The cruel cease-fire charade

So far, the diplomatic effort to end the violence in Gaza has failed miserably, with Israel on Friday rejecting a cease-fire proposal from U.S. Secretary of State John Kerry. (On Saturday Israel and Hamas agreed to a 12-hour humanitarian pause in the fighting brokered by the United Nations.)

Washington’s attempt is representative of the overall failure of American policy toward the Israeli-Palestinian conflict, only on this occasion the consequences can be measured in the growing pile of dead bodies and the widespread devastation that includes numerous homes, public buildings and even artillery damage to several United Nations schools sheltering Palestinian civilians.

The U.S. approach fails because it exhibits extreme partisanship in a setting where trust, credibility and reciprocity are crucial. Kerry is undoubtedly dedicated to achieving a cease-fire, just as he demonstrated for most of the past year in pushing for a negotiated peace agreement between Israel and the Palestinian Authority. Yet the United States exhibited its tendency toward extreme partisanship when it designated Martin Indyk, a former staff member of the America Israel Public Affairs Committee (AIPAC) and former ambassador to Israel, as the U.S. special envoy to the peace talks.

The U.S. approach up to this point to achieving a cease-fire in Gaza has been undertaken in a manner that is either woefully ignorant of the real constraints or callously cynical about their relevance. This is especially clear from the attempt to garner a cease-fire by consulting only one side, Israel — the party bearing the major responsibility for causing massive casualties and damage — and leaving Hamas out in the cold. Even if this is a consequence of Hamas being treated as “a terrorist entity,” it still makes no sense. When Israel wanted to deal with Hamas in the past, it had no trouble doing so — for instance, when it arranged the prisoner exchange that led to the release of the single captured Israeli soldier Gilad Schalit back in 2011.

The basic facts are astounding: The U.S. relied on Egypt as the broker of a proposal it vetted, supposedly with the text delivered personally by Tony Blair to President Abdel Fattah El Sisi in Cairo, endorsed by the Netanyahu government, and then announced on July 15 via the media as a cease-fire proposal accepted by Israel, without Hamas even knowing the details. It’s a diplomatic analogue to the theater of the absurd. Last July, then-General Sisi was the Egyptian mastermind of a coup that brutally cracked down on the Muslim Brotherhood and criminalized the entire organization. The Sisi government has made no secret of its unrelenting hostility to Hamas, which it views as an offshoot of the Muslim Brotherhood. It destroyed the extensive tunnel network connecting Gaza with the outside world to circumvent the punitive Israeli blockade that has been maintained since 2007. Is there any reason for Hamas to go forward with such a cease-fire arrangement? As some respected Israeli commentators have suggested, most prominently Amira Hass, the “normalization” of the occupation is what the Israeli military operation Protective Edge is all about. Hass suggests that Israel seeks a compliant Palestinian response to an occupation that has for all intents and purposes become permanent. Such periodic shows of force aim to break once and for all the will to resist, associated with Hamas and its rockets.

Even more telling, the cease-fire’s terms were communicated to Hamas via the media, making the proposal “take it or leave it.” It also ignored the reasonable conditions Hamas had posited as the basis of a cease-fire it could accept. These conditions included ending the unlawful seven-year siege of Gaza, releasing prisoners arrested in the anti-Hamas campaign prior to launching the military operation on July 8, and stopping interference with the unity government that brought Hamas and the Palestinian Authority together on June 3. Kerry, by contrast, has urged restoring the cease-fire text that had been accepted by both sides in November 2012 after the previous major Israeli military attack upon Gaza.

Hamas’ chief leader, Khaled Meshaal, has been called “defiant” by Kerry because he would not go along with this tilted diplomacy. “Everyone wanted us to accept a cease-fire and then negotiate for our rights,” Meshaal said. This was tried by Hamas in 2012 and didn’t work. As soon as the violence ceased, Israel refused to follow through on the cease-fire agreement that had promised negotiations seeking an end of the blockade and an immediate expansion of Gazan fishing rights.

