Category Archives: International Law (Public)

Real Americans Question 9/11

Real Americans Question 9/11

These days it’s difficult to remember what values the American people share. That’s because the U.S. government does so many things that seem to contradict basic human values. Wars of aggression, torture, kidnapping and indefinite detention, warrantless wiretapping, and so many other oppressions have become standard operational procedure for the U.S. government. Those who recognize and seek to correct this system of abuse soon realize that the key to doing so is to reveal the truth behind the primary driver for all of them—the crimes of 9/11.

It’s important to know what makes someone an American and what does not. Here are some examples of what does not make someone an American.

  • Loyalty to the flag
  • Respect for the national anthem
  • Serving in the military or honoring military veterans
  • Paying taxes

A person can do these things to any extent possible and it will not make them any more American than they were before they began. Popular culture and corporate media make every effort to present American patriotism as a sum of these kinds of activities but it is easy to see through that false front.

Only one thing makes someone an American and that is support and defense of the U.S. Constitution. The founding fathers of the United States defined Americans as those who are committed to the ideals of the Constitution. To this day, anyone claiming to represent the nation must swear an oath to uphold those ideals.

Each president, when taking office, affirms that he will “preserve, protect and defend the Constitution of the United States.” All congress members must swear or affirm that they will “support and defend the Constitution.”

All new citizens of the United States and every member of the U.S. military must swear to “support and defend the Constitution of the United States against all enemies, foreign and domestic;” and that they “will bear true faith and allegiance to the same.”

The U.S. Constitution is comprised of articles that spell out the government’s powers and the process of making amendments. It also includes the 27 amendments that exist today. The first ten amendments, ratified four years after the original text, are known as the Bill of Rights. These include the freedoms of speech, religion, and the press. Also, there are the rights to bear arms, to privacy, and to a speedy and public trial. The rejection of cruel and unusual punishment is another basic tenet of the U.S. Constitution.

Unfortunately, virtually every Article and Amendment of the Constitution has been under attack since September 11, 2001. Yet very few people have risen to support or defend it. In fact, many so-called Americans have encouraged assaults on the core American values.

That abuse began with the violation of Article 1 of the Constitution that rejects starting wars of aggression without having been “actually invaded, or in such imminent danger as will not admit of delay.” Instead of working to determine what actually happened on 9/11 and thereby defend the nation, the Bush Administration immediately invaded Afghanistan, a country that it had planned to invade long before the 9/11 attacks. Sixteen months later, the government invaded Iraq based on what everyone now knows was a pack of lies.

Americans who questioned that anti-American approach were silenced with claims that they were not “supporting the troops” if they did not consent to the growing greed-fueled militarism. The Afghanistan invasion was coupled with the passing of the Patriot Act—an attack on basic Constitutional rights and a failure to preserve those rights as described in Article 2.

In 2006, national polls showed that over one third of Americans believed that federal officials assisted in the 9/11 terrorist attacks or took no action to stop them so that the United States could go to war in the Middle East. At the same time, Americans witnessed a growing list of abuses of their Constitutional rights. These abuses violated the Bill of Rights in nearly every way and were driven by unproven claims about what happened on September 11, 2001.

On the tenth anniversary of 9/11, the Center for Constitutional Rights described how the Constitution had been shredded based on assumptions about the 9/11 attacks. By then, it had also become clear that the government was actually giving aid and comfort to the enemy (violating Article 3) through arming and training terrorists. One might think it obvious that stopping such actions would be the goal of all Americans but to do so one Congress member has had to spell it out in legislation.

Failing to protect Americans against domestic violence (a violation of Article 4), the FBI was found to actually be manufacturing terrorism. It was further learned that some FBI leaders had been facilitating or sponsoring terrorism since long before 9/11. This practice continues today and the manufactured plots have become so obvious that officials are finding it difficult to explain why Americans should take them seriously.

Attorney and author John W. Whitehead has detailed the continuing attacks on the Bill of Rights by writing that,

“What began with the passage of the USA Patriot Act in October 2001 has snowballed into the eradication of every vital safeguard against government overreach, corruption and abuse. Since then, we have been terrorized, traumatized, and tricked into a semi-permanent state of compliance. The bogeyman’s names and faces change over time—Osama bin Laden, Saddam Hussein and now ISIS—but the end result remains the same: our unquestioning acquiescence to anything the government wants to do in exchange for the phantom promise of safety and security.”

The attacks on American values have been so extensive that people often no longer notice how bad it has become. For example, the government has named those captured and tortured in the name of 9/11 as “forever prisoners”—a term that exemplifies the hatred of freedom represented by the new phony Americanism. The fact that one of these men was a central character in building the official account of 9/11 and has since been exonerated for any involvement in those crimes makes no difference.

How can real Americans respond to this ongoing assault against the Constitution by flag-waving, militaristic, greed-driven fools? How can we “support and defend the Constitution of the United States against all enemies, foreign and domestic” by “bearing true faith and allegiance to the same?”

To end the wave of anti-Americanism that began with the crimes of 9/11, Americans have two options. The first is to stand up publicly and fight the attacks on our Constitution by helping everyone understand that the crimes of 9/11 have not been solved. In fact, there are still so many unanswered questions about those crimes that everything done in “response” is almost certainly a crime in itself.

The second option is to end the tyranny through revolution. This was how America began, of course, and that great beginning is enshrined in the precursor to the Constitution—the Declaration of Independence. At the time, the founders stated that, “When a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

As Americans it is our duty to throw off the tyrannical abuses of power that are threatening to end America. That duty starts with questioning 9/11—the driver behind all of it.

Fifteen years of U.S. crimes in Afghanistan

http://www.salon.com/2016/11/05/the-15-year-u-s-war-in-afghanistan-barely-gets-mentioned-even-when-nato-airstrikes-massacre-30-civilians/
Salpon.com, Nov. 5, 2016
The 15-year U.S. war in Afghanistan barely gets mentioned, even when NATO airstrikes massacre 30 civilians
The U.S. war continues to take a heavy toll on Afghan civilians, yet Clinton and Trump never even discussed it
Ben Norton

At least 30 civilians, including women and children, were killed in NATO airstrikes in Afghanistan on Thursday. Dozens more civilians were wounded.

The site of the attack, in Afghanistan’s northern Kunduz province, was near the remnants of a hospital bombed by NATO forces almost exactly one year before.

These new casualties come just after the U.S.-led war in Afghanistan entered its 16th year. The ongoing conflict, which gets little coverage in the media and has hardly been mentioned in the presidential campaigns, is one of the longest conventional wars in U.S. history, and has taken an enormous toll on the South Asian country’s civilian population.

Airstrikes were called in on Thursday after heavy fighting erupted between Taliban militants and U.S. and allied Afghan forces in the northern village of Buz Kandahari.

Kunduz Governor Asadullah Amarkhil called the attack “a horrible incident,” Reuters reported. Afghan villagers brought the bodies of the slain civilians into the nearby city of Kunduz and held angry protests.

“These bodies you see here are either children or women, they are not Taliban. All innocent children and women killed here — look at the bodies there,” a resident told Reuters.

Two U.S. soldiers were also killed in the fighting.

This latest attack took place roughly three miles from the center of Kunduz, where NATO forces bombed a hospital operated by Doctors Without Borders in October 2015.

Last year’s attack killed another 30 civilians, including 14 hospital workers. A hospital nurse said there “are no words for how terrible” the bombing was, noting that “patients were burning in their beds.”

The U.S. military’s version of the story changed multiple times, and was full of contradictions. Ultimately, no U.S. officials lost their jobs because of the attack.

Doctors Without Borders called the hospital bombing a war crime. The U.N. high commissioner for human rights similarly said it could have been a war crime.

The medical humanitarian group, known internationally as Médecins Sans Frontières, or MSF, emphasized that it had “communicated the precise locations of its facilities to all parties on multiple occasions over the past months.” Yet its facility was repeatedly bombed for more than 30 minutes, even after MSF “frantically phoned” Washington.

The Kunduz hospital was the only large medical facility in all of northeastern Afghanistan, yet MSF was forced to withdraw from the area after the attack.

Millions of Afghans have had their lives permanently changed by the U.S. war, which marked its 15th anniversary on Oct. 7 — an unpropitious date that came and went with little attention in the media, and virtually no acknowledgment by major American politicians.

More than a decade of nonstop war has pushed Afghanistan to the brink of catastrophe. And things are getting worse, not better.

At least 220,000 Afghans were killed in the first 12 years of the war, in a conservative estimate, according to a report by the Nobel Prize-winning organization International Physicians for the Prevention of Nuclear War.

Since 2012, Afghan civilian casualties have increased, with children making up a growing portion of victims. The violence in 2015 was the worst since the U.N. began tracking the casualties.

In the first nine months of 2016, 2,562 Afghan civilians were killed, including more than 600 children, and another 5,835 were injured, according to the U.N. Assistance Mission in Afghanistan.
A graph released by the U.N. mission shows how civilian casualties have gradually risen in the past several years.

http://media.salon.com/2016/11/casualties-afghanistan-un.jpg

A May report by Amnesty International noted that the number of Afghans “who have fled violence and remained trapped in their own country, where they live on the brink of survival,” has doubled in just over three years.

At least 1.2 million Afghans are displaced within their country — a rise by some 240 percent since 2013. Another roughly 2.6 million Afghans are refugees, stuck outside of their country’s borders.

Afghans make up one of the world’s largest refugee populations. Yet the European Union, which has backed the NATO war in Afghanistan that has displaced so many people, made a deal to send Afghan refugees to Turkey, in a plan experts said is illegal and immoral.

Even child refugees are not spared. From 2007 to 2015, the United Kingdom deported 2,018 unaccompanied children to Afghanistan — in another program human rights officials have warned is illegal.

None of this is to mention the enormous costs of the war for U.S. taxpayers. Numerous reports estimate that the war in Afghanistan has cost at least $1 trillion. That is money that could have been invested in social services, health care, infrastructure, education and so much more.

The war drags on. President Obama promised countless times that he would end it in 2014. Instead, he has extended it multiple times.

The Taliban was itself a product of U.S. war. In order to fight the Soviet Union in Afghanistan in the 1980s, the U.S. and its allies Pakistan and Saudi Arabia trained, armed and funded extremist Islamist militants, giving birth to the extremism that haunts the region today.

While fighting between the Taliban and U.S.-led forces escalates, Obama nears his last days in office. Neither Hillary Clinton, the most likely candidate for U.S. president, nor her opponent Donald Trump has presented a strategy for ending the war. The Afghan people, meanwhile, cannot wait. They are dying, suffering, losing their homes and loved ones.

As Nicholas Haysom, the U.N.’s secretary general’s special representative for Afghanistan, put it in February, mere statistics do not “reflect the real horror of the phenomenon we are talking about.”

“The real cost we are talking about in these figures,” Haysom continued, “is measured in the maimed bodies of children, the communities who have to live with loss, the grief of colleagues and relatives, the families who make do without a breadwinner, the parents who grieve for lost children, the children who grieve for lost parents.”

Ben Norton is a politics reporter and staff writer at Salon. You can find him on Twitter at @BenjaminNorton.

Hillary Laughed ‘I Came He Died’

Unlawful Resolutions of the Security Council and their Legal Consequences

Unlawful Resolutions of the Security Council and their Legal Consequences

by Karl Doehring

in Max Planck Yearbook of United Nations Law 1997 (91-109)

Resolutions of the Security Council might violate rules of dispositive law and thos of peremptory nature as well. States being convinced that the Security Council disregards peremptory norms of international law and, therefore, taking the position to the not obliged to respect these resolutions, are under the duty to inform the Security Council about their scruples. they ahve to warn the Security Council before, unilaterally, acting against the order of a resolution.

Greek Truth Committee on Public Debt – Preliminary Report (Executive Summary)

Truth Committee on Public Debt

Preliminary report

The Truth Committee on Public Debt (Debt Truth Committee) was established on April 4, 2015, by a decision of the President of the Hellenic Parliament, Ms Zoe Konstantopoulou, who confided the Scientific Coordination of its work to Dr. Eric Toussaint and the cooperation of the Committee with the European Parliament and
other Parliaments and international organizations to MEP Ms Sofia Sakorafa.

Members of the Committee have convened in public and closed sessions, to produce this preliminary report, under the supervision of the scientific coordinator and with the cooperation and input of other members of the Committee, as well as experts and contributors.

The preliminary report chapters were coordinated by:

Bantekas Ilias
Contargyris Thanos
Fattorelli Maria Lucia
Husson Michel
Laskaridis Christina
Marchetos Spyros
Onaran Ozlem
Tombazos Stavros
Vatikiotis Leonidas
Vivien Renaud

With contributions from:
Aktypis Héraclès
Albarracin Daniel
Bonfond Olivier
Borja Diego
Cutillas Sergi
Gonçalves Alves Raphaël
Goutziomitros Fotis
Kasimatis Giorgos
Kazakos Aris
Lumina Cephas
Mitralias Sonia
Saurin Patrick
Sklias Pantelis
Spanou Despoina
Stromblos Nikos
Tzitzikou Sofia

The authors are grateful for the advice and input received from other members of the Truth Committee on Public Debt as well as other experts, who contributed to the Committee’s work during the public sessions and hearings and the closed or informal consultations.

The authors are grateful for the valuable assistance of Arnaoutis Petros Konstantinos, Aronis Charalambos, Bama Claudia, Karageorgiou Louiza, Makrygianni Antigoni and Papaioannou Stavros.

Executive Summary

In June 2015 Greece stands at a crossroads of choosing between furthering the failed macroeconomic adjustment programmes imposed by the creditors or making a real change to break the chains of debt. Five years since the economic adjustment programme began, the country remains deeply cemented in an economic, social, democratic and ecological crisis. The black box of debt has remained closed, and until a few months ago no authority, Greek or international, had sought to bring to light the truth about how and why Greece was subjected to the Troika regime. The debt, in the name of which nothing has been spared, remains the rule through which neoliberal adjustment is imposed, and the deepest and longest recession experienced in Europe during peacetime.

There is an immediate democratic need and social responsibility to address a range of legal, social and economic issues that demand proper consideration. In response, the President of the Hellenic Parliament established the Truth Committee on Public Debt (Debt Truth Committee) in April 2015, mandating the investigation into the creation and the increase of public debt, the way and reasons for which debt was contracted, and the impact that the conditionalities attached to the loans have had on the economy and the population. The Truth Committee has a mandate to raise awareness of issues pertaining to the Greek debt, both domestically and internationally, and to formulate arguments and options concerning the cancellation of the debt.

The research of the Committee presented in this preliminary report sheds light on the fact that the entire adjustment programme, to which Greece has been subjugated, was and remains a politically orientated programme. The technical exercise surrounding macroeconomic variables and debt projections, figures directly relating to people’s lives and livelihoods, has enabled discussions around the debt to remain at a technical level mainly revolving around the argument that the policies imposed on Greece will improve its capacity to pay the debt back. The facts presented in
this report challenge this argument.

All the evidence we present in this report shows that Greece not only does not have the ability to pay this debt, but also should not pay this debt first and foremost because the debt emerging from the Troika’s arrangements is a direct infringement on the fundamental human rights of the residents of Greece. Hence, we came to the conclusion that Greece should not pay this debt because it is illegal, illegitimate, and
odious.

It has also come to the understanding of the Committee that the unsustainability of the Greek public debt was evident from the outset to the international creditors, the Greek authorities, and the corporate media. Yet, the Greek authorities, together with some other governments in the EU, conspired against the restructuring of public debt in 2010 in order to protect financial institutions. The corporate media hid the truth from the public by depicting a situation in which the bailout was argued to benefit Greece, whilst spinning a narrative intended to portray the population as deservers of their own wrongdoings.

Bailout funds provided in both programmes of 2010 and 2012 have been externally managed through complicated schemes, preventing any fiscal autonomy. The use of the bailout money is strictly dictated by the creditors, and so, it is revealing that less than 10% of these funds have been destined to the government’s current expenditure.

This preliminary report presents a primary mapping out of the key problems and issues associated with the public debt, and notes key legal violations associated with the contracting of the debt; it also traces out the legal foundations, on which unilateral suspension of the debt payments can be based. The findings are presented in nine chapters structured as follows:

Chapter 1, Debt before the Troika, analyses the growth of the Greek public debt since the 1980s. It concludes that the increase in debt was not due to ex4 cessive public spending, which in fact remained lower than the public spending of other Eurozone countries, but rather due to the payment of extremely high rates of interest to creditors, excessive and unjustified military spending, loss of tax revenues due to illicit capital outflows, state recapitalization of private banks, and the international imbalances created via the flaws in the design of the Monetary Union itself. Adopting
the euro led to a drastic increase of private debt in Greece to which major European private banks as well as the Greek banks were exposed. A growing banking crisis contributed to the Greek sovereign debt crisis. George Papandreou’s government helped to present the elements of a banking crisis as a sovereign debt crisis in 2009 by emphasizing and boosting the public deficit and debt.

Chapter 2, Evolution of Greek public debt during 2010-2015, concludes that the first loan agreement of 2010, aimed primarily to rescue the Greek and other European private banks, and to allow the banks to reduce their exposure to Greek government bonds.

Chapter 3, Greek public debt by creditor in 2015, presents the contentious nature of Greece’s current debt, delineating the loans’ key characteristics, which are further analysed in Chapter 8.

Chapter 4, Debt System Mechanism in Greece reveals the mechanisms devised by the agreements that were implemented since May 2010. They created a substantial amount of new debt to bilateral creditors and the European Financial Stability Fund (EFSF), whilst generating abusive costs thus deepening the crisis further. The mechanisms disclose how the majority of borrowed funds were transferred directly to financial institutions. Rather than benefitting Greece, they have accelerated the privatization process, through the use of financial instruments.

