crimes are being committed with total impunity, on the thinnest of pretexts. They are generating a perception in the area that simply being an ethnic Somali-and particularly a member of the Ogaadeeni clan which constitutes the backbone of the ONLF-is enough to render a person suspect in the eyes of the national government. As one young man told Human Rights Watch, “Anyone with a bowl of water is suspected of supplying the ONLF.”

Ethiopian military personnel who ordered or participated in attacks on civilians should be held responsible for war crimes. Senior military and civilian officials who knew or should have known of such crimes but took no action may be criminally liable as a matter of command responsibility. The widespread and apparently systematic nature of the attacks on villages throughout Somali Region is strong evidence that the killings, torture, rape, and forced displacement are also crimes against humanity for which the Ethiopian government bears ultimate responsibility.

The ONLF has also been responsible for serious violations of international humanitarian law (the laws of war). These include the summary execution of dozens of Chinese and Ethiopian civilians in the context of its April 2007 attack on the oil installation, the ONLF practice of killing suspected government collaborators, and the indiscriminate mining of roads used by government convoys. Those who ordered or carried out such acts are responsible for war crimes. Many civilians feel trapped with no refuge from ONLF pressure or the abuses by Ethiopian troops.

The Ethiopian government has repeatedly dismissed or minimized concerns about the human rights and humanitarian situation in Somali Region. It often claims, particularly to the international audience, that insecurity in the region is the work of Eritrean-backed “terrorists” seeking to destabilize Ethiopia. There is no question that the political dynamics in Somali Region intertwine with regional dynamics and are influenced by the continuing hostility between Eritrea and Ethiopia as well as events in neighboring Somalia. The application of terrorist rhetoric to the internal conflict with the ONLF, however, appears designed mainly to attract support from the United States as part of the “war on terror.” It does not justify violations of international human rights and humanitarian law.

The government faces complex challenges in Somali Region. The ONLF, which claims to be seeking self-determination for the region, represents only a segment of the divided Ethiopian Somali community. There are legitimate fears that the escalating conflict across the border in Somalia could spill into Ethiopia. The authorities face difficult questions on how to best establish the rule of law in a remote, poverty-stricken region largely inhabited by pastoralists who have little knowledge of or confidence in state institutions that have long neglected them. Instead of addressing these challenges in good faith with efforts to build institutions and accountability to support the rule of law and reduce the appeal of armed groups, the government has implemented violent repression, echoing the response to the region of previous Ethiopian administrations.

The Ethiopian government’s reaction to reports of abuses in 2007 has been to deny the allegations, disparage the sources, and actively restrict or control access to the region by journalists, human rights groups, and aid organizations (including by expelling the International Committee of the Red Cross in July 2007).

Due to increasing alarm over humanitarian conditions, particularly malnutrition rates among children, the UN and some nongovernmental organizations were permitted to expand humanitarian programs in parts of the region in late 2007, a small positive step. However these operations have been limited to certain geographic areas, are vulnerable to constant government threats and harassment, are sometimes unable to operate with sufficient independence from government control, and have no protection mandate or capacity to respond to the attacks on civilians which remain the biggest priority for many affected communities.

The Ethiopian government’s politicized manipulation of humanitarian operations, particularly food distribution, plus the continued restrictions on commercial traffic and trade are creating a situation that-in combination with the drought produced by failed rains-could quickly slip into catastrophe. The Ethiopian government should take urgent action to ensure that the needs of vulnerable civilians in Somali Region are prioritized, including in emergency appeals. Yet due to government obstruction and restrictions on access to conflict-affected zones, humanitarian agencies cannot even conduct the independent nutritional assessments needed to fully assess the scale and formulate a proper response to the potential crisis.

The international response to the situation ranges from insipid to disingenuous. Western governments, including the US, UK, and European Union, which cumulatively provide almost US$2 billion of aid to Ethiopia every year and rely on the Ethiopian government as a key ally in a volatile region, have sent a number of delegations to the region but have refrained from even mild public concern, much less criticism. The US government, which is a staunch Ethiopian ally-particularly in counter-terrorism efforts-and has probably the greatest leverage of any of the donor governments, has minimized and possibly actively ignored internal concerns and reporting on the situation.

Instead of maintaining the complicity of silence, donor governments should start using their leverage to insist on three sets of immediate actions in Somali Region. Full recommendations are given below.

First, both the Ethiopian government and the ONLF should support full, unhindered and immediate access to the region for independent aid organizations, the media, and human rights groups, and the government should lift restrictions on commercial trade and civilian and livestock movement, including across the border with Somaliland. Implementing this recommendation would have an immediate positive effect on civilian access to water and grazing for their livestock, food, and local markets and could mitigate the impending food crisis. Humanitarian organizations should also have immediate, unimpeded access to conduct independent nutritional surveys in all affected areas and properly monitor food distribution to ensure it is not diverted.

Second, the Ethiopian government should immediately issue clear public orders to the armed forces and all other security agencies in Somali Region to cease abuses of civilians, including the military’s forced relocations, extrajudicial executions, mass detentions, and mistreatment of detainees. The ONLF should also cease killings of civilians, including government officials, desist from the indiscriminate use of mines along key roads in Somali Region and publicly commit to abide by international humanitarian law.

Third, Ethiopian authorities should establish an independent commission of inquiry to investigate the allegations of abuses by all parties to the conflict and begin short and long-term efforts to ensure accountability for abuses by government security forces in Somali Region and elsewhere, including judicial and security sector reforms.

Rapid implementation of these recommendations could help to avert catastrophe in Somali Region. If the abuses continue, denied by the Ethiopian government and ignored by international donors, the outcome is all too clear: yet another cycle of human rights devastation, famine, and impoverishment in a region which already knows these trends all too well, and thousandsof new victims, embittered by the repeated denial of their rights as human beings and Ethiopians.

Assassinations, Peace and State Violence in India and Pakistan

Assassinations, Peace and State Violence in India and Pakistan

By Abdul Malik Mujahid, President, Sound Vision, and Chair Council for a Parliament of World Religions,

The Huffington Post, 4 Nov. 2009

It was way past midnight in Chicago when I was awakened by a phone call. “Congratulations,” someone was saying in Hindi, “Indira Gandhi is dead.” It took me a while to properly understand what he was saying. He was an Indian, and I was shocked to hear his celebratory tone on the death of his leader and his assumptions that as a Pakistani I must be happy as well.

That was twenty five years ago on October 31, 1984, when the Indian Prime Minister Indira Gandhi was gunned down by two of her Sikh bodyguards, Satwant Singh and Beant Singh, to avenge the attack by Indian military on the Harmandir Sahib, the Golden Temple, the holiest shrine of Sikhs which resulted in killing a thousand Sikhs.

She was neither the first nor the last Gandhi to be assassinated. She was also not the only South Asian leader to be assassinated.

Rajiv Gandhi, who became Prime Minister of India after his mother’s assassination, himself was slain by a Hindu female suicide bomber in 1991. She was a member of Tamil Tiger. Initially Tamil Tiger received funding, weapons, and training in India from the government of Indira Gandhi.

Benazir Bhutto was assassinated on December 27, 2007 in Pakistan. Ironically, Taliban accused of her assassination were organized with her government’s active patronage.

The Sikh rebellion was started in the late seventies by Jarnail Singh Bhindranwale, whom Sanjay Gandhi, the other son of Indira Gandhi, had actively promoted in order to weaken the Sikh’s Akali party for the benefit of the Congress party.

As Indians mark the death anniversary of Indira Gandhi, Sikhs renew their call for justice, and Pakistan bleeds with terrorism, it is important to reflect how justice, reconciliation and forgiveness can allow humanity to move forward and how its absence can continue to harm people.

Any state, as the most organized power, has more responsibility to be a patient actor. Instead of taking a short-term view, insisting to establish the writ of the state, it needs to take a longer view of issues and think of long-term consequence of its strategies. Unfortunately, states sometime behave in a tribal mode of retaliation and revenge.

If Indira Gandhi in the Golden Temple, Amritsar and Pervez Musharraf in Lal Masjid, Islamabad, had taken an approach of patiently waiting instead of storming the houses of worship with fire power, the bloody outcomes and even bloodier consequences could have been avoided.

1,000 Sikhs died at the invasion of Golden Temple, 4,000 more Sikhs were murdered by Hindu mobs in the aftermath of Indira Gandhi’s assassination and 10,000 more Sikh male “disappeared” in the Indian anti-terrorism war.

Death counts are rising in Pakistan as military battles continue, making millions refugees, in the Northern areas while the suicide bombers target Pakistani cities. Survivors of Lal Masjid had promised this outcome.

If the Indian and Pakistani governments had stayed away from the tactical use of extremists against their political rivals they would not have inadvertently contributed to the acceleration of violence. Indira Gandhi created and nourished Bhindranwale among Sikhs and trained Tamil Tigers against Sri Lanka whereas Bhutto created Taliban. Gandhi and Bhutto both played a role in their own unfortunate demise by accelerating extremism and violence.

One lesser-known government actor, Asfandiyar Wali Khan, on the other hand, behaved differently, establishing a peaceful negotiated path in Pakistan’s conflict with its Taliban. He is the Chief Minister of Pakistan’s North-West-Frontier Province where the war is being waged against the Pakistani Taliban. He is a grandson of Khan Abdul Ghaffar Khan, a follower of Gandhi in his movement for non-violence. This left-leaning secular politician reached an agreement with Maulana Sufi Muhammad to end the insurgency in the area. The Pakistani Parliament unanimously approved their peace deal early this year. However, the Pakistani government with active and public pressure from the United States, went on establishing the “writ of state” which continues to devastate life throughout Pakistan.

State should also learn to differentiate between individual acts and collective responsibility. 
A sort of collective punishment was imposed upon the whole Sikh community when Indira Gandhi was killed by her Sikh bodyguards. Police and army stood by in Delhi allowing extremist Hindu gangs roamed around in hijacked public transportation, as women were Sikh gang-raped and their homes and properties were destroyed. The Nanavati Commission reported that the state and politicians had been heavily involved.

Twenty five years have passed since, but no action has been taken against any politicians and officers involved. State allowance or tolerance of extremist violence perpetuates the same behavior.

The State repeated its behavior in Godhra, Gujarat in 2002 when thousands of Muslims were systematically killed and women gang raped. Narendra Modi, the chief minister and the chief architect of this Gujarat genocide against the Gujarati Muslims, still is in power.

Industrious Sikhs, who turned Punjab into a model of agricultural efficiency, making India self-sufficient in wheat, are still asking for justice as they carried out demonstrations and a strike this week.

In the absence of justice and reconciliation, Akal Takhat, Amritsar, the highest Sikh religious authority, sort of a Sikh Vatican, in 2008 honored the assassins of Indira Gandhi by declaring them martyrs of Sikhism.

Justice, forgiveness, compromise and reconciliation remain important tools at the hands of Indian State as well as Pakistani State.

Both countries continue to face armed insurgencies. While a good part of Northern areas of Pakistan are under Taliban insurgencies, a good part of eastern and central India remains under armed Naxalite influence. State has an option to keep on fighting militarily, losing its soldiers, risking civilian casualties-fueling new insurgents and continued collective punishment. This path has not stopped the Naxalite insurgency in India which has been going on for the last 40 years. 
Nor will Pakistan achieve military success following a similar path.

Maybe I am naïve thinking that patience, negotiation, and reconciliation can deliver. But some “naïve people” in South Africa did themselves some good when they chose to stop the armed struggle and instead sought reconciliation choosing the forgiving path of Truth commission over vengeful actions.

If it worked in South Africa, it can work in India and Pakistan as well.

Collective Punishment of Trapped Civilians in the ‘No Fire Zone’ in Sri Lanka Should Stop!

Collective Punishment of Trapped Civilians in the ‘No Fire Zone’ in Sri Lanka Should Stop!

http://www.asiantribune.com/?q=node/17495
By Dr. Siri Gamage – Australia, 15.4.2009
Asian Tribune

The reported death and injury to a large number of Tamil civilians in the so-called ‘No Fire Zone’ in the North-Eastern edge of Sri Lanka is receiving widespread international attention, including from the UN and other agencies as well as governments. While it is understandable that the government of Sri Lanka wants to complete its military mission against the ruthless LTTE sooner than later, there is no justification for harming the entrapped civilians in the process. If the military has to wait another week, two or a few months in order to gain the upper hand over the remaining LTTE cadres and leadership, it should do so in the interest of the considerable number of civilians entrapped and their plight due to the reported lack of food, shelter, medicine etc. Otherwise, further civilian deaths in this zone can be highly counterproductive.

It is interesting to note that both the Sri Lankan government as well as the LTTE has denied responsibility for the weekend massacre. However, the ICRC ship keeps ferrying the critically injured in hundreds out of the No Fire Zone. Therein lies the possible truth! Someone is killing civilians in the No Fire Zone in unacceptable numbers.

When the military and the navy have surrounded the tiny No Fire Zone, which is restricted to about 3 kilometres at length, and 1.5 kilometres in width -or slightly larger- it now looks like an Open Prison Camp where the government is holding the upper hand. According to media reports, there is no escape route for the trapped LTTE leaders and cadres or the civilians. The government is asking the civilians to come out but the LTTE cadres mingling among the civilians are preventing them from doing so. Some reports indicate that the civilians who are trying to flee are being shot at by the LTTE.

When there are no independent reports from the No Fire Zone, the only sources of information available to outsiders is the propaganda on both sides streamed into news channels around the world on a daily basis. They are not reliable as the denial of responsibility for this latest massacre shows. It is always the other side that kills civilians caught in the crossfire! Along with the growth of war machineries over the decades, the media machineries also have become sophisticated to construct the truth the way the warring parties desire.

For the conclusion of military mission in this tiny piece of territory-which is mostly sand near the sea- there has to be a process following international norms of war. As the UN Secretary General has highlighted, the Sri Lankan government should outline the terms under which the remaining LTTE leaders and cadres can surrender. The LTTE may or may not accept these terms. In this event, the Government should ask the UN body to come up with a solution within a reasonable period of time such as a month or two at the maximum.

It may be that a delegation authorized by the Security Council liaises with both sides for an acceptable conclusion to this part of the military mission. Paramount in the minds of LTTE leaders may be their concern for safety if they surrender to the military.

The government should make it clear to the UN and others that the due process will be applied to any LTTE leaders and cadres who surrender -perhaps via a Third party like the UNE SecurityCouncil delegates, or even a delegation from India. It may also be possible that the countries such as the US, UK, France and India are able to send several well equipped large ships near the No Fire Zone and retain the civilians for a period of time until the government officials survey them and allow the civilians to come on shore.

If such a solution is feasible and acceptable to the international bodies, then the LTTE cadres may not be allowed to take their remaining arms to these ships. However, this is only feasible, if thenumber of civilians trapped in the No Fire Zone is less than 50,000. A worry for the government can be the possibility of the LTTE leaders and cadres seeking political asylum in Third Countries. However, these matters should be discussed with a representative international delegation and some agreement reached.