In the aftermath of Protective Edge is it not reasonable, even mandatory, for Hamas to demand a firm commitment to end the siege of Gaza? Israel as the occupying power has an obligation under the Geneva Conventions to protect the civilian population of an occupied people. Israel claims that its “disengagement” in 2005, involving the withdrawal of security forces and the dismantling of settlements, ended such obligations. Such a position is almost uniformly rejected in the international community, since the persistence of effective Israeli control of entry and exit, as well as air and sea, and violent incursions amounts to a shift in the form of occupation — not its end. Israel is certainly right to complain about the rockets, but it is wrong to impose an oppressive regime of collective punishment on the civilians of Gaza. More

 

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Invisible Horizons of a Just Palestine/Israel Future

I spent last week at the United Nations, meeting with ambassadors of countries in theMiddle East and presenting my final report to the Third Committee of the General Assembly as my term as Special Rapporteur for Occupied Palestine comes to an end.

Richard Falk

My report emphasized issues relating to corporate responsibility of those companies and banks that are engaged in business relationships with the settlements. Such an emphasis seemed to strike a responsive note with many delegations as a tangible way of expressing displeasure with Israel’s continuing defiance of its international law obligations, especially in relation to the unlawful settlements being provocatively expanded in the West Bank and East Jerusalem at the very moment that the resumption of direct negotiations between the Palestine Authority and the Government of Israel is being heralded as a promising development.

There are two reasons why the corporate responsibility issue seems to be an important tactic of consciousness raising and norm implementation at this stage: (1) it is a start down the slippery slope of enforcement after decades of UN initiatives confined to seemingly futile rhetorical affirmations of Israeli obligations under international law, accompanied by the hope that an enforcement momentum with UN backing is underway; (2) it is an expression of tacit support for the growing global movement of solidarity with the struggle of the Palestinian people for a just and sustainable peace agreement, and specifically, it reinforces the claims of the robust BDS Campaign that has itself scored several notable victories in recent months.

My intention in this post is to put aside these issues and report upon my sense of the diplomatic mood at the UN in relation to the future of Israel/Palestine relations. There is a sharp disconnect between the public profession of support for the resumed peace negotiations as a positive development with a privately acknowledged skepticism as to what to expect. In this regard, there is a widespread realization that conditions are not ripe for productive diplomacy for the following reasons: the apparent refusal of Israel’s political leadership to endorse a political outcome that is capable of satisfying even minimal Palestinian aspirations; the settlement phenomenon as dooming any viable form of a ‘two-state’ solution; the lack of Palestinian unity as between the Palestinian Authority and Hamas undermining its representational and legitimacy status.

The most serious concern on the Palestinian side is whether protecting the interests and rights of the totality of the Palestinian people in a peace process can be achieved within the present diplomatic framework. We need to be constantly reminded that ‘the Palestinian people’ cannot be confined to those Palestinian living under Israeli occupation: refugees in neighboring countries; refugees confined within occupied Palestine, but demanding a right of return to their residence at the time of dispossession; the Palestinian minority living in Israel; and 4-5 million Palestinians who constitute the Palestinian diaspora and its underlying reality of enforced exile.

It was also clear that the Palestinian Authority is confronted by a severe dilemma: either to accept the inadequate proposals put forward by Israel and the United States or reject these proposals and be blamed once again by Tel Aviv and Washington for rejecting a peace offer. Only some Israeli anxiety that the Palestinians might actually accept the U.S. proposals might induce Israel to refuse, on its side, to accept what Washington proposes, and spare the Palestinians the embarrassment posed by the dilemma of swallowing or spitting. That is, Israel when forced to show its hand may actually be unwilling to allow any solution to the conflict based on Palestinian self-determination, even if heavily weighted in Israel’s facvor. In effect, within the diplomatic setting there strong doubts exist as to whether the present Israeli leadership would accept even a Palestinian statelet even if it were endowed with only nominal sovereignty. In effect, from a Palestinian perspective it seems inconceivable that anything positive could emerge from the present direct negotiations, and it is widely appreciated that the PA agreed take part only after being subjected to severe pressure from the White House and Secretary Kerry. In this sense, the best that Ramallah can hope for is damage control.

