Category Archives: State responsability

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/)

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.

Israel will be required to pay reparations to Lebanon for attacks

Israel will be required to pay reparations to Lebanon for attacks

By Yoav Stern, Haaretz Correspondent

The United Nations will require Israel to pay Lebanon nearly $1 billion for environmental damages caused during the 2006 Second Lebanon War, the Lebanese newspaper Al-Akhbar reported on Saturday.

The paper said that UN Secretary General Ban Ki-moon will put the motion on the table of the Security Council later this month.

The indicated amount is based on a World Bank damage assessment. Among other issues, it included the cost of pumping oil from the Mediterranean coast after Israel bombed a large refinery, which was covered by UN agencies. The oil spill also inflicted extensive damage to local flora and fauna, which has yet to be fully repaired.

Last update – 16:53 06/09/2008

http://www.haaretz.com/hasen/spages/1018564.html

Extracting odious reparations from Iraq

The Independent (London), October 27, 2006 Friday?

Reparations that are now an absurdity;

LEADING ARTICLE;

In the topsy-turvy world of international politics, Iraq, a nation in political and economic turmoil, has just paid more than $21.4bn (?11.3bn) in “war reparations” to some of the richest countries and corporations in the world. The payment is the latest tranche in a staggering $41.3bn so far paid out by the struggling Iraqi government in recompense for the first? Iraq war in which Saddam Hussein invaded Kuwait.

And so it should, many might say. The damage done to Kuwait in that period needs to be made good. Those who lost relatives, limbs and property should be compensated. Yet most of the payments to those who suffered personal injuries or losses have now been made, and in fairly small sums.

Much larger amounts have gone – and continue to go – to big corporations. The chief beneficiaries are oil companies and contractors? such as Halliburton, Bechtel, Mobil and Shell. But compensation has also gone to Nestl”, Pepsi, Philip Morris, Sheraton, American Express, Kentucky Fried Chicken and even Toys R Us – not because Saddam damaged their property in Kuwait , but because, they claim, they “lost profits” or experienced a “decline in business” because of the war. The payments announced yesterday also went to governments in Bosnia-Herzegovina, India,” Russia, Saudi Arabia, Turkey and the United States.

Saddam Hussein is long gone from power and yet the down-trodden people of Iraq are still being forced to pay for the crimes of their former dictator. The amount they are paying is more than Iraq’s annual health and education budgets combined. Payments are running well behind schedule, and will take years to complete. The country is being forced to borrow from the? IMF, with all the additional constraints that brings.

The new Iraqi government has requested a change. There is no reason why it should not come. In 1991 Iraq was paying 30 per cent of its oil revenue in compensations. In 2000 this was reduced to 25 per cent. After the fall of Saddam it was cut to 5 per cent. Surely it is now time that it should end entirely.

The lesson of history, as with Germany post-1918, is that while war reparations do salve the past, they also store up trouble for the future.

Things are bad enough in Iraq without this added burden. Every dollar sent as “reparations” is a dollar not spent on humanitarian aid and reconstruction.

The vanquished have always paid the victor. But for the occupied to pay the occupiers – much of the “reparations” go to the United States and Britain – is little short of an obscenity. At a time when the battle for hearts and minds is being daily lost, it is patently a political absurdity too.

Morning Star, November 27, 2006?

Iraq bled white by reparations

by Louise Nousratpour

Peace campaigners condemned revelations on Sunday that public money is funding private mercenaries in Iraq to the tune of millions of pounds, while the country’s oil revenues are being used to bolster corporate profits.

The government will face tough questions in the House of Commons on Monday over its recent commitment to increase reconstruction aid to Iraq, while Iraq’s own oil revenues are being “siphoned off” by transnational companies.

While welcoming Chancellor Gordon Brown’s pledge for more Iraq aid, campaigners expressed fears that the extra money will also be seized by greedy privateers.