Chapter 5, Conditionalities against sustainability, presents how the creditors imposed intrusive conditionalities attached to the loan agreements, which led directly to the economic unviability and unsustainability of debt. These conditionalities, on which the creditors still insist, have not only contributed to lower GDP as well as higher public borrowing, hence a higher public debt/GDP making Greece’s debt more
unsustainable, but also engineered dramatic changes in the society, and caused a humanitarian crisis. The Greek public debt can be considered as totally unsustainable at present.

Chapter 6, Impact of the “bailout programmes” on human rights, concludes that the measures implemented under the “bailout programmes” have directly affected living conditions of the people and violated human rights, which Greece and its partners are obliged to respect, protect and promote under domestic, regional and international law. The drastic adjustments, imposed on the Greek economy and society as a whole, have brought about a rapid deterioration of living standards, and remain incompatible with social justice, social cohesion, democracy and human rights.

Chapter 7, Legal issues surrounding the MoU and Loan Agreements, argues there has been a breach of human rights obligations on the part of Greece itself and the lenders, that is the Euro Area (Lender) Member States, the European Commission, the European Central Bank, and the International Monetary Fund, who imposed these measures on Greece. All these actors failed to assess the human rights violations as an outcome of the policies they obliged Greece to pursue, and also directly violated the Greek constitution by effectively stripping Greece of most of its sovereign rights. The agreements contain abusive clauses, effectively coercing Greece to surrender significant aspects of its sovereignty. This is imprinted in the choice of the English law as governing law for those agreements, which facilitated
the circumvention of the Greek Constitution and international human rights obligations. Conflicts with human rights and customary obligations, several indications of contracting parties acting in bad faith, which together with the unconscionable character of the agreements, render these agreements invalid.

Chapter 8, Assessment of the Debts as regards illegitimacy, odiousness, illegality, and unsustainability, provides an assessment of the Greek public debt according to the definitions regarding illegitimate, odious, illegal, and unsustainable debt adopted by the Committee.

Chapter 8 concludes that the Greek public debt as of June 2015 is unsustainable, since Greece is currently unable to service its debt without seriously impairing its capacity to fulfill its basic human rights obligations. Furthermore, for each creditor, the report provides evidence of indicative cases of illegal, illegitimate and odious debts.

Debt to the IMF should be considered illegal since its concession breached the IMF’s own statutes, and its conditions breached the Greek Constitution, international customary law, and treaties to which Greece is a party. It is also illegitimate, since conditions included policy prescriptions that infringed human rights obligations. Finally, it is odious since the IMF knew that the imposed measures were undemocratic, ineffective, and would lead to serious violations of socio-economic rights.

Debts to the ECB should be considered illegal since the ECB over-stepped its mandate by imposing the application of macroeconomic adjustment programmes (e.g. labour market deregulation) via its participation in the Troika. Debts to the ECB are also illegitimate and odious, since the principal raison d’etre of the Securities Market Programme (SMP) was to serve the interests of the financial institutions, allowing the major European and Greek private banks to dispose of their Greek bonds.

The EFSF engages in cash-less loans which should be considered illegal because Article 122(2) of the Treaty on the Functioning of the European Union (TFEU) was violated, and further they breach several socio-economic rights and civil liberties. Moreover, the EFSF Framework Agreement 2010 and the Master Financial Assistance Agreement of 2012 contain several abusive clauses revealing clear misconduct on the part of the lender. The EFSF also acts against democratic principles, rendering these particular debts illegitimate and odious.

The bilateral loans should be considered illegal since they violate the procedure provided by the Greek constitution. The loans involved clear misconduct by the lenders, and had conditions that contravened law or public policy. Both EU law and international law were breached in order to sideline human rights in the design of the macroeconomic programmes. The bilateral loans are furthermore illegitimate, since they were not used for the benefit of the population, but merely enabled the private creditors of Greece to be bailed out. Finally, the bilateral loans are odious since the lender states and the European Commission knew of potential violations, but in 2010 and 2012 avoided to assess the human rights impacts of the macroeconomic adjustment and fiscal consolidation that were the conditions for the loans.

The debt to private creditors should be considered illegal because private banks conducted themselves irresponsibly before the Troika came into being, failing to observe due diligence, while some private creditors such as hedge funds also acted in bad faith. Parts of the debts to private banks and hedge funds are illegitimate for the same reasons that they are illegal; furthermore, Greek banks were illegitimately recapitalized by tax-payers. Debts to private banks and hedge funds are odious, since major private creditors were aware that these debts were not incurred in the best interests of the population but rather for their own benefit. The report comes to a close with some practical considerations.

Chapter 9, Legal foundations for repudiation and suspension of the Greek sovereign debt, presents the options concerning the cancellation of debt, and especially the conditions under which a sovereign state can exercise the right to unilateral act of repudiation or suspension of the payment of debt under international law. Several legal arguments permit a State to unilaterally repudiate its illegal, odious, and illegitimate debt. In the Greek case, such a unilateral act may be based on the following arguments: the bad faith of the creditors that pushed Greece to violate national law and international obligations related to human rights; preeminence of human rights over agreements such as those signed by previous governments with creditors or the Troika; coercion; unfair terms flagrantly violating Greek sovereignty and violating the Constitution; and finally, the right recognized in international law for a State to take countermeasures against illegal acts by its creditors, which purposefully damage its fiscal sovereignty, oblige it to assume odious, illegal and illegitimate debt, violate economic self-determination and fundamental human rights. As far as unsustainable debt is concerned, every state is legally entitled to invoke necessity in exceptional situations in order to safeguard those essential interests threatened by a grave and imminent peril. In such a situation, the State may be dispensed from the fulfilment of those international obligations that augment the peril, as is the case with outstanding loan contracts. Finally, states have the right to declare themselves unilaterally insolvent where the servicing of their debt is unsustainable, in which case they commit no wrongful act and hence bear no liability.

People’s dignity is worth more than illegal, illegitimate, odious and unsustainable debt.

Having concluded its preliminary investigation, the Committee considers that Greece has been and still is the victim of an attack premeditated and organized by the International Monetary Fund, the European Central Bank, and the European Commission. This violent, illegal, and immoral mission aimed exclusively at shifting private debt onto the public sector.

Making this preliminary report available to the Greek authorities and the Greek people, the Committee considers to have fulfilled the first part of its mission as defined in the decision of the President of the Hellenic Parliament of 4 April 2015. The Committee hopes that the report will be a useful tool for those who want to exit the destructive logic of austerity and stand up for what is endangered today: human rights, democracy, peoples’ dignity, and the future of generations to come.

In response to those who impose unjust measures, the Greek people might invoke what Thucydides mentioned about the constitution of the Athenian people: “As for the name, it is called a democracy, for the administration is run with a view to the interests of the many, not of the few” (Pericles’ Funeral Oration, in the speech from Thucydides’ History of the Peloponnesian War).

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.

Is media just another word for control?

http://johnpilger.com/articles/is-media-just-another-word-for-control

Is media just another word for control?

by John Pilger, 2 January 2014
 
A recent poll asked people in Britain how many Iraqis had been killed as a result of the invasion of Iraq in 2003. The answers they gave were shocking. A majority said that fewer than 10,000 had been killed. Scientific studies report that up to a million Iraqi men, women and children died in an inferno lit by the British government and its ally in Washington. That’s the equivalent of the genocide in Rwanda. And the carnage goes on. Relentlessly.
 
What this reveals is how we in Britain have been misled by those whose job is to keep the record straight. The American writer and academic Edward Herman calls this ‘normalising the unthinkable’. He describes two types of victims in the world of news: ‘worthy victims’ and ‘unworthy victims’. ‘Worthy victims’ are those who suffer at the hands of our enemies: the likes of Assad, Qadaffi, Saddam Hussein. ‘Worthy victims’ qualify for what we call ‘humanitarian intervention’. ‘Unworthy victims’ are those who get in the way of our punitive might and that of the ‘good dictators’ we employ. Saddam Hussein was once a ‘good dictator’ but he got uppity and disobedient and was relegated to ‘bad dictator’.
 
In Indonesia, General Suharto was a ‘good dictator’, regardless of his slaughter of perhaps a million people, aided by the governments of Britain and America. He also wiped out a third of the population of East Timor with the help of British fighter aircraft and British machine guns. Suharto was even welcomed to London by the Queen and when he died peacefully in his bed, he was lauded as enlightened, a moderniser, one of us. Unlike Saddam Hussein, he never got uppity.
 
When I travelled in Iraq in the 1990s, the two principal Moslem groups, the Shia and Sunni, had their differences but they lived side by side, even intermarried and regarded themselves with pride as Iraqis. There was no Al Qaida, there were no jihadists. We blew all that to bits in 2003 with ‘shock and awe’. And today Sunni and Shia are fighting each other right across the Middle East. This mass murder is being funded by the regime in Saudi Arabia which beheads people and discriminates against women. Most of the 9/11 hijackers came from Saudi Arabia. In 2010, Wikileaks released a cable sent to US embassies by the Secretary of State Hilary Clinton. She wrote this: “Saudi Arabia remains a critical financial support for Al Qaeda, the Taliban, al Nusra and other terrorist groups… worldwide”. And yet the Saudis are our valued allies. They’re good dictators. The British royals visit them often. We sell them all the weapons they want.
 
I use the first person ‘we’ and ‘our’ in line with newsreaders and commentators who often say ‘we’, preferring not to distinguish between the criminal power of our governments and us, the public. We are all assumed to be part of a consensus: Tory and Labour, Obama’s White House too. When Nelson Mandela died, the BBC went straight to David Cameron, then to Obama. Cameron who went to South Africa during Mandela’s 25th year of imprisonment on a trip that was tantamount to support for the apartheid regime, and Obama who recently shed a tear in Mandela’s cell on Robben Island – he who presides over the cages of Guantanamo.
 
What were they really mourning about Mandela? Clearly not his extraordinary will to resist an oppressive system whose depravity the US and British governments backed year after year. Rather they were grateful for the crucial role Mandela had played in quelling an uprising in black South Africa against the injustice of white political and economic power. This was surely the only reason he was released. Today the same ruthless economic power is apartheid in another form, making South Africa the most unequal society on earth. Some call this “reconciliation”.
 
We all live in an information age – or so we tell each other as we caress our smart phones like rosary beads, heads down, checking, monitoring, tweeting. We’re wired; we’re on message; and the dominant theme of the message is ourselves. Identity is the zeitgeist. A lifetime ago in ‘Brave New World’, Aldous Huxley predicted this as the ultimate means of social control because it was voluntary, addictive and shrouded in illusions of personal freedom. Perhaps the truth is that we live not in an information age but a media age. Like the memory of Mandela, the media’s wondrous technology has been hijacked. From the BBC to CNN, the echo chamber is vast.
 
In his acceptance of the Nobel Prize for Literature in 2005, Harold Pinter spoke about a “manipulation of power worldwide, while masquerading as a force for universal good, a brilliant, even witty, highly successful act of hypnosis.” But, said Pinter, “it never happened. Nothing ever happened. Even while it was happening it wasn’t happening. It didn’t matter. It was of no interest.”
 
Pinter was referring to the systematic crimes of the United States and to an undeclared censorship by omission – that is, leaving out crucial information that might help us make sense of the world.
 
Today liberal democracy is being replaced by a system in which people are accountable to a corporate state – not the other way round as it should be. In Britain, the parliamentary parties are devoted to the same doctrine of care for the rich and struggle for the poor. This denial of real democracy is an historic shift. It’s why the courage of Edward Snowden, Chelsea Manning and Julian Assange is such a threat to the powerful and unaccountable. And it’s an object lesson for those of us who are meant to keep the record straight. The great reporter Claud Cockburn put it well: “Never believe anything until it’s officially denied”.
 
Imagine if the lies of governments had been properly challenged and exposed as they secretly prepared to invade Iraq – perhaps a million people would be alive today.
 
This is a transcript of John Pilger’s contribution to a special edition of  BBC Radio 4’s ‘Today’ programme, on 2 January 2014, guest-edited by the artist and musician Polly Harvey. You can listen to the above transcript here
 
http://www.youtube.com/watch?v=18spvWk1qko

Turkey shuts off YouTube after ‘Syria invasion plan’ leak

Turkey shuts off YouTube after ‘Syria invasion plan’ leak

http://rt.com/news/turkey-block-youtube-twitter-649/

RT.COM,  March 27, 2014

Access to YouTube has been cut off in Turkey after an explosive leak of audiotapes that appeared to show ministers talking about provoking military intervention in Syria. Other social media have already been blocked ahead of tumultuous local elections.

The latest leaked audio recording, which reportedly led to the ban, appears to show top government officials discussing a potential attack on the tomb of Suleyman Shah, the grandfather of the founder of the Ottoman Empire.

The tomb is in Syrian territory, but protected by Turkish soldiers.

On the tape, Turkish Foreign Minister Ahmet Davutoğlu is heard to say that Prime Minister Recep Tayyip Erdogan sees any attack as an “opportunity” to increase Turkish presence in Syria, where it has staunchly supported the anti-Assad rebels. Security chief Hakan Fidan then goes one step further, and suggests staging a fake attack to give Turkey a casus belli to intervene in the conflict.

Turkish officials have recently vowed to protect the tomb as its “national soil.”

The Foreign Ministry in Ankara reacted to the tape by issuing a statement, calling the leak a “wretched attack” on national security. It also claims the tape was “partially manipulated.”

“These treacherous gangs are the enemies of our state and people. The perpetrators of this attack targeting the security of our state and people will be uncovered in the shortest time and will be handed over to justice to be given the heaviest penalty,” the ministry said.

A source inside the office of President Abdullah Gül, who has taken a softer line than Erdoğan over the series of government leaks, told Reuters that access to YouTube may be restored if the sensitive content is removed, even though the original video has been deleted.

Invoking national security and privacy concerns has been the government’s tactic in fighting off a stream of leaks showing top officials engaging in unsavory or downright illegal practices.

Erdoğan has also repeatedly claimed that most of the audio recordings are fakes. He labeled the latest audio revelation “villainous” during a stump speech in Diyabakir.

Twitter, another popular source for leaks, has already been shut down in Turkey since March 20, after a court order.

Since then, the California-based social network and organizations have fought in several courts to have the decision reversed, calling it “disproportionate and illegal.”

A court ruling in Ankara on Wednesday supported the appeal, but the country’s regulator has a month to unblock Twitter, leading to speculation that any such move would only take place after the election.

The incumbent party also enjoys the benefit of robust privacy legislation passed last month, which makes it easy to cut off any website even before any violation has been legally proven.

The US has led the chorus of international condemnation, calling the government’s moves “censorship” tantamount to “21st century book-burning.”
OSCE slams YouTube ban

Turkey is deliberately ignoring the fundamental right of freedom of the press by blocking access to social media platforms, Dunja Mijatović, the OSCE Representative on Freedom of the Media stated.

“A regulator exercising censorship by blocking is unacceptable in democracies, and it breaches numerous OSCE and other international standards that Turkey has committed to,” Mijatović said.

The OSCE calls on Ankara to immediately restore access to YouTube and Twitter.

“I call on the authorities to preserve the free flow of information and media freedom both online and offline, and immediately restore access to YouTube. I also urge TIB to reinstate Twitter services without delay following yesterday’s court decision annulling the ban on the website,” added Mijatović.

http://rt.com/news/turkey-block-youtube-twitter-649/ (http://rt.com/news/turkey-block-youtube-twitter-649/)

The War on Libya : An Imperialist Project to Create Three Libyas

The War on Libya : An Imperialist Project to Create Three Libyas

By Mahdi Darius Nazemroaya
Global Research, July 29, 2011

TRIPOLI, July 28, 2011 The division of Libya into three separate countries is part of the US-NATO imperial design. It is part of a project shared by the U.S., Britain, Italy, and France.

The NATO war launched against Libya in March 2011 was geared towards the breakup of the country into three separate entities.

The NATO led war, however, is back firing. The Libyan people have united to save their country and Tripoli is exploring its strategic options.

Preface: Reality versus Fiction

Almost all of the text herein was written a few months prior to my trip to Tripoli. It is part of a series of articles on Libya which I have been updating. It is fitting to conclude it in Tripoli, Libya. To be here on the ground in Libya is to be witness to the lies and warped narratives of the mainstream media and the governments. These lies have been used to justify this criminal military endeavor.

The mainstream media has been a major force in this war. They have endorsed and fabricated the news, they have justified an illegal and criminal war against an entire population.

Passing through the neighbourhood of Fashloom in Tripoli it is apparent that no jets attacked it as Al Jazeera and the British Broadcasting Corporation (BBC) falsely claimed. Now the same media networks, newspapers, and wires claim on a daily basis that Tripoli is about to fall and that the Transitional Council is making new advances to various cities. Tripoli is nowhere near falling and is relatively peaceful. Foreign journalists have also all been taken to the areas that are being reported to have fallen to the Transitional Council, such as Sabha and its environs.

The mainstream media reporting out of Tripoli have consistently produced false reports. They report about information from “secure internet services” which essentially describes embassy and intelligence communication media. This is also tied to the “shadow internet” networks that the Obama Administration is promoting as part of a fake protest movement directed against governments around the world, including Latin America, Africa and Eurasia.

The foreign press operating out of Libya have deliberately worked to paint a false picture of Libya as a country on the brink of collapse and Colonel Qaddafi as a despot with little support.

A journalist was filmed wearing a bulletproof vest for his report in a peaceful area where there was no need for a bulletproof vest. These journalists broadly transmit the same type of news as the journalists embedded with the armed forces, the so-called embedded journalists. Most of the foreign press has betrayed the sacred trust of the public to report accurately and fairly.

Not only are they actively misreporting, but are serving the interests of the military coalition. They are actively working “against Libya.” They and their editors have deliberately fashioned reports and taken pictures and footage which have been used to portray Tripoli as an empty ghost town.

Le Monde for example published an article on July 7, 2011 by Jean-Philippe Rémy, which included misleading photographs that presented Tripoli as a ghost city. The photographs were taken by Laurent Van der Stickt, but it was the editors in Paris who selected the pictures to be used for publication. Le Monde is an instrument of war propaganda. It is publishing material which serves to mislead French public opinion.