There were three attitudes present among the more thoughtful diplomats at the UN who have been dealing with the Palestinian situation for years, if not decades: the first attitude was to believe somehow that ‘miracles’ happen in politics, and that a two state solution was still possible; usually this outlook avoided the home of the devil, that is the place where details reside, and if pressed could not offer a scenario that explained how the settlements could be shrunk sufficiently to enable a genuine two-state solution to emerge from the current round of talks; the second attitude again opted to support the resumption of the direct talks because it was ‘doing something,’ which seemed preferable to ‘doing nothing,’ bolstering this rather vapid view with the sentiment ‘at least they are doing something’; the third attitude, more privately and confidentially conveyed, fancies itself to be the voice of realism in world politics, which is contemptuous of the advocacy of rights and justice in relation to Palestine; this view has concluded that Israel has prevailed, it has won, and all that the Palestinians can do is to accommodate an adverse outcome, acknowledging defeat, and hope that the Israelis will not push their advantage toward a third cycle of dispossession (the first two being 1948, 1967) in the form of ‘population transfer’ so as to address their one remaining serious anxiety—the fertility gap leading to a feared tension between professing democracy and retaining the primary Zionist claim of being a Jewish state, the so-called ‘demographic bomb.’

As I reject all three of these postures, I will not leave my position as Special Rapporteur with a sense that inter-governmental diplomacy and its imaginative horizons have much to offer the Palestinian people even by way of understanding evolving trends in the conflict, much less realizing their rights, above all, the right of self-determination. At the same time, despite this, I have increased my belief that the UN has a crucial role to play in relation to a positive future for the Palestinian people—reinforcing the legitimacy of seeking a rights based solution rather than settling for a power based outcome that is called peace in an elaborate international ceremony of deception, in all likelihood on the lawn of the White House. In this period the UN has been playing an important part in legitimating Palestinian grievances by continuously referencing international law, human rights, and international morality.

The Israelis (and officialdom in the United States) indicate their awareness of this UN role by repeatedly stressing their unconditional opposition to what is labeled to be ‘the delegitimation project,’ which is a subtle propagandistic shift from the actual demand to uphold Palestinian rights to the misleading and diversionary claim that Israel’s critics are trying to challenge Israel’s right to exist as a state sovereign state. To be sure, the Palestinians are waging, with success a Legitimacy War against Israel for control of the legal and moral high ground, but they are not at this stage questioning Israeli statehood, but only its refusal to respect international law as it relates to the fundamental rights of the Palestinian people.

Let us acknowledge a double reality. The UN is a geopolitical actor that is behaviorally manipulated by money and hard power on many fundamental issues, including Palestine/Israel; this stark acknowledgement severely restricts the effectiveness of the UN with regard to questions of justice. Fortunately, this is not the whole story. The UN is also a normative actor that articulates the grievances of peoples and governments, influences public discourse with respect to the global policy agenda, and has great and distinctive symbolic leverage in establishing the legitimacy of claims. In other words, the UN can say what is right, without being necessarily able to do what is right. This distinction summarizes the narratives of articulating the Palestinian claims and the justice of the Palestinian struggle without being able to overcome behavioral obstacles in the geopolitical domain that block their fulfillment.

What such a gap also emphasizes is that the political climate is not yet right for constructive inter-governmental negotiations, which would require both Israel and the United States to recalculate their priorities and to contemplate alternative future scenarios in a manner that is far more congruent with upholding the panoply of Palestinian rights. Such shifts in the political climate are underway, and are not just a matter of changing public opinion, but also mobilizing popular regional and global support for nonviolent tactics of opposition and resistance to the evolving status quo. The Arab Spring of 2011 initially raised expectations that such a mobilization would surge, but counter-revolutionary developments, political unrest, and economic panic have temporarily, at least, dampened such prospects, and have lowered the profile of the Palestinian struggle.

Despite such adverse developments in the Middle East from a Palestinian perspective, it remains possible to launch within the UN a broad campaign to promote corporate responsibility in relation to the settlements, which could gradually be extended to other unlawful Israeli activities (e.g. separation wall, blockade of Gaza, prison and arrest abuses, house demolitions). Such a course of action links efforts within the UN to implement international law with activism that is already well established within global civil society, being guided by Palestinian architects of 21st century nonviolent resistance. In effect, two disillusionments (armed struggle and international diplomacy) are coupled with a revised post-Oslo strategy giving the Palestinian struggle a new identity (nonviolent resistance, global solidarity campaign, and legitimacy warfare) with an increasing emancipatory potential.