If the reports of civilian massacres in the tiny No Fire Zone are true, it can only create a negative image not only of the military and the government but also of all Sinhala people as murderers with no human conscience. The government’s claim to its military campaign as a ‘rescue mission’ will also be highly discredited. It is time that the government of Sri Lanka and its military show magnanimity in victory by listening to the international community and agreeing to a compromised solution – that does not dilute its ultimate aims.

Rather than discarding the Western governments for its lop sided positions and criticisms on human rights grounds, the government can in fact obtain their assistance along with India for such a conclusion, with their cooperation. The only person who will not like such a solution will be Prabhakaran because of the Indian government attitude towards LTTE resulting from Rajiv Gandhi episode. He should be compelled or allowed to decide his fate for himself by devising an end to the situation where civilian security is provided.

– Asian Tribune –

A call for [economic] strangulation

http://english.aljazeera.net/focus/2010/06/2010616131858756851.html

UPDATED ON:
THURSDAY, JUNE 17, 2010 
12:07 MECCA TIME, 09:07 GMT

The meaning of strangulation

By Mark LeVine

The remarks were not made in anger or haste, as were the now infamous, flippant and ill-conceived comments that cost White House reporter Helen Thomas her job, if not her legacy. Instead, they were made quite deliberately, with an air of thoughtfulness, while leaning over a lectern, as if lecturing to a class.

Thomas was forced into retirement for declaring that Jews “should get the hell out of Palestine,” but New York Senator Chuck Schumer, one of the most powerful politicians in the US, has avoided any criticism or even major press coverage for remarks he made only days later that supported the continued “economic strangulation” of Gaza; in part, because, he essentially argues, the inhabitants of the benighted Strip are not Jewish.

Schumer made his remarks during a brief talk to the Orthodox Union, a well-known politically conservative Jewish educational, outreach and social service organisation. 

The talk covered several foreign policy issues, including Iran and Israel/Palestine. When the topic turned to the Israeli attack on the Gaza aid flotilla Schumer began by explaining that the “Palestinian people still don’t believe in the Jewish state, in a two-state solution”. But that is not all, he continued: “They don’t believe in the Torah, in David.”

Because of this, and because they chose to elect Hamas, Schumer went on to argue, Israel is right – and the US should support its desire – “to strangle them economically until they see that’s not the way to go”.

Indeed, whether deliberately or because he does not understand the nature of Israeli policies vis-a-vis Gaza, Schumer did not actually use the word “blockade;” instead describing Israeli actions as a “boycott”.

Only when Palestinians see the light, “when there’s some moderation and cooperation, can [they] have an economic advancement”.

Opinions that matter

 

White House reporter Helen Thomas resigned after her now infamous comments [AP]

With all due respect to Helen Thomas and her illustrious career, she was merely a columnist, with no political power and a relatively small readership. When she adopted opinions or arguments that contradicted the facts or were morally problematic, they were easily rebutted in the public sphere.

Charles Schumer, however, is an extremely powerful senator who serves on some of that body’s most powerful committees, such as banking and judiciary.

Moreover, through his representation of New York, the state with the largest Jewish population in the US, he is a leading pro-Israel voice in congress who has the ability directly to impact the nature of US policy towards Israel and the Middle East more broadly.

In other words, what Senator Schumer says actually can cost people – Palestinians, Israelis, Americans – their livelihoods and even their lives, not to mention help prolong or alleviate one of the world’s most intractable conflicts. And yet no one in official Washington even blinked.

To consider the implications of these comments, it is worth considering what would happen if any Arab or Muslim, never mind a US senator, explained that because Israelis do not support a two-state solution, and do not believe in the Quran – that is, have not converted to Islam – and have voted in one of the most right-wing governments in their country’s history, the US, or the world more broadly, is justified in trying to “strangle Israel economically” until it moderates its policies.

Imagine the uproar. Consider what would happen to the person – a columnist or congressman – who made such a comment. Yet hardly anyone has even noticed, never mind considered the implications of Schumer’s remarks, which on YouTube have garnered about 1,500 views. Not a single major US newspaper has even written, let alone editorialised, about them, in contrast to the plethora of editorials and op-eds in response to Thomas’ remarks, one clip of which has been viewed well over 1.6 million times.

It is hard to know what to call Schumer’s argument that, because Palestinians “don’t believe in the Torah, in David,” they can be strangled.

He specifically says “there should be humanitarian aid and people not starving to death,” but he does not quite explain how “strangling” an economy that has already been nearly destroyed during 40 years of occupation can do anything but cause immense suffering to the people living in it, as numerous reports by the UN, Israeli, Palestinian and international aid organisations have documented in great detail.

Indeed, to “strangle” an entire people economically can only mean to try to destroy their ability to survive as a national group, which is a crime against humanity.

Official bigotry unchallenged

These are among the most ethnically and religiously bigoted and even inciteful public remarks by a senior American politician I have heard in a long time.

And the fact Schumer could make them without a hint of anger, as if he was merely stating the obvious, and feel no need to recant them after video of the talk was circulated on the internet (several calls to Schumer’s press secretary asking for clarification were not answered), is as telling as it is worrisome.

It is also worth noting that besides the moral problems associated with his positions, almost every one of his arguments are factually inaccurate. The strong majority of Palestinians continue to support a two-state solution (74 per cent in an April 2009 poll), even thought the process meant to achieve it has delivered little but misery for them for almost two decades. They moderated their ideology and behaviour as part of Oslo and were met with an ever more intensive occupation in response.

Israel has, in fact, been strangling the Palestinian economy since the inception of the occupation, “de-developing” not just Gaza but the West Bank until Oslo, and then closing off the Territories physically while ensuring that they could not develop an autonomous economy as the central component of Oslo’s economic protocols.

Indeed, it is precisely the intensification of the occupation that led to the breakdown of negotiations, the outbreak of the al-Aqsa intifada, the massive violence of Israel’s response, and the election of Hamas in response to these dynamics. Even senior Israeli generals have admitted that their harsh actions have only strengthened Hamas.

Collective punishment

 

The ‘economic strangulation’ of Gaza amounts to collective punishment [Getty Images]

Schumer also fails to realise that by advocating the “economic strangulation” of Gaza he is calling for collective punishment of a civilian population in order to change its political beliefs or views.

As a member of the Senate Judiciary Committee, he should know that this is essentially the definition of terrorism used by the US government, which in several federal statutes, including the Patriot Act, define terrorism as  involving acts that “appear to be intended … to intimidate or coerce a civilian population … to influence the policy of a government by intimidation or coercion [or] affect the conduct of a government by mass destruction, assassination, or kidnapping …” (USA Patriot Act, Title VIII, Sec. 802).

Israel’s policies of economic strangulation have clearly – and admittedly – been intended to force a change in behaviour, and are inseparable from its policies of assassination and kidnappings which have also been practiced by the US under the guise of drone strikes and renditions (it is also likely not coincidental that Senator Schumer also supported the use of torture by the Bush administration in 2004).

How does Senator Schumer think advocating economic strangulation will actually improve Israel’s security, help moderate Palestinians, or, as should be a major concern for a US senator, improve the US’ position in the eyes of the Muslims world as his party’s president, Barack Obama, has been trying to do since taking office? 

Moreover, his comments suggest that if Israel manages to choke Palestinians into compliance, the most he is willing to support is the sort of “economic peace” or development promised by Binyamin Netanyahu, the Israeli prime minister, as an alternative to actual sovereignty and independence. If so, that would put him in direct confrontation with Obama’s strongly-stated support for Palestinian statehood.

Finally, it might serve Senator Schumer to know that within Islam there is in fact an acceptance of the Torah and David, as the Torah (tawrat in Arabic) is considered one of the Holy Books of God, whose corruption by humans led to subsequent revelations until the final, according to Islamic theology, uncorrupted revelation, that comprised the Quran. Moreover, David is considered a prophet and another set of books, the Zabur, or songs/psalms, is attributed to him.

Perhaps if Schumer understood this basic theological relationship between Judaism and Islam, he might be less predisposed to imagining that Israelis and Palestinians are inevitably at odds, and that the latter will act irrationally and with malice against Israel no matter what Israel does and therefore the safest policy from Israel’s perspective is, if not actual strangulation, at least continuous repression.

Obama’s challenge

 

Schumer’s comments have received far less media attention than Thomas’ [Getty Images]

If Schumer thinks this way, many if not most of his colleagues, and the majority of the American media and political spheres, do as well.

If this is what he is up against, no wonder Obama is finding it so hard to change US policy towards the conflict.

It would be one thing if Schumer’s views impacted only the Israeli-Palestinian conflict. But his remarks to the Orthodox Union also touched upon Iran, and did so in a way that provide some alarming insight into what is likely the consensus of the senate about the goal of US policies towards the Islamic Republic.

Specifically, Schumer described a bill presently in reconciliation between the house and senate that would prevent any company that sold gasoline directly or indirectly to Iran from selling oil products in the US. If passed, such a bill would significantly impact Iran because while it is a major petroleum exporter, Iran in fact imports a larger share of the gasoline it uses for domestic consumption.

After describing the bill and its potential impact, Schumer added off-handedly, as if it was too obvious really to need mentioning, that “the whole idea is to bring the Iranian regime down”.

He added: “There is a lot of discontent … the people of Iran want economic advancement above all … If we can stop that economic advancement we can hurt the country economically. That might be the spark that brings the people … that brings the regime, which is fundamentally not popular and works by fear, down.”

It seems that to Schumer what is good for Israel in Gaza is good for the US in Iran; engage in blatant attempts at regime change, even if doing so is a violation of international law; hurt or strangle a country economically in order to cause the people to suffer enough that they rise up against the government to whose existence you are opposed; and if none of that works, keep applying more pressure, until, presumably, there is no choice but to take military action.

Senator Schumer’s words seem to represent the mainstream of opinion inside the Washington political establishment. They would seem, thus far, not to be the official policies of the Obama administration, but if the president does not articulate a clear agenda that includes bold action to break the logjams in negotiations between Israelis and Palestinians, and between Iran and the Western powers, Schumer’s views will likely become the de facto fall-back strategy of whatever administration is in power in two years’ time.

And this will most likely mean a lot more suffering for Palestinians and Iranians, and ultimately, for Israelis and Americans as well.

Mark LeVine is a professor of history at UC Irvine and senior visiting researcher at the Center for Middle Eastern Studies at Lund University in Sweden. His most recent books are Heavy Metal Islam (Random House) and Impossible Peace: Israel/Palestine Since 1989 (Zed Books).

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.

 

United States’ Foreseeability, Awareness and Knowledge of the Consequences of the Sanctions Against Iraq

United States’ Foreseeability, Awareness and Knowledge of the Consequences of the Sanctions Against Iraq

Elias Davidsson

2004

Introduction

In order to determine to which extent individual leaders who imposed and maintained economic sanctions against Iraq can be held responsible for the adverse consequences of their acts, including massive child mortality, it is important to determine the extent to which these persons had been aware of the foreseeable consequences of their decisions and informed about such consequences as the sanctions unfolded. The question of knowledge (or awareness) is an important element in determining the existence or absence of a culpable intent, particularly when an actor denies having intended the adverse consequences of his acts. A general, though rebuttable, presumption in law is that a person intends the foreseeable consequences of his acts. As will be seen below, the US administration possessed adequate data to predict the adverse consequences of the sanctions on Iraq before they were imposed, was informed of the consequences as they unfolded, and was kept informed on these consequences all along the sanctions’ period. Not only was the US administration aware of these consequences, but it was determined to cause severe hardships in Iraq, as a means to force the compliance of the Iraqi government with the will of the U.S. administration, as reflected in Security Council resolutions. The question whether other governments shared the U.S. administration’s foreseeability, awareness and knowledge of the consequences of the Iraq sanctions – and the same intent to cause hardships – will not be dealt with in the present study.

 

Sub-headings

 

1. Knowledge as a mental element in criminal law

 

2. The applicability of the notion of foreseeability, awareness and knowledge to the imposition of economic sanctions against Iraq

 

(a) Foreknowledge: The period before the imposition of the Iraq sanctions

(b) Members of Congress knew what consequences could be expected from the sanctions on Iraq

(c) The U.S. administration was informed on the consequences of the Iraq sanctions during the entire sanctions period

(d) U.S. leaders acknowledged the causality between the sanctions and the humanitarian situation in Iraq

 

3. Concluding observations

For the entire article, open attachment below

2883_econsanc-US-knowledge

 

Israel authorizes deportation as a crime against humanity

Article 7 of the Rome Statute of the International Criminal Court specifies that “deportation or the forcible transfer of population” constitute a “crime against humanity”, when committed “as part of a widespread OR systematic attack direct directed against any civilian population, with the knowledge of the attack.”  

Under Article 7.2(a) the expression “attack directed against any civilian population” means a “course of conduct the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.” 

Under Article 7.2(d) the expression “deportation or forcible transfer of population” means the “forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.”

Under a new Israeli military order, the Israeli IDF has now been authorized to commit a “crime against humanity”, as defined in the Rome Statute.

http://blogs.aljazeera.net/middle-east/2010/04/12/israeli-hypocrisy-holocaust-remembrance-day

Israeli hypocrisy this Holocaust Remembrance Day

By Dan Nolan in Middle East on April 12th, 2010

A new Israeli military order set to come into place allowing the mass deportation of Palestinians from the occupied West Bank.

Today is Holocaust Remembrance day. At 10am Israel came to a virtual standstill, sirens wailed across cities, traffic stopped as Jews here and abroad pause to reflect on the worst genocide in history.

Adolf Hitler’s evil plans started with discrimination against Jews based solely on their religion before moving them through mass deportations to concentration camps before finally seeking to exterminate them.

A total of 6 million Jewish men, women and children died in mankind’s darkest hour.

The world, and in particular Israel, rightly continues to remember these horrific events of 60years ago to ensure it never happens again. But there is increasing concern about whether the tragic lessons of the Holocaust were fully learned by Israel itself?

Tomorrow, April 13, 2010, a new Israeli military order comes into place allowing the mass deportation of tens of thousands of Palestinians from the occupied West Bank.

Any Palestinian or foreigner living in the West Bank without the appropriate id permit (receipt of which is controlled by Israel) can be deported within 72 hours or even jailed for up to 7 years.

Those Palestinians lucky enough to have escaped the open-air prison that is Gaza to now live in the West Bank maybe the first targeted and sent back.

The vague wording of the law has concerned Israeli human rights groups so much that 10 of them have signed a letter to Defence Minister Ehud Barak begging him to rescind it.