Sky News is no better. Lisa Holland of Sky News has always used the words “claimed,” “claim,” and “unverified” for anything that Libyan officials say, but presents everything that NATO says without the same doubt-casting language as if it is an unquestionable truth. She used every chance she had to degrade the Libyans. When she visited the bombed home of the daughter of Mohammed Ali Gurari, where the entire family was killed by NATO, she repeatedly asked if Qaddafi was responsible for the bombing to the dismay of those present, with the exception of the reporters who helped paint distorted pictures in the mind of their audiences and readers. She has deliberately distorted the underlying the reality of the situation, blaming Qaddafi, while knowing full well who had killed the Gurari family.

Other reports include those of Liseron Boudoul., Boudoul is a reporter for Télévision française 1 (TF1), who has been in Tripoli for months. She reported on March 22, 2011 that all the reports coming out of Tripoli are reviewed and censored by Tripoli. This statement was fabricated. If the Libyans had been censoring the news, they would not have allowed her to make that statement or for her and her colleagues to continue their disinformation campaign. Like all the other foreign journalists in Libya, she has witnessed the popular support for Colonel Qaddafi, but this important information has been deliberately withheld from her reports.

Much of what is being passed on as news by foreign reporters on the ground is a mirror of the US-NATO’s fake humanitarian mandate.


There is a real military-industrial-media complex at work in North America and Western Europe. Most of the media claims are nonsensical and contrary to the facts on the ground. They ignore the realities and hard facts. Were these to have been revealed, people in NATO countries would be mobilizing against their governments and against the NATO led war on Libya.

They have helped portray the victim as the aggressor. They use every chance they have to demonize the Libyan government, while upholding the legitimacy of NATO. Essentially many of these so-called journalists are professional propagandists.

The mainstream media has also basically worked as an intelligence branch of the Pentagon and NATO in multiple ways. The mainstream media has been party to atrocities and crimes and that point should not be lost when analyzing the war in Libya. British journalists have even been said to have given coordinates for bombings to NATO.

Libya: A Nation and its Society

Because of its geographic location, Libya has been at the crossroads, a meeting point of various ethnic groups and nationalities, The inhabitants of Libya are a mixed people of various stocks from Africa, the Mediterranean Basin, Europe, and Southwest Asia. Berbers, Egyptians, Greeks, people of Italian descent, people from the Levant, Iranians, Arabs, Turks, Vandals, Hadjanrais, Tuaregs (the Kel Tamajaq or Kel Tamashq), and several other groups have all contributed to the mosaic that constitutes the present population and society of Libya.

The genesis of the concept of a Libyan nation as a loosely-knit entity started with the imperial rule of the Ottoman Empire in North Africa. For the inhabitants of Libya it resulted in a shared feeling of similarity that intensified after the Italo-Ottoman War. After this war between the Ottoman Empire and Italy, the three Ottoman provinces in Libya fell under Italian colonial control.

From the Ottoman and Italian periods onwards up until the years after the Italian defeat the Eastern Libyans had much in common with their kindred in Egypt, while Western Libyans had much in common with their kindred in Tunisia and Algeria, and while Southern Libyans had much in common with their kindred in Niger, Chad, and Sudan. The inhabitants of Libya, however, also had much in common with each other. This included a shared history, a shared language with similar dialects of Arabic, a shared faith, and shared political goals.


Geographic proximity and a united feeling of animosity towards the Italians were also important ingredients in establishing a sense of nationhood. Under Italian rule of Libya this feeling of similarity amongst the local inhabitants eventually developed into a national identity as well as a resistance movement to Italian colonial rule. The aspirations of this indigenous resistance were local sovereignty and unity without any foreign yoke.

The Devil’s Game: Divide and Conquer

Libya has fallen deeper and deeper into a trap. The flames of internal fighting have been fuelled in Libya with the aim of replicating the same divisive scenarios that occurred in the former Yugoslavia and in Iraq. These plans are also aimed at igniting chaos in North Africa and West Africa in an effort to re-colonize Africa in its entirety.

The objective of Washington and its allies consists in confiscating and managing Libya’s vast wealth and controlling its resources. The have initiated a foreign-propelled civil war in Libya. Meanwhile the forces of Colonel Qaddafi have regained control of most of Libyan territory.

The coalition then decided to intervene when the Benghazi-based Transitional Council was lying in its deathbed and was in very desperate shape. If it had to, the Transitional Council was willing to make a deal with the “Devil” for its survival. Thus, the Transitional Council embraced its NATO enablers even closer.

It must also be asked, which Libyan tribes have publicly sided with the Transitional Council? This is a very important question that allows one to establish the extent of public support for the rebellion. Anyone who understands Libyan society also understands the heavy political weight and representation the tribes have.

Also, how many people remain in Benghazi? The demographics of that city have changed since the start of the conflict. Many people have fled to Egypt and abroad from Benghazi. This is not due to the fighting alone, but is tied to a lack of support for the Transitional Council, not to mention the foreign fighters that the TNC has brought, and the lawlessness prevailing in Benghazi.

Dividing Libya into Three Trusteeships

There have been longstanding designs for dividing Libya that go back to 1943 and 1951. This started with failed attempts to establish a trusteeship over Libya after the defeat of Italy and Germany in North Africa during the Second World War.

The attempts to divide Libya then eventually resulted in a strategy that forced a monarchical federal system onto the Libyans similar to the “federal system” imposed on Iraq following the illegal 2003 Anglo-American invasion. If the Libyans had accepted federalism in their relatively homogenous society they could have forfeited their independence in 1951. [1]

Great sacrifices were made by the Libyans who fought to liberate their nation. During the Second World War the Libyans allowed Britain to enter their country to fight the Italians and the Germans. Benghazi fell to British military control on November 20, 1942, and Tripoli on January 23, 1943.[2] Despite its promises to allow Libya to become an independent country, London intended to administer the two Libyan provinces of Tripolitania and Cyrenaica separately as colonies, while Paris was given control over the region of Fezzan (Fazzan), which is roughly one-third of Libya and the area to the southwest of the country bordering Algeria, Niger, and Chad. [3]

Following the end of the Second World War the victors and Italy attempted to partition Libya into territories that they would govern over as trust territories. It is because of the failure of this project that the Libyans gained independence as a united nation.

The political scientist Henri Habib describes this best:

The Allies, hav[ing] introduced a division in [Libya], hoped to have enough time to achieve their own ambitions. In the meantime, the Four Big Powers – the U.S.A., the U.S.S.R., the U.K., and France – met on two occasions at Potsdam and at San Francisco to discuss among other things the future of the former Italian colonies in Africa, including Libya. They referred the matter to the Council of Foreign Ministers of the Big Four. The latter met in London in September, 1945, and later in April, 1946, but were unable to agree. The U.S. proposed a collective United Nations Trusteeship over Libya; the U.S.S.R. proposed a Soviet Trusteeship over Tripolitania; while France wanted it returned to Italy. Eventually, the Soviets adopted the French view, but insisted on a Soviet-Italian Trusteeship. The British were ambiguous on the future; Britain and the U.S. later accepted an Italian Trusteeship on the condition, Britain insisted, that Cyrenaica be excluded. On February 10, 1947, a peace treaty with Italy was signed in Paris without settling the question of the Italian colonies. The Italians renounced all rights to their former colonies. They were secretly encouraged to make this renunciation in exchange for a vague promise of a U.N. Trusteeship over some of their former colonies. The Paris Conference had established as a corollary to the 1947 Peace Treaty with Italy a special Four Power Commission of Investigation to study the conditions in the former Italian colonies. They visited Libya from March 6, to May 20, 1948. They also consulted with the Italian government. The Commission was unable to arrive at a common decision, and conflicting recommendations were made, despite a strong desire made by the Libyan people for their independence. […] When the foreign ministers of the Big Four met on September 13, 1948, to receive the recommendations, they had little choice but to refer the whole matter to the General Assembly of the U.N. scheduled to meet on September 15, 1948.
Thus the question of the Libyan and other Italian colonies was placed on the U.N. General Assembly agenda. [4]

Once the matter was handed to the U.N. General Assembly, the British and the Italians made a last-ditch proposal on May 10, 1949, called the Bevin-Sfora Plan for Libya that consisted in dividing Libyan territory into an Italian-controlled Tripolitania, a British-controlled Cyrenaica, and a French-ruled Fezzan. [5] The motion failed by a vote of one and if it were not for the crucial vote of Haiti the U.N. would have portioned Libya into three separate countries. [6] (See map below)

The defeat of the plans to divide Libya at the U.N. would not be the end of the project to divide the North African country. There was still the internal card, division from within. This is where King Idris came into the picture.

Soft Balkanization through a Federal Emirate

Libya could have ended up like Kuwait, Bahrain, Qatar, and the Trucial Sheikhdoms which subsequently formed the United Arab Emirates. The British, the French, and the Italians did not give up their design for Libya, even when the U.N. General Assembly voted in favour of a united and independent Libya. They continued to try to divide Libya and even establish spheres of influence in consultaiton with the U.S. The focus was on Libyan federalism through an unelected National Assembly controlled by King Idris and a small circle of Libyan chieftains. [7]

The federalist system was unacceptable to many Libyans, which saw the new undemocratic National Assembly as a means of sidestepping the Libyan people. Moreover, the elected representatives from the heavily populated region of Tripolitania would be outweighed by the unelected chieftains from Cyrenaica and Fezzan. The official U.S. position was that the so-called “indigenous political leadership” of Cyrenaica and Fezzan enter the National Assembly with the elected representatives from Tripolitania on the “basis of equal representation for all parts of Libya.” [8] This was Orwellian double-speak that was meant to sidestep the will of the Libyan people. What was being pushed for by the U.S., Britain, France, and Italy was a country similar to the Arab sheikhdoms of the Persian Gulf.

In 1951, the U.S. State Department had this to say about the unelected National Assembly and King Idris:
The Department hopes and expects that all powers previously exercised by the Administering Authorities [meaning France and Britain] will, by the date fixed by the [U.N. General Assembly] (i.e., January 1, 1952) “have been transferred to the duly constituted Libyan Government”. Proclamation of independence is expected to follow thereafter, together with the assumption by [the] Emir (Idris Al Senusi) of his position as constitutional monarch of United Libya. [9]

This did not sit well with many Arabs. Egypt was highly critical and saw through the diplomatic deceit. The Egyptian and wider Arab opposition were based on the following rationale:

(a) the National Assembly (which prepared the [Libyan] constitution) should have been an elected rather than an appointed body (Egypt has contended previously that only an elected [or democratic] National Assembly in which the three parts of Libya […] were represented in proportion to their population could properly represent the people of Libya in the constitution-making process […]) ; (b) the form of government should be unitary rather than federal ; and (c) the present federation plan is merely a disguised method of maintaining old imperialist control over Libya by the interested great powers. [10]

In this regard, Henri Habib states: “When Libya obtained its independence in December 1951, federalism was imposed upon the country by King Idris and the foreign powers [specifically Britain, France, the U.S., and Italy] despite opposition from the majority of Libyans.” [11] He adds further: “Libyans saw their country deliberately divided by Britain and France, and [the] seeds of division planted among them.” [12]


Federalism, however, would be defeated by the steadfast pan-Arab demands for unity by the Libyan people:
Despite the initially strong opposition of King Idris and his British mentors, the country was forced by the nature of things to adopt the unitary system in April 1963. The federal experiment was a failure and even the king had to acknowledge it. A special royal decree was issued on April 27, 1963, abolishing federalism and establishing the unitary system. [13]

If Washington, London, Paris, and Rome had succeeded in their design, modern-day Libya would in all likelihood not have become a republic. Instead Libya would most probably have mirrored the model of the United Arab Emirates, as an Arab petro-sheikhdom in the Mediterranean and the only Arab sheikhdom outside of the Persian Gulf littoral.

Calculated Balkanization via Civil War: Dividing Libya into Trusteeships

There was more than just fate on the side of the Libyan people who had fought for their independence. The imperialist attempt to divide Libya into three territories was defeated by the Libyan people. In the words of Henri Habib:

Despite the attempts made by a number of powers to keep Libya divided and weak after 1951 by establishing a federal system in a homogenous state, the Libyans amended their own constitution in 1963, established a unitary state and removed a major obstacle to the unity of [Libya]. This obstacle was an administrative or structural impediment to the fuller evolution of independence which the Libyans sacrificed so much to achieve. [14]

During the previous scheme to divide their country many Libyans realized that the objective of the former colonial powers was to enhance the powers of King Idris. Idris was to serve as a foreign vassal and the “local manager” of foreign interests. His role would have been similar to the Arab monarchs in Jordan and Morocco. The purpose was to install a neocolonial regime while weakening Libya as a nation-State. [15]

Today, in the context of the US-NATO led war, the objectives to divide Libya into the three territories of Tripolitania, Cyrenaica, and Fezzan are very much alive. James Clapper Jr., the U.S. Director of National Intelligence, had testified to the U.S. Senate in March 2011 that at the end of the conflict Libya would revert to its previous federalist divisions which existed under the monarchy and that the country would have two or three different administrations. [16]


Thus, effectively Britain, France and Italy have resumed their neocolonial project to balkanize Libya into three separate states. All three countries have acknowledged sending military advisors to the Transitional Council: “Italian Defence Minister Ignazio La Russa said 10 military instructors would be sent and details were being worked out. He spoke Wednesday [April 20, 2011] after meeting with his British counterpart, Liam Fox.” [17] It is most likely that hundreds of NATO and Gulf Cooperation Council (GCC) military advisors and special troops are operating on the ground in Libya.

France has openly admitted funnelling weapons into the Western Mountains to forces hostile to the Tripoli government. [18] This constitutes a breach of U.N. security council resolution 1973. It constitutes a blatant violation of international law. The French government claims that they are sending weapons to civilians to protect themselves. This is a non-sequitur argument. It has no legal standing whatsoever and is an utter lie.

Weapons’ shipments have also been flown into Benghazi by these Western European powers and the U.S. under the disguise of humanitarian aid. Moreover there are signs that the small insurgency in the Western Mountains was coordinated by U.S. diplomats in November 2010. [19] One U.S. diplomat was asked to leave Libya in November 2010 for making unauthorized secret trips to the area, just as U.S. and French diplomats have done in Hama to stroke tensions in Syria. [20]

This war seeks to create divisions within Libyan society. Admiral Stravridis, the U.S. commander in charge of NATO, has told the U.S. Senate Armed Services Committee in March 2011 that he believed that Qaddafi’s support base would shrink as the tribal cleavages in Libya came “into play” as the war proceeded. [21] What Stravridis indirectly spelled out is that the NATO operations in Libya will cause further internal divisions through igniting tribal tensions that will cement regional differences. This is one of the real aims of the bombing campaign. [22] The U.S. and NATO also know full well that if Colonel Qaddafi is gone that the Libyan tribes would bicker amongst themselves for power and be politically divided. This is why they have been very adamant about removing Qaddafi.

The U.S., Britain, France, Italy, and NATO have all banked on a power vacuum that would be left by Qaddafi if he leaves power or dies. This is why they want to kill him. They have calculated that there will be a mad dash to fill the power vacuum that will help divide Libya further and promote violence. They are also very well aware that any tribal conflicts in Libya will spread from North Africa into West Africa and Central Africa.

The NATO-led coalition against Libya is supported by covert intelligence operaitons on the ground as psychological operations (PSYOPS) to create internal divisions within the Tripoli government. This is intended to not only weaken the regime and to make it act more desperately, but it is also intended to compound the internal divisions within Libya.
Britain’s William Hague has offered sanctuary to any Libyan officials, such as Musa Al-Kusa, that wish to defect from Tripoli and has said that London will exempt them from international sanctions. [23] This British offer of “exemption” also illustrates that the international sanctions against Libya are a political weapon with very little moral or ethical meaning or drive.

Even within the Benghazi-based Transitional Council there are divisions that the Pentagon and NATO have been exploiting. The Wall Street Journal had this to report about the animosity between the so-called jihadist elements and the rest of the Transitional Council: “Some rebel leaders are wary of their [meaning the jihadists] roles. ‘Many of us were concerned about these people’s backgrounds,’ said Ashour Abu Rashed, one of Darna’s representatives on the rebel’s provisional government body, the Transitional National Council.” [24] It has also been disclosed that the Transitional Council forces are also fighting each other and using NATO against each other. [25]

Sowing the Seeds of Chaos: Al-Qaeda and Libya

U.S. officials have increasingly been talking about the expansion of Al-Qaeda in Africa and how the “Global War on Terrorism” must be extended into the African continent. This talking point severes the following objectives:

1. To bolster U.S. Africa Command (AFRICOM) and a NATO-like alliance in Africa.

2. To control the Transitional Council, which is integrated by an Islamic militia as well prevent the development of an authentic and progressive opposition within Libya.

The U.S. and the E.U. would not not accept a truly independent Libyan government. In this regard, there are contingency plans which would allow the US and the E.U., if they so choose, to betray the Transitional Council or dispose of it like an outdated utensil. This is why the Pentagon and the mainstream media have started to speak about an Al-Qaeda presence in Libya.

Such scenario of betrayal should come as no surprise. The U.S. and its allies have consistently betrayed former allies. Saddam Hussein is one example and another is the Taliban government in Kabul, which was directly supported by the US.

Washington and its cohorts are deliberately keeping the Al-Qaeda card in reserve to use against the Transitional Council in case it refuses to cooperate with Washington and NATO. Regardless of a Transitional Council victory, they also want to use the Al-Qaeda card as a a justificaiton for future military interventions in Libya under the banner of the “war on terrorism”.

It is very likely that terrorist attacks will occur in Libya in some form like they did in Iraq following its 2003 invasion and occupation. These acts of terrorism will be covertly coordinated by Washington and its NATO allies.