The warning followed news of companies such as Bechtel, Halliburton and even Kentucky Fried Chicken are demanding vast sums – not for damage, but because the Iraq war has dented their profits.

The Iraqi puppet gover nment has decided to divert over ?10.35 billion of its oil revenues into additional “reparations” payouts to? oil-rich Gulf states like Kuwait and to companies which suffered “loss of business” during the first Gulf war.

This is in addition to over ?20.7 billion already paid out by the? UN from a fund which is fed by a 5 per cent levy of Iraq’s oil revenues.

Labour MP Jeremy Corbyn condemned the move, accusing the Iraqi government and its Western allies of prioritising private profit over desperately needed welfare for the suffering Iraqi people. “Over 600,000 Iraqi lives have been lost in the war and depleted uranium and cluster bombs are killing a whole? generation,” he said.

“Yet their priority appears to be pouring money into the already bloated bank accounts of very wealthy multinational firms and private mercenaries.”

Mr Corbyn argued that, if Britain and the US were serious about helping to clean up their own mess in Iraq, they would invest in? “sanitation, health and education.”

Stop the War Coalition (StWC) spokesman Chris Nineham welcomed any British government aid to Iraq for damages caused by the war and? occupation. But he stressed that this should not sim ply be pumped into the “corrupt Iraqi government to help line the pockets of big corporations.”

Peace campaigners also expressed fury at reports that British taxpayers have paid almost ?160 million to private security companies in Iraq – some of which have been accused of human rights abuses and randomly? shooting civilians.

Mr Nineham castigated the occupation forces for turning Iraq into a money-making haven for private army firms.”The funding of private security in Iraq and Afghanistan shows how bankrupt the whole proj ect of occupation? is,” he said.

“The StWC calls for the withdrawal of not only all British troops, but also all private security companies, which are simply a tool of the occupation.”

War on Want revealed a slew of human rights abuses commited by these private firms last month.They ranged from torture and rape in Iraq’s notorious Abu Ghraib prison to involvement in prostitution rings in eastern? European countries like Bosnia.

The firms employ hundreds of former special forces troops who are paid up to ?600 a day.

There are an estimated 48,000 of these mercenaries operating in Iraq, six times the number of British troops. Defending the ?160 million tax money paid out to security firms, a Foreign Office spokesman declared: “We’ve a duty of care to staff and? believe this provides good value for money.”

Morning Star, November 27, 2006

Comment – Almost past belief

There are times when the phrase mind-boggling simply isn’t adequate to describe the reaction to one or other item of news.

This is just such a time. The news that shattered and partially dismantled Iraq has paid out over $40 billion in so-called “reparations” is bad enough.” But to find out to whom that vast sum has been or is about to be paid to is so shattering as to be almost incredible.

That a country which has been illegally invaded, which has lost over 650,000 of its population, which has been carved up between the oil transnationals and the state s that host them and which has had a puppet government foisted on it which has no more relation to democracy than fly in the air should have to pay reparations is, in itself, ludicrous.

That the companies which are claiming large slices of that $40 billion should include Kentucky Fried Chicken is appalling.

But that the list should include Halliburton, the scandal-plagued oil company that US Vice-President Dick Cheney used to run and which has been coining it ever since the war started, firstly by winning the contract to put out the oilfield fires that the US started and latterly by multibillion dollar “reconstruction” contracts to rebuild what the US and Britain demolished in the course of the war, is utterly beyond the bounds of reason.

After that, the news that Bechtel, which recently announced that it is leaving Iraq after three years of work there, during which it pocketed a cool $2.3 billion should have the unmitigated gall to join the queue for reparation handouts, merely puts the icing sugar on the cake.

And it is not just companies that are hitching themselves to this? vulture-dominated bandwagon. The government of Kuwait has already been awarded over $273 million and is now picking up another $335 million.

The government of Saudi Arabia has trousered over $85 million and has just added another, comparatively modest, $30 million chunk to its coffers.