The left-leaning Israeli newspaper Haaretz first broke the story and its editorial today is compelling reading, saying:

“The right of all Palestinians to choose where to live in the West Bank or Gaza marks a very low threshold for defining their human rights. Implementing this new military order is not only likely to spark a new conflagration in the territories, it is liable to give the world clear-cut proof that Israel’s aim is a mass deportation of Palestinians from the West Bank.”

Palestinian leaders say the move is devoted to racism and “paves the way for an ethnic cleansing operation.”

As Israeli’s well know, the Holocaust started with human rights violations which turned into mass deportations and ended in genocide.

Is it not time that those who support a state born of the single most traumatic event of the 20th century do everything in their power to never impose anything that resembles their own suffering on another oppressed people?

No doubt those who love Israel so much they cannot see its faults will attack this blog as being anti-Semitic.

But hopefully on a day that remembers the horrors of the past, just maybe Israel can start to rectify the wrongs of the present.

Bush Lawyer Said President Could Order Civilians to Be ‘Massacred’

http://blog.newsweek.com/blogs/declassified/archive/2010/02/19/report-bush-lawyer-said-president-could-order-civilians-to-be-massacred.aspx

Posted Friday, February 19, 2010 8:16 PM

Report: Bush Lawyer Said President Could Order Civilians to Be ‘Massacred’

Michael Isikoff

The chief author of the Bush administration’s “torture memo” told Justice Department investigators that the president’s war-making authority was so broad that he had the constitutional power to order a village to be “massacred,” according to a report released Friday night by the Office of Professional Responsibility.

The views of former Justice lawyer John Yoo were deemed to be so extreme and out of step with legal precedents that they prompted the Justice Department’s internal watchdog office to conclude last year that he committed “intentional professional misconduct” when he advised the CIA it could proceed with waterboarding and other aggressive interrogation techniques against Al Qaeda suspects.

The report by OPR concludes that Yoo, now a Berkeley law professor, and his boss at the time, Jay Bybee, now a federal judge, should be referred to their state bar associations for possible disciplinary proceedings. But, as first reported by NEWSWEEK, another senior department lawyer, David Margolis, reviewed the report and last month overruled its findings on the grounds that there was no clear and “unambiguous” standard by which OPR was judging the lawyers. Instead, Margolis, who was the final decision-maker in the inquiry, found that they were guilty of only “poor judgment.”

The report, more than four years in the making, is filled with new details into how a small group of lawyers at the Justice Department, the CIA, and the White House crafted the legal arguments that gave the green light to some of the most controversial tactics in the Bush administration’s war on terror. They also describe how Bush administration officials were so worried about the prospect that CIA officers might be criminally prosecuted for torture that one senior official—Attorney General John Ashcroft—even suggested that President Bush issue “advance pardons” for those engaging in waterboarding, a proposal that he was quickly told was not possible.

At the core of the legal arguments were the views of Yoo, strongly backed by David Addington, Vice President Dick Cheney’s legal counsel, that the president’s wartime powers were essentially unlimited and included the authority to override laws passed by Congress, such as a statute banning the use of torture. Pressed on his views in an interview with OPR investigators, Yoo was asked:

“What about ordering a village of resistants to be massacred? … Is that a power that the president could legally—”

“Yeah,” Yoo replied, according to a partial transcript included in the report. “Although, let me say this: So, certainly, that would fall within the commander-in-chief’s power over tactical decisions.”

“To order a village of civilians to be [exterminated]?” the OPR investigator asked again.

“Sure,” said Yoo.

Yoo is depicted as the driving force behind an Aug. 1, 2002, Justice Department memo that narrowly defined torture and then added sections concluding that, in the end, it essentially didn’t matter what the fine print of the congressionally passed law said: The president’s authority superseded the law and CIA officers who might later be accused of torture could also argue that were acting in “self defense” in order to save American lives.

The original torture memo was prompted by concerns by John Rizzo, the CIA’s general counsel, that the agency’s officers might be criminally prosecuted if they proceeded with waterboarding and other rough tactics in their interrogation of Abu Zubaydah, an allegedly high-level Al Qaeda-linked operative who had been captured in Pakistan and in the spring of 2002 was transferred to a CIA “black site” prison in Thailand. Rizzo wanted the Justice Department to provide a blanket letter declining criminal prosecution, essentially providing immunity for any action engaged in by CIA officers, a request that Michael Chertoff, then chief of the Justice Department’s criminal division, refused to provide. It was at that point that Yoo began crafting his opinion, the contents of which he actively reviewed with senior officials at the White House. “Let’s plan on going over [to the White House] at 3:30 to see some other folks about the bad things opinion,” he wrote in a July 12, 2002, e-mail quoted in the OPR report.

The report describes two meetings at the White House with then-chief counsel Alberto Gonzales and “possibly Addington.” (Addington refused to talk to the OPR investigators but testified before Congress that he did in fact have at least one meeting with Yoo in the summer of 2002 to discuss the contents of the torture opinion.) After the second meeting, on July 16, 2002, Yoo began writing new sections of his memo that included his controversial views on the president’s powers as commander in chief. When one of his associates, Patrick Philbin, questioned the inclusion of that section and suggested it be removed, Yoo replied, “They want it in there,” according to an account given by Philbin to OPR investigators. Philbin said he didn’t know who the “they” was but assumed it was whoever it was that requested the opinion (technically, that was the CIA, although, as the report makes clear, the White House was also pressing for it).

Yoo provided extensive comments to OPR defending his views of the president’s war-making authority and disputing OPR’s take that he slanted them to accommodate the White House. He did not immediately respond to NEWSWEEK’S request for comment Friday night. 

 

Photos: A Timeline of Torture

 

Possibilities of prosecuting Turkish leaders for crimes against humanity and war crimes – IX

 

Possibilities of prosecuting Turkish leaders for crimes against humanity and war crimes – IX 

Saturday, November 11, 2006 
KurdishMedia.com – By Karim Salih 
Part IX: Last part 

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United States Department of State, “Country Report on Human Rights Practices for 1998: Turkey”, Bureau of Democracy, Human Rights, and Labor, 26 February 1999, , (last visited 04 September 2006). 

United States Department of State, “Country Reports on Human Rights Practices for 1999: Turkey”, the Bureau of Democracy, Human Rights, and Labor, (Washington, DC: 23 February 2000), , (last visited 04 September 2006). 

United States Department of State, “Country Reports on Human Rights Practices for 2002: Turkey”, Bureau of Democracy, Human Rights, and Labor, 31 March 
2003, , (last visited 04 September 2006). 

United States Department of State, “Report on Allegations of Human Rights Abuses 
by the Turkish Military and on the Situation in Cyprus”, Bureau of European Affairs, 01 June 1995, , (last visited 04 September 2006). 

Urrutia, Nicolas, “Negotiating with Terrorists: A Reassessment of Colombia’s Peace Policy”, Stanford Journal of International Relations, Vo. 3, No. 2, Fall-Winter 2002, , (last visited 10 September 2006). 

Veuthey, Michel, “Learning from History: Accession to the Conventions, Special Agreements, and Unilateral Declarations”, Collegium, No.27, Spring 2003 (Special Edition: Proceedings of the Bruges Colloquium: Relevance of International Humanitarian Law to Non-State Actors), pp. 139-52, , (last visited 04 September 2006). 

Werle, Gerhard, Principles of International Criminal Law, (The Hague: TMC Asser P., 2005). 

Wet, Erika De, “The Prohibition of Torture as an International Norm of jus cogens and Its Implications for National and Customary Law”, The European Journal of International Law (EJIL), Vol. 15, No. 5, (2004), pp. 97-123, , (last visited 18 September 2006). 

Yildiz, K and G Fryer, The Kurds: Culture and Language Rights, (London: KHRP, August 2004). 

Yildiz, Kerim and Mark Muller, “the EU, Turkey and the Kurds”, EU – Turkey Civic Commission, Brussels 2004, (Second International Conference on Turkey, the Kurds and the EU – The European Parliament, Brussels, 22-23 November 2004, Conference Papers). 

Zana, Mehdi, Eleven years in a Turkish prison, (Stockholm: Amnesty International, 1996). 

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End of document. 

 

 

Possibilities of prosecuting Turkish leaders for crimes against humanity and war crimes – I 


Possibilities of prosecuting Turkish leaders for crimes against humanity and war crimes – I 


Friday, November 03, 2006 

KurdishMedia.com –

By Karim Salih 



A critical analysis of the possibilities of prosecuting Turkish leaders for crimes against humanity and war crimes since the military coup in 1980 – Part I 



“I have the conviction that as long as a nation does the best for its own interests, and succeeds, the world admires it and thinks it moral.” [1] 
- Talaat Pasha, the architect of the Armenian destruction (1915-1922), in 1915 



Abstract 



The 1980 military coup has been considered by many Turkish academics and human rights groups a turning point in the Turkish history in terms of both the scale and the extent of brutality of human rights abuses. The atrocities perpetrated against Kurdish civilians, according to Turkish and international human rights defenders, have increased since 1984 under the guise of legitimacy of addressing security concerns. 



I intend to explore and catalogue a possible international case against Turkish political and military leaders for injuries inflicted on the Kurdish civilians in Turkey since the 1980 coup. I will discus the criticisms of partiality and prejudice that arise with arbitrary decisions to prosecute crimes against international law committed in some internal armed conflicts but not others of arguably equal brutality. I will contend that bringing into justice those suspected of international crimes and establishment of a realistic picture, based on the historical facts of past deeds are critical preconditions for achieving an everlasting and just peace, and the development of democratic society that could advance the cause of democracy and human rights not only in Turkey but in the whole of West Asia. 



Why this paper? 



On November 9, 2005, the suspected bombers of a bookstore in Semdinli in Turkey’s Kurdish southeast were apprehended on the scene by the surviving victims and their arms and identity cards that belonged to Turkish security forces were published by Kurdish activists on the internet on the same day. Unlike previous similar bombings against institutions and individuals who asserted their Kurdish identity, this incident attracted domestic and international attention and deepened the controversy of who wields the real power in Turkey. 



When Turkish authorities in April 2006, in a bid to defuse the tension between the government and the Turkish Armed Forces (TSK), released the suspected bombers and dismissed the prosecutor who prosecuted them, former President Suleyman Demirel stated that Turkey had not changed very much since the 1980 coup, explaining that “There is the state and there is the deep state … When a small difficulty occurs, the civilian state steps back and the deep state becomes the generator (of decisions).” 



Until Turkey succeeds in reining in the military and eliminating torture, the Kurdish population and the other Anatolian minorities seems are destined to encounter more of the Turkish deep state institutions than the legitimate state. 



I believe that opening up debate over the criminal liability under international law for forced disappearances, torture and extra judicial killings, though understandably taboo in Turkey (for a society structured along authoritarian lines, such a debate raises fears of potentially destabilizing consequences), it may help the cause of democracy and human rights that so far countless of Anatolians have lost their lives on its course. 



Introduction 



In contrast to the 1974 Greek transition from seven year military dictatorship to democracy which accompanied criminal prosecutions of the junta leaders for torture and other crimes, [2] in Turkey the leaders of the 12 September 1980 not only remained unprosecuted after three years of direct military rule, but retained influence over the political administration through the National Security Council (Milli Güvenlik Kurulu – MGK) which they had entrenched in the 1982 Constitution of the Republic of Turkey. [3] Twenty six years on and the unresolved legacy of the coup is increasingly reported to provoke vile crimes [4] amid accusations, from impartial bodies, of military disrespecting the legal order. [5] 



This paper will attempt to reach prima facie conclusions on criminal liability in international law for alleged wrongs committed since 1980 in Turkey as well as to assess the available prosecutorial options and the possibilities of enforcement. 



Following presenting a brief historical overview of the modern republic of Turkey, ideas and practices of Kemalism, Turkey’s official ideology since 1923, will be examined with some focus on international indifference toward the plight of Armenians until 1923 and the Kurds thereafter as well as a particular interest in military’s role in the politics leading up to the 1980 coup. Starting with a brief presentation of human rights record during the three years following the 1980 coup, Part II will review the evidence documented by independent bodies regarding destruction of villages and forced displacement, torture, and extra-judicial executions and forced disappearances respectively emphasising in particular on the alleged involvement of state. This will be followed by a brief appraisal of Turkey’s international obligations. 



Part III will examine the relevant rules of international law on crimes against humanity following an assessment of the conceptual evolution of these crimes and the early failings. Next, the concept of war crimes in internal armed conflicts will be discussed. The status of crime of torture as a discrete crime under international law will be analysed. Part IV will attempt to apply the relevant provisions of law to a selection of the available evidence in relation to crimes against humanity, war crimes and torture respectively. The requirement of the legality principle will be thoroughly analysed, employing the ICTY and ICTR jurisprudence as well as judgments by national courts when appropriate. Part V will explore the possible venues for accountability, evaluating the advantages and disadvantages of each option of a special court in Turkey, the ICC and an ad hoc international criminal tribunal respectively. 

Finally, Part V will attempt to critically analyse the possibilities of enforcing international criminal law especially in the case of a NATO ally like Turkey. This paper will expound a view that pursuing criminal accountability for serious violations of international law, though not a panacea, is morally and legally imperative and would contribute to international peace and security in the long run. It will be contended that biased selective enforcement of international criminal law on arbitrary basis questions the generality of the law which is a prerequisite to its legitimacy. 