In the words of Robin Cook the former foreign minister of Britain, Al-Qaeda is “originally the computer file of the thousands of mujahideen who were recruited and trained with help from the CIA to defeat the Russians [sic.; Soviets].” [26] Washington and NATO are now planning to use Al-Qaeda and the militant Islamists that they themselves created to fight countries opposed to their agenda, such as Syria and Libya, and to implant a new generation of subservient Islamist politicians into Arab countries, such as Egypt.

Dividing Libya: Destroying the Nation State

This war in Libya has nothing to do with saving lives. Truth is turned upside down: Killing is saving lives, being dead is being alive, war is peace, destruction is preservation, and open lies are presented as the truth. People have been blinded by a slew of lies and utter deception.

In this conflict most of the propaganda, most of the lies, and most of the hatred have invariably come from people who are not actually involved in the fighting. Others have been used as their pawns and Libya as their battlefield. All the known advocates of Pentagon militarism and global empire demanded for this war to take place, including Paul Wolfowitz, John McCain, Joseph Lieberman, Eliott Abrahams, Leon Wieseltier, John Hannah, Robert Kagan, and William Kristol.

There has been a blatant infringement of international law. War crimes and crimes against humanity have been committed by NATO in Libya. These crimes will never be investigated by the International Criminal Court (I.C.C.) or the U.N. Quite the opposite: the U.N. Security Council and the I.C.C. are political weapons, which are being used against Libya. The UN is silent on the use of depleted uranium (D.U.) ammunition or the bombing of civilian targets

This is not a a humanitarian war: the first target of the war was the Mint which prints and issues Libyan dinars and the country’s food storage facilities. Several humanitarian organizations were targetted including schools, a children center, hospitals, the offices of the Down’s Syndrome Society, the Handicapped Women’s Foundation, the National Diabetic Research Centre, the Crippled Children’s Foundation. Among the hospitals and medical facilities which have been bombed is a complex used for medical oxygen production.


The bombings have also targetted residential areas, a hotel, restaurants, a bus filled with civilians, Nasser University (a campus of Al-Fatah University), and a conference hall with participants involved in anti-war activism. Meanwhile NATO was supplying the rebels with offensive weapons [27]

What is happening in Libya is an insidious process.
The underlying objective is create divisions within Libyan society.

The war is dragging out, which in turn creates a situation in which the Transitional Council becomes increasingly dependent on the US and NATO military alliance. This is why NATO has deliberately prolonged the war and reduced its support to the Transitional Council’s forces on the battlefield. This is one of the reasons why rebel forces have been pushed back. Even the so-called “friendly fire” incidents whereby NATO bombed the Transitional Council’s tank column heading towards Tripoli are suspect. Was this a deliberate attack with a view to prolonging the fighting. [28]

NATO has now bombed advancing Transitional Council forces several times. The Transitional Council has found it hard to explain why NATO has been bombing its forces and has even been placed in a position where it had to apologize on April 2, 2011 to NATO when its frontline volunteers were killed by NATO war planes. [29] Internal political fighting within the Transitional Council may also be a factor behind these “friendly fire” NATO bombings.

Many reports have described the conflict as intensifying:

The pro-Qadhafi forces mounted a fierce assault on Ajdabiyah since Saturday morning [April 9, 2011]. Following classic military tactics, regime forces first resorted to the heavy artillery firing, which was followed by incursions by infantry troops inside the town. By afternoon, shells were landing at Istanbul street in the city centre, causing panic among several opposition fighters, who chose to hastily flee in their vehicles towards Benghazi. However, some among the opposition ranks stood their ground, and managed to control the north-eastern access to the town. But another artillery barrage appeared to have dislodged them from their fragile moorings. As the battle raged, NATO forces were pitching in with air strikes, which seemed unable to silence the regime’s heavy guns. On Sunday [April 10, 2011], NATO claimed that air strikes had destroyed 11 regime tanks ahead of Ajdabiyah. The government said it had shot down two opposition helicopters, signalling the high intensity of the fighting on the ground as well as in the air. [30]

In reality there is a virtual stalemate. The Transitional Council is not moving westward, but has also been entrenched in its eastward positions due to NATO support.

One objective of NATO is to control both sides. The idea is that as both sides become more desperate they will also increasingly turn to Washington and Brussels for a way out of the war and make more concessions to U.S. and E.U. demands. The Israelis are also another player that can be turned to by both sides in Libya.

Both Tripoli and Benghazi have talked with the U.S. and the E.U. through different channels, which include using individuals in unofficial positions. Kurt Weldon, a former member of the U.S. Congress for Pennsylvania, went to meet with Libyan officials at the start of April 2011. Weldon made the trip to Tripoli in coordination with the White House. The U.S. media tried to casually gloss over Weldon’s visit running articles about how he did not meet Qaddafi.

At the onset of the fighting Tripoli accepted Venezuelan offers for mediation, which the U.S. and the E.U. undermined and the Transitional Council rejected. Tripoli even said that it accepted an initial March 2011 African Union ceasefire and reform plan, which were ignored by Washington and its allies. Tripoli even requested that the African Union, the U.N., and the E.U. investigate for themselves the claims against the Libyan government. Worldwide, most governments, from Brazil and Nigeria to Malaysia and China, voiced support for a negotiated settlement in Libya, but this has been ignored by the U.S., NATO, and the unrepresentative group of Arab dictators they call their allies.

The Qaddafi family’s subsequent requests for diplomatic negotiations were also turned down by the U.S. and the main E.U. powers. [31] Afterwards, Tripoli again accepted African Union offers for mediation spearheaded by the Republic of South Africa and a repeated African Union proposal for a ceasefire, which the U.S. and the E.U. undermined again and the Transitional Council rejected. [32] The repeated African Union proposal called for a ceasefire, the creation of humanitarian corridors, protection of foreigners, and finally dialogue between both sides in bringing democratic reform. [33] A massive people’s initiative for a reconciliation march across the war zone in Libya was even started, which received little press coverage outside of Africa and a few countries. [34]

The government in Tripoli has even put together a new constitution. [35] Tripoli even gave orders for the military to leave Misurata (Misrata/Misratah) and allow the local tribes to establish political order and security in the city and its surrounding district. [36] During talks with Greece officials from Libya even tried to use billions of frozen dollars to provide humanitarian aid to the Libyan people on both sides of the conflict, but had their plan obstructed and blocked by France. [37]

As they did during the invasion of Iraq, the political ranks have started to show breaks in London. Conservative parliamentarians in the British Parliament, such as John Baron, David Davis, and Peter Bone, are starting to criticize their leader, Prime Minister Cameron. [38]
Baron told the British press that the war on Libya has changed significantly: “When it was put before the House, the emphasis was very much on humanitarian assistance. This has changed into a mission of regime change [in Libya].” [39]

The Geo-Politics of Dividing Libya

Of significance, Washington does not want to have a visible presence in the war in North Africa. It has deliberately let its allies take the lead in the operation and painstakingly tried to distance itself from the war. It has presented itself as cautious and reluctant to go to war. [40] Washington’s allies are in reality acting on behalf of the Empire. NATO is also in the process of performing the role of global military force acting indirectly on behalf of the United States.

This war is not exclusively about controlling energy reserves and the Libyan economy. The war also encompasses a strategy to entrench U.S. and E.U. control over Africa as well balkanize the entire African region. The U.S. and the E.U. were adamant regarding Tripoli’s project to develop and unify Africa, as opposed to the neocolonial strategy of maintaining Africa as a provider of raw materials and (unmanufactured) natural resources. [41]

It is worth noting, in this regard, that the Director of National Intelligence, in testimony to the Senate Armed Services Committee during a session focusing on Libya, stated that Russia and China constitute “mortal threats” to the United States. [42] The war in Libya is also meant to shore up the drive into Eurasia, which targets Russia, China, Iran, and Central Asia.

The Arab sister-republics of Lebanon and Syria are targets too. Syria has been destabilized and the groundwork is underway in Lebanon with the Special Tribunal for Lebanon (STL). Control over Libya, Syria, and Lebanon would also complete the Mediterranean Union, which is a geo-political project of the E.U. and Washington to control the entire Mediterranean. [43]

Towards An African NATO

The war against Libya will also be used to create a NATO-like military structure in Africa that will be tied to AFRICOM. While speaking to the U.S. Senate Arms Services Committee, General Ham of AFRICOM pointed out that a military partnership with African states and support for regional military cooperation in Africa were strategic for Washington. General Ham was pointing to the fact that U.S. was planting the seeds of a NATO-like military structure in Africa that would be subordinate to Washington. In General Ham’s own words:

Secondly, building the Coalition to address the situation in Libya was greatly facilitated through the benefits of longstanding relationships and inter-operability, in this case through NATO. This is the kind of regional approach to security that U.S. Africa Command seeks to foster on the continent [of Africa]. U.S. Africa Command’s priority efforts remain building the security capacity of our African partners. We incorporate regional cooperation and pursuit of inter-operability, in all of our programs, activities, and exercises so our African partners are postured to readily form coalitions to address African security challenges as they arise. [44]

Libya is the crown of Africa and from Libya there is a perfect opening for the U.S., NATO, and the E.U. into the African continent. U.S. and NATO bases may also be established in the eastern portion of Libya and used as a staging ground for a possible war against Sudan. These bases could be established at the request of the Transitional Council and justified as a means of providing stability to North Africa and as a means of protecting the Libyan people in Benghazi.

The Destruction of the Libyan State

Washington and the E.U. want to privatize the Libyan public sector under the control of their corporations, take over Libyan industries, and control every aspect of the Libyan economy. On March 19, 2011 the Transitional Council declared that it had established a new Benghazi-based Libyan oil corporation and a new national bank under the auspicious of the Central Bank of Benghazi, which would be responsible for all of Libya’s monetary policies. [45] The new Benghazi-based institutions are an opening for an economic invasion and the colonization of Libya. The Central Bank of Benghazi, which is controlled by Britain’s Hong Kong and Shanghai Banking Corporation (HSBC), could also be given control of the Arab Banking Corporation, which could be used as an umbilical cord by Wall Street and Canary Wharf for infiltrating Libya.

The Benghazi-based Transitional Council is already starting the process of exporting oil with the aid of Qatar from the Libyan seaport of Tobruk (Tobruq) near the Egyptian border. [46] The countries and corporations trading with the Transitional Council are all breaching international law. This act is not only intended to weaken Libya, but it also criminal and a form of economic exploitation.

Moreover, Libyan oil will be used to finance weapons sales. The Transitional Council will use the funds from oil sales that it receives to purchase weapons to fight the Libyan military. This will also violate the Arms Trade Treaty (ATT). The Associated Press reported about this on April 1, 2011 saying:

A plan to sell rebel-held oil to buy weapons and other supplies has been reached with Qatar, a rebel official said Friday, in another sign of deepening aid for Libya’s opposition by the wealthy Gulf state after sending warplanes to help confront Moammar Gadhafi’s forces.

It was not immediately clear when the possible oil sales could begin or how the arms would reach the rebel factions, but any potential revenue stream would be a significant lifeline for the militias and military defectors battling Gadhafi’s superior forces. [47]

France, Italy, and Qatar have all recognized the Transitional Council as the government of Libya. [48] The U.S., Britain, Germany, Turkey, and their allies have also all given various forms of recognition to the Transitional Council. They are all working now to control the new institutions of the Benghazi administered areas of Libya. The European Bank for Reconstruction and Development (EBRD) is also hovering over Libya under the pretext of furthering democracy amongst the Arabs. [49] They all plan on profiting off the interests from the loans that they are now giving to the Transitional Council.

Two Parallel Administrations in Libya

The U.S. and the E.U. are trying to manipulate the Libyan people to their advantage; they are using the Libyan people as cannon fodder. The objective is to create a deadlock and foment chaos across North Africa. Even the sniper attacks on both Libyan sides could be the work of U.S., British, French, NATO, Egyptian, and Khaliji (Gulf) Arab agent provocateurs. The objective is to manipulate the Libyans into destroying their country from the within. The destruction of Yugoslavia, namely the “Balkanization of the Balkans” is the model which is being applied to Libya, leading to its division and political subordination to Washington and Brussels.

There have been discussions about splitting the country up, between the regimes in Tripoli and Benghazi. The government in Tripoli would keep everything from Tripoli to somewhere near Misurata, while the Transitional Council would get to administer all the territory in the east running to the Egyptian border. [50] Two parallel Libyan governments are at present a reality. Benghazi already has U.N., U.S., E.U., Qatari, British, French, German, Turkish, and Italian diplomatic missions.

As mentioned earlier, the U.S. and the E.U. waited until the Libyan military had reached the doors of Benghazi and the Transitional Council was nearly on its deathbed to take action. This was no mere coincidence. David Owen, a member of the British House of Lords is worth quoting about the timing of the military intervention: “Without it, within hours, Benghazi would have fallen, and [Colonel Qaddafi] would have won.” [51] This was made to insure the indispensability of NATO to an acquiescent Transitional Council.
Israel and Libya

The supporters of the Transitional Council accuse the Qaddafi regime of being supported by Israel, while they themselves are openly supported by NATO and the Arab petro-sheikhdoms, which oppose democracy and freedom in their own countries. Both sides in Libya have to realize that NATO and Israel, as well as Saudi Arabia and the Arab petro-sheikhdoms, are allies and work closely together against the legitimate aspirations of the Arab peoples. They are merely being played one against the other.

Israel is also involved in this equation. The visit of Bernard-Henri Lévy to Benghazi serves Israeli interests. [52] Tel Aviv has sought to play both sides. Rumours about an Israeli plan to establish a military base on the Libyan eastern border with Egypt have also been circulating for months. What should also be considered is that just like the natural gas deal between Israel and Egypt, where Egyptian natural gas was sold to Israel below market prices, Libyan water from the Great Man-Made River could be diverted to Israel from a pipeline running through Egypt. Like South Sudan, it is being said that the Transitional Council will recognize Israel. Lévy has also said that the Transitional Council has told him that they intend to recognize Israel. [53]

The Role of Banks and Currency in the War on Libya

Banks have a role to play in this war. U.S. and European financial institutions are major players. The vast overseas financial holdings and sovereign funds owned by Libya are the “spoils of war” accruing to major Western banks and financial institutions.

In 2008, Goldman Sachs was given 1.3 billion dollars (U.S.) by the Libyan Investment Authority. [54] In unfathomable terms, Goldman Sachs told the Libyans that 98% of the investment value was lost, which means that the Libyans lost almost all their investment. [55] Goldman Sachs had merely appropriated Libya’s money wealth. The Libyan government and Goldman Sachs would then try to work something out by giving Libya huge shares in Goldman Sachs, but the negotiations failed in 2009. Nor was Goldman Sachs alone in taking Libyan money; the Société Générale SA, the Carlyle Group, J.P. Morgan Chase, Och-Ziff Capital Management Group and Lehman Brothers Holdings were all also holding vast amounts of Libyan funds. [56]


Signs of Hope: Libya’s Promise of Tomorrow. A New Strategic Axis?

The Libyans have realized that they need to continue on a pan-African path and to follow a model of self-sufficiency. Many in Tripoli have also started thinking about the future. Old disputes and animosities may also be put aside with other global players that are opposed to U.S. hegemony and opposed to NATO.

A strategic axis between Libya, Algeria, Syria, and Iran that will later include Lebanon may blossom as the Libyans begin to explore their strategic options on the political and security levels. Libya has realized that it has made mistakes and now knows that it must find a place in some sort of a global counter-alliance against the U.S. and its allies. Tripoli will eventually try to find a strategic equilibrium for itself in a geo-strategic concept that will balance Russia, China, and Iran.

A new strategic concept for the Libyans would also include Venezuela and the Bolivarian Bloc in Latin America. Venezuela, along with Syria, has been Libya’s staunchest supporter during the NATO war.

Eventually, Lebanon and Libya will also mend fences. The dossier of Musa Al-Sadr only remains between Lebanon and Libya on the insistence of Nabih Berri. The upper echelons within Hezbollah, including Secretary-General Hassan Nasrallah, have tried not to antagonize Berri and the leadership of the Amal Movement on the issue of Musa Al-Sadr as part of an effort to prevent divisions in the Shiite Muslim community of Lebanon, but if a strategic axis begins to form between Algeria, Libya, Syria, and Iran the issue of Al-Sadr will have to be resolved in Lebanon.

In France and Western Europe tensions are also rising internally and against Washington. Gaullism may become reinvigorated in a declining France. The people of Africa have also become even more aware of the exploitation of their continent and the importance of Libya to the rest of Africa.

Most importantly, the NATO bombings have helped bring much of Libya together too and have given the nation a new sense of mission.

The Libyan people have been reinvigorated with this sense of mission. They have been energized and a revolutionary spirit has been stirred and awakened in the youth.

When the dust settles, the people of Libya will begin to weed out political corruption. The worst enemy of all for the Libyans has been the enemy from within.

This war has chiefly been against the Libyan people. It has not been the Libyan military that has kept the country standing, but the Libyan people themselves and their resistance.

NATO has become tired and faces many internal and external pressures. Italy has now been forced to withdraw from the war. [58] Norway will also withdraw in August 2011. [59] France has even accepted what Paris and NATO refused to accept from the start of the conflict, namely to end the war and to stop bombing Libya if both sides in Tripoli and Benghazi start political talks. [60] In reality, Tripoli has been calling for political dialogue with an entire international chorus for months, but it has been the U.S. and the E.U. that have refused to listen. This also exposes the guilt of the U.S. and the E.U. in waging a war of aggression against Libya.

It should also be noted that Prime Minister Silvio Berlusconi has also said that he was told that the war would end when the population of Tripoli revolted against Colonel Qaddafi. [61] This is a significant statement by the Italian Prime Minister. An analysis of cause and effect is very important here. It means that the war did not start as a result of any revolts, but was intended to instigate revolts against the Libyan government. This would explain why NATO has deliberately been targeting and punishing the civilian population. The aim has been to instigate them against Colonel Qaddafi.