Such an affirmation is the inverse of the ultra realist view mentioned above that the struggle is essentially over, and all that is left is for the Palestinians to admit defeat and for the Israelis to dictate the terms of ‘the peace treaty.’ While admitting that such a visionary worldview may be based on wishful thinking, it is also appropriate to point out that most political conflicts since the end of World War II have reflected the outcome of legitimacy wars more than the balance of hard power. Military superiority and geopolitical leverage were consistently frustrated during the era of colonial wars in the 1960s and 1970s. In this regard, it should be understood that the settler colonial enterprise being pursued by Israel is on the wrong side of history, and so contrary to appearances, there is reason to be hopeful about the Palestinian future and historical grounds not succumb to the dreary imaginings of those who claim the mantle of realism. More

 

Syria: Obama’s Surprising (and Confusing) Latest Moves by Richard Falk

President Obama’s August 31st remarks from the White House Rose Garden will long be remembered for their strangeness, but the final interpretation of their significance will have to await months if not years.

Richard Falk

There are three dimensions, at least, that are worth pondering: (1) seeking Congressional authorization for a punitive military attack against Syria in support of the treaty prohibition on recourse to chemical weapons in an armed conflict; (2) reconciling any endorsement of an attack by Congress with United States obligations under international law and with respect to the United Nations and its Charter; (3) assessing the degree to which American war making prerogatives continue to operate within an unacceptable domain of American exceptionalism.

In framing the issues at stake Obama set forth the fundamental policy choices in a rather incoherent manner:

• First of all, he asserted that on the basis of evidence available to the United States Government, that the Assad regime was without doubt responsible for the massive chemical weapons attack of August 21^st directed at the Ghouta residential neighborhood on the outskirts of Damascus, and causing over 1,000 civilian deaths, including several hundred children. The Russian president, Vladimir Putin, clearly articulated the grounds for skepticism about this American construction of the Ghouta atrocity. He put forward a strongly worded request that the allegations be confirmed by the release of convincing evidence. This is a reasonable demand. Many around the world have questioned why Assad would launch such a provocative attack to coincide with the arrival of UN inspectors, and when the battlefield balance was tipping in favor of the Damascus regime. All along such important figures in the Obama administration, especially John Kerry and Joe Biden, have arrogantly dismissed the relevance of any information provided by the UN inspection team. In light of the gigantic deception relating to Saddam Hussein’s supposed weapons of mass destruction (WMD) arsenal, which was more politely described long after the event as an ‘intelligence failure,’ it would have been appropriate for Washington to admit that it has a credibility problem in winning governmental and popular support for an attack on Syria. Its refusal to acknowledge such an issue merely deepens suspicions.

• Secondly, Obama informed listeners that “..after careful deliberation, I have decided that the United States should take military action against Syrian regime targets.” He added that he made this decision “as Commander-in-Chief on what I am convinced are our national security interests.” This conclusion was explained to rest on the importance of punishing such a crime against humanity and deterring future recourse to chemical weapons and other weapons of mass destruction by Syria, as well as sending a message to Iran and North Korea about America’s readiness to use force to uphold such norms of international law.

• Thirdly, there was no effort in Obama’s remarks to show why, absent a UN mandate, the United States in coalition with a few other countries, had the legal authority to attack a sovereign state in a circumstance other than self-defense.

• Fourthly, although the decision against involvement by the British Parliament was noted, there was no consideration as to whether such an outcome should bear on American policy. Nor was the German or Italian unwillingness to join in the attack noted, nor that of the Arab League. But the French support was duly appreciated, including a dig at the United Kingdom, by reminding his listeners around the world that it was France that was America’s “oldest ally.” (It is worth noting that the roles of these two European friends were directly reversed in the context of the Iraq War; then, it was the French more conservative led government that opposed participation, while now a socialist leader in Paris supports an attack against Syria).

• Fifthly, and in the most dramatic passage in the speech, Obama announces that because the United States is a proud democracy he has made “a second decision: I will seek the authorization for the use of force from the American people’s representatives in Congress” by calling for a debate and vote. No mention is made of a time frame, nor how he would react in the event that authorization was not forthcoming. Such an eventuality would set up a potential tension between his duties to uphold national security and an obligation of deference to a decision by Congress on the vital matter of authority to wage war. Obama touched all the bases by saying, “Yet, while I believe I have the authority to carry out this military action without specific congressional authorization, I know that the country will be stronger if we take this course, and our actions will be even more effective.” In effect, there is no constitutional legal requirement to obtain Congressional authorization, but doing so will create a more effective response. But what if authorization is withheld? Or Congress is split with approval by the Senate, and disapproval by the House?