I. The creation of the Republic of Turkey

After the defeat of the Ottoman Empire in the World War I, the Peace Treaty of Sèvres was signed in August 1920 which provided for the dismantling of the Empire and the formation of Armenian [6] and Kurdish states along a Turkish republic. [7] The modern “Turkey”, led by Mustafa Kemal (surnamed Atatürk “Father of the Turks” in 1934), [8] “smashed its way” [9] out of Sèvres and into modern nation-statehood in 1923 in Anatolia [10] where Greeks, Armenians, Kurds and Assyrians had coexisted for millennia. [11] 



On the way to nationhood, the Turkish nationalists Committee of Union and Progress (CUP), who ruled from 1913 to the collapse of Empire in 1918, engaged in the destruction of the Armenians in 1915-17 that resulted in the death of up to one and half million Armenians, almost half of the population. [12] After the war was ended, the British High Commissioner, in January 1919, informed the Turkish Foreign Minister that Great Britain is “resolved to have proper punishment inflicted on those responsible for the Armenian massacres”. [13] Ottoman court-martials, in deed, tried a number of persons and found, in absentia, some Young Turk leaders including Talaat Pasha guilty of “the organization and execution of the crime of massacre” against the Armenian population under Articles 45 and 170 of the Ottoman Penal Code. [14] 



Rejecting capitulation of the Ottoman sultan to the Great Britain, Mustafa Kemal established a counter-government in Ankara in April 1919 and a parliament, named “Grand National Assembly of Turkey Türkiye Büyük Millet Meclisi – TBMM” in April 1920. [15] Following the withdrawal of French troops from Cilicia in May 1922, [16] the Greek forces were repelled and the city of Smyrna (present-day Izmir) in September 1922 was captured by Kemal troops. [17] According to some accounts, 200.000 of its indigenous Greek population and Armenian “refugees” were massacred and the city was later set alight. [18] 

After his military triumph, Kemal was able to influence the provisions of the Treaty of Lausanne (24 July 1923) [19] which replaced the Sèvres Treaty. [20] The new Treaty not only made no reference to autonomous Armenia or Kurdistan but contained a ‘Declaration of Amnesty’ for all offences committed between 1 August 1914 and 20 November 1922. [21] The CUP members, including those convicted for the mass killing of Armenians by the Istanbul authorities in 1918-1920, had already been granted a general amnesty by the Ankara government of Mustafa Kemal on 31 March 1923. [22] Many of the CUP members became ardent Kemalists and some served as ministers in the modern Republic of Turkey which was officially proclaimed on 29 October 1923. [23] 



Kemalism: changing society in short order 



The ideology of Kemalism has been enshrined in 1982 Constitution as sacrosanct[24] which cannot be amended; [25] even proposals to do so may constitute a criminal offence. [26] According to Randal, like Italian fascism, Kemalism was characterised by a pivotal feature of the urge to transform and modernise what they saw as a “corrupt society” through the power of the state to enforce, be it violently, “an exclusive racialism”. [27] To modernise the “corrupt” Ottoman society, Kemal imposed radical social, legal, and political reforms that included outlawing the traditional dress code, changing from Arabic to Latin script and adopting new civil and penal codes based on European models. [28] 



Turkification, expressed by Kemal as “How happy I am to be a Turk”, [29] was imposed on the whole population, regardless of their ethnic roots, language, culture, and religious practices. [30] Even until early 1990s, school children were taught “Universal Turkish History” and its complement “Sun Language Theory”, according which, all peoples and world civilisations originated from the Turks, and Turkish language was the first spoken language in the development of mankind and is the source of all existing world languages. [31] 



The Kurds in Anatolia, who at present account for over half of the Kurds worldwide and up to a quarter of Turkey’s population, [32] supported Kemal’s nationalist army in 1919-23 war on promises of “equality” and “a meaningful autonomy” in the new state. [33] As soon as the new borders of Turkey were secured in the Treaty of Lausanne, Kemal began to expel Kurdish members of the government and TBMM. [34] In March 1924, measures were issued proscribing Kurdish political, educational and cultural associations, and banning Kurdish language in a clear breach of Articles 38, 39 of the Treaty of Lausanne. [35] The wards “Kurd” and “Kurdistan” were banned as the Kurds came to be called “mountain Turks” and the Kurdish names of over 20,000 settlements were replaced with Turkish names. [36] 



The Kemalist leaders tried little to hide the ultra nationalist drive behind the imposition of Turkification on the Anatolian ethnic communities. In 1925, the Turkish Prime Minister Ismet Pasha (surnamed “Inonu” in 1934) [37] , publicly stated “[w]e are openly nationalist… Besides the Turkish majority, none of the other elements shall have any impact. We shall, at any price, Turkicize those who live in our country, and destroy those who rise up against the Turks and Turkdom.” [38] The suppression of resistance to Turkification culminated in the Dersim massacre of 1937-38, [39] which according to Bruinessen, “undoubtedly, was massive, indiscriminate, and excessively brutal”. [40] According to eye-witness accounts many tribes of Dersim, including those who surrendered, [41] as well as the population of some villages and bigger settlements were annihilated. [42] These accounts have, according to Bruinessen, been confirmed by documents published by the War History Department, which give a detailed account of the military operations. [43] 



Similar to Armenian massacres in 1915-22, this large scale mass-murder did not go unnoticed in the West. [44] However in both cases, much like the genocide of the Jews in 1939-45, the West did not raise a finger in support of the vulnerable groups. If one reason of western indifference to the atrocities perpetrated by the Turkish armed forces had been purely political, viz., Turkey was wanted to serve as a bulwark against Bolshevism; the other may have been what Leo Kuper called the “sovereign right to commit genocide” within the national borders. [45] It is not a surprise that the western states paid admiration and more attention to the secularist nature of the Kemalist regime rather than its domestic brutal practices. 



Militarism and democracy 


Twelve years after the death of the “Eternal Leader”, [46] Turkey held its first open elections which led to the victory of the opposition Democratic Party. [47] The Turkish army, which traditionally proclaims itself as “the protector of the State” and the “custodian of the Ataturk ideology”, [48] overthrew the elected government of Adnan Menderes in May 1960 and executed him along with two of his cabinet members in September. [51] The generals, driven by the statist ideology of Kemalism, brought down another elected government in 1971. [50] 



In the mid 1970s, political violence between the left and right movements was on the rise. Much of the violence was carried out by “Grey Wolves” the armed wing of the “Nationalist Action Party (MHP)”, headed by Alparslan Turkes, a leader of the 1960 coup. Martial law was imposed on much of the South-east where the left, despite army support to MHP, was particularly strong. [52] 



Justifying intervention on the basis of restoring order and ending “civil war”, [54] Turkish armed forces led by its commander, General Kenan Evren, deposed the elected government on 12 September 1980. [54] The army abrogated the constitution, closed down the parliament and all political parties, and imposed martial law throughout the country. [55] 



Possibilities of prosecuting Turkish leaders for crimes against humanity and war crimes – II 



Possibilities of prosecuting Turkish leaders for crimes against humanity and war crimes – III

Notes 



1. Quoted in Dadrian, Vahakn N., The History of the Armenian Genocide: Ethnic Conflict from the Balkans to Anatolia to the Caucasus (Oxford: Oxford University Press, 1995), p. 383. 



2. Kritz, Neil J., “Where We Are and How We Got Here: An Overview of Developments in the Search for Justice and Reconciliation”, in Alice H. Henkin (Ed.), The Legacy of Abuse: Confronting the Past and Facing the Future (Washington DC: Aspen Institute, 2002), pp. 21-46, at 24, 26. For an extensive analysis, see Roehrig, Terence, The Prosecution of Former Military Leaders in Newly Democratic Nations: The Cases of Argentina, Greece, and South Africa (Jefferson, North Carolina: McFarland and Co., 2002), pp. 1-29, 116-185. 



3. The Constitution of the Republic of Turkey, available at the official website of the Turkish parliament, Article 118 (As amended on 17 October2001), , (last visited 30 August 2006). 



4. Turkish Daily News, Editorial, “Kurdish impasse key factor in rising rate of lynchings”, TDN Ankara, 18 September 2006 (Turkish Daily News – TDN asserts that “politicians, some of Turkey’s most renowned academics, civil society representatives…” shared the assessment that the legacy of the 1980 coup “has much to do” with the rising scale of lynching and attempted lynching “directed either at people of Kurdish origin or those who have been outspoken in their defense of the Kurdish cause”). 



5. Turkish Daily News, Editorial, “Kretschmer: Military does not respect legal order”, TDN Ankara, 23 September 2006 (the EU representative in Turkey, focusing on the “dominance of the Turkish military’s role in politics”, blamed the army ad security organs for “playing their own games, outside the control of the civilian authorities, disrespecting the legal and institutional order”). 



6. The Treaty of Peace between the Allied and Associated Powers and Turkey (Signed at Sèvres August 10, 1920), Section VI, Articles 88-93, available at , (last visited 12 August 2006). 



7. Ibid, Section 111, Articles 63-65. 



8. The Surname Law, November 1934; see, Yildiz, K and G Fryer, The Kurds: Culture and Language Rights (London: KHRP, August 2004), pp. 16-7. 



9. Levene, Mark “Creating a Modern ‘Zone of Genocide’: The Impact of Nation and State-Formation on Eastern Anatolia, 1878-1923”, Holocaust and Genocide Studies, Volume 12, No.3, 1998, pp 393-433, at 433; Levene, Mark, “Why Is the Twentieth Century the Century of Genocide”, Journal of World History, Vol. 11, No. 2, 2000, pp. 305-36, at 336. 



10. “Anatolia” is roughly the Asian part of the modern Republic of Turkey, east of the Sea of Marmara, while the European part of modern Turkey is part of Eastern Thrace. See Library of Congress, Federal Research Division, “Country Profile: Turkey”, January 2006, , (last visited 08 August 2006). The word “Anatolia” will be used when necessary for its lack of ethnic connotation in lieu of “Turkey” in this paper, 



11. McDowall, David, A Modern History of the Kurds (London and New York: I.B.Tauris, 1997). 



12. Dadrian, 1995, p. 382. 



13. The Foreign Office, 371/4174/118377 (folio 253), cited in Schabas, William, Genocide in International Law (Cambridge: Cambridge University Press, 2000), p. 21. 



14. Ibid. 



15. McDowall, David, The Kurds, a Nation Denied (London: Minority Rights Publications, 1992), p. 32. 



16. Ibid. 



17. Dadrian, 1995, p. 271. 



18. Horton, George, The Blight of Asia (New York: The Bobbs-Merrill Company, 1926). 



19. The Treaty of Peace with Turkey Signed at Lausanne, July 24, 1923, , (last visited 14 September 2006). 



20. For an extensive analysis of the Western indifference towards the suffering Armenians and their cooperation with the nascent Kemalism, see generally, Bloxham, Donald, The Great Game of Genocide: Imperialism, Nationalism, and the Destruction of the Ottoman Armenians (New York: Oxford University Press, 2005). 



21. Supra, note 19, Article 140. 



22. Hofmann, Tessa, “Annihilation, Impunity, Denial: The Case Study of the Armenian Genocide in the Ottoman Empire (1915/16) and Genocide Research in Comparison”, University of Tokyo, 27 March 2004. 



23. Ibid. 



24. Article 2 of The Constitution of the Republic of Turkey, supra note 3, proclaims Turkey a “democratic, secular, and social state governed by the rule of law….loyal to the nationalism of Ataturk”. 



25. Article 4, ibid, declares that Article 2 “cannot be amended nor can its amendment be put forward.” 



26. Under the law to protect Ataturk (No. 5816 – 1951). 



27. Randal, Johnathan, After Such Knowledge, What Forgiveness: My Encounters with Kurdistan (New York: Westview, 1999), p. 252. 



28. McDowall, 1992, pp. 4-5. 



29. Randal, 1999, p. 267, p. 258; Kendal, 1980, p. 67. 



30. Randal, 1999, p. 267. 



31. Kendal, 1980, p. 68, and the list of references; Gerger, Haluk, “Crisis in Turkey”, Middle East Research Associates (MERA), Occasional Paper No. 28, December 1997. 



32. See, e.g., Michael Gunter, “Why Kurdish Statehood is Unlikely?” Middle East Policy Vol. XI No 1 Spring 2004. The CIA estimate of Kurdish percentage in Turkey is 20%; see United States Central Intelligence Agency, The World Factbook: Turkey, updated on 7 September, 2006, , (last visited 12 August 2006). 



33. Olson, Robert, “Kurds and Turks: Two Documents concerning Kurdish Autonomy in 1922 and 1923”, Journal of South Asian and Middle Eastern Studies, Vol. 15, Winter 1991, pp. 20-31. 



34. McDowall 1997, p. 198-200. 



35. McDowall 1997, p. 200; for details see Yildiz and Fryer, 2004, p.23. See Articles 38, 39 of the Lausanne Treaty, supra note 19. 



36. McDowall 1997, p. 200; As early as 2005, Turkey changed the scientific Latin names of certain animals to remove reference to “Kurdistan” and “Armenia”; see, BBC News, “Turkey renames ‘divisive’ animals”, 8 March 2005. 



37. Ismet Inonu became the first Prime Minister of Turkey in November 1923 and, after the death of Kemal Ataturk, became President from November 1938 to May 1950. After the 1960 military coup he served again as Prime Minister in November 1961- February 1965. 



38. Address to the Türk Ocaklari in Ankara, 21 April 1925. Quoted in Bruinessen, Martin van, “Genocide in Kurdistan? The Suppression of the Dersim Rebellion in Turkey (1937-38) and the chemical war against the Iraqi Kurds (1988)”, in George J. Andreopoulos (Ed.), Conceptual and Historical Dimensions of Genocide (University of Pennsylvania Press, 1994), pp. 141-170, 145, citing Güney Aslan, Üniformali kasaplar (Butchers in uniform), (Istanbul: Pencere Yayinlari, 1990). 



39. Bruinessen, 1994. 



40. Ibid. 



41. Ibid; Kendal, [cf. Nezan], “Kurdistan in Turkey”, in Gérard Chaliand (Ed.), People without a Country: The Kurds and Kurdistan (London: Zed Books, 1980), pp. 47-106, p. 67; McDowall, 1997,p. 208; Dr. Sivan, Kürt millet hareketleri ve Irak’ta Kürdistan ihtilali [Kurdish national movements and the revolution of Kurdistan in Iraq], (Stockholm, 1975), quoted in Bruinessen, 1994: (“[w]omen and children of [the tribes who surrendered] were locked into hayshed and burnt alive”). 



42. M. Nuri Dersimi, Kürdistan tarihinde Dersim [Dersim in the history of Kurdistan], (Aleppo, 1952). Quoted in Bruinessen, 1994: (“the inhabitants of Hozat town…men, women and children, were brought near the military camp outside Hozat and killed by machine gun”). 



43. Bruinessen, 1994. 



44. Report from the Pro-Consul in Trebizond to Sir Percy Loraine, ‘Memorandum on military operations in Dersim, 27 September 1938’ (Great Britain, Public Records Office, FO 371/21925, Document E5961/69/44), quoted in McDowall, 1997, p. 209; and Bruinessen, 1994 (in one paragraph the British report reads: “the military authorities have used methods similar to those used against the Armenians during the Great War: thousands of Kurds including women and children were slain, others, mostly children, were thrown into the Euphrates… It is now stated that the Kurdish question no longer exists in Turkey”). 



45. Leo Kuper, “The Sovereign Territorial State: The Right to Genocide”, in R.P. Claude and B.H. Weston (Eds.), Human Rights in the World Community (Philadelphia: University of Pennsylvania Press, 1989), pp. 56-64. 



46. Ataturk was referred to as “Ebedi Sef” meaning the Eternal Leader; see, Kendal, 1980, p. 71. 



47. Ibid, p. 78. 



48. On the role of military in Turkish politics, see, Rouleau, Eric, “Military with Political Power: Turkey’s Modern Pashas”, Le Monde Diplomatique, September 2000; Ozcan, Gencer, “The Military and the Making of Foreign Policy in Turkey”, in Kirisci, Kemal and Barry Rubin, (Eds.): Turkey in World Politics: An Emerging Multiregional Power, London: Lynne Rienner Publishers, 2001), pp. 16-20. 