The security of the familiar is gone. The issue of succession to Colonel Qaddafi was something that the Libyans thought little about or largely ignored prior to the conflict in Libya, but it is now something that has been addressed. If the war never happened, it is likely that there would have been a civil war in Libya once Qaddafi left. Now this is something that has been prepared for. Many of the corrupt people in Libya have also been exposed and have shown their true colours too. Libyans are no longer ignoring these problems as they did before.

Libya is not perfect and many of the Libyan people will be amongst the first to admit it. Now many of them are prepared to fix their problems at home for the sake of saving their country, their society, and their families. They face an uphill battle, but they are willing to fight and to make all the sacrifices needed for a better tomorrow. This inner recognition and will to change is the start of authentic change. These people will not give up even if NATO were to launch an invasion or increasing its bombings to devastating levels. Although the conflict is far from over, in the end history will judge the NATO war against Libya as a huge mistake and as the beginning of the end for NATO.

Mahdi Darius Nazemroaya is a Research Associate of the Centre for Research on Globalization (CRG)


NOTES

•    [1] Henri Pierre Habib, Politics and Government of Revolutionary Libya (Montmagny, Québec: Le Cercle de Livre de France Ltée, 1975), pp.19-20.
•    [2] Ibid., p.68.
•    [3] Ibid.
•    [4] Ibid., pp.70-71.
•    [5] Ibid., p.72.
•    [6] Ibid., p.73.
•    [7] Eds. Fredrick Aandahl et al., The United Nation; The Western Hemisphere, vol. 2 of Foreign Relations of the United States 1951 (Washington, D.C.: United States Government, 1979), p.25.
•    [8] Ibid.
•    [9] Ibid.
•    [10] Ibid.
•    [11] Habib, Revolutionary Libya, Op. cit., p.19.
•    [12] Ibid., p.68
•    [13] Ibid., p.20.
•    [14] Ibid., p.2.
•    [15] Ibid., p.68.
•    [16] U.S. Senate Armed Services Committee, Testimony on the current and future worldwide threats to the national security of the United States, 112th Congress, 2011, 1st Session, 10 March 2011.
•    [17] Los Angeles Times, “3 Western powers sending military advisors to Libya,” April 20, 2011.
•    [18] Louis Charbonneau and Hamuda Hassan, “France defends arms airlift to Libyan rebels,” Reuters, June 30, 2011.
•    [19] Reuters, “Libya orders US diplomat to leave: report,” November 8, 2010.
•    [20] Ibid.; Voice of America (VOA), “US, Syria Clash Over Ambassador’s Hama Visit,” July 8, 2011; Bassem Mroué, “Syrian protesters attack US embassy,” Associated Press (AP), July 11, 2011.
•    [21] United States Senate Armed Services Committee, U.S. European Command and U.S. Strategic Command in review of the Defense Authorization Request for Fiscal Year 2012 and the Future Years Defense Program,112th Congress, 2011, 1st Session, 29 March 2011; Infra. n.22 and n.61 (the bombings are meant to cause regime change).
•    [22] Infra. n.61; see the omission of the Italian Prime Minister that the NATO bombings are not a result of any revolt, but are intended to cause a revolt in Tripoli against Colonel Qaddafi.
•    [23] Harriet Sherwood, “UK paves way for flight of Libyan defectors,” The Guardian (U.K.), April 5, 2011; the important details on Hague’s announcement and London’s position are as follows: “Libyan ministers and officials who were prepared to abandon the regime would be ‘treated with respect and in accordance with our laws’, he added. ‘In the case of anyone currently sanctioned by the EU and UN who breaks definitively with the regime, we will discuss with our partners the merits of removing the restrictions that currently apply to them, while being clear that this does not constitute any form of immunity whatsoever.’”
•    [24] Charles Levinson, Ex-Mujahedeen Help Lead Libyan Rebels, The Wall Street Journal (WSJ), April 2, 2011.
•    [25] This information has been passed on through numerous sources on the ground in Libya including members of the Non-Governmental Fact Finding Commission on the Current Events in Libya.
•    [26] Robin Cook, “The struggle against terrorism cannot be won by military means,” The Guardian (U.K.), July 8, 2005.
•    [27] “Arms Embargo – NATO Boarding,” The NATO Channel (May 24, 2011); Mike Mühlberger was the videos producer and reporter. Because of the legal ramifications this video would have NATO removed this video.
•    [28] Stephen Fidler, Charles Levinson, and Alistair Mcdonald, “Friendly Fire Raises Tensions in Libya,” The Wall Street Journal, April 8, 2011.
•    [29] Tara Bahrampour, “Libyan rebels struggle to explain rift,” The Washington Post, April 2, 2011; Transitional Council leadership statements to the international press about the death of its volunteers are as follows: “‘It was a terrible mistake, and we apologize, and we will not let it happen again,’ said Abdul Hafidh Ghoga, vice president and spokesman of the opposition’s Transitional National Council.”
•    [30] Atul Aneja, “AU begins mediation as Qadhafi forces advance,” The Hindu, April 11, 2011.
•    [31] Elle Ide, “Italy recognizes Libyan opposition council,” Associated Press (AP), April 4, 2011.
•    [32] Chris McGreal and Harriet Sherwood, “Libya: Gaddafi has accepted roadmap to peace, says Zuma,” The Guardian (U.K.), April 11, 2011; Quoting from the article: “The [African Union] delegation, consisting of the presidents of South Africa, Congo-Brazzaville, Mali and Mauritania, plus Uganda’s foreign minister, landed at Tripoli’s Mitiga airport after Nato gave permission for their aircraft to enter Libyan airspace. The planes were the first to land in Tripoli since the international coalition imposed a no-fly zone over the country more than two weeks ago.”
•    [33] Simon Denyer and Leila Fadel, “Gaddafi accepts African Union’s road map for peace,” The Washington Post, April 10, 2011.
•    [34] Ian Black, “Libya’s biggest tribe joins march of reconciliation to Benghazi,” The Guardian (U.K.), March 23, 2011; On a personal note, I also was told by sources inside Tunisia and Libya that any people attempting reconciliation marches were attacked.
•    [35] Maria Golovnina, “Libya pledges constitution but Gaddafi role unclear,” Reuters, April 10, 2011.
•    [36] Michael Georgy, “McCain visits rebels, Libya adjusts Misrata tactics,” Reuters, August 22, 2011.
•    [37] Solomon Hughes and Kim Sengupta, “Gaddafi regime staked £12bn on secret deal in bid to open peace talks,” The Independent (U.K.), June 10, 2011.
•    [38] The Daily Mail (U.K.), “MPs rebel over Libya mission creep as Cameron, Obama and Sarkozy promise to keep bombing until Gaddafi regime is gone,” April 15, 2011.
•    [39] Ibid.
•    [40] Julian Borger and Ewen MacAskill, “No-fly zone plan goes nowhere as US, Russia and Nato urge caution,” The Guardian (U.K.), March 1, 2011.
•    [41] Discussion with Mohammed Siala (Libyan Minister of International Cooperation), July 4, 2011.
•    [42] U.S. Senate Armed Services Committee, Testimony on the current, Op. cit.
•    [43] Lebanon and Syria are already members and Libya is an observer member. Libya was scheduled to become a full member, but Colonel Qaddafi changed his mind, which upset France and the European Union.
•    [44] U.S. Senate Armed Services Committee, U.S. Transportation Command, Op. cit.
•    [45] William Varner, “Libyan Rebel Council Forms Oil Company to Replace Qaddafi’s,” Bloomberg, March 22, 2011.
•    [46] Al Jazeera, “Libyan rebels ‘disappointed’ by NATO, April 5, 2011; Atul Aneja, “Opposition allies mull ‘political solution’ in Libya,” The Hindu, April 8, 2011.
•    [47] Brian Murphy and Adam Schreck, “Libyan opposition says it has oil deal with Qatar,” Associated Press (AP), April 1, 2011.
•    [48] Scott Peterson, “Italy rejects Qaddafi, recognizes Libyan rebel government,” Christian Science Monitor, April 4, 2011.
•    [49] Daryna Krasnolutska and Agnes Lovasz, “North African and Mideast Democracy a Condition for EBRD Loans, Mirow Says,” Bollomberg, April 21, 2011.
•    [50] Alan Fisher, “Libya leaders talk exit strategy,” Al Jazeera, March 4, 2011.
•    [51] Ibid.
•    [52] Kim Willsher, “Libya: Bernard-Henri Lévy dismisses criticism for leading France to conflict,” The Observer, March 27, 2011.
•    [53] Radio France Internationale, “Libyan rebels will recognise Israel, Bernard-Henri Lévy tells Netanyahu,” June 2, 2011.
•    [54] Margaret Coker and Liz Rappaport, “Libya’s Goldman Dalliance Ends in Losses, Acrimony,” The Wall Street Journal (WSJ), May 31, 2011.
•    [55] Ibid.
•    [56] Ibid.
•    [57] The Daily Mail (U.K.), “U.S. rescue chopper shoots six Libyan villagers as they welcome pilots of downed Air Force jet,” March 22, 2011.
•    [58] Voice of America (VOA), “Berlusconi Opposes Libya Mission; Rome Cuts Involvement,” July 7, 2011.
•    [59] Agence-France Presse (AFP), “Nato capabilities will be exhausted within 90 days in Libya,” July 11, 2011.
•    [60] Agence-France Presse (AFP), “France backs ‘political solutions’ in Libya crisis,” July 11, 2011.
•    [61] Lamine Chikhi et al., “Italy’s Berlusconi exposes NATO rifts over Libya,” ed. Elizabeth Fullerton, Reuters, July 7, 2011; Nicolas Carey (who was expelled from Tripoli and managed to immediately reappear in Misurata) also contributed to this report. As a note the reporting of Carey has to be carefully scrutinized.

Questions to readers

stopasking.jpg
Just Foreign Policy Iraqi Death Estimator
10 challenging questions for readers
1. On what base did the Security Council determine in the morning of September 12, 2001, that the mass murder of the previous day was an act of “international” terrorism?2. On what evidence did the Security Council determine in its resolution 1456(2003) that terrorism was “one of the most serious threats to [international] peace and security”?

3. On what evidence did the United States conclude before October 2, 2001, that the mass murder of 9/11 was masterminded in Afghanistan or directed from there?

4. Who placed explosives in the Twin Towers and in World Trade Center no. 7 before 9/11?

5. Why have governments of Islamic nations failed to highlight the fact that no Muslims boarded the aircraft used as tools of mass murder on 9/11?

6. Why do US administrations act as agents for Zionist interests, such as urging other states to recognize Israel and its founding ideology, Zionism?

7. Why has Saddam Hussein not been charged for causing the deaths of half a million children in the sanctions period?

8. Why did the Palestinian people fail to secure even minimal rights in over half a century?

9. Why do UN member states refuse legal remedies to innocent victims of UN sanctions?

10. Why are political leaders suspected of torture, war crimes and crimes against humanity, so seldom prosecuted?

The webmaster will publish the most compellng answers. If you have a good answer, please contact him

Tribunal Issues Landmark Verdict against Israel for Genocide

Tribunal Issues Landmark Verdict against Israel for Genocide

Analysis and Opinion

Global Research, December 01, 2013

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

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

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

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

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

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

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

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

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

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

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

Why Not New York , London , Paris or Berlin

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

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

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

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

Why Israel

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

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

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

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

Genocide as Response

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

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

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

 Cumulative Record of Crimes

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

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

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

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

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

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

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

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

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

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

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

 Killing Fields

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

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

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

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

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

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

Responsibility of the State

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

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

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

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

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

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

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

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

Restricting Sovereignty

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

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

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

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

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

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

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

Internal Disputes

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

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

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

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

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

Critique: Going Beyond Reparations

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

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

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

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

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

  Courage and Wisdom

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

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

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

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

Bush administration has used 27 rationales for war in Iraq

Bush administration has used 27 rationales for war in Iraq, study says


Andrea Lynn, Humanities Editor (News Bureau, Illinois)
217-333-2177; andreal@illinois.edu

5/10/2004

CHAMPAIGN, Ill. — If it seems that there have been quite a few rationales for going to war in Iraq, that’s because there have been quite a few – 27, in fact, all floated between Sept. 12, 2001, and Oct. 11, 2002, according to a new study from the University of Illinois at Urbana-Champaign. All but four of the rationales originated with the administration of President George W. Bush.

The study also finds that the Bush administration switched its focus from Osama bin Laden to Saddam Hussein early on – only five months after the Sept. 11 terrorist attacks in the United States.

In addition to what it says about the shifting sands of rationales and the unsteady path to war in Iraq, what is remarkable about the 212-page study is that its author is a student.

The study, “Uncovering the Rationales for the War on Iraq: The Words of the Bush Administration, Congress and the Media from September 12, 2001, to October 11, 2002,” is the senior honors thesis of Devon Largio. She and her professor, Scott Althaus, believe the study is the first of its kind.

For her analysis of all available public statements the Bush administration and selected members of Congress made pertaining to war with Iraq, Largio not only identified the rationales offered for going to war, but also established when they emerged and who promoted them. She also charted the appearance of critical keywords such as Osama bin Laden, Saddam Hussein and Iraq to trace the administration’s shift in interest from the al Qaeda leader to the Iraqi despot, and the news media’s response to that shift.

“The rationales that were used to justify the war with Iraq have been a major issue in the news since last year, and Devon’s study provides an especially thorough and wide-ranging analysis of it,” Althaus, a professor of political science, said.

“It is not the last word on the subject, but I believe it is the first to document systematically the case that the administration made for going to war during critical periods of the public debate.

“It is first-rate research,” Althaus said, “the best senior thesis I have ever seen – thoroughly documented and elaborately detailed. Her methodology is first-rate.”

Largio mapped the road to war over three phases: Sept. 12, 2001, to December 2001; January 2002, from Bush’s State of the Union address, to April 2002; and Sept. 12, 2002, to Oct. 11, 2002, the period from Bush’s address to the United Nations to Congress’s approval of the resolution to use force in Iraq.

She drew from statements by President Bush, Vice President Dick Cheney, Secretary of State Colin Powell, Secretary of Defense Donald Rumsfeld, Deputy Secretary of Defense Paul Wolfowitz, National Security Adviser Condoleezza Rice, Defense Policy Board member and long-time adviser Richard Perle; by U.S. senators Tom Daschle, Joe Lieberman, Trent Lott and John McCain; and from stories in the Congressional Record, the New York Times and The Associated Press. She logged 1,500 statements and stories.

The rationales Largio identified include everything from the five front-runners – war on terror, prevention of the proliferation of weapons of mass destruction, lack of weapons inspections, removal of Saddam Hussein’s regime, Saddam Hussein is evil, to the also-rans – Sen. Joe Lieberman’s “because Saddam Hussein hates us,” Colin Powell’s “because it’s a violation of international law,” and Richard Perle’s “because we can make Iraq an example and gain favor within the Middle East.”

With regard to the administration’s shift from bin Laden to Saddam, Largio found that Iraq was “part of the plan for the war on terror early in the game.”

For example, in his State of the Union speech on Jan. 29, 2002, President Bush declared that Iraq was part of the war against terrorism because it supported terrorists and continued to “flaunt its hostility toward America.” He also claimed that Iraq allowed weapons inspectors into the country and then threw them out, “fueling the belief that the nation did in fact plan to develop weapons of mass destruction,” Largio wrote.

In the same speech, the president called Iraq, Iran and North Korea an “axis of evil,” a phrase that would “ignite much criticism” and add “to the sense that the U.S. would embark on a war with the Hussein state,” Largio wrote.

“So, from February of 2002 on,” Largio said, “Iraq gets more hits than Osama bin Laden. For President Bush the switch occurs there and the gap grows over time.”

Largio also discovered that it was the media that initiated discussions about Iraq, introducing ideas before the administration and congressional leaders did about the intentions of that country and its leader. The media also “brought the idea that Iraq may be connected to the 9-11 incident to the forefront, asking questions of the officials on the topic and printing articles about the possibility.”

The media “seemed to offer a lot of opinion and speculation, as there had been no formal indication that Iraq would be a target in the war on terror,” Largio wrote. Oddly, though, the media didn’t switch its focus to Iraq and Saddam until July of 2002.

Yet, “Overall, the media was in tune with the major arguments of the administration and Congress, but not with every detail that emerged from the official sources.”

“As always, hindsight is twenty-twenty,” Largio wrote in the conclusion to her thesis. “However, there are questions surrounding nearly every major rationale for the war.

“People may wonder, why are our men and women over there? Why did we go to war? Were we misled? In this election year, these questions deserve answers. And though this paper cannot answer these questions definitively, it can provide some insight into the thinking of the powers-that-be during the earliest stages of war preparation and give the American people a chance to answer these questions for themselves.”

Because Largio’s thesis addresses questions of “great public importance,” Althaus said, and “does so in such a detailed manner,” he arranged to have it posted on a public Web site. Largio will graduate on May 16, and will attend law school at Vanderbilt University.

