Category Archives: Occupation

“Occupation” or “Colonization”?

Professor and historian Ilan Pappe is well-respected and condemned at the same time. He’s one of the new historians who has brought to light the ugly truth of the Zionists’ cleansing and colonization of Palestine.  His book, The Ethnic Cleansing of Palestine, is a must read for anyone who truly wants to learn about the history of Israel / Palestine.

Unfortunately, I must disagree with Professor Pappe’s current call to jettison the term “occupation” in favor of “colonization”.  Listen to his explanation here.

He’s absolutely correct …. an occupation should be considered a short-term, temporary state of affairs, and Israel’s 50-year occupation of Palestine has far-exceeded the limits of a lawful occupation.

But jettisoning the term “occupation” is not the answer. Under international law, the occupier has responsibilities and duties to those subjected to his occupation. Under international law, the victims of occupation have rights and claims against the occupier.

The State of Israel has been waging a stealth lawfare campaign for many years to convince the world that it is not occupying Palestine.

The answer is not to cave and agree with Israel that there is no occupation.

Instead, Professor Michael Lynk has the answer.  He’s the U.N. special rapporteur for the Palestinian territories.  Professor Lynk is urging the United Nations to examine Israel’s prolonged occupation to determine if it is an unlawful occupation.  This is the right strategy to pursue in my opinion.  I hope Professor Pappe and others concerned about Israel’s prolonged occupation will read Professor Lynk’s report, and join his effort.

michael_lynk

Special Rapporteur S. Michael Lynk

Professor Lynk recommends:

The Special Rapporteur recommends that the Government of Israel bring a complete end to the 50 years of occupation of the Palestinian territories in as expeditious a time period as possible, under international supervision.

The Special Rapporteur also recommends that the United Nations General Assembly:

  • Commission a United Nations study on the legality of Israel’s continued occupation of the Palestinian territory;
  • Consider the advantages of seeking an advisory opinion from the International Court of Justice on the question of the legality of the occupation;
  • Consider commissioning a legal study on the ways and means that UN Member States can and must fulfill their obligations and duties to ensure respect for international law, including the duty of non-recognition, the duty to cooperate to bring to an end a wrongful situation and the duty to investigate and prosecute grave breaches of the Geneva Conventions.
  • Consider the adoption of a Uniting for Peace resolution with respect to the Question of Palestine, in the event that there is a determination that Israel’s role as occupier is no longer lawful.
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Prolonged Occupation or Illegal Occupant?

michael_lynk

Special Rapporteur S. Michael Lynk

Professor Michael Lynk’s commentary was first published on May 16, 2018 on EJIL: Talk! …. the Blog of the European Journal of International Law.  He raises a novel argument — that the international legal community should consider whether or not Israel’s prolonged occupation of Palestine has crossed some legal line, resulting in an illegal occupation. Professor Lynk posits a 4-part test to determine the answer. His commentary is reprinted below in full.*

Michael Lynk is an associate professor at the Faculty of Law, Western University, London, Ontario, Canada. He teaches labour law, human rights law and constitutional law. In March 2016, the United Nations Human Rights Council appointed him as Special Rapporteur for the situation of human rights in the Palestinian Territory occupied since 1967

“An unresolved question in international humanitarian law is whether an occupying power – whose authority as occupant may have initially been lawful – can cross a bright red line into illegality because it is acting contrary to the fundamental tenets of international law dealing with the laws of occupation.  This question has become especially relevant in light of several prolonged occupations in the modern world, including the 50-year-old Israeli occupation of the Palestinian territory.

The principal instruments of international humanitarian law, including the 1907 Hague Regulations, the 1949 Fourth Geneva Convention and the 1977 Additional Protocol to the Geneva Conventions, are silent on this question. However, a purposive reading of these instruments, together with the foundational tenets of international humanitarian and human rights law, leads to the conclusion that an occupying power whose intent is to turn occupation into annexation and conquest becomes an illegal occupant.

In my October 2017 report to the United Nations General Assembly as Special Rapporteur on the situation of human rights in the Palestinian territory occupied since 1967, I argue that a four-part test can be derived from general principles of international law, including the laws of occupation, to determine whether the status of an occupying power has become illegal. Violating any one of these four parts of the test could establish the occupying power as an illegal occupant. This builds upon previous studies done by E. BenvenistiO. Ben-Naftali, A. Gross & K. Michaeli; and A. Gross.

Before laying out the four-part test, it is important to note that some international law commentators have advanced the proposition that a lengthy period of occupation – a prolonged occupation – should qualify as a special category under the laws of occupation. In the circumstances of a prolonged occupation, it has been said by these commentators that the laws of occupation may have to be modified to enable the occupying power to maintain an effective rule over the territory in light of evolving administrative needs and emerging social and economic developments. As such, they opine that the conservationist principle at the heart of occupation law would need to be interpreted flexibly.

While prolonged occupation may be a useful descriptive term to capture the existence of a lengthy occupation, it is not appropriate as a distinct legal category within the laws of occupation in the absence of an analysis as to why the occupation has lasted so long and whether the occupying power is still administering the occupation in good faith and with a steady determination to hand the entire occupied territory back to the sovereign – the people – in as short and as reasonable a time period as possible. Otherwise, the concept of prolonged occupation may well become a legal guise that masks a de facto colonial exercise and defeats the transient and exceptional nature which occupations are intended to be.

The four parts of the proposed test are:

(i) An Occupying Power cannot annex any of the Occupied Territory

In the modern world, an occupying power cannot, under any circumstances, acquire the right to conquer, annex or gain sovereign title over any part of the territory under its occupation. This is one of the most well-established principles of modern international law and enjoys universal endorsement. According to Oppenheim, belligerent occupation does not yield so much as an atom of sovereignty in the authority of the occupant: A. Gross: The Writing on the Wall (2017), at 8.

Beginning with UNSC resolution 242 in November 1967, the Security Council has endorsed the principle of “the inadmissibility of the acquisition of territory” by war or by force on at least nine occasions, most recently in December 2016. The United Nations General Assembly unanimously affirmed this principle in the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States. In the Wall Advisory Opinion in 2004, the ICJ held, at para. 87, that the: “…illegality of territorial acquisition resulting from the threat or use of force” has acquired the status of customary international law.

Israel’s de jure annexation of East Jerusalem and parts of the West Bank in 1967 (by a Cabinet decision) and 1980 (by a Knesset vote) is, ipso facto, a violation of the non-annexation principle, as reflected in the laws of occupation. Shortly after the Knesset vote, the United Nations Security Council in August 1980 censured Israel “in the strongest terms” for the Knesset vote, affirmed that Israel’s actions were in breach of international law, and that Israel’s annexation of Jerusalem was “null and void” and “must be rescinded forthwith.” Israel remains non-compliant with all of the United Nations’ resolutions on the annexation of Jerusalem, there are presently about 210,000 Israeli settlers living in East Jerusalem and Prime Minister Netanyahu has stated that Israel intends to keep all of Jerusalem permanently. Beyond Jerusalem, Israel is actively establishing the de facto annexation of parts of the West Bank through