49. Kendal, 1980, p. 79. 



50. Gerger, 1997 



51. Ibid. 



52. Ibid. 



53. See the Preamble to 1982 Constitution, supra note 3, before it was amended in June 1995: “Following the operation carried out on 12 September 1980 by the Turkish Armed Forces in response to a call from the Turkish Nation, of which they form an inseparable part, at a time when the approach of a separatist, destructive and bloody civil war unprecedented in the Republican era threatened the integrity of the eternal Turkish Nation and motherland and the existence of the sacred Turkish State.”, the full online text is available at , (last visited 12 September 2006). 



54. United Kingdom Home Office, “Country Report: Turkey”, Country Information and Policy Unit, October 2003, para. 4.1 [hereinafter UK HO 2003]. 



55. Ibid 




Forced Disappearances in Sri Lanka Constitute a Crime Against Humanity

Cyberspace Graveyard for Disappeared Persons
 
 

 


Forced Disappearances in Sri Lanka Constitute a Crime Against Humanity

Laura Black

(B.A. in Economics – Bucknell University
Law Graduate – Harvard University)

I. Executive Summary

This paper has two purposes. First, it argues that the enforced disappearances, murder, and torture that occurred in Sri Lanka constitute a crime against humanity. And second, it argues that an international tribunal must be established to address these atrocities because the legal system within the country is currently incapable of effectively prosecuting these crimes.

The actions that occurred in Sri Lanka clearly constitute crimes against humanity.

For an action to constitute a crime against humanity, several requirements must be met: it must be one of a limited number of crimes generally considered to warrant the label; it must be widespread or systematic in nature; and it must involve the government. The crimes against humanity enumerated in international instruments include murder, torture, enforced disappearance, extermination, arbitrary imprisonment, and persecution on political grounds. Each of these crimes was committed in Sri Lanka. Mass graves, torture chambers, illegal detention centers, testimony from the families of thousands of missing persons, and the government’s goal of removing political opposition testify to it.

Furthermore, these crimes were committed on a widespread scale. The Sri Lankan government has estimated that there were over 26,000 victims, while unofficial estimates put the number as high as 60,000. It is also clear that these crimes were part of a systematic attack planned at the highest levels of government and implemented through the police and army. There can be no doubt that a crime against humanity has occurred.

Despite the seriousness of the crimes and the enormous number of victims, these crimes against humanity have not been effectively addressed. The entire legal system was used in the campaign of disappearances making internal prosecution impossible despite the efforts of the new government. The fact-finding commissions established by the government have uncovered information on appalling atrocities, but little action has been taken. Similarly, the interventions that UN agencies have made thus far have proven insufficient. More decisive action is required.

To address these crimes effectively, an international tribunal must be established. Both the seriousness and the number of offenses warrant such an approach. Recently, the International War Crimes Tribunal in The Hague sentenced a former Bosnian Croat general to 45 years in prison for the deaths of 100 people. The deaths of 30,000 Sri Lankans are no less valuable. Only with greater international assistance, preferably in the form of establishing an international tribunal, can the perpetrators be brought to justice and a sense of law and order restored in Sri Lanka.

II. Foreword: undisputed facts

It should be highlighted at the outset that these facts are not disputed by the government of Sri Lanka. Most of the disappearances occurred under a former government, and after a new government came to power, it established several fact-finding Commissions of Inquiry into the Voluntary Removal or Disappearance of Persons. The information here is drawn from the Interim Reports and Final Reports of these Commissions. [1]

  1. Forced disappearances in Sri Lanka constitute a crime against humanity

A. The situation in Sri Lanka is deplorable

The enforced disappearances in Sri Lanka present a uniquely abhorrent factual situation:

  • A large number of disappeared persons: estimates range from 26,877 to 60,000persons
  • A large number of child victims: approximately 15% of victims were children below the age of 19
  • Involvement at the highest political levels: the entirety of the legal enforcement mechanism was utilized
  • The methods utilized: illegal detention and torture centers
  • The purpose of the enforced disappearances: extrajudicial killing and elimination of evidence

The disappearance of tens of thousands of people in Sri Lanka was not a campaign by a hostile foreign enemy, nor was it part of a bloody civil war or revolution. It was a campaign by a democratically-elected government to remove opposition. The victims need not have even been involved with insurgents, attending a meeting or a speech, or even reading a book, was sufficient to be targeted for extrajudicial killing. Many of the victims were outside the insurgency movement; some victims were simply members of legally recognized opposition parties. Many were just children.

The police and army came for the victims not only at night, but at any time of the day.[2] Sometimes, the victims were abducted by men who came in unmarked cars and acted with impunity. Sometimes, the victims were arrested for questioning and subsequently disappeared, what may be called “voluntary removal.” In the town of Trincomalee, residents were told to report to a stadium one morning, and police then picked certain persons out of the crowd, blind-folded them, and transported to Plantain Point Army Camp. One victim who was released told of the torture; other victims were never heard from again, despite inquiries by their families. [3]

As this example illustrates, the victims in Sri Lanka were not only abducted, but were normally murdered and often tortured as well. A commission established Sri Lanka stated, “Disappearance is in our finding only a euphemism for a killing, a reality that the absence of recovery of the body should not be allowed to obscure.” [4] In fact, death certificates have been issued for persons where the Commission has been satisfied that they had been involuntarily removed, and compensation has been paid to the victims’ families.[5] Many of the bodies have been recovered, however, in over a dozen mass graves.[6]   There have also been instances of mass executions. A well-known instance is the massacre at Mahawatte, Kandy, where at least 54 persons were killed in one night.

Many of the bodies showed signs of torture. In some cases, the government sought to have the fact of torture be common knowledge. Disfigured heads and bodies were displayed openly to serve as a warning to the public. Such atrocities became commonplace. [7] The existence of at least eight such torture chambers was discovered by a Commission investigating disappearances in four provinces. [8] At a torture chamber at St. Sylvester’s College in Kandy, evidence showed that about 1,000 persons were detained in this camp and systematically tortured before being taken away and killed. [9]

Perhaps most disturbingly, 15% of victims were children below the age of 19.[10]

The ruling party has a perception that the JVP targeted outstanding youth at the village level, and this perception was enough to cause the government to indiscriminately eliminate outstanding youth at the community level. The police and army would sometimes take young girls in place of fathers, and often children were abducted and killed along with their parents. Sometimes, the motives were personal, as in the abductions of young girls for sexual abuse, and the breakdown of the system allowed officials to act with impunity.[11] Any assertions by the government that their actions were compelled by an interest of self-defense and a need to maintain control against insurgent Janatha Vimukthi Peramuna (JVP) appear ludicrous in the face of slaughter of children. [12]

These acts of violence were perpetrated on the authority of the government, and involved the entire legal enforcement machinery. Leading politicians, such as a Chief Minister of a Province and a Cabinet member on the government, have been named as playing a part in removals.[13] Two senior officials, one from the police and one from the army, have testified under oath of the role played by politicians of the governing party preparing “lists” of names for executions.[14] A Commission established by the government stated that it was of the opinion that the disappearances/killings of these persons have been with the knowledge and tacit approval of the Government in power at that time.[15]

The widespread government involvement can be seen in the impunity with which the police acted, and the existence of multiple illegal detention and torture centers. The abductions often occurred during the day with men taking victims away in unmarked cars. Mourning families filed missing person reports and made personal pleas at the homes of government officials for information on their loved ones, all to no avail. One father stated, “I went to the police 76 times, but we were driven away like dogs.”[16] Cases of disappearances were dismissed without criminal investigation. [17]

Although not as common as in the late 1980s, disappearances continue today. And despite government commissions appointed to study the disappearances, most of the perpetrators have not been put to justice. The international community must act on this crime against humanity.

  1. The actions of the government constitute crimes against humanity

1. Comparison to other crimes against humanity

Other recently condemned violations of human rights pale in comparison to the widespread nature of the atrocities in Sri Lanka:

  • The International War Crimes Tribunal in The Hague recently sentenced Former Bosnian Croat general Tihomir Blaskic to 45 years in prison for his key role in an incident where more than 100 people were killed. [18]
  • The Düsseldorf High Court last year sentenced former leader of a paramilitary Serb group Nikola Jorgic to life imprisonment. He had been convicted in 1997 of eleven counts of genocide and 30 counts of murder. [19]
  • The British House of Lords recently ruled that Former Chilean dictator General Augusto Pinochet could be extradited for the crimeof torture. The total number of dead or disappeared was 3197, but Pinochet benefited from immunity as head of state for almost all of the crimes committed under his regime. [20]

Despite the much larger number of victims in Sri Lanka than in any of these incidents, the disappearances there have not attracted the same amount of international attention and outrage. This is especially inexplicable when seen in light of the similarities with the case of General Pinochet. Both situations involved large-scale disappearances, torture, and murder at the hands of government officials. However, whereas there were about 3000 victims of the Pinochet regime, there have been over 30,000 in Sri Lanka. Although he has yet to stand trial due to his physical condition, the case of General Pinochet of Chile has aroused a level of international attention that the case of disappearances in Sri Lanka has lacked. The enforced disappearance of approximately 30,000 must be treated and addressed like the crime against humanity that it is.

2. Legal basis for crimes against humanity

The disappearance, and attendant torture and murder, of tens of thousands of people in Sri Lanka constitutes a crime against humanity. Both common sense and international precedent dictate this result. As discussed in further detail below, the crimes against humanity which occurred Sri Lanka include

  • Murder;
  • Torture;
  • Enforced disappearance of persons;
  • Extermination;
  • Imprisonment or severe deprivation of physical liberty in violation of fundamental rules of law (arbitrary imprisonment); and
  • Persecution on political, racial, religious or ethnic grounds.

The occurrence of one of these crimes, however, does not automatically make it a crime against humanity.

For any of these actions to be considered a crime against humanity, two basic elements must be shown:

  • Widespread or systematic nature and
  • Government involvement.

For example, the Rome Statute of the International Criminal Court defines “crime against humanity” as one of a number of specified acts “when committed as part of a widespread or systematic attack against any civilian population, with knowledge of the attack.” [21] Similarly, the Draft Code of Crimes Against the Peace and Security of Mankind defines “crime against humanity” as one of a number of specified acts “when committed in a systematic manner or on a large scale and instigated or directed by a Government or by any organization or group.” [22] A somewhat more restrictive definition can be found in the Resolution Concerning the Establishment and Statute of the International Criminal Tribunal for Rwanda, which defines “crime against humanity” as one of a number of crimes “when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds.”[23]

The activity in Sri Lanka clearly meets the standards, whether broadly or narrowly defined. The disappearances were certainly widespread in scale, as they involved tens of thousands of people, and were systematic as well. A report produced by one of the commissions established in Sri Lanka states that

The common features of the narration by thousands of humble petitioners in respect of thousands of abductions and disappearances bore powerful witness to the fact that what we were looking at was an orchestrated phenomenon and not a series [of] isolated instances explicable in terms of ‘excesses’ by individual transgressors.[24]

As discussed in the background facts section above, the disappearances were clearly orchestrated by the government against civilians. And, although some perpetrators took advantage of the lawless situation to commit crimes for personal reasons, the original motivation was political and most transgressions had this motivation, as required by the Statute for Rwanda.

To be considered a crime against humanity, a crime must be sufficiently serious in degree and be enumerated in the relevant convention. Reiterating the list above, the crimes against humanity that are relevant to the situation in Sri Lanka include murder; torture; enforced disappearance of persons; extermination; imprisonment or severe deprivation of physical liberty in violation of fundamental rules of law (arbitrary imprisonment); and persecution on political grounds. Any of these crimes individually could constitute a crime against humanity. The occurrence of several of these crimes compounds the urgency with which the Sri Lankan situation must be addressed.

a. The crime of murder

Murder is one of the original crimes against humanity, dating from the Nuremberg Charter.[25] The Principles of the Nuremberg Tribunal provides that certain crimes are punishable as crimes under international law as crimes against humanity:

Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crimes.” [26]

Initially associated with crimes committed during times of war, crimes against humanity have now become autonomous crimes. [27] The Statute of the International Criminal Court, [28] the Statute on Rwanda,[29] and the Draft Code of Crimes Against the Peace and Security of Mankind [30] all list murder as a crime in its own right, dissociated with crimes against peace and war crimes. There is no doubt that crime of widespread and systematic murder was committed in Sri Lanka, as evidenced by the mass graves and the discovery of thousands of bodies.

Not only have crimes against humanity become independent crimes, the types of actions that constitute crimes against humanity have expanded since Nuremberg. Acknowledging this expansion, the Commentary accompanying the International Law Commission Report concerning the Draft Code of Crimes Against the Peace and Security of Mankind states:

The definition of crimes against humanity combined in article 18 is drawn from the Nürnberg Charter as interpreted and applied by the Nürnberg Tribunal, taking into account subsequent developments in international law since Nürnberg.[31]

Crimes such as torture and enforced disappearance, discussed in depth below, have also become crimes against humanity. [32]

b. The crime of torture

Torture is one of the most established crimes against humanity and is defined as a crime against humanity in the Statute on Rwanda[33] , the Draft Code of Crimes Against Peace[34] ,and the Statute of the International Criminal Court. [35] The Statute provides this definition of “torture”:

“Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.[36]

The evidence that torture was committed is plentiful: eyewitness testimony from persons who were released after detention; the discovery of torture centers; and physical evidence on the bodies exhumed from mass graves as well as those on display as public warnings plainly showing the signs of severe physical pain and suffering. This pain and suffering did not arise from lawful sanctions. The disappeared persons were held illegally, and in any event, the physical abuse evident on the bodies is beyond what could be legally inflicted upon a prisoner. It is clear that the crime of torture was committed.

The crime of torture has recently received much attention due to the high profile accusations against General Augusto Pinochet of Chile and the recent case before the British House of Lords seeking his extradition to Spain. The House of Lords discussed the seriousness of the crime of torture. Lord Browne-Wilkinson quoted as follows from a case before the Tribunal for the Former Yugoslavia:

“Because of the importance of the values it protects, [the prohibition of torture] has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even ‘ordinary’ customary rules.”[37]

Quoting an American court, the Lord continued

International law provides that offenses jus cogens may be punished by any state because the offenders are “common enemies of all mankind and all nations have an equal interest in their apprehension and prosecution.”[38]

The international community must take action to redress the crimes of torture in Sri Lanka.

Although the international crime of torture existed at a preeminent level even before enactment of the Convention, the Torture Convention provided an international system to prevent the torturer from escaping punishment.[39] The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines torture in much the same way as the definition in the Draft Code discussed above. [40] It also provides that “[n]o exceptional circumstances whatsoever, whether a state of war or a threat or war, international political instability or any other public emergency, may be invoked as a justification of torture.” [41] The government of Sri Lanka clearly violated the Convention Against Torture and no excuse is available for their actions.