Declaration on Fact-finding by the United Nations (UNGA 46/59)

A/RES/46/59                                                    67th plenary meeting                                                    9 December 1991         46/59.  Declaration on Fact-finding by the United Nations in the               Field of the Maintenance of International Peace and Security         The General Assembly,         Recalling its resolutions 43/170 of 9 December 1988, 44/37 of 4 December 1989 and 45/44 of 28 November 1990,         Taking note of the report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, which met in New York from 4 to 22 February 1991 and completed a draft Declaration on Fact-finding by the United Nations in the Field of the Maintenance of International Peace and Security,         Convinced that the adoption of the draft Declaration will contribute to strengthening the role of the United Nations and enhancing its effectiveness in maintaining international peace and security,         Considering the need to ensure a wide dissemination of the text of the Declaration,         Considering the Declaration to be an important and concrete contribution of the Special Committee to the United Nations Decade of International Law,         1.    Approves the Declaration on Fact-finding by the United Nations in the Field of the Maintenance of International Peace and Security, the text of which is annexed to the present resolution;         2.    Expresses its appreciation to the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization for its important contribution to the elaboration of the text of the Declaration;         3.    Requests the Secretary-General to inform the Governments of the States Members of the United Nations or members of specialized agencies, and the Security Council, of the adoption of the Declaration;         4.    Urges that all efforts be made so that the Declaration becomes generally known and fully implemented.                                          ANNEX                  Declaration on Fact-finding by the United Nations                in the Field of the Maintenance of International                               Peace and Security         The General Assembly,         Recalling the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, the Manila Declaration on the Peaceful Settlement of International Disputes, the Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations, the Declaration on the Prevention and Removal of Disputes and Situations Which May Threaten International Peace and Security and on the Role of the United Nations in this Field, and their provisions regarding fact-finding,         Emphasizing that the ability of the United Nations to maintain international peace and security depends to a large extent on its acquiring detailed knowledge about the factual circumstances of any dispute or situation, the continuance of which might threaten the maintenance of international peace and security (hereinafter,"disputes or situations"),         Recognizing that the full use and further improvement of the means for fact-finding of the United Nations could contribute to the strengthening of the role of the United Nations in the maintenance of international peace and security and promote the peaceful settlement of disputes, as well as the prevention and removal of threats to peace,         Desiring to encourage States to bear in mind the role that competent organs of the United Nations can play in ascertaining the facts in relation to disputes or situations,         Recognizing the particular usefulness of fact-finding missions that the competent United Nations organs may undertake in this respect,         Bearing in mind the experience and expertise acquired by the United Nations in the field of fact-finding missions,         Recognizing the need for States, in exercising their sovereignty, to cooperate with the relevant organs of the United Nations as regards fact-finding missions undertaken by them,         Seeking to contribute to the effectiveness of the United Nations, with a view to enhancing mutual understanding, trust and stability in the world,         Solemnly declares that:                                     I         1.    In performing their functions in relation to the maintenance of international peace and security, the competent organs of the United Nations should endeavour to have full knowledge of all relevant facts. To this end they should consider undertaking fact-finding activities.         2.    For the purpose of the present Declaration fact-finding means any activity designed to obtain detailed knowledge of the relevant facts of any dispute or situation which the competent United Nations organs need in order to exercise effectively their functions in relation to the maintenance of international peace and security.         3.    Fact-finding should be comprehensive, objective, impartial and timely.         4.    Unless a satisfactory knowledge of all relevant facts can be obtained through the use of the information-gathering capabilities of the Secretary- General or other existing means, the competent organ of the United Nations should consider resorting to a fact-finding mission.         5.    In deciding if and when to undertake such a mission, the competent United Nations organs should bear in mind that the sending of a fact-finding mission can signal the concern of the Organization and should contribute to building confidence and defusing the dispute or situation while avoiding any aggravation of it.         6.    The sending of a United Nations fact-finding mission to the territory of any State requires the prior consent of that State, subject to the relevant provisions of the Charter of the United Nations.                                   II         7.    Fact-finding missions may be undertaken by the Security Council, the General Assembly and the Secretary-General, in the context of their respective responsibilities for the maintenance of international peace and security in accordance with the Charter.         8.    The Security Council should consider the possibility of undertaking fact-finding to discharge effectively its primary responsibility for the maintenance of international peace and security in accordance with the Charter.          9.    The Security Council should, wherever appropriate, consider the possibility of providing in its resolutions for recourse to fact-finding.         10.   The General Assembly should consider the possibility of undertaking fact-finding for exercising effectively its responsibilities under the Charter for the maintenance of international peace and security.         11.   The General Assembly should, wherever appropriate, consider the possibility of providing for recourse to fact-finding in its resolutions relevant to the maintenance of international peace and security.         12.   The Secretary-General should pay special attention to using the United Nations fact-finding capabilities at an early stage in order to contribute to the prevention of disputes and situations.         13.   The Secretary-General, on his own initiative or at the request of the States concerned, should consider undertaking a fact-finding mission when a dispute or a situation exists.         14.   The Secretary-General should prepare and update lists of experts in various fields who would be available for fact-finding missions. He should also maintain and develop, within existing resources, capabilities for mounting emergency fact-finding missions.         15.   The Security Council and the General Assembly should, in deciding to whom to entrust the conduct of a fact-finding mission, give preference to the Secretary-General, who may, inter alia, designate a special representative or a group of experts reporting to him. Resort to an ad hoc subsidiary body of the Security Council or the General Assembly may also be considered.         16.   In considering the possibility of undertaking a fact-finding mission, the competent United Nations organ should bear in mind other relevant fact- finding efforts, including those undertaken by the States concerned and in the framework of regional arrangements or agencies.         17.   The decision by the competent United Nations organ to undertake fact- finding should always contain a clear mandate for the fact-finding mission and precise requirements to be met by its report. The report should be limited to a presentation of findings of a factual nature.         18.   Any request by a State to a competent organ of the United Nations for the sending of a United Nations fact-finding mission to its territory should be considered without undue delay.                                   III         19.   Any request by a competent organ of the United Nations for the consent of a State to receive a fact-finding mission within its territory should be given timely consideration by that State. That State should inform the organ of its decision without delay.         20.   In the event a State decides not to admit a United Nations fact- finding mission to its territory, it should, if it deems it appropriate, indicate the reasons for its decision. It should also keep the possibility of admitting the fact-finding mission under review.         21.   States should endeavour to follow a policy of admitting United Nations fact-finding missions to their territory.         22.   States should cooperate with United Nations fact-finding missions and give them, within the limits of their capabilities, the full and prompt assistance necessary for the exercise of their functions and the fulfilment of their mandate.         23.   Fact-finding missions should be accorded all immunities and facilities needed for discharging their mandate, in particular full confidentiality in their work and access to all relevant places and persons, it being understood that no harmful consequences will result to these persons. Fact- finding missions have an obligation to respect the laws and regulations of the State in which they exercise their functions; such laws and regulations should not however be applied in such a way as to hinder missions in the proper discharge of their functions.         24.   The members of fact-finding missions, as a minimum, enjoy the privileges and immunities accorded to experts on missions by the Convention on the Privileges and Immunities of the United Nations. Without prejudice to their privileges and immunities, members of fact-finding missions have an obligation to respect the laws and regulations of the State in the territory in which they exercise their functions.         25.   Fact-finding missions have an obligation to act in strict conformity with their mandate and perform their task in an impartial way. Their members have an obligation not to seek or receive instructions from any Government or from any authority other than the competent United Nations organ. They should keep the information acquired in discharging their mandate confidential even after the mission has fulfilled its task.         26.   The States directly concerned should be given an opportunity, at all stages of the fact-finding process, to express their views in respect of the facts the fact-finding mission has been entrusted to obtain. When the results of fact-finding are to be made public, the views expressed by the States directly concerned should, if they so wish, also be made public.         27.   Whenever fact-finding includes hearings, appropriate rules of procedure should ensure their fairness.                                    IV         28.   The Secretary-General should monitor the state of international peace and security regularly and systematically in order to provide early warning of disputes or situations which might threaten international peace and security. The Secretary-General may bring relevant information to the attention of the Security Council and, where appropriate, of the General Assembly.         29.   To this end, the Secretary-General should make full use of the information-gathering capabilities of the Secretariat and keep under review the improvement of these capabilities.                                       V         30.   The sending of a United Nations fact-finding mission is without prejudice to the use by the States concerned of inquiry or any similar procedure or of any means of peaceful settlement of disputes agreed by them.         31.   Nothing in the present Declaration is to be construed as prejudicing in any manner the provisions of the Charter.       

Elements of Good Faith in Legal Systems

goodfait-1

Elements of Good Faith in Legal Systems

(Chapter 4 in Good Faith in International Law, by J.F. O’Connor

The principle of good faith probably receives more unqualified acceptance than any other in international law. Grotius concluded his great work on the system of the law of nations with’ Admonitions on behalf of Good Faith and Peace’, and left his readers in no doubt of his conviction that good faith sustained the society of states.1 More than three hundred years later, Mr Yepes of Colombia reminded the members of the International Law Commis­sion, who were considering the law of treaties, that Article 2, paragraph 2 of the Charter of the UN made good faith the supreme rule of international life, and he urged the members of the Commission to draw all the possible conclusions from that principle.2 Declarations by Statesmen, judicial pro­nouncements and the teachings of the most highly qualified publicists all accept or refer to this principle. Dr Mann assures us that it ‘unquestionably pervades public international law’.3

Professor Schwarzenberger included good faith in his rigorously selected catalogue of seven Fundamental Principles of International Law.4 He con­cluded that the inductively verified rules from which this fundamental principle is derived are confined to:

1 A duty to interpret and execute consensual (and, within their limits, duly communicated unilateral) engagements in good faith.

2 The interpretation as relative rights of such rules of international custo­mary law as form part of jus aequum.

3 The interpretation of other rules as absolute rights or jus strictum or in accordance with the ethical minimum standards laid down specifically in such rules. The arbitrary or unreasonable exercise of such absolute rights is not illegal, but an unfriendly act.


He also recognized that absolute rights tend to be transformed into relative rights on the international judicial level ‘in the course of a balancing process in which considerations of good faith and reasonableness playa prominent part’.5 But he rejects the notion that there is a general rule of international customary law prohibiting the abuse of rights. Such evidence as exists for the prohibition of bad faith and unreasonableness appears to justify merely more limited rules.6


The principle of good faith is included by Professor Bin Cheng in his study of-general principles of law applied by International Courts. and Tribunals, and he devotes three chapters to good faith in treaty relations; good faith in the exercise of rights (the theory of the abuse of rights); and ‘other applica­tions of the principle’.7 Like Professor Schwarzenberger, he does not attempt to provide a definition of this principle, but in the three chapters he provides many illustrations of the application ‘of this essential principle of law in the international legal order’ by means of international judicial decisions.8

Unlike Professor Schwarzenberger, he considers that there is a general rule or theory of abuse of rights which is recognized both by the Permanent Court of International Justice and the International Court of Justice, and that it is merely an application of the principle of good faith to the exercise of rights.9


Professor Cheng does not distinguish between good faith as a general principle of law-and good faith as a general principle of international law. because he concludes that in relation to this, as well as all the other general principles examined in his work, it is of no avail to examine the possible distinction. It is precisely of the nature of these general principles that they belong to no particular system of law, but are common to them all.10 Consequently, his ‘other applications of the principle’ (Chapter 5) are largely examined under rubrics familiar in legal systems generally such as allegans contraria non est audiendus, nullus commodum capere de sua injuria propria and fraus omnia corrumpit.11


Apart from the section in Professor Cheng’s book on the General Princi­ples, there is no other study of good faith in international law which attempts to set forth the nature, scope and function of the principle generally. There is, however, a considerable volume of literature referring to good faith in relation to treaties,12 which is hardly surprising if, as the highest international tribunal has asserted, the very rule of pacta sunt servanda in the law of treaties is based on good faith.13 The dominant role of treaties in modern international law, and the consequent relative diminution in importance of other law-creating processes, has led to such an emphasis on good faith in treaties that the principle often appears to be virtually confined to the rule pacta sunt servanda and other doctrines directly associated with the obligation of treaties such as rebus sic stantibus. Professor Cheng’s illustrations of the application of good faith in other than treaty relations is a valuable indication of the wider scope of the principle in international law.


Characteristic Rules and Elements of the Principle of Good Faith


Foremost amongst these is the rule pacta sunt servanda, the importance of which in relation to treaties has already been mentioned. This norm has constituted ‘since times immemorial the axiom, postulate and categorical imperative of the science of international law’.14 Kunz explains its meaning as ‘the institution, by general international law, of a special procedure – the treaty procedure – for the creation of international norms’ 15 and, while un­doubtedly a positive norm of international law ,he admits that the meaning of the norm is controversial.16

Chailley observed that the rule originated in the Roman Civil law and from it was transferred to international law and applied to treaty engagements between States.17 Perhaps (as Mr Maresca, the Italian delegate at the United Nations Conference on the Law of Treaties in Vienna said) if Latin were still the language of diplomacy, the mere statement of such a basic rule as pacta sunt servanda would have sufficed as the text of what became Article 26 of the Convention on the Law of Treaties, 1969.18 However, as is clear from the record of the disagreements about the precise meaning and scope of pacta sunt servanda which emerged at that Conference.’19 the International Law Com­mission was justified in expressing the principle contained in the maxim more fully, and its Draft Article included a specific reference to good faith.20 The Commission’s Commentary on the article pointed out that there is much authority in the jurisprudence of international tribunals for the proposition that in the present context the principle of good faith is a legal principle which forms an integral part of the rule pacta sunt servanda,21

The origins of the link between pacta sunt servanda and good faith were referred to above.22 and despite any modern doubts about the precise meaning of the Latin maxim, it is beyond question that it has been associated with the Roman concept of bonafides and its equivalents in other societies for millenia.23 That association of good faith with the keeping and manner of performance of treaties is one of the oldest and most clearly established of the major elements of the principle in international law.


Another major element is the association of good faith with the notion of abuse of right. Whether the arbitrary or unreasonable exercise of an absolute legal right is unlawful – or, as Professor Schwarzenberger believes, merely an unfriendly act,24 may be debatable, but there can be little serious disagreement with the proposition that the notion of abuse of right is an important element in the principle of good faith in international law.



The theory of abuse of rights, abus de droit, recognised in principle both by the Permanent Court of Intemational Justice and the International Court of Justice, is merely an application [of the principle of good faith] to the exercise of rights.25


The Roman Law bona fides is the basis of the doctrine of abuse of right in the civil law,26 and although the doctrine is not formally applied in common law systems as a general principle, international lawyers from the common law tradition have not denied the applicability of the doctrine in appropriate cases in international law.27 For present purposes, the expression ‘abuse of rights’ may be taken to include cases where a legal right – whether arising from a treaty or by virtue of customary rules – is exercised arbitrarily, maliciously or unreasonably, or fictitiously to evade a legal obligation. Thus stated, it is hardly surprising that abuse of rights should be seen as merely an application of good faith to the exercise of rights.

In addition to pacta sunt servanda and abuse of rights, good faith in in­ternational law is also associated with various kinds of action or conduct which, in municipal legal systems, are often subjected to specific rules. These rules reflect standards of ethical or equitable behaviour in a society, which are considered to be so important that they are supported by the legal institutions of the society. The range and development of legal rules of this type inevitably vary between different municipal legal systems, and differences in their formulation and classification, for example, procedural or substantive, add further to the difficulty of identifying them precisely. The extent to which they may then have been incorporated in or translated to international law could hardly fail to give rise to differences of opinion, and firm conclusions about this could be made only after a detailed and systematic study of the corpus of rules of the system. As regards the principle of good faith in international law , it is perhaps sufficient at this point to identify some major examples of unethical or inequitable behaviour which have been subjected to scrutiny and dealt with in a manner which closely parallels (even as to terminology) municipal law systems. Here, however, it is suggested that the parallels arise because of the common origin of the deciding principle – good faith – rather than as a result of importing into international law, private law institutions ‘lock, stock and barrel’ ready made and fully equipped with a set of rules.28

It is because certain actions or conduct in international relations, are regarded as unjust, dishonest, unfair or unreasonable that they are condemned in certain circumstances by international law. As in municipal law, such actions or conduct are considered to be ‘contrary to good faith’, and the concept of good faith in international law includes a strong element of rejection of injustice, dishonesty, unfairness or unreasonableness. There may be dispute about. the precise. nature, scope and function of the rules which reflect that rejection, but there is little dispute about the fact of rejection. In the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits29 the International Court of Justice rejected conduct by Thailand which amounted to the withdrawal of a clear and unequivocal representation it had made to Cambodia (and on which Cambodia had relied). This application of a view based on common sense and common justice, and which is expressed in the maxim allegans contraria non est audiendus,30 is often referred to in both international and municipal law as ‘estoppel’, ‘preclusion’, ‘forclusion’, ‘acquiesience’ or ‘recognition’, but the basis of it is the perception that it is contrary to good faith to allow a party to blow hot and cold – to affirm at one time and deny at another31

Earlier, the Permanent Court of International Justice, in two cases,32 rejected the essentially unjust, dishonest and unfair act of seeking to take advantage of one’s own wrong, expressed in the maxim nullus commodum capere de sua injuria propria. ‘Fraud is the antithesis of good faith, and indeed of law .. .’33


It is hardly necessary to state that in international law as in legal systems generally, fraudulent or deceitful conduct is associated with lack of good faith. In the praetorian system in Roman Law, it became common for the praetor to include in the formula a direction to the judge to decide according to ‘good faith’ or in a manner which would prevent ‘fraud’.34 Dolus in Roman Law provided a defence in an appropriate case even before the development of the good faith actions,35 and fraud had, and continues to have, a special and separate role in both civil law and common law systems. The International Law Commission agreed that fraud is a concept which is found in most legal systems, but that the paucity of precedents in international law meant that there was little guidance to be found either in State practice or the jurisprudence of international tribunals as to the scope to be given to the concept. The Commission concluded that it would suffice to formulate the general concept of fraud in relation to treaties, leaving its precise scope to be worked out in practice and in judicial decisions.36 In modern international law, fraud and corruption or coercion of the representative of a State to procure a State’s consent to an agreement,37 are not major factors, but in Roman Law, and in the classical writers of international law, such manifes­tations of injustice, dishonesty and unfairness were stigmatized as contrary to good faith and might vitiate a transaction.