One wonders on what these sums are based. Certainly Kuwait lost massive oil revenues during the invasion by Saddam Hussein’s Iraq. But it is almost certain that those sums have been more than equalled by the enormous increase in oil revenues generated by the price rises in the wake of the war.

With the US companies, one is driven to ponder just what the compensation is for. Is KFC, for example, seeking redress because the US government and its allies killed 650,000 potential customers for its family? bucket?

And is Halliburton aggrieved that it hasn’t been afforded the chance to employ those 650,000 people and extract a bit of surplus value?

Whatever the reasons, this obscene example of victors’ justice must stop. It is not Saddam who is paying.

It is the dazed and bloodied people of a country that has been trashed in a resource war that was none of their making, based on lies that are still being uncovered today – who are paying, while their infrastructure lies in ruins, their security is negligible and their sons and daughters lie dead. This cannot be allowed to continue.

UN Commission Awards Compensation for Environmental and Public Health Damage from 1990-91 Gulf War

ASIL Insight
  UN Commission Awards Compensation for Environmental and Public Health Damage from 1990-91 Gulf War
By Cymie Payne

 10 August 2005

The United Nations Compensation Commission (UNCC) issued its fifth and final report on awards of compensation for environmental and public health damage resulting from Iraq’s 1990-91 invasion and occupation of Kuwait on June 30, 2005.[1]  The report addressed issues that have rarely come before an international body: whether compensation is owed for damage to natural resources that have no commercial value and, if so, how the loss should be valued.  Other decisions of interest relate to claims for post-traumatic stress disorder and other public health damage.  The three commissioners of the “F4? Panel who were charged with assessing these claims also ended speculation about the extent of Iraq’s liability for the approximately US$ 50 billion that was sought in this final group of claims, by recommending awards that totaled approximately $252 million.

 

The United Nations Security Council established the UNCC as a neutral, fact-finding, quasi-judicial organization to assess claims of compensation for losses related to the 1990-91 Gulf war and to make awards to successful claimants.[2]  Security Council Resolution 687 (1991) states that Iraq is “liable under international law for any direct loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign Governments, nationals and corporations, as a result of Iraq’s unlawful invasion and occupation of Kuwait.”[3]

 

During the Gulf War, the environment in Kuwait and neighboring countries suffered damage from oil well fires that burned for months, releasing airborne contaminants; the damaged oil wells that spilled lakes of oil onto the desert surface; oil spills into the Persian Gulf that were many times larger than the Exxon Valdez spill; mines and other ordnance left not only on land but also in coastal waters; and other military activities.   These and other impacts of the war affected public health.  Some countries also received influxes of refugees fleeing the war who needed water, fuel, and medical care. 

 

Under the program established by the Security Council, compensation has already been awarded for monitoring and assessment of damage, response costs, and remediation of damage.  In this last phase (leading to the fifth and final environmental claims report), the UNCC made awards to the Governments of Kuwait, Iran, Jordan and Saudi Arabia for losses of various natural resources, losses of crops and livestock, loss of water resources, costs of remediation, and damage to public health.

 

In the written submissions and the oral proceedings regarding this group of claims, Iraq and the claimants debated whether “pure environmental damage? could be compensable.[4]   They also disputed whether a temporary loss of use of natural resources, that is, the loss suffered from the time a natural resource is damaged until it recovers through natural means or with the assistance of active remediation, could be compensable. 

 

The Panel found that under the liability provision of Security Council resolution 687 (1991) an environmental loss would be compensable if it were a direct result of Iraq’s invasion and occupation of Kuwait, whether or not it had commercial value, and whether the loss was temporary or permanent.[5]  Moreover, the Panel did not consider that the exclusion of compensation for pure environmental damage in some international conventions on civil liability was a valid basis for asserting that international law, in general, prohibits compensation for such damage when it results from an internationally wrongful act.[6]

 

Having decided that pure environmental damage could be compensable, the Panel turned its attention to the difficult problem of quantifying the amount of compensation that would be appropriate.  Where a resource that has commercial value, like a crop, is damaged for a period of time, the analysis is relatively straightforward.  Crops can be treated like other property, and valued using an appropriate market price for the period of time that the damage persists, adjusted as needed to reflect the influence of other sources of damage.[7]  On the other hand, a loss of biodiversity that persists for a number of years has no market price as a point of reference.