• Sixthly, there is an implicit endorsement of American exceptionalism. After saying that the case for an attack will be made internationally, as well as domestically, Obama reaffirms a national prerogative of illegal unilateralism. He uses this phrase: “But we are the United States of America, and we cannot and must not turn a blind eye to what happened in Damascus.” That is no matter that others disagree, the United States alone has the duty to act as it sees fit. It is correctly presumed that such discretion is not vested in other sovereign states. Otherwise the world would be in flames. In effect, Syria, Iran, North Korea are bound by international law, as interpreted by the United States, while the United States and its closest allies are guided by assessments of their national security interests.

It is this double standard that is at the core of American exceptionalism, and also underpins the debate as to whether it is more instructive to view the United States as ‘global leader’ or ‘imperial power,’ or possibly some blend;

There is something rather sinister about announcing an intention to strike a vulnerable country with which the United States is not at war, coupled with the announcement that the needed military capabilities are in place, but will not be used until convenient; in effect, a lethal strike against Syria can take place at any point from now on until a time weeks or months from now, depending only on the workings of the internal American political process and the disposition of its Commander-in-Chief. If this is deemed to be in the interest of the Syrian people, I would like to know how.

Even if the controversy as to the facts is ignored, and theproblems associated with double standards as to the relevance ofinternational law to the use of force, there are some other reasonsfor concern about the approach adopted by PresidentObama:

• It denies constitutional status to the request for Congressionalauthorization, making it a discretionary presidential judgment callthat is not necessitated by the Constitution, but is an expressionof Obama’s belief in democratic procedures. To not rest thisrequest on the Constitution itself is a missed opportunity, andthus amounts to yet another reassertion of excessive authority bythe Executive Branch of government;
• Itmakes no effort to assess what would be of benefit to the people ofSyria, and rather makes the case for a narrow strike as acombination of punishing (without intending to displace) the Assadregime and abstract American national security interests in itsself-appointed role as preventing the use and spread ofWMD;
• Itfails to advocate in a serious manner a diplomatic approach toending the violence of the conflict by calling for a second Genevaconference with the full participation of Iran that would deal withregional peace and security issues, as well as the war inSyria;
• Itundermines the authority of the UN and international law by vestingin the U.S. Government the final word on when it is appropriate touse international force in non-defensive modes and fails to makewar a matter of ‘last resort’;
• It draws an overly sharp a distinction between this incidentinvolving chemical weapons and other massacres that have occurredduring the course of two years of strife in Syria; regardless ofthe weaponry deployed both forms of violence are crimes againsthumanity that deserve a serious and effective response, ifavailable.

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It is as yet possible that Congress will rescue Obama from havingto respect a red line he ill-advisedly proclaimed a year ago. Itwould be ironic if this one time the anti-Obama Republicans savedhim from the worse foreign policy excess of hispresidency!

It is possible that Obama will be pushed by pro-interventionists tooverride a Congressional failure to give authorization. It is alsopossible that Congress will authorize, and public opinion stronglyoppose. And we are left to wonder whether Congress canconstitutionally authorize a use of force that violatesinternational treaty law. Of course, we would be unlikely to findout given the passivity of the U.S. Supreme Court when it comes tochallenges directed at legally dubious foreign policy and nationalsecurity matters.

All of the above suggests that the revitalization of Americanrepublicanism requires, as a matter of urgency, a constitutionalconvention with an explicit mandate to restore the separation ofpowers and checks and balances in relations to war/peace issues.The U.S. Government has longed strayed from this vital pillar ofrepublican democracy.

Nothing would do more to restore confidence in the United States asa global leader! Such a momentous event will not happen withoutmassive grassroots pressure; it will never be decreed from onhigh.