The original narrow obligation to keep one’s word, expressed in the maxim pacta sunt servanda, was enlarged through philosophical and religious in­fluences38 to embrace higher standards of ethical behaviour. The elaboration of the concept of bona fides in Roman Law as involving a legal obligation to do what a decent, honourable, fair and conscientious man would do in particular circumstances39 contributed very largely to the association of good faith, in a wider ethical sense, with pacta sunt servanda. In relation to keeping promises and agreements, good faith acquired the meaning of not only the obligation to observe literally the undertakings given, but also the advertence to the real intentions of the parties or to the ‘spirit’ of the agreement.40 It also required that the promise or agreement itself should have been the result of real consent and not vitiated by for example, force or fear.41


An important element in the concept (which is also traceable directly to Roman Law) is that good faith adds a dimension to strict law which enables a court to take into account circumstances and considerations of fairness which might otherwise be excluded.42 Reasonable belief or honest mistake of fact might, therefore, be taken into account as defences, or might operate to reduce liability for wrongful acts.43

The canonist conception of good conscience added an individual dimen­sion to the community aspect of bona/ides in Roman Law. As Sohm noted, the Roman jurists applied the demands of good faith in human dealings to individual cases.44 The standard of good faith applied was the community standard. The canonists, on the other hand, emphasized personal conscience, and for them, good faith and personal good conscience were the foundations of pacta sunt servanda and thus, even nude pacts were binding.45


The association of good faith with individual conscience, which was particularly marked in the development of Equity in English Law,46 is still very marked in cases where the actual intention or state of mind of a party is relevant. Actual knowledge of particular circumstances, for example, that the seller of goods had a defective title, clearly involves questions of conscience. Good (or bad) faith in such cases is judged in accordance with the individual’s conscience, but as a practical matter, it may be difficult to convince a tribunal of personal good faith and good conscience if the conduct in question has significantly deviated from what might reasonably have been expected, having regard to common usage or the community standard of good faith in that situation.

The special association of good faith and conscience in the development of English Equity jurisprudence, already referred to, is not paralleled in civil law systems, but there is a general association of good faith with ‘equity’ in all legal systems.47 In that context, ‘equity’ has the meaning which it had for Ulpian when he laid down the doctrine of equity or good faith in contractual obligations.48 This was seen as opening up a wide discretion for the judge to apply the exceptio doli to actiones stricti juris, and it was also seen as the basis of such moral or natural justice-based legal doctrines as clausula rebus sic stantibus, unjust enrichment and abuse of rights.49

The association of good faith with moral obligation gives rise to one of the recurring themes in the concept of good faith in legal theory. That is the perception that the obligations of good faith pertain in some way to a ‘higher’ order than the normal obligations of positive law. Suarez, for example, while conceding that the validity of an agreement might depend on compliance with (positive) rules of law, asserts that when any agreement is validly concluded, an obligation of a higher order results. For him, this higher order obligation belongs to natural law.50

In relation to the basic obligation to keep an agreement, the reference to good faith and a ‘higher order’, such as natural law, does not create a problem in as much as the rule pacta sunt servanda is in any case undoubtedly a norm of positive law.51 But in relation to other good faith obligations, the asso­ciation of good faith with a higher order than positive law may give rise to the view that such obligations, although perhaps morally binding, are not legally binding.52 Although there can be no real doubt about the facts that good faith is associated with morality or ethics, and that there is a moral principle of good faith, this work is concerned with international law and the legal principle of good faith. Thus, we are here concerned only with obligations which are legally binding, and the relationship between ‘moral’ and ‘legal’ good faith, if any, is a matter which might be considered later when confronting the question of the definition of the principle of good faith in international law.

Higher order values like ‘equity’, ‘justice’, and ‘fairness’ are indelibly associated with good faith in German law as a result of the revalorization cases,53 even if the good faith applied in these cases consisted in essence in an appeal to community standards or common usage.54 Similarly, in Swiss law, the determination of whether a party has acted in good faith is decided on principles of justice and equity.55 In many contract cases this simply means determining whether a party by normal standards had acted unfairly or unconscionably by overreaching or sharp practice.


The development of codified good faith in German, Swiss (and to a lesser extent) French law has led to particular national perceptions of the concept which cannot, in the absence of detailed comparative studies, be accepted as generally accepted elements of good faith. For example, the limitation of good faith to a merely interpretative or ‘completion of the legal norm’ function in Swiss law appears to be peculiar to that system, and the assignment by Swiss law of the function of taking into account imperative superior moral standards to abuse of right56 would perhaps be assigned to good faith itself in most legal systems. But disregarding for present purposes differences in national techniques or doctrinal presentations of good faith, there appears to be a common core or general perception of good faith in both civil law and common law systems, that good faith is concerned with the introduction of superior moral standards such as ‘justice’, ‘equity’, ‘fairness’, ‘good con­science’ into legal norms. The development of Article 242 of the German Civil Code57 to introduce justice and fairness into contracts in a situation where the contract or the general law did not provide for the situation is not essentially different from French views of the role of Article 1134, para. 3, of the French Code,58 or Swiss views of the role of Article 2 of the Swiss Civil Code.59

In the common law, with its tradition of separate Courts of Equity derived from the jurisdiction of the Chancellor and the Court of Chancery, the perception of good faith as concerned with the introduction of moral stan­dards into strict law is equally, or even more clearly marked. The jurisdiction of the Court of Chancery was based on conscience, and good faith in English law has long been associated with the idea of the Chancellor intervening in the normal legal process to ensure that a party acted ‘equitably’ or ‘fairly’ as required by good conscience.


The development of separate Courts of Equity and Common Law in England eventually produced separate bodies of equitable rules and common law rules. The equitable rules became as rigid and technical as the common law rules, and the ‘conscience’ upon which the rules of equity were based moved largely from the desire of the Chancellor ‘to correct men’s consciences for frauds, breaches of trust, wrongs and oppressions of whatever nature’ to a more generalized concept of ‘the conscience of the realm’.60 The origin of the rules of equity in a requirement of good faith to which the convenient label of conscience was attached, and the supremacy accorded to equitable rules in the fused system of law and equity has resulted in a corpus of ‘normal’ rules in English law which, it might be said, were inspired by the general concept of good faith. But in addition, there is a principle of good faith in English law which may supplement or supersede the normal rules.61


Conclusion


From the foregoing it is possible at this stage to suggest at least that the principle of good faith in international law is a fundamental principle; that it is a legal principle integrally associated with the rule pacta sunt servanda; that, as in municipal law, it is directly associated with fairness in the exercise of legal rights and the rejection of dishonest, unfair or unreasonable conduct. Further conclusions on the nature, scope and function of the principle must await the examination of good faith in international law.


Notes



1 Grotius (1925), vol. II, Chap. XXV, p. 860.

2 International Law Commission, (1950), p. 299.

3 Mann (1973), p. 162.

4 Schwarzenberger (1957), p. 15. Schwarzenberger and Brown (1976), p. 7; pp. 35-6.

5 Schwarzenberger and Brown (1976), p. 119.

6 Ibid., p. 85.

7 Cheng (1953), pp. 106-60.

8 Ibid., p. 105.

9 Ibid., p. 121.

10 Ibid., p. 390. For a criticism of this conclusion, see Lauterpacht (1953), pp. 544-7.

11 Cheng (1953), pp. 141-60.

12 The principle of good faith in the Law of Treaties is discussed in Chapter 7 below.

13 I.C.J. Rep. (1974), p. 268, para. 46; p. 473, para. 49.

14 de Taube (1930), vol. II, p. 295.

15 Kunz (1945), p. 197.

16 Ibid., p. 180.

17 Chailley (1935), pp. 988-9.

18 United Nations (1968), p. 155.

19 Ibid., pp. 150-8.

20 The Draft Article 23 was adopted as Article 26 in the Convention and reads: ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith’.

21 Year Book, International Law Commission, 1966, II, p. 211.

22 Chapter 2, p. 5-9 above.

23 See e.g. Phillipson, 1 The International Law and Custom of Ancient Greece and Rome (1911), pp. 387-388 (China), p. 391 (Greece and Rome). There is a strong emphasis on pacta sunt servanda and bona fides in the 4th century BC work of KautilyaArthasastra in relation to treaty-making between sovereign rulers in India and Further India, C.H. Alexandrowicz, ‘Kautilyan Principles in the Law of Nations’, B.Y.I.L. (1965-66) 301 at p.308

24 Supra, p. 36.

25 Cheng (1953), p. 121 (footnotes omitted)

26 Newman (1961), p. 97.

27 For example, Sir Charles Russell in the Fur Seal Arbitration (1892) cited by Cheng (1953), pp. 121-2; Lauterpacht (1933), p. 286.

28 Cf. Lord McNair in the South-West Africa Case, I.e.J. Rep. 1950 at p. 148.

29 I.C.J. Rep. 1962, p. 6.

30 Cf. Cheng (1953), p. 141.

31 Ibid.

32 Jurisdiction of the Danzig Courts (1928), P.C.!.J. Rep., Series B, No. 15; Chorzow Factory Case (Jurisdiction) P.e.U. Rep., Series A, No.9, p. 21 at p. 31.

33 Cheng (1953), p. 158

34 Dawson (1968), p. 104.

35 See for example Buckland (1932), pp. 408; 415

36 Y.B.I.L.C., 1966, II, p. 244; Article 49 of the Vienna Convention on the Law of Treaties 1969 states: ‘If a State has been induced to conclude a treaty by the fraudulent conduct of another negotiating State, the State may invoke the fraud as invalidating its consent to be bound by the treaty’.

37 See Articles 50 (corruption), 51 (coercion of representative), Vienna Convention on the Law of Treaties, 1969.

38 See Chapter 3 above, especially pp. 7-13.

39 See Chapter 3 above, especially pp. 19-21.

40 Cf. Justinian Digest LXVI. 219

41 Justinian Digest LXVII 116.

42 Chapter 3, p. 19-21 above.

43 Ibid.

44 Sohm (1901), p. 106.

45 von Mehren (1957), p. 580.

46 O’Connor (1990), pp. 5-10.

47 For a survey which includes major studies of good faith and equity see Newman (1973).

48 Newman (1961), p. 97.

49 Ibid.

50 See Chapter 3 above, p. 29.

51 The rule pacta sunt servanda existed in, and between ancient civilizations and was considered to be ‘obligatory and inviolable’, De Taube (1930), vol. 32, p. 317 et seq., and see Whitton, 313 International Conciliation, p. 398.

52 See for example, Judge Alvarez, I.C.J. Rep. 1948, p. 71; Judge Klaestad, I.C.J. Rep. 1955, p. 88.

53 The collapse of the German currency in 1923 and the subsequent revalorization of obligations by German courts is discussed inter alia, by Cohn (1968), vol. 1., pp. 60 et. seq.; Nussbaum (1950), esp. p. 206 et. seq.; Dawson (1968).

54 Cf. Powell (1956), p. 16 at p. 37.

55 Am. 1-4, Swiss Civil Code (Trans. Ivy Williams, 1925).

56 Dutoit (1973), p. 330.

57 Article 242 reads: ‘The debtor is bound to effect performance according to the requirements of good faith, giving consideration to common usage.’ (Trans. Forrester, Goren, ligen, (1975).

58 Art. 1134, para. 3, reads: ‘Agreements lawfully formed take the place of law for those who have made them. They cannot be revoked except by mutual consent or on grounds allowed by law. They must be performed in good faith.’ (Trans. von-Mehren-Gordley (1977)).

59 Art. 2 reads: ‘Every person is bound to exercise his rights and fulfill his obligations according to the principles of good faith. The law does not sanction the evident abuse of a man’s rights.’ (Trans. Williams (1925)).

60 O’Connor (1990), pp. 5-10.

61 Ibid., pp. 99-102.

The ICJ on Trial

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The ICJ on Trial

The International Court of Justice (ICJ) is not a constitutional court. Its seeming inability to practice its powers of judicial review to the fullest extent has rendered Charter provisions meaningless to the extent that the legitimacy of the provisions of the UN Charter flows not from the Charter itself but from the goodwill of the permanent members of the Security Council.

In a landmark decision on the suits brought before it by Lybia against both the United Kingdom and United States, known as the Lockerbie case, the ICJ held, ignoring the Montreal Convention and other relevant provisions of the UN Charter, that Security Council Resolutions were binding upon member states as per Article 25 of the Charter.

Article 24 of the UN Charter charges the Security Council with the primary responsibility for the maintenance of international peace and security. Article 25 further states to the effect that the Council’s decisions were to be binding upon all states. Hence regardless of what provisions exist in the UN Charter to counter or prevent the abuse of power by certain influential members of the UN Security Council, the ICJ has ruled the Security Council to be wholly autonomous from it.

In turning a blind-eye, as it would seem, the ICJ has decided that the rule of law, by way of the observance of customary international law as enshrined in the doctrine of pacta sunt servanda does not apply to certain privileged members of the UN Security Council and that the UN Security Council could set and alter international law at will so long as it falls under the scope of “international peace and security”.

Never mind that the UN is deficient from a democratic standpoint. There is, as it were, an over representation of Europe and an under-representation of the Third World in the Security Council which is made worse by the willingness of Russia and China to bargain away an independent international voice because of their domestic troubles.

Never mind that the possibility of economic arm twisting by the permanent members of other nations nominated to the council remains a dangerous one. Never mind that no matter how justifiable a motion tabled to the council may be, the dictates of national or geopolitical interests of powerful nations would take precedence as resembled by the veto powers held by the five permanent members on the council.

Following Judge El-Kosheri’s dissenting opinion in the Lockerbie case, Resolutions 731 and 748 were not only illegal under customary international law, they were also ultra vires the UN Charter.

Resolution 731 endorsed the demands of the United States and the United Kingdom dated November 27, 1991 that Libya, inter alia, surrender for trial to either the United States or the United Kingdom two of its nationals charged with the bombing of Pan Am Flight 103 on December 21, 1988 over Lockerbie, Scotland; accept responsibility for the actions of those designated as “Libyan officials”; and pay appropriate compensation. And Resolution 748 provided that all states were to adopt, under Article 41, certain coercive measures against Libya if it did not comply with Resolution 731.

Judge El-Khosheri held that such resolutions were contrary to Libya’s sovereign rights as expressed in Articles 1(2) and 55 on “equal rights and self-determination of the people” as well as Article 2(7) on the principle of domestic jurisdiction. Indeed the essence of the intended retribution was aimed primarily at the State of Lybia and not the accused individuals. However Resolution 748 required the forced “extradition” of individuals which is illegal under international law.

Even so, the ICJ held by majority decision that the UN Security Council had full autonomy to do a it pleased. It did not matter that the fear of the so-called “Islamic terrorism” was on the rise culminating in Huntington’s socially deterministic theory of the “Clash of Civilizations” that specifically and unfairly singled out Islam as having “bloody borders.”

It did not seem to matter that the endorsement of Resolution 748 may have been equivalent to the endorsement of a latter-day “witch hunt” for “Islamic terrorists” launched by a Security Council which is known more for its partiality in geopolitics, especially when it came to Israel or Zionism in the Middle East and oil which is the lifeblood of Western industries. Where is, then, the justice in all this?

Justice must always be served even to those who are least deserving of it. That is why the rule of law exists. And with “national” or vested interests of powerful nations weighing heavily in matters that concern “threats to international peace and security”, the procedures set under the terms and agreements of the Montreal Convention could have been one of the few instruments for counterbalancing this. If there were indeed Libyan State involvement, it would have to be proven through the means provided by the Convention which are meant for shielding the fundamental liberties of the individual against the crushing weight of the “national” interests of foreign States.

Recently, though, in another Lockerbie case, the ICJ ruled on Feb 27 that it had jurisdiction to hear Libya’s complaints against Britain and the United States. It held, by way of majority opinion that it has jurisdiction to deal with the merits of the case brought by Libya against the United Kingdom concerning the aerial incident at Lockerbie.

The United Kingdom contended that there was no legal dispute with Libya with regard to the Convention because the question to be resolved had to do with the reaction of the international community to the situation arising from Libya’s supposed failure to respond effectively to the most serious accusations of State involvement in acts of terrorism.

It also contended that, even if the Montreal Convention did confer on Libya the rights it claims, they could not be exercised in this case because they were superseded by Security Council resolutions 748 (1992) and 883 (1993) which, by virtue of Articles 25 and 103 of the United Nations Charter, have priority over all rights and obligations arising out of the Montreal Convention.

Rejecting these contentions, the Court held that the Parties differ on the question whether the destruction of the Pan Am aircraft over Lockerbie was governed by the Montreal Convention specifically concerning the interpretation and application of Article 7 of the Convention (relating to the place of prosecution) and Article 11 (relating to assistance in connection with criminal proceedings).

And Security Council resolutions 748 and 883 were in fact adopted after the filing of the Application on 3 March 1992. In accordance with its established jurisprudence, if the Court had jurisdiction on that date, it continues to do so.

As to the resolution 731 (1992), adopted before the filing of the Application, it could not form a legal impediment to the admissibility of the latter because it was a mere recommendation without binding effect.

Some commentators have remarked that the ICJ decision on the preliminary objections was a blow to London and Washington (see D. Muller, “International Court Rules in Favour of Libya,” in South News, Fe. 28 1998). Perhaps. Perhaps not.

The strongest objection made by the United Kingdom was that “the intervening resolutions of the Security Council have rendered the Libyan claims without object.” Although the Court has rejected this preliminary objection by ten votes to six, there is no indication that the Court will not rule as such when it actually considers the merits of the case.

In fact, the most telling judgment that the Court would not upset the status quo, that Security Council resolutions would remain wholly independent of any judicial review by the ICJ, was the separate opinion of Judge Kooijmans who voted in favour of the operational part of the Judgment.

Although the Court’s finding in the Northern Cameroons case was such that its decisions “must have some practical consequence in the sense that it can affect existing legal rights or obligations of the parties, thus removing uncertainty from their legal relations” (see I.C.J. Reports 1963, p. 34.), Judge Kooijmans held that resolutions of the Security Council taken under Chapter VII of the Charter may have far-reaching legal effects, but they are not irrevocable or unalterable. In the exercise of its function the Security Council is free to confirm, revoke or amend them and consequently they cannot be called “final” even if during their lifetime they may be dispositive of the rights and obligations of member States, overriding rights and obligations these States may have under other treaties.

This is not the same as saying that the Court will be bringing into question the competence of the Security Council under Chapter VII of the UN Charter to determine or modify international law when applying it to a particular set of facts related to international peace and security.