 

Several claimants put a value on their temporary natural resource losses by proposing environmental projects designed to compensate for the loss of ecological services that the natural resources would have provided, had they not been damaged.[8]  Although the Panel viewed the proposed valuation methods using compensatory restoration projects as “relatively novel,” it was willing to apply them “where there is sufficient evidence that primary restoration will not fully compensate for any identified losses.”[9]  Accordingly, the Panel made awards that were quantified according to the cost of various compensatory projects: a cooperative rangeland management program to restore rangeland and wildlife habitat damaged by the influx of refugees into Jordan, and shoreline preserves in Kuwait and Saudi Arabia.  In another case — Iran’s claim for damage to rangelands from the presence of refugees — the Panel found it more appropriate to use the price of fodder to calculate an award rather than the value that Iran derived from lost ecological services.

 

The claims for damage to public health amounted to approximately $25 billion, claimed by five countries: Iran, Jordan, Kuwait, Saudi Arabia and Syria.  While the Panel acknowledged that Governments had broad rights to make claims for general damage to the health and well being of their citizens, the actual awards were a small percentage of the claimed amount. The public health claims that received awards were Kuwait’s claim for costs of treating post-traumatic stress disorder and injuries from mines and ordnance; Iran’s claim for costs of medical treatment and public health facilities made available to refugees; and a study of cancer and hematological disorder in Iran.

 

The Panel stated that, in principle, a State could be compensated for the costs of monitoring and medical screening to investigate and combat increased health risks; expenses actually incurred by a State in combating increased public health problems or public health risks;[10][11] if these losses resulted directly from Iraq’s invasion and occupation of Kuwait.  and general damage related to public health, such as claims for loss of life or reduced quality of life,

 

The UNCC had already afforded individuals compensation for death of family members, including medical, burial and other expenses, loss of financial support that would have gone to a spouse, a child or parent, and mental pain and anguish of the survivors.  Iraq had argued that this individual remedy supplanted the State’s right to claim.[12]  The Panel rejected the argument on the basis that the State was asserting its own, separate right “to ensure compliance with the rules of international law in respect of its nationals,” and was not acting on behalf of the individuals.[13]  Thus, the Panel found that Kuwait and Iran had standing to claim compensation for loss of well being suffered by their nationals due to post-traumatic stress disorder, although it found that there was insufficient evidence to support awards in these instances.[14]

 

The Panel found that States did not have standing with respect to mental pain and anguish claims, because Governing Council decisions had restricted the right to bring such claims to certain categories of individuals.[15]  Consequently, the Panel found that Jordan did not have standing to seek compensation of mental pain and suffering that it alleged was due to increased crime resulting from the invasion and occupation.[16]

 

In the end, insufficiency of evidence was frequently an insurmountable problem for the environmental and public health claims.  The report identifies a number of critical evidentiary shortfalls.  For example, the Panel found there was evidence that the smoke from the oil well fires reached Iran.  However, Iran was unable to provide sufficient evidence to link contaminants from the plume with the alleged damage to its cultural heritage artifacts and sites.[17]  In a number of cases, the Panel recognized that some damage occurred, but the evidence submitted was insufficient to distinguish the quantum of damage caused directly by Iraq’s invasion and occupation of Kuwait from other sources of damage, such as oil pollution from operation of oil platforms, terminals and oil processing facilities.[18]  In such cases, the Panel did not recommend an award.  This is not new.  Indeed, much of the development of environmental legislation creating strict, joint and several liability for those who control environmental hazards has occurred because of the difficulty of proving causation by direct evidence.