A final word of blurred appreciation: CNN talking heads are veryfond of referring to Obama as epitomizing ‘the reluctant warrior.’And reluctant he is, but also warrior he has been, and continues tobe, casting a rather dark shadow over the Nobel Peace Prizedecision process. The reluctance is articulated over and over againin his words and sometimes reflected in his policies, and certainlyseems sincere. And such reluctance may be credited, at leastsubconsciously, with this welcome move to broaden the domesticauthorization process with respect to this non-defensive use ofinternational force. Obama would deserve less ambiguous praise ifhe had recognized the role of Congress prior to the decision of theBritish Parliament. And prior the many demands from Congress for agreater role gathering political momentum.More

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Editorial

I question how the international community can discipline a States Party to the United Nations for acting unilaterally? States that carry out drone strikes, committing extra-judicial killings, allegedly as part of their war on terror, a 'war' that the said state may be at least partially responsible for causing.

There has to be accountability, or as Richard Falk points out; Obama reaffirms a national prerogative of illegal unilateralism. He uses this phrase: “But we are the United States of America, and we cannot and must not turn a blind eye to what happened in Damascus.” That is no matter that others disagree, the United States alone has the duty to act as it sees fit.

The international community must uphold the Rule of Law, the United National and all International Organizations have an obligation to uphold the Rule of Law. The mandate of the Geneva Conventions must be upheld. I argue that it is a human right for all states to be held accountable and for there to consequences for illegal actions. Editor

Syria: U.S. War Making at the Expense of Democracy by Richard Falk

The U.S. Government rains drone missiles on civilian human targets anywhere in the world, continues to operate Guantanamo in the face of universal condemnation, whitewashed Abu Ghraib, Bagram, and the torture memos, committed aggression against Iraq and Afghanistan, and invests billions to sustain its unlawful global surveillance capabilities.

Richard Falk

Still, it has the audacity to lecture the world about ‘norm enforcement’ in the wake of the chemical weapons attack in the Ghouta suburb of Damascus. Someone should remind President Barack Obama and Secretary of State John Kerry that credibility with respect to international law begins at home and ends at the United Nations. Sadly, the American government loses out at both ends of this normative spectrum, and the days of Washington being able to deliver pious messages on the importance of international law are over. No one is listening, and that’s a relief, although it does provide material for those teams of writers working up material for the likes of Jon Stewart, Stephen Colbert, and the many standups at Comedy Central. Yet, of course, this geopolitical TV series is no laughing matter for the long ordeal of the Syrian people.

There is yet another disturbing dimension of this pre-war pseudo debate about recourse to force in retaliation for an alleged use of chemical weapons by Assad against his own people: should a democracy empower its elected leaders to commit the country to war without at least securing specific legislative authorization? The contrast between the approach of the British and American approach to this issue is illuminating. David Cameron, as Prime Minister, along with his Foreign Secretary, strongly favored joining with the United States in launching a punitive attack against Syria, but arranged a prior Parliamentary debate and vote, and clearly indicated his immediate acceptance of the surprising refusal to win backing for such a policy, a show of Parliamentary independence that had not occurred in the country since the late 18th century. Of course, given polls showing only 11% of British citizens supporting an attack on Syria, Cameron may be privately breathing a deep sigh of relief that the vote came out as it did! Obama should be so lucky! If only his powers as Commander-in-Chief included a tool with which to erase imprudent ‘red lines’!

Compare now the Obama approach: speeches informing the country about why it is important to punish the Assad regime so as to uphold American national security interests and to engender respect for international law and several consultations with Congressional leaders. What is absent from the Obama discourse is the word ‘authorization’ or ‘a decent respect for the opinions’ of humanity, as expressed at home and in the world. In my view, this continuing claim of presidential authority to wage war unilaterally, and absent a UN mandate, is creating a deep crisis of legitimacy not only for the U.S., but for all governments that purport to be democracies but commit to war on the decision of the chief executive, as France and Turkey appear to be doing. It is time to face up to this crisis.

Above all, the foundational idea of American republicanism was to demonstrate that the power to declare and wage war was subject to ‘checks and balances’ and ‘separation of powers,’ and in this crucial respect, was unlike the monarchical powers of English kings in war/peace contexts. This makes the Parliamentary rebuff to Cameron not only a revitalizing move for British democracy, but an ironic commentary on the degree to which American ‘democracy’ has perversely moved in an absolutist direction.