International treaties as well as the Pinochet case clearly support the finding that torture was committed in Sri Lanka and that this torture constitutes a crime against humanity. The British House of Lords found that the atrocities committed under Pinochet, if proven true, would constitute crimes against humanity and violations of the Torture Convention, and a different determination by the international community concerning the disappearances in Sri Lanka would be completely unfounded.

c. The crime of enforced disappearance

Enforced disappearance, which forms the basis of the charges against the Sri Lankan officials, is also a crime against humanity and is defined as such in several international instruments. These include the Resolution on Rwanda, [42] the Statute of the International Criminal Court; [43] and the Draft Code of Crimes Against the Peace and Security of Mankind. [44] The Statute Of the International Criminal Court provides a definition, which is rather standard, for “enforced disappearance”:

[T]he arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or political organization, followed by a refusal to acknowledge the deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time. [45]

The disappearances in Sri Lanka clearly meet these conditions. The victims were either abducted and detained, or arrested for questioning and then detained. Authorization and support came from several levels of the government. Families inquired about missing persons, but the police and government officials normally refused to acknowledge the abductions and always withheld information on their circumstances. The victims were also removed from the protection of law for prolonged periods of time, usually forever, in fact. The situation in Sri Lanka clearly meets the definition.

The Inter-American Convention on Forced Disappearance of Persons of the Organization of American States also provides support for treating disappearance as a crime against humanity. The Convention “[r]eaffirm[s] that the systematic practice of the forced disappearance of persons constitutes a crime against humanity” and “[c]onsider[s] that the forced disappearance of persons is an affront to the conscience of the Hemisphere and a grave and abominable offense against the inherent dignity of the human being.” [46] This “reaffirmation” shows that treating disappearances as a crime against humanity is not a novel approach. The Convention defines forced disappearance in much the same way as the Statute of the International Criminal Court. [47]

Even before the instruments discussed above specifically labeled disappearances as a crime against humanity, there was support for such a notion. Although the Nuremberg Charter did not expressly enumerate enforced disappearances as a crime against humanity, the Tribunal convicted Wilhelm Keitel of this crime, invented by Adolph Hitler. [48] And the UN Declaration on the Protection of All Persons from Enforced Disappearances, written before the instruments discussed above, states that the “systematic practice of [enforced disappearance] is of the nature of a crime against humanity.” [49]

The crime of enforced disappearance has always been a crime of severe magnitude, and is now firmly established as a crime against humanity. The facts surrounding the situation in Sri Lanka show that this crime was committed and must be treated as a crime against humanity.

d. Other crimes

Related to the crime of murder, yet a crime in its own right, is that of extermination. In addition to appearing in the Nuremberg Charter, extermination is also enumerated as crime against humanity in the Statute on Rwanda [50] and the Draft Code of Crimes Against the Peace and Security of Mankind. [51] The commentary in the International law Commission Report accompanying the Draft explains that extermination, by its nature, is directed against a group of individuals. It states

In addition, the act used to carry out the offense of extermination involves an element of mass destruction which is not required for murder. In this regard, extermination is closely related to the crimes of genocide in that both crimes are directed against a large number of victims. However, the crime of extermination would apply to situations that differ from those covered by the crime of genocide. Extermination covers situations in which a group of individuals who do not share any common characteristics are killed. It also applies to situations in which some members of a group are killed while others are spared.[52]

Large groups of people were rounded up and killed in Sir Lanka. Although perhaps not fully aware of the legal definition, government officials specifically discussed their goal of exterminating JVP ” …You cannot do these things under the normal law. It takes a lot of time. By the time my good friends who are lawyers take time to solve these things the match will be over…We have finished the first eleven and the second eleven. Now we are tackling the under fourteen fellows. [53]

The crime of arbitrary imprisonment was also committed in Sri Lanka. After being abducted, the victims were normally kept in illegal detention centers in violation of all legal rights for varying lengths of time before their execution. The Statute on the International Criminal Court also includes “[i]mprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law”; [54] the Statute on Rwanda includes imprisonment in the context of widespread or systematic attack against civilian population on national, political, ethnic, racial or religious grounds; [55] and the Draft Code of Crimes against the Peace and Security of Mankind lists “arbitrary imprisonment” as a crime against humanity.[56] The situation in Sri Lanka satisfies all three instruments.

Finally, because the government’s intent was to remove political opposition, the crime of “persecution on political, racial, religious or ethnic grounds” was committed in Sri Lanka. This has been characterized as a crime against humanity in the Nuremberg Charter, [57] Nuremberg Principles,[58] Statute on Rwanda,[59] and the Draft Code of Crimes Against the Peace and Security of Mankind. [60] The Draft Code explains that

The inhumane act of persecution my take many forms with its common characteristic being the denial of the human rights and fundamental freedoms to which every individual is entitled without distinction as recognized in the Charter of the United Nations (Articles 1 and 55) and the International Covenant on Civil and Political rights (article 2). [61]

The victims of disappearances in Sri Lanka were denied of every basic right, and were clearly persecuted. The crime of persecution provides yet another basis for calling the actions by the government in Sri Lanka a crime against humanity.

C. The actions of the government constitute gross violation of human rights

The disappearances in Sri Lanka must surely be classified among the “gross violations of human rights” condemned by Secretary General Kofi Annan. During last year’s Human Rights Commission meeting, he stated:

No government has the right to hide behind national sovereignty in order to violate the human rights or fundamental freedoms of its peoples. Whether a person belongs to the minority or the majority, that person’s human rights and fundamental freedoms are sacred. [62]

Although the statement was made in the context of dealing with minorities, the meaning is clear. Governments and their officials will be held accountable for the atrocities they commit against their own people.

D. The situation of child victims must be addressed

Although the actions in Sri Lanka obviously violate numerous other conventions relating to the rights of adults, [63] it is the violation of those conventions protecting the rights of children that is most disturbing. States are to extend particular care and assistance to children under international instruments such as the Convention on the Rights of the Child; [64] Declaration of the Rights of the Child;[65] Universal Declaration of Human Rights;[66] International Covenant on Civil and Political Rights; [67] and the International Covenant on Economic, Social and Cultural Rights.[68] In particular, children should not be punished or discriminated against based on status, activities, expressed opinions, or beliefs of family members.[69] Not only were children in Sri Lanka not given “particular care,” they did not even receive the basic, minimum rights guaranteed to adults. Other provisions concerning children, such as those securing education and social security, have no chance of being attained in a climate where children’s lives are at risk.

Article 37 of the Convention on the Rights of the Child is particularly applicable. It provides that

  • “No child shall be subject to torture or other cruel, inhuman or degrading treatment or punishment”;[70]
  • “No child shall be deprived of his or her liberty unlawfully or arbitrarily” and that the “arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”;[71]
  • “Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age”; [72] and
  • “Every child deprived of liberty shall have the right to legal and other appropriate assistance.”[73]

Every one of these rights was violated by the forced disappearances and murders in Sri Lanka. The enforced disappearance and extrajudicial killing of thousands of children requires action by the international community.

IV. The situation in Sri Lanka requires action by the international community

A. Need for criminal investigation

Three commissions have been established within Sri Lanka, but to no avail. The commissions have made their recommendations, but no legislation has been considered for implementing them. [74] All three commissions have recommended a special prosecutor. However, this will be of little use because the two functions of investigation and prosecution are separate under Sri Lanka law, and the system is currently incapable of properly performing these investigations. The collapse of the integrity of the system has made accurate investigation of perpetrators impossible.

During the height of the disappearances, police did not carry out investigations due to the complicity of many police and government officials. Although control of the government has changed hands, many lower level officials and police officers still retain their positions. During a discussion of police involvement, several people commented to one of the commissions that being a good police officer invites trouble, and such officers become victims of unjust transfers and other forms of discrimination. Because people close to powerbrokers are appointed to various commissions, it becomes impossible to challenge an unfair transfer order. Even when officers have been transferred, the structural damage to the system has thwarted the search for the truth. Sasanka Perera, a university lecture, concluded, “People [the police officers] were transferred out, but the institution remained the same. Policemen did not know how to investigate.” [75] The system has broken down to such an extent that the country is no longer able to investigate even normal crimes, let alone ones so serious as the disappearances.

The Sri Lankan justice system, as it exists now, is unable to handle adequately the criminal investigation and to foster a sense of justice among the population. One of the Commission reports states

Most of the Complainants do not seem to be interested in receiving compensation as much as seeing those responsible being punished. Some of such persons continue to be serving in the very same areas [,] some in higher positions than before. The anguish and anxiety of the complainants, who keep asking us what happened after the inquiry, is understandable as no action appears to have been taken against the persons whom they have mentioned as responsible at the inquiries before this Commission. [76]

The result of the government’s use of the entire legal enforcement machinery in its campaign of mass disappearances is a system that cannot recover without outside assistance.

B. Role of the international community

Action by the international community is needed at several levels. First, the United Nations Working Group on Enforced and Involuntary Disappearances can conclude that the disappearances are crimes against humanity and take action on this basis. In the past, the recommendations of the Commission concerning Sri Lanka have largely been ignored. The United Nations Working Group agreed in a 1999 recommendation to take up the issue of a criminal investigation, but little progress has been made. To resolve the crimes committed in Sri Lanka, the Commission must take a stronger and more active position, namely advocating establishing a tribunal.

The United Nations High Commissioner for Human Rights can also play a part in redressing these crimes by first seeking a mandate from the United Nations Human Rights Commission and the Security Council to proceed on the matter of disappearances in Sri Lanka on the basis that a crime against humanity has taken place. The Secretary General likewise can appeal to the Security Counsel for a tribunal to be established, both on the basis of the situation in Sri Lanka being a crime against humanity and a gross violation of human rights.

To establish a Tribunal, the United Nations can either get the consent of the Sri Lankan or get a resolution from the Security Council. The Sri Lankan government has shown a commitment to try these crimes, and should be amenable to allowing the United Nations to take control. The government has the desire to rectify the situation–it has made a commitment to both the United Nations and to the Sri Lankan people to bring the perpetrators to justice–but it needs assistance in restoring order within its legal system.

At this point, two alternatives are available: abandoning these cases without remedies or trying the cases under international law by a Tribunal established by the United Nations. When one considers the seriousness of the crime, however, only one alternative is viable. The victims of the disappearances were robbed of their most basic rights, were tortured, were murdered, and were even robbed of a proper burial. Their families have suffered the psychological trauma of not knowing what happened to their loved ones, and continue to suffer, along with the justice system of Sri Lanka, as long as the perpetrators go unpunished. The only solution is to establish an international tribunal and restore the system of justice in Sri Lanka.

Laura Black , the primary author of this piece, recently graduated, cum laude, from Harvard Law School. She also holds a B.A. in economics, summa cum laude, from Bucknell University.