Ahmad Faiz bin Abdul Rahman

21 March 1998.

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[Currently, he is a Researcher with the Institute of Islamic Understanding, Malaysia (IKIM) and a Pro-temp Committee Member of the International Movement for a Just World (JUST).]

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Some comments on the genesis of the UN Charter

Some comments on the UN Charter (from Yearbook of the United Nations 1946-1947)

…The Preamble has the same validity as the Purposes and Principles. The report of the Rapporteur of the Committee I/1 contains the following remarks:

“The provisions of the Charter, being in this case indivisible as in any other legal instrument, are equally valid and operative…It is for this reason, as well as to avoid undue repetition, that the Committee did not find it necessary to mention again in each paragraph relevant dispositions included in other paragraphs of the same chapter or other chapters. It was, nevertheless, unavoidable at times to make some repetitions.

May the explanation given above dispel any doubts as to the validity and value of any division of the Charter, whether we call it “Principles”, “Purposes,” or “Preamble.”  It is thus clear that there are no grounds for supposing that the Preamble has less legal validity than the two succeeding chapters [Purposes and Principles].

The term “sovereign equality” according to the report of the Rapporteur of Committee I/1, means:

(1) that States are juridically equal;

(2) that each State enjoys the same right inherent in full sovereignty;

(3) that the personality of the State is respected as well as its territorial integrity and political independence; and

(4) that the State should, under international order, comply faithfully with its international duties and obligations.

The second principle is that “all Members in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter.” The words “in good faith” were added by the Commission I, upon the suggestion of the Colombian delegation.

The third principle is that “all Members should settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” This followed the wording of the Dumbarton Oaks Proposals, except the words “and justice”, which were added upon the proposal of the Bolivian delegation.

The fourth principle is that “all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any manner inconsistent with the Purposes of the United Nations.” The words “against the territorial integrity or political independence of any State” were not in the Dumbarton Oaks Proposals; they were inserted upon the demand of several delegations which thought there should be a more specific guarantee in the Charter against any violation of territorial integrity and political independence. A New Zealand amendment that “all Members undertake collectively to resist any act of aggression against any Member” gained considerable support but failed to secure the necessary two-thirds majority.


From the Cold War to NATO’s “Humanitarian Wars” – The Complicity of the United Nations

From the Cold War to NATO’s “Humanitarian Wars” – The Complicity of the United Nations

By Mahdi Darius Nazemroaya

Global Research, April 4, 2012

Humanitarian wars, especially under the guise of the “Responsibility to Protect (R2P),” are a modern form of imperialism. The standard pattern that the United States and its allies use to execute them is one where genocide and ethnic cleansing are vociferously alleged by a coalition of governments, media organizations, and non-governmental front organizations. The allegations – often lurid and unfounded – then provide moral and diplomatic cover for a variety of sanctions that undermine and isolate the target country in question, and thereby pave the way for military intervention. This is the post-Cold War modus operandi of the US and NATO.

In facilitating this neo-imperialism, the United Nations has been complicit in the hijacking of its own posts and offices by Washington.

Former UN secretary-general Kofi Annan has been appointed a “special peace envoy” with a mediating role in Syria. Yet, how can Annan be evaluated as an “honest broker” considering his past instrumental role in developing the doctrine of R2P – the very pretext that has served to facilitate several US/NATO criminal wars of aggression? Furthermore, the evidence attests that the US and its allies – despite mouthing support for Annan’s supposed peace plan – are not interested in a mediated, peaceful solution in Syria.

From the Cold War to Humanitarian Wars

As the Cold War began to wind down in the late-1980s and early-1990s, NATO saw the opportunity that would arise from the geopolitical vacuum following the collapse of the Soviet Union and the dissolution of the Eastern Bloc. Not only did NATO begin transforming from a defensive organization into an offensive military body, the US-led alliance began to embrace a supposed humanitarian mandate for this purpose. It is through this purported embrace of humanitarianism that the North Atlantic Treaty Organization was able to change into an offensive, interventionist military force – indeed the largest such force ever in the history of the world.

NATO’s biggest military operation up until a decade after the Cold War was the First Persian Gulf War following the invasion in 1991 of Kuwait by Iraqi forces under the command of Saddam Hussein. The invasion of Kuwait by Iraq, at the time a US ally, was mired in a territorial oil dispute over colonial-era borders to which Washington at first appeared to show cool indifference. Immediately after Iraqi forces entered Kuwait, however, a strident US government and media campaign was mounted claiming the sanctity of Kuwait’s sovereign territory and the “defence of small nations.” There were also lurid media reports – later shown to be fabrications – of atrocities committed by Iraqi troops, such as the butchering of babies taken from hospital incubators. The international public was successfully manipulated to accept a US-led war against Iraq to ironically liberate the Emirate of Kuwait only to reinstate an absolute and despotic monarch.

Equipped with UN resolutions, the US-led NATO powers – along with a “coalition of willing” Arab states – launched a war on Iraq supposedly in the name of “humanitarianism.” Operations exclusively run by several NATO powers in Iraqi Kurdistan would also become the basis for NATO’s future humanitarian mandates. The precedent and tempo was now set for NATO’s subsequent “humanitarian” wars. The no-fly zones and legal semantics that were innovated by the Western powers to justify their intervention in Iraq were also applied by these same powers with regard to the former Yugoslavia. Variants of this humanitarian pretext for war included “upholding international law” and “international security” and were deployed for the invasion of Afghanistan in 2001 and again against Iraq in 2003 – the Second Persian Gulf War – this time to justify the all-out conquest of that country.  The same rhetorical justification for military intervention was used by NATO powers to unleash a seven-month aerial bombing campaign in Libya in 2011 that led to the overthrow of the government and to the murder of the country’s leader Muammar Qaddafi. The thematic R2P is currently being amplified to decibel levels by NATO state governments and mainstream media with regard to Syria, where a NATO-led intervention is also covertly underway.

Yugoslavia: Srebrenica’s Sacrifice for NATO Intervention

On July 11, 1995, the forces of the Bosnian Serbs would march into the so-called UN Srebrenica Safe Area. The official NATO narrative is that UN troops agreed to withdraw from Srebrenica and let the Bosnian Serb forces take care of the local Bosniaks, but that once the Bosnian Serbs entered the area they proceeded to slaughter 8,000 Bosniaks. This would be billed as the worst massacre in Europe since the Second World War.

In reality, the events of Srebrenica would be used and warped to justify a massive NATO response on the basis of public outrage. Bosniak leaders would also refuse to give the Red Cross the names of people who had fled Srebrenica, thus resulting in an inflated number of missing people. The number of the dead would later turn out to be significantly lower than originally reported. Media estimates also changed over time. The most senior UN official inside Bosnia-Herzegovina, Philip Corwin, would also lend his voice to those saying that the events in Srebrenica were distorted for political gain and military intervention by NATO.

Then US President Bill Clinton had actually instructed Alija Izetbegovic that 5,000 Bosniaks would need to be sacrificed to bring NATO into the war as a combatant. Surviving members of the Bosniak delegation from Srebrenica have stated on the record that Izetbegovic said that NATO would militarily intervene against the Republika Srpska if at least 5,000 dead bodies could be produced. The Fall of Srebrenica, a UN report issued on November 15, 1999, casually mentions this in paragraph 115. The Bosniak police chief of Srebrenica has also confirmed Clinton’s demand for a “sacrifice” from Izetbegovic to open the doors for NATO attacks against the Bosnian Serbs.

In the Bosnian War, all sides committed horrific atrocities. The crime of the Bosnian Serbs that appeared to rouse NATO was not ethnic cleansing. The crime of the Bosnian Serbs was that they were fighting to preserve Yugoslavia. Even Croats and Bosniaks in both Croatia and Bosnia-Herzegovina who wanted to preserve Yugoslavia and inter-ethnic peace were targeted, demonized, or killed. For example, the Bosniak Fikret Abdic was charged as a war criminal in Croatia after he fled Bosnia-Herzegovina, and Josip Rejhl-Kir, the Croat police chief of Osijek, was murdered by Croat nationalists for working to preserve the harmony between Croats and Croatian Serbs.

NATO intervened in Bosnia-Herzegovina to change the balance of power. The Bosnian Serbs were up until then the superior military force. Had NATO powers not internationalized the fighting and intervened, the Bosnian Serbs would have taken control of the country and maintained it as an integral part of Yugoslavia. This would have crippled or halted Euro-Atlantic expansion in the Balkans.

On January 15, 1999, the fighting in Racak between Serbian forces and the outlawed Kosovo Liberation Army (KLA), which the US State Department itself labelled a terrorist organization, would be used to paint a similar picture of genocide and ethnic cleansing to justify war. By this time, the Serbs had successfully been demonized by NATO and the media as the perpetrators of ethnic cleansing in the former Yugoslavia, so NATO’s efforts to vilify the Serbs were made relatively easy. It is a matter of public record that US Secretary of State Madeline Albright and the KLA leadership were working to create a humanitarian pretext for intervention. It was in this context that the US and NATO had pressured the Federal Republic of Yugoslavia to accept an arrangement where their military forces would leave Kosovo, but allowed the KLA to continue its attacks. This stoking of tensions is what NATO has tried to replicate in Syria through the so-called Free Syrian Army, which in reality is a terrorist organization linked to NATO and the Gulf Cooperation Council (GCC).

In the Arab World: Libya and Syria

In 2011, the humanitarian card would be played again by NATO, this time in the North African country of Libya. Colonel Qaddafi was accused of massacring his own people in Libya, particularly in Benghazi. Packaged with unverified claims of jet attacks and foreign mercenaries, this prompted the UN to permit the US and its NATO allies to impose another no-fly zone, as in Iraq and Yugoslavia. Illegally, the NATO powers arrogated the no-fly zone provision of UN Security Council Resolution 1973 to mount an aerial bombing campaign. The massive onslaught involving over 10,000 bombing missions was conducted in concert with NATO special forces and proxy militias on the ground. NATO warplanes targeted civilian population centres and civilian infrastructure, such as food stores and water and power utilities – acts that are war crimes under international law. Such a blatant campaign of state terrorism – obscenely in the name of “protecting human rights” – was instrumental in overthrowing the sovereign government in Tripoli and installing a proxy regime composed of an extremely volatile amalgam of opportunist para-militaries, terrorists, NATO intelligence operatives, and fractious tribal warlords. Recent reports of internecine bloodletting and revenge killing erupting across Libya, “post-NATO liberation,” attest to the real criminal enterprise of NATO’s regime change in Libya that was cynically perpetrated under the guise of protecting civilians.

Meanwhile, in Syria, the US and its cohorts have sought to replay the city of Homs like another Srebrenica, Racak, and Benghazi. They have sought to use the same tactic for inciting sectarian tensions and then blaming the government of President Bashar Al-Assad for conducting a “brutal crackdown.” The US and its allies are demanding that the Syrian Army stops fighting while the insurgent forces of the Syrian National Council’s Syrian Free Army are given a free hand to launch attacks, just as the NATO power demanded of the Yugoslav military while giving a green light to the KLA. Russian and Chinese demands that both sides observe a ceasefire offset this strategy.

What stands in the way of yet another NATO intervention is a firm resolve by Moscow and Beijing at the UN Security Council as well as the alliance between Syria and Iran. Damascus and its allies, however, should be wary of more traps to tie Syria down politically and legally through one-sided agreements. Nor should the Syrians place their trust in the United Nations to act as an “honest broker.”

Kofi Annan and the Responsibility to Protect (R2P)

Much praise is being given to Kofi Annan as the special envoy of both the Arab League and United Nations. There should, however, be caution applied when dealing with Annan. In this regard, his history with regard to humanitarian interventions needs to be assessed.

According to American diplomat Richard Holbrooke, who was intimately tied to the balkanization of Yugoslavia, Annan was one of the most supportive figures for US foreign policy in the Balkans. Annan was actually instrumental in helping to put together the R2P doctrine with Canadian diplomats. Furthermore, the Ghanaian-born career diplomat owes his rise to power to senior Washington connections and specifically to the events of Srebrenica and the fighting in the former Yugoslavia. Secretary-General Boutros Boutros-Ghali was pushed aside by Washington to make way for Annan as the head of the United Nations.

Kofi Annan is also openly supportive of R2P. He participated as a panelist in a discussion about R2P (The Responsibility to Protect – 10 Years On: Reflections on its Past, Present and Future) held at the University of Ottawa on November 4, 2011. A week prior to this event, Allan Rock, president of the University of Ottawa and former Canadian ambassador to the UN, together with Lloyd Axworthy, president of the University of Winnipeg and former Canadian foreign minister, co-authored an article about R2P in the Ottawa Citizen (October 25, 2011). Both Axworthy, who was on the panel with Annan, and Allan Rock praised the war in Libya, calling it a victory for R2P.

At the panel, Annan was joined by the decidedly pro-NATO Canadian parliamentarian Christopher Alexander. Alexander is the parliamentary secretary to Peter MacKay. Mackay is the current defence minister of Canada and has voiced support for open wars against Syria and Iran. Christopher Alexander was also a Canadian diplomat in Russia for several years, the former Canadian ambassador to NATO-garrisoned Afghanistan, and the deputy special representative of the United Nations Assistance Mission in Afghanistan (UNAMA). The R2P panel was moderated by Lyse Doucet, a correspondent for the British Broadcasting Corporation (BBC) and a friend of Alexander.

What is important to note about the R2P Ottawa panel is that it was largely supportive of R2P. Kofi Annan also voiced his support for NATO’s military intervention in Libya. When asked about using R2P in Syria, no firm answer was given by Annan. He did appear, however, to give his tacit support to intervention against Syria. Finally, both Annan and Axworthy proposed that regional organizations be given R2P mandates. For example, the African Union should be able to intervene on the behalf of the international community in African countries, such as Uganda and Sudan, or that the Arab League likewise be given an R2P mandate in countries, such as Syria.

These points are key factors. They should not be overlooked. Annan’s impartiality with regard to his latest pivotal task in Syria should be questioned, especially in light of his stated position on Libya and his generally supportive views for NATO military interventions.

Humanitarianism: The Face of Modern Imperialism

The NATO military interventions in Yugoslavia, Afghanistan, and Libya were and are colonial invasions masquerading as humanitarian endeavours. Moreover, what NATO did in Yugoslavia was to intervene incrementally to divide and conquer the country. According to General John Galvin, the former supreme commander of NATO, this was done because NATO officials knew that an all-out invasion during the disintegration of the country would result in a massive guerrilla war with high costs for NATO. It can also be added that such a NATO intervention would have had the inverse effect of unifying Yugoslavia instead of allowing the federal state to dissolve.

At the start of 2011, both Libya and Syria were holdouts to NATO’s Mediterranean Dialogue and they also had reservations about the EU’s Union for the Mediterranean (UfM). This effectively means that they were both resistant to Euro-Atlantic expansion. While popular protests in Bahrain and Jordan went unnoticed, all public eyes were directed by NATO state governments and corporate media towards Libya and Syria. This is because of imperialist interests to subvert both the latter Arab states – while the former mentioned states are allies and therefore must be bolstered despite their well-documented repressive conducts.

Atlanticism is on the march. Both NATO’s operations in the Balkans and the Arab World are intended to expand the Euro-Atlantic Zone. Its involvement in African Union missions in East Africa are also tied to this. For all observers who take a detailed look at the restructuring of states vanquished by NATO, this should be clear. Humanitarianism has become the new face of modern imperialism.
Former UN secretary-general Kofi Annan is a man whose face fits the deceptive humanitarian agenda of modern imperialism.

The above text is an adaptation of an article from the Journal of the Strategic Cultural Foundation (SCF).

Mahdi Darius Nazemroaya is a Sociologist and award-winning author. He is a Research Associate at the Centre for Research on Globalization (CRG), Montreal. He specializes on the Middle East and Central Asia. He has been a contributor and guest discussing the broader Middle East on numerous international programs and networks such as Al Jazeera, Press TV, teleSUR and Russia Today. His writings have been published in more than 10 languages. Nazemroaya also writes for the Strategic Culture Foundation (SCF), Moscow. He is the author of a forthcoming book about Libya, The War on Libya and the Re-Colonization of Africa (2012).

FBI terror suspects list includes 420,000 names

Antiterror Measures at Home
editorial  The New York Times,  October  1,  2011

One of the bitter lessons of the terrorist attacks of Sept. 11, 2001, was the need for better coordination and sharing of intelligence among the nation’s security agencies, to flag dangerous people entering the country. But there were also well-founded concerns about how well that system was working, and whether it was being abused.

Ten years later, files released by the F.B.I. under the Freedom of Information Act show that the government’s bloated terrorist watch list remains a flawed security tool in need of greater transparency and accountability. There are longstanding concerns about implementation and accuracy, including the omission of names from the list that properly belong there. There also has been a persistent problem of flagging the wrong people — including an 8-year-old and at least one senator — who then have serious trouble getting their names removed.

The 91 pages of newly disclosed files, described by The Times’s Charlie Savage last week, included a December 2010 memorandum to F.B.I. field offices revealing that even a not-guilty verdict may not always be enough to get someone off the list, if agents retain “reasonable suspicion” that the person might have ties to terrorism.

The database now has 420,000 names, including about 8,000 Americans. About 16,000 individuals are barred from flying. Timothy Healy, the director of the F.B.I.’s Terrorist Screening Center, which reviews requests to add or remove names from the watch list, says the multilayered process for vetting nominees for the list balances civil liberties and security well.

But the unwieldy size of the database raises doubts. So does the disturbing absence of procedures to notify people who are on the watch list, or to give them a chance to see and challenge allegations against them. Inclusion on the watch list can keep people off planes, subject them to delays and extra invasive scrutiny at airports, traffic stops and border crossings, and prevent noncitizens from entering the country.
The security agencies have stepped up efforts to avoid mistaken identifications, but there remains a need for Congress to make sure the system’s flaws are fixed.