It is true that government lawyers as hired hands can always find legal justifications for desired lines of policy. We can count on White House lawyers do just this at the present time: working into the night at Office of the Legal Counsel to prepare breifing material on the broad scope of the powers of the president as Commander-in-Chief, reinforced by patterns of practice over the course of the last several decades, and rounded out with an interpretation of the War Powers Act that supposedly gives the president 60 days of discretionary war making before any obligation exists to seek approval from Congress. Lawyers might quibble, but democracy will be the loser if procedures for accountability and authorization are not restored with full solemnity. In this respect the law should follow, not lead, and what is at stake is whether the republican ideals of limited government would be better served by the original ideas of making it unconstitutional for a president to commit the country to war without a formal and transparent process of public deliberation in the Congress, which is that part of government charged with reflecting the interests and values of the citizenry. Let the lawyers be damned if they side with the warrior politicians, however ‘war weary’ they claim to be.

It is worth also noticing that the common arguments for presidential authority do not pertain. The United States is not responding to an attack or acting in the face of an imminent threat. There is no time urgency. Beyond this the American public, as is the case with the publics of all other Western democracies, oppose by large majorities acts of war against Syria. What makes this situation worse, still, is the refusal to test diplomacy. By international law norms, reinforced by the UN Charter, a use of force to resolve an international conflict is legally a matter of ‘last resort’ after diplomatic remedies have been exhausted. But here they are not even being tried in good faith, which would involve bringing Iran into the process as a major engaged player, and enlisting Russia's support rather than exhibiting post-Snowden pique. Obama claims that no one is more war weary than he is, but his behavior toward Syria, Iran, Egypt, and Russia convey the opposite message.

And finally, some urge what be called ‘a humanitarian right of exception,’ namely, that this crime against humanity committed against the Syrian people requires a proportionate response from the perspective of international morality, regardless of the constraints associated with international law. Disregarding ‘the slippery slope’ of moral assessments, this particular response is being presented as directed against the Assad regime, but not motivated by any commitment to end the civil war or to assassinate Assad. There are reasons for viewing Washington’s moralizing reaction to the horrifying chemical attacks of August 21, especially the rush to judgment with respect to attributing responsibility to the Assad regime without awaiting the results of the UN inspection team and the odd timing of a such a major attack just as the inspectors were arriving in Damascus. It is not only habitual skeptics that recall Colin Powell’s presentation of conclusive evidence of Iraq’s possession of WMD to the UN Security Council in the lead up to the unlawful Iraq War. We should by now understand that when a foreign policy imperative exists for the occupant of the White House, factoids replace facts, and moral/legal assessments become matters of bureaucratic and media duty.

 

Richard Falk | August 31, 2013 at 2:26 am | Categories: America, Commentary, Global Governance, International & Global Law, Syria | URL: http://wp.me/p19Wt7-lq

 

‘The soldiers answered his screams with laughter and then shot more bullets’

As Palestinian Child Day is celebrated on 5 April, Omsiyat Kamal ‘Awaja (15) is one of many Palestinian children for whom the day, like every other, will be marked by unbearable loss and suffering.

It is impossible to count the number of children in the Gaza Strip who have been directly affected by loss. Since the outbreak of al-Aqsa Intifada on 28 September 2000, PCHR has documented the killing of 958 Palestinian children and injury of 6,355 others in the Gaza Strip. 313 children were killed during ‘Operation Cast Lead’ (2008-9), and a further 35 children were killed during ‘Operation Pillar of Defence’ in November 2012. PCHR has also documented the tragic consequences on thousands of children of the destruction of their homes, denying them the right to shelter.

A small, mud house with a small yard in the front, piles of pots and kitchen utensils scattered here and there, a number of books leaning against the wall of the house, which barely shelters its residents. That is what the house in which Omsiyat currently lives looks like. The house was built by UNRWA as a temporary alternative for the ‘Awaja family home, which was destroyed by Israeli forces in 2009 during ‘Operation Cast Lead’.

“Before moving to the house that you are seeing now, we lived in a tent for around two years. During that time, we realised exactly what it feels like to be a displaced person with no home. We did not get used to living in a tent. It took us a long time to adjust, as we used to live in a big house with most of the things we needed.”

On 4 January 2009, Israeli forces destroyed the ‘Awaja building in Beit Lahia without any prior warning. The residents fled to a neighbouring tract of land when Israeli bulldozers began to destroy their home. After the house had been destroyed, the children’s mother, Wafaa’ (36), went back to collect what could be salvaged from under the rubble. She was accompanied by three of her children, Diaa, Sobhi, and Ibrahim, each of whom was younger than 13 years of age.