1 The information in this paper comes primarily from the following reports: The Final Report of the Commission of Inquiry into Involuntary Removal or Disappearance of Person in the Western, Southern and Sabaragamuwa Provinces (Sept. 1997) [hereinafter Final Report of Western]; Final Report of the Commission of Inquiry into the Voluntary Removal or Disappearance of Persons in the Northern & Eastern Provinces (Sept. 1997) [hereinafter Final Report of Northern]; and Interim Reports of the Commission of Inquiry into the Voluntary Removal or Disappearance of Persons in the Central, North Western, North Central and UVA Provinces (Sept. 1997) [hereinafter Interim Report of Central]. >Back to text
2 Final Report on Western, Chpt. 3, figure 3. >Back to text
3 Final Report of Northern, pp. 16-19. >Back to text
4 Final Report of Western, p. 27. Back to text
5 Interim Report of Central. Interim Report–II, pp. 5-7. Back to text
6 The Final Commission Report for the Western, Southern and Sabaragamuwa Provinces discusses the presence of twelve mass graves: the Hokandra Mass Grave; Essella School Mass Grave; Walpita Government Farm Mass Grave; Ambagahahenakanda Mass Grave; Bemmulla Mass Grave; Kottawekella, Yakkalamulla Mass Grave; Dickwella Mass Grave at Heendeliya; Diyadawakelle, Deniyaya Mass Grave; Wilpita Akuressa Mass Grave; Angkumbura Mass Grave; and Suriyakanda Mass Grave. Final Report of Western, p. 117. Two more mass graves have been discovered since the report was made: Chemmani Mass Grave and the Mamadala Mass Grave. “A Memorandum to the Working Group on Enforced or Involuntary Disappearances from Asian Legal Resource Centre, Hong Kong” (11 Feb. 1999), p. 17, ftnt. 13-14. >Back to text
7 Final Report of Western, p. 34. Back to text
8 “Torture chambers” existed at the following locations: St. Sylvester’s College at Kandy; YMCA at Welimada; Community Centre (Praja Salawa) at Moneragala; Sudampaya at Anamaduwa; Hali Ela Motors at Badulla; Beragala Army Camp, Haputale; Paddy Marketing Board Stores at Walapane; and St. Ritas Camp, Nuwara Eliya. Interim Report of Central, Interim Report–VII, p 20. Back to text
9 Interim Report of Central, Interim Report–II, p.5 (internal citation omitted). Back to text
10 Final Report of Western, Chpt. 3, Table 4. >Back to text
11 Final Report of Western , p 122. Back to text
12 In light of a statistic that 14% of the disappearances involved children below the age of 15, Mrs. Muttetuwegama asked, “Can the war theory, which maintains that the police and military acted in self-defence, stand in the face of these naked statistics?” Interim Report of Central, Interim Report, p 15. Back to text
13 Interim Report of Central, Interim Report–IV, p. 11. Back to text
14 Final Report on Western, p 37. Back to text
15 Interim Report of Central, Interim Report–II, p. 7. Back to text
16 Final Report of Western, p 155. Back to text
17 Interim Report of Central, Interim Report–II, p. 4, pt. F (“When persons went to the Police Station to complain about the removals they were usually driven away and their complaints were not recorded.”) and g (“complaints of abductions in most cases had been entered in the Minor Offenses Information Book of the Police Station”). Back to text
18 Blaskic was charged with trying to ethnically cleanse central Bosnia of Muslims. He was found guilty of all but one of 20 counts of crimes against humanity, war crimes and grave breaches of the 1949 Geneva Convention. “Hague tribunal sentences Bosnian general,” and “General guilty of Bosnia war crimes,” BBC News, available at <<news2.thls.bbc.co.uk/hi/english/world/europe/newsid%5F665000/665158.stm>> (visited 3/6/2000). Back to text
19 The Pinochet Precedent: How Victims Can Pursue Human Rights Criminals Abroad,” Human Rights Watch (March 2000), available at << www.hrw.org/ campaigns/chile98/brochfn1.htm>> (visited 3/6/2000). Back to text
20 According to an official report by the civilian government that succeeded Pinochet, 3,197 people were killed or disappeared under his rule after he seized power in 1973 in a bloody coup against elected Marxist president Salvador Allende, available at << www.cnn.com/2000/WORLD/europe/03/02/pinochet.05/index.html >> (visited March 3, 2000); and House of Lords, Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet, Regina v. Evans and Another and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet (On Appeal from a Divisional Court of the Queen’s Bench Division) (24 March 1998), available at <<www.parliament.the-stationery-office.co.uk/pa/ld/ldhome.htm>> (visited March 9, 2000). Back to text
21 Rome Statute of the International Criminal Court [as corrected by the procés-verbaux of 10 November 1998 and 12 July 1999], Part 2, Art. 7(1). “Attack against any civilian population’” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population pursuant to or in furtherance of a State or organization policy to commit such attack.” Id. At Part 2(2)(a). Back to text
22 Draft Code of Crimes Against the Peace and Security of Mankind, International Law Commission Report, 1996, Chpt. II, Art. 18. Back to text
23 Resolution 955 Concerning the Establishment and Statute of the International Criminal Tribunal for Rwanda, S/RES/955 (1994), 8 November 1994 (Adopted by the Security Council at its 3453rd meeting, on 8 November 1994), Art. 3. Back to text
24 Final Report of Western, p. 32. Back to text
25 Charter of the International Military Tribunal at Nuremberg (1945), Art. 6(c). Back to text
26 Principles of the Nuremberg Tribunal, 1950, No. 82
Principles of Law Recognized in the Charter of the Nuremberg Tribunal in the Judgment of the Tribunal. Adopted by the International Law Commission of the Untied Nations, 1950, Principle VI (c). Back to text
27 International Law Commission Report, 1996, Draft Code of Crimes Against the Peace and Security of Mankind, Chpt. II, Commentary, Pt. 6 (citing, inter alia, Prosecutor v. Dusko Tadic, Decision of the Appeals Chamber on the Defence Motion for Interlocutory Appeal on Jurisdiction, p. 73 (“It is by now a settled rule of customary law that crimes against humanity do not require a connection to international armed conflict.”); and Pinochet, House of Lords, opinion of Lord Browne-Wilkinson, (citing Oppenheim’s International Law (Jennings and Watts edition), vol. 1, 996; note 6 to Article 18 of the I.L.C. Draft Code of Crimes Against Peace; Prosecutor v. Furundzija, Tribunal for Former Yugoslavia, Case No. 17-95-17/1-T), opinion of Lord Slynn, and opinion of Lord Millet. Back to text
28 Part 2 (1)(a). Back to text
29 Art. 3(a). Back to text
30 Art. 18(a). Back to text
31 International Law Commission Report, 1996, Chpt. II, Draft Code of Crimes Against the Peace and Security of Mankind. >Back to text
32 A recent article by Human Rights Watch also notes this expansion in the notion of crimes with universal jurisdiction. “The Pinochet Precedent: How Victims Can Pursue Human Rights Criminals Abroad,” March 2000, Human Rights Watch, available at << http://www.hrw.org/ >> (visited 3/2/2000) (“Since the end of World War II, the list of crimes giving rise to universal jurisdiction has grown to include many atrocities committed within national borders, such as genocide, torture, ‘apartheid’ and other ‘crimes against humanity.'”). >Back to text
33 Art. 3(f). Back to text
34 Art. 18(b). Back to text
35 Art. 7 (1)(f). Back to text
36 Art. 7 (2)(e). Back to text
37 Pinochet, House of Lords, opinion of Lord Browne-Wilkinson (page numbers not available) (citing Furundzija, Prosecutor v. Furundzija, Tribunal for Former Yugoslavia, Case No. 17-95-17/1-T, para. 153). Back to text
38 Id. (citing Demjanjuk v. Petrovsky, 776 F. 2d 571 (1985)). Back to text
39 Id. Back to text
40 Convention Against Torture and Other Cruel, Inhuman or Degrading treatment or Punishment, adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 Dec. 1984 (entered into force 26 June 1987), Part I, Art. 1. Back to text
41 Id. at Part I, Art. 2(2). Back to text
42 Resolution concerning the establishment and statute of the International Criminal Tribunal for Rwanda, S/RES/955(1994), 8 November 1994 (Adopted by the Security Council at its 3453rd meeting, in November 1994. >Back to text
43 Rome Statute of the International Criminal Court [as corrected by the procés-verbaux of 10 November 1998 and 12 July 1999], Part 2, Art. 7 (1)(i). Back to text
44 Draft Code of Crimes Against the Peace and Security of Mankind, Art. 18. The Commentary noted that “[a]lthough this type of criminal conduct is a relatively recent phenomenon, the present Code proposes its inclusion as a crime against humanity because of its extreme cruelty and gravity.” International Law Commission Report, 1996, Chpt. II, Art. 18, Commentary, pt. 15. >Back to text
45 Id. at Art. (7)(2)(i). Back to text
46 Inter-American Convention on Forced Disappearance of Persons (entered into force March 29,1991), Preamble, on deposit with OAS General Secretariat, available at <<http://www.cidh.org/basic.htm>> (visited on 3/9/2000). Back to text
47 The Convention provides:

For the purposes of this Convention, forced disappearance is considered to be the act of depriving a person or persons of his or their freedom, in whatever way, perpetrated by agents of the state or by persons or groups of persons acting with the authorization, support, or acquiescence of the state, followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees.

Id. at Art. II. Back to text

48 Amnesty International- Report- EUR 45/01/99, “United Kingdom: The Pinochet Case–Universal Jurisdiction and the Absence of Immunity for Crimes Against Humanity (January 1999), p. 7 (citing Judgment of the International Military Tribunal for the Trial of German Major War Criminals (with the dissenting opinion of the Soviet Member)- Nuremberg 30th September and 1st October 1946, Cmd. 6964, Misc. No. 12 (London: H.M.S.O. 1946), pp. 48-49)) available at << www.amnesty.org/ailib/aipub/1999/EUR/44500199.htm >> (visited 2/16/2000). >Back to text
49 UN Declaration on the Protection of All Persons from Enforced Disappearances, G.A. res. 47/133, 47 U.N. GAOR Supp. (No. 49) at 207, U.N. Doc. A/47/49 (1992) (adopted 18 Dec. 1992), Preamble, para. 4. Back to text
50 Art. 3(b). Back to text
51 Art 18(a). Back to text
52 International Law Commission Report, 1996, Chpt. II, Draft Code of Crimes Against the peace and Security of Mankind, Commentary Pt. 8. Back to text
53 Hansard, Sri Lanka, Volume 62 column 1249, proceedings of 25.01.90. Back to text
54 Part 2, (1)(e). Back to text
55 Art. 3 (e). Back to text
56 Art 18(h). Back to text
57 Nuremberg Charter, art. 6(c). Back to text
58 Nuremberg Principles, Principle VI. >Back to text
59 Statute on Rwanda, art. 3, Back to text
60 Draft Code of Crimes Against the Peace and Security of Mankind, art. 18(e). The Commentary to the Code also lists the Nuremberg Control Council Law No. 10, art. II, para. C, and the 1954 Draft Code, art. 2, para. 11, as providing that this crime constitutes a crime against humanity. International Law Commission Report, 1996, Chpt II, Draft Code of Crimes Agaisnt the Peace and Security of mankind, Art 18, Commentary, pt. 11. >Back to text
61 Id. Back to text
62 Press Release SG/SM/6949 HR/CN/898, “Secretary-General Calls for renewed Commitment in New Century to Protect Rights of Man, Woman, Child—Regardless of Ethnic, National Belonging” (7 April 1999). Back to text
63 See, e.g., > International Covenant on Civil and Political Rights, art. 10(1) (“All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”); and Body of Protection of all Persons under any Form of Detention or Imprisonment (adopted 9 December 1988), Principle 1 (“All persons under any form of detention or imprisonment shall be treated in a humane manner with respect for the inherent dignity of the human person.”) Back to text
64 Convention on the Rights of the Child, Preamble (2 September 1990). > Back to text
65 Declaration of the Rights of the Child, Preamble (entered into force 20 November 1959). Back to text
66 Universal Declaration of Human Rights, art. 25(2) (entered into force 10 Dec.1948). Back to text
67 International Covenant on Civil and Political Rights, art. 23 and 24 (entered into force 3 January 1976). Back to text
68 International Covenant on Economic, Social and Cultural Rights, art. 10 (entered into force 3 January 1976). Back to text
69 Convention on the Rights of the Child, art. 2. Back to text
70 Art. 37(a). Back to text
71 Art. 37(b). Back to text
72 Art. 37(c). Back to text
73 Art. 37(d). Back to text
74 Interim Report of Central, Interim Report–VII, p. 18 (“There appears to be very little progress in implementing the recommendations of the Commission especially with regard to the action to be taken against persons against whom credible material indicative of such persons being responsible for the removals and/or disappearances, have been made available to the Commission.”) Back to text
75 Human Rights SOLIDARITY, Asian Human Rights Commission, April 1999, vol 9 no 4. Back to text
76 Interim Report of Central, Interim Report–VII, p. 18. Back to text

 

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3,185 Kurdish villages had been ‘evacuated’

Letter from Diyarbakir
Reinoud Leenders

Middle East International, 26 Febr. 1999

FROM A LITILE STORE in Diyarbakir I bought some lined paper to write a letter. I was struck by the design. On the margins, there were two M-16 machine-guns, on the bottom a rocket launcher, on top the Turkish crescent and star with the phrase "Honour and the nation are our duty".

This is probably the writing paper used by many of the Turkish soldiers who do their military service here. The company producing the paper, Ankara-based Aydin Kartpostal, also makes postcards of grim looking commandos posing before tanks or the Turkish flag.

Behind my desk, I wondered what I could write about Diyarbakir. Should I convey my impres

An Auschwitz Without Gas Chambers?

Israel sends animal vaccines to Gaza because it’s afraid animal diseases could spread from Gaza to Israel, but it doesn’t send human medicine to Gaza

Feb 18, 2008
An Auschwitz Without Gas Chambers?

Disengagement and the Frontiers of Zionism

Darryl Li

(Darryl Li is a doctoral student in anthropology and Middle East studies at Harvard University and a student at Yale Law School. He spent January in the Gaza Strip. The inclusion of this article under the section Crimes Against Humanity is based on the editor’s view that the policies pursued by the Israeli Government towards the population of Gaza may constitute Crimes Against Humanity under customary international law. See, for a detailed discussion Economic Oppression as a Crime Against Humanity ).

In mid-January, when Israel further tightened its blockade of the Gaza Strip, it hurriedly assured the world that a “humanitarian crisis” would not be allowed to occur. Case in point: Days after the intensified siege prompted Hamas to breach the Gaza-Egypt border and Palestinians to pour into Egypt in search of supplies, Israel announced plans to send in thousands of animal vaccines to prevent possible outbreaks of avian flu and other epidemics due to livestock and birds entering Gaza from Egypt.[1] Medicines for human beings, on the other hand, are among the supplies that are barely trickling in to Gaza now that the border has been resealed.

More than an act of enlightened self-interest — or, more bluntly, a recognition that “the virus doesn’t stop at the checkpoint”[2] — the reported animal vaccine shipment is a clue to how Israel is reconfiguring its control over the Gaza Strip. The story of the recent restrictions, when told at all to the outside world, has been conveyed largely through statistics: 90 percent of private industries in Gaza have shut down, 80 percent of the population receives food aid, all construction sites are idle and unemployment has broken all previous records.[3] Journalists and NGOs have rendered individual portraits of ruined farmers, bankrupted merchants and trapped medical patients. But the stranglehold on Gaza is not simply a stricter version of the policies of the past five years; it also reflects a qualitative shift in Israel’s technique for management of the territory. The contrast between Israel’s expedited transfer of animal vaccines to Gaza and its denial of medicine for the human population is emblematic of this emergent form of control, that, for lack of a better term, we may call “disengagement.”

“Disengagement” is, of course, the name Israel gave to its 2005 removal of colonies and military bases from the Gaza Strip. But rather than a one-time abandonment of control, disengagement is better understood as an ongoing process of controlled abandonment, by which Israel is severing the ties forged with Gaza over 40 years of domination without allowing any viable alternatives to emerge, all while leaving the international donor community to subsidize what remains. The effect is to treat the Strip as an animal pen whose denizens cannot be domesticated and so must be quarantined. Disengagement is a form of rule that sets as its goal neither justice nor even stability, but rather survival — as we are reminded by every guarantee that an undefined “humanitarian crisis” will be avoided.

FROM BANTUSTAN TO INTERNMENT CAMP TO ANIMAL PEN

Since its beginnings over a century ago, the Zionist project of creating a state for the Jewish people in the eastern Mediterranean has faced an intractable challenge: how to deal with indigenous non-Jews — who today comprise half of the population living under Israeli rule — when practical realities dictate that they cannot be removed and ideology demands that they must not be granted political equality. From these starting points, the general contours of Israeli policy from left to right over the generations have been clear: First, maximize the number of Arabs on the minimal amount of land, and second, maximize control over the Arabs while minimizing any apparent responsibility for them.

On the first score, Gaza is a resounding success: Although it covers only 1.5 percent of the area between the Jordan River and the Mediterranean Sea, it warehouses one out of every four Palestinians living in the entire country. But on the second count, Gaza’s density has made it very difficult to manage and its poverty makes it an eyesore before the world community. Thus, Palestinian resistance and, to a lesser extent, international constraints, have forced Israel to revise its balance of responsibility and control several times. Each phase of this ongoing experiment can be understood through spatial metaphors of increasingly constricted scope: bantustan, internment camp, animal pen.

From 1967 to the first intifada of 1987-1993, Israel used its military rule to incorporate Gaza’s economy and infrastructure forcibly into its own, while treating the Palestinian population as a reserve of cheap migrant workers. It was during this stage of labor migration and territorial segregation that Gaza came closest to resembling the South African “bantustans” — the nominally independent black statelets set up by the apartheid regime to evade responsibility for the indigenous population whose labor it was exploiting.[4]

During the Oslo phase of the occupation (1993-2005), Israel delegated some administrative functions to the Palestinian Authority (PA) and welcomed migrant workers from Asia and Eastern Europe to replace the Gazans. A new infrastructure of movement controls also emerged. Permits for travel to Israel and the West Bank, once commonly granted, became rare. Ordinary vehicular traffic ceased. In the second half of the decade, Israel erected a fence around the territory and commenced channeling non-Israeli people and goods through a handful of newly built permanent terminals like the ones that have recently come to the West Bank. It was during this period that Gaza under Israeli management most resembled a giant internment camp. The detainee population was, to a certain extent, self-organized and appointed representatives to act on its behalf (the PA) who nevertheless operated under the aegis of supreme Israeli military authority, within the framework of agreements concluded by Israel and a largely defunct Palestine Liberation Organization (which are now basically agreements between Israel and itself).