 

 

About the author
Cymie R. Payne, an ASIL member, is an environmental lawyer working at the United Nations Compensation Commission.

Footnotes

[1]United Nations Compensation Commission, Report and recommendations made by the Panel of Commissioners concerning the fifth instalment of “F4? claims, UN Doc. S/AC.26/2005/10 (2005).  Hereinafter “Fifth instalment F4 report”.  UNCC reports and other information can be found on the internet at http://www.uncc.ch.

[2] A further discussion of the procedural aspects of the environmental claims review is provided in the Fifth instalment F4 report, paras 7-20 and 87-97.

[3] SC Res. 687, 1991, para. 16. 

[4] Fifth instalment F4 report, paras 45-51.  The International Law Commission Draft Articles on Responsibility of States for Internationally Wrongful Acts, article 36(2), states, with respect to the scope of compensation as a remedy: “The compensation shall cover any financially assessable damage ?”.   Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001).  The ILC Commentaries to article 36(2) explain, “The qualification “financially assessable? is intended to exclude compensation for what is sometimes referred to as “moral damage? to a State”. Ibid. at 244.  The Commentaries further state “However, environmental damage will often extend beyond that which can be readily quantified in terms of clean-up costs or property devaluation.  Damage to such environmental values (biodiversity, amenity, etc – sometimes referred to as “non-use values?) is, as a matter of principle, no less real and compensable than damage to property, though it may be difficult to quantify.”  Ibid. at 252.

[5] Fifth instalment F4 report, para. 55-57.

[6] Fifth instalment F4 report, para. 58 (referencing the International Convention on Civil Liability for Oil Pollution Damage, 1969, as modified by the Protocol of 1992, United Nations, Treaty Series, Vol. 973, No. 14097, p. 3; and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971, as modified by the Protocol of 1992, United Nations, Treaty Series, Vol. 1110, No. 17146, p. 57).

[7]  See, Fifth instalment F4 report, para. 103-18 (finding that reduced crop yields in Iran are compensable).

[8] These claimants used “Habitat Equivalency Analysis? to determine the amount of compensation claimed.  This approach involves assessment of the nature and extent of the temporary loss of ecological services from the damaged resources, determination of the gain in ecological services anticipated from the compensatory projects, and calculation of the cost of the compensatory projects. See, e.g., Fifth instalment F4 report, para. 420.

[9] Fifth instalment F4 report, paras 81-82.

[10] Fifth instalment F4 report, para. 67-68.

[11] Fifth instalment F4 report, para. 69.

[12] Fifth instalment F4 report, para. 62.

[13] Fifth instalment F4 report, para. 70.

[14] Fifth instalment F4 report, para. 289 (no compensation recommended for this element of Iran’s claim because evidence was not sufficient to establish that there was an increase in the number of cases of PTSD and panic disorder requiring treatment in Iran as a direct result of Iraq’s invasion and occupation of Kuwait), para. 515 (no compensation for this element of Kuwait’s claim because evidence was not sufficient to demonstrate the nature and extent of the damage).

[16] Fifth instalment F4 report, para. 71.  Governing Council decision 3 (S/AC.26/1991/3) (stating that compensation for mental pain and anguish will be provided where various harms were suffered by the individual or the spouse, child or parent).  See also, Governing Council decision 8 (S/AC.26/1921/8) (adopting ceilings for compensation for mental pain and anguish).

[16] Fifth instalment F4 report, para. 404.

[17] Fifth instalment F4 report, paras 204-207 (no compensation for Iran’s claim for damage to cultural heritage due to insufficient evidence regarding nature and extent of damage, and the contribution to any damage of other factors, such as local sources of pollution from motor vehicle emissions, regional oil refining, and human occupation of historic sites).

[18] Fifth instalment F4 report, paras 211-214 (no compensation for Iran’s claim for damage to marine resources because evidence was not sufficient to determine proportion of damage attributable to Iraq’s invasion and occupation of Kuwait).