Omsiyat recalls: “My brother, Ibrahim, was the first to be injured, sustaining injuries in his waist. Mom screamed out, so Dad went to check on her, and picked up my brother. They left the house, or what remained of it, and Dad was screaming, ‘My son is injured. We need an ambulance.’ The Israeli soldiers were still in the area. They answered his screams with laughter and then shot more bullets, so that Dad was injured, as well as my mother. My father was left lying on the street and Ibrahim was lying next to him. My mother crawled until she reached my siblings and me where we were hiding behind a wall. We saw the Israeli soldiers approaching and shooting at Ibrahim, and Dad told us later that he had died.”

More than four years later, Omsiyat is still torn apart by regret. Though very young, she feels guilty about the death of her brother because she failed to help him. “When my Dad, Mom, and Ibrahim were injured, I stood there, unable to do anything, though I am the oldest of my siblings. I cannot forget what happened and I feel so much pain whenever I remember that I did not try to help. The idea that my help might have done something, in some way or another, to rescue my brother never leaves my mind, and it causes my stomach to ache. Maybe if I had tried to pull Ibrahim away from the Israeli crossfire, he would still be alive.”

Omsiyat was severely affected by the suffering that she and her family went through. Her father, Kamal (51), says, “Omsiyat suffered so much after the death of her brother and the destruction of our house. It took us a long time to settle into our new life in the tent, and then in the mud house, as neither could compare to the house we used to live in and what I used to provide for my children. My child was executed, my house was destroyed, and I turned from being a father who provided the best he could for his family to a father who is incapable even of providing a suitable house for his family. Days pass by meaninglessly. This how we all feel. Even psychotherapy sessions could not help us to get over this. My wife, children, and I share an indescribable feeling of oppression.”

Omsiyat describes how her father, Kamal (51), tried his best to create a nice environment for his children to live in: “Dad installed an internet line in the tent and bought us a computer. He also replaced most of the electronic devices we used to have in our house, but unfortunately he could not build a new house because he did not have enough money. UNRWA built us this temporary house and told my Dad recently that they are planning to demolish it to build a new permanent house. We are preparing to go back to living in a tent.”

The family will live in a tent again until UNRWA finishes building the permanent house. “Although I know from experience how harsh it is to live in tents, the idea of going back to the tent does not worry me. In comparison to what we have been through, tents seem luxurious.”

Omsiyat used to love drawing landscapes, but today she only draws scenes of death and destruction. “I can see no beauty around me and I am no good at drawing anything but warplanes, tanks, and funerals. I used to love drawing landscapes. All I drew in my paintings were flowers, butterflies, and trees. Now, when I intend to draw a flower, I automatically draw a tank, a tent, or a destroyed house.”

Omsiyat’s story is included in a report that PCHR has recently published, ‘The Best is Yet to Come’, along with the accounts of 14 more children in the Gaza Strip who have experienced bereavement, injury, the injury of a loved one, the destruction of a home, or long-term separation from a father who is in prison. The report was funded by UNICEF.

Palestinian children are a particularly vulnerable group and are among those most affected by Israeli forces' violations in the West Bank and the Gaza Strip, which have been ongoing since 1967. International humanitarian law (IHL) grants children two forms of protection: first, the general protection granted to them as non-combatant individuals; second, special protection as they are considered to be a particularly vulnerable group in times of war and armed conflict.[1]

Under the principle of distinction, parties to a conflict must, at all times, distinguish between civilians and combatants, and civilian objects and military targets. Violations of this principle constitute war crimes, as defined in, inter alia, Articles 8(2)(b)(i), and (ii) of the Statute of the International Criminal Court.[2] Depending on the scale of such attacks, and whether they form part of a plan or policy, such attacks may also constitute the crime of wilful killing and be a grave breach of the Geneva Conventions.[3]

In addition, IHL requires that any attack must be proportionate. An attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.[4] Furthermore, under the principle of precaution, customary IHL requires that all feasible precautions must be taken to avoid, or at least to minimise, incidental loss of civilian life, injury to civilians and damage to civilian objects.[5] More