The failure of the settlement enterprise and the ferocity of the armed resistance during the second intifada beginning in the fall of 2000 undoubtedly contributed to the decision to remove settlements and withdraw soldiers. Aside from buying Israel crucial political cover to push ahead with its colonization plans in the West Bank and elsewhere, disengagement has also drastically reduced vulnerability to Palestinian armed groups. From 2000 to 2005, Gaza contained less than 1 percent of the Jewish population of Israel-Palestine but accounted for approximately 10 percent of Israeli intifada-related fatalities (and more than 40 percent of all Israeli combatant deaths). At the same time, the threat was almost entirely located inside the territory, against soldiers and settlers. Gaza’s hermetic closure largely neutralized the threat of suicide bombs, leaving Palestinian armed groups in Gaza with few effective means of harming Israel. Since August 2005, Qassam rocket attacks have killed four people inside Israel, less than 2007’s weekly average of Palestinians killed in Gaza by the Israeli military.[5]

Critics have been quick to point out that disengagement did not change Israel ‘s effective control over Gaza and hence its responsibility as an occupying power under international humanitarian law. At the military level, Israel continued to patrol Gaza’s airspace and seacoast, and ground troops operated, built fortifications and enforced buffer zones inside the Strip so regularly that the major difference seems to have been a mere relocation of their barracks a few kilometers to the east. With the removal of permanent military bases, however, critics also tended to decry Gaza’s ongoing dependency on Israel as evidence of control. The taxation system, currency and trade remained in Israel’s hands; water, power and communications infrastructure continued to depend on Israel; and even the population registry was still kept by Israeli authorities.

Israel’s response has been simple, if disingenuous: If responsibility for Gaza arises from Gaza’s dependency on Israel, then it would be more than happy to cut those ties once and for all. And this is exactly what Israel started doing after Fatah’s military defeat in Gaza at the hands of Hamas in June 2007. Indeed, even if the Rafah crossing on the Gaza-Egypt border reopens with a liaison role for Fatah (or the PA security services under the command of President Mahmoud Abbas), as is still the case at Erez, the only crossing point for people between Israel and the Strip, this is only likely to furnish Israel with another pretext for washing its hands of responsibility for Gazans. In any event, in Gaza the Oslo experiment in indirect rule seems to be over. Israel now treats the territory less like an internment camp and more like an animal pen: a space of near total confinement whose wardens are concerned primarily with keeping those inside alive and tame, with some degree of mild concern as to the opinions of neighbors and other outsiders.

The difference is most apparent in the question of electricity. In 2006, Israel responded to the capture of one of its soldiers and the killing of two others by bombing Gaza’s only power plant, which, even after some repair, now operates at roughly one third of capacity.[6] Now it seeks to accomplish the same deprivation through cutting the electricity that it supplies directly to Gaza, compounding the daily blackouts that were already common. These reductions, as approved by the Israeli Supreme Court on January 30 and as first implemented on February 7, will be calibrated to ensure that the “essential humanitarian needs” of the population are met. In November, the court endorsed the same standard in permitting reductions of the amount of Israeli fuel sold in Gaza. This shift in Israel’s approach from 2006 is akin to the difference between clubbing an unruly prisoner over the head to subdue him and taming an animal through careful regulation of leash and diet.

DISENGAGEMENT AND “ESSENTIAL HUMANITARIANISM”

In order to understand the management differences between an internment camp and an animal pen, it may help to start with the place where Israel’s control over Gaza is most physically manifest: the crossings.

Karni crossing is the sole official crossing point for commercial traffic between the Gaza Strip and Israel, a highly fortified facility straddling the frontier on the site of an old British military airfield near Gaza City. Karni has approximately 30 lanes for handling different types of cargo — from shipping containers to bulk goods — needed to meet the diverse needs of a modern economy. Karni is a creature of the Oslo period, concretizing its logic of impressive spectacle and laborious inefficiency in order to balance Israeli control with the image of Palestinian autonomy. The crossing operates on the wasteful principle of “back-to-back” transport: Goods are left by one party in a walled-off no man’s land and then picked up by the other without any direct contact, essentially doubling shipping costs.

In recent months, Israel has completely shut down Karni except for occasional shipments of wheat grain and animal feed.[7] At the same time, Israel has routed a few types of permitted “essential items” mostly through the Kerem Shalom and Sufa crossings further south. Unlike Karni, Kerem Shalom and Sufa are operated entirely by Israel and make no gestures toward Palestinian partnership. They are not commercial crossings but essentially gates in the fence, never designed for trans-shipment of goods and incapable of handling many types of difficult-to-package items such as building materials and piped gases.[8] When open, Kerem Shalom and Sufa together can process perhaps 100 truckloads of cargo per day compared to Karni’s capacity of approximately 750 truckloads.[9]

Most revealing, however, is the manner of transfer: Cargo at Kerem Shalom and Sufa is offloaded from trucks and then left on pallets in the open for Palestinians to come and pick up when they are allowed to approach. The contrast with Karni’s elaborate security procedures and regimented distribution system is striking. “At least in prison, and I’ve been in prison, there are rules,” Gazan human rights lawyer Raji Sourani told the New York Times. “But now we live in a kind of animal farm. We live in a pen, and they dump in food and medicine.”[10]

The physical move from Karni to Kerem Shalom and Sufa and the official restriction of passage only to “humanitarian items” embody the shift in Israel’s blockade policy, from trying to punish the Gazan economy to dispensing with the economy altogether (except when Israeli producers need to dump cheap surplus in Gaza). Israel is also selectively disengaging from other economic relations with Gaza: Major Israeli banks have announced their intention to sever ties with Gaza, and Israel has since autumn limited the inflow of US dollars and Jordanian dinars, endangering Gazans’ ability to purchase imports and make use of remittances.

The sheer redundancy of Gaza’s economy in Israel’s eyes is most obvious in the context of the Israeli Supreme Court decision approving fuel cuts to Gaza on the basis that if it is possible to ration the remaining fuel for hospitals and the sewage network, then Gaza’s economy need not play a role: “We do not accept the petitioners’ argument that ‘market forces’ should be allowed to play their role in Gaza with regard to fuel consumption.”[11] The logic of the Court’s decisions on fuel and electricity suggests that once undefined “essential humanitarian needs” are met, all other deprivation is permissible.

In practice, the neat distinction between vital needs and luxuries is often impossible to implement since it ignores the enormous swath of human activities and desires in between that are no less important simply because they can be temporarily deferred. This has been most poignant in the case of permits to leave Gaza for medical treatment, which are now granted only to those with “life-threatening” conditions.[12] Under the scheme, according to Human Rights Watch, permits for mere “quality of life” procedures such as open heart surgery have been denied, leading to patient deaths. In the case of the electricity cuts, the Supreme Court blithely acted as if Gazans could easily redirect remaining power to hospitals and sewage networks despite clear evidence to the contrary.[13] To the extent that electricity can be redistributed within areas, technicians must physically go to substations several times per day and manually pull levers that are designed to be operated only once a year for maintenance purposes. As a result, there have been numerous breakdowns and at least two engineers have been electrocuted.[14]

Even if it was possible to implement and was done with the best of intentions, the logic of “essential humanitarianism” (it is unclear what would constitute the “inessentially” humanitarian) promises nothing more than turning Gazans one and all into beggars — or rather, into well-fed animals — dependent on international money and Israeli fiat. It allows Israel to keep Palestinians and the international community in perpetual fear of an entirely manufactured “humanitarian crisis” that Israel can induce at the flip of a switch (due to the embargo, Gaza’s power plant only has enough fuel at any one time to operate for two days[15]). And it distracts from, and even legitimizes, the destruction of Gaza’s own economy, institutions and infrastructure, to say nothing of ongoing colonization elsewhere in Israel-Palestine. The notion of “essential humanitarianism” reduces the needs, aspirations and rights of 1.4 million human beings to an exercise in counting calories, megawatts and other abstract, one-dimensional units measuring distance from death.

THE NAMES OF INEQUALITY

As Israel has experimented with various models for controlling Gaza over the decades, the fundamental refusal of political equality that undergirds them all has taken on different names, both to justify itself and to provide a logic for moderating its own excesses. During the bantustan period, inequality was called coexistence; during the Oslo period, separation; and during disengagement, it is reframed as avoiding “humanitarian crises,” or survival. These slogans were not outright lies, but they disregarded the unwelcome truth that coexistence is not freedom, separation is not independence and survival is not living.

Disengagement, however, is not merely the latest stage in a historical process; it is also the lowest rung in a territorially segregated hierarchy of subjugation that encompasses Palestinians in the West Bank, East Jerusalem and within the Green Line. Half of the people between the Mediterranean and the Jordan live under a state that excludes them from the community of political subjects, denies them true equality and thus discriminates against them in varying domains of rights. Israel has impressively managed to keep this half of the population divided against itself — as well as against foreign workers and non-Ashkenazi Jews — through careful distribution of differential privileges and punishments and may continue to do so for the foreseeable future. Of course there is always the possibility of occasional, dramatic acts of resistance like the breaching of the border — which temporarily transformed a desolate stretch of demolished houses into a giant open-air market — and incremental technocratic changes such as a possible arrangement to reopen the Rafah crossing. But between these two paths, the inexorable governing logic of controlled abandonment seems likely to remain intact.

It is telling that despite all of the talk of separation, even the most remote and isolated segment of the Palestinians living under Israeli control are still close enough to Israeli Jews for the introduction of livestock and fowl from Egypt to prompt rapid public health action. For the transfer of animal vaccines speaks not only to Israel’s control over Gaza and its disclaimer of any responsibility for the people living there, but is also a tacit reminder of the intimacy that persists through 40 years of domination. The people of the southern Israeli town of Sderot, too, were unpleasantly reminded of this intimacy when, one morning in 2005, they awoke to find hundreds of leaflets on their streets warning them in Arabic to leave their homes before they were attacked.[16] The Israeli military had airdropped the fliers over neighboring parts of the northern Gaza Strip in an attempt to intimidate the Palestinians there, but strong winds blew them over the frontier instead.

Endnotes

[1] Associated Press, January 30, 2008.

[2] This phrase (ha-virus lo ‘otzer ba-mahsom) is the title of a 2002 book on the health care system in the West Bank and Gaza Strip whose English edition appeared under the more politically correct Separate and Cooperate, Cooperate and Separate: The Disengagement of the Palestine Health Care System from Israel and Its Emergence as an Independent System (Tamara Barnea and Rafiq Husseini, eds.) (London: Praeger, 2002). Thanks to Deema Arafah for this reference.

[3] UN Office for the Coordination of Humanitarian Affairs (OCHA), “The Closure of the Gaza Strip: The Economic and Humanitarian Consequences,” December 13, 2007.

[4] Dark visions of a bantustan future for Gaza are as dated as they are irrelevant. As early as 1985, two authors noted “Gaza is effectively a Bantustan — a dormitory for day laborers in the Israeli economy. It is for this reason that the much vaunted ‘two-state solution’ has rather less appeal to the people of Gaza than to some on the West Bank.” Richard Locke and Antony Stewart, Bantustan Gaza (London: Zed Books, 1985), p. 2.

[5] More than 70 percent of Israeli fatalities in the Gaza Strip pre-disengagement were armed security personnel, as opposed to 50 percent in the West Bank and 15 percent inside the Green Line. Statistics on Israeli fatalities are culled from “Victims of Palestinian Terror Since September 2000,” updated regularly by the Israeli Ministry of Foreign Affairs at http://www.mfa.gov.il/ and from the tallies kept by the Israeli human rights organization B’tselem at http://www.btselem.org/English/Statistics/Casualties.asp. According to p. 6 of B’tselem’s draft annual report for 2007, 293 Gazans (armed and unarmed) were killed by Israel in 2007.

[6] For an overview of the effects of the strike and an assessment of its legality, see B’tselem, Act of Vengeance: Israel’s Bombing of the Gaza Power Plant and its Effects (September 2006). Israel has continued to hamper repairs, leading to widespread power outages even before the more recent deliberate power cuts. OCHA, “Gaza Humanitarian Situation Report: Power Shortages in the Gaza Strip,” January 8, 2008.

[7] OCHA, “Gaza Closure: Situation Report,” January 24, 2008.

[8] World Bank, Two Years After London: Restarting Palestinian Economic Recovery, September 24, 2007, p. 16; OCHA, “Gaza Humanitarian Situation Report,” June 27, 2007, p. 3.

[9] OCHA, “Gaza Humanitarian Situation Report,” November 6, 2007.

[10] New York Times, November 18, 2007.

[11] Israeli High Court of Justice (HCJ) 9132/07, Jabr al-Basyuni Ahmad v. The Prime Minister (interim decision of November 29, 2007), para. I.4.

[12] HCJ 5429/07, Physicians for Human Rights-Israel v. The Minister of Defense.

[13] HCJ 9132/07, Jabr al-Basyuni Ahmad v. The Prime Minister (final decision of January 30, 2008). For more on the Court’s dubious factual findings (including its reliance on a government claim that unnamed “Palestinian officials” had assured them that redistribution of power to hospitals was feasible, despite multiple signed affidavits to the contrary from senior Palestinian utilities managers), see Gisha (Legal Center for Freedom of Movement), “Briefing: Israeli High Court Decision Authorizing Fuel and Electricity Cuts to Gaza,” January 31, 2008.

[14] OCHA, “Electricity Shortages in the Gaza Strip: Situation Report,” February 8, 2008.

[15] Ibid.

[16] Ynet, September 27, 2005.

Economic Oppression as a Crime Against Humanity (Abstract)

Elias Davidsson:

Economic Oppression as a Crime Against Humanity (Abstract)

The International Criminal Court (ICC) was established to secure the punishment of persons who have committed the most serious crimes which “deeply shock the conscience of humanity”[1]. Yet what shocks the “conscience of humanity” and what leaves people yawning, depends to a large extent on how mass media select and present facts. While millions of innocent human beings have been killed and maimed over the last century in armed conflict and by mass killing, the overwhelming majority of those who fall victim to adverse human agency are not injured by proximate violence but as a result of being compelled to live in subhuman conditions. Many more die silently each year of preventable hunger and disease than from widely reported direct violence. These silent deaths are mostly the result of decisions made, without malice, by individuals pursuing political or economic interests. Yet, intentionally depriving even a single person under custody of basic necessities constitutes an inhuman, cruel or degrading treatment. When committed with the requisite mental state, such conduct may give rise to criminal penalties. Causing death by deprivation of air, water, food, shelter or medicines may even amount to murder. Compelling a person to live in inhumane or degrading conditions is unlawful under international law. Such conditions are defined herein as those which do not fulfil minimal humanitarian standards applicable to prisoners of war. The present article explains why a policy which compels a whole population to live in inhumane or degrading conditions, designated here as economic oppression, is a crime against humanity. The author holds that assigning individual criminal responsibility for acts of economic oppression is compatible with the principle of legality, is ethically justified, politically desirable, and materially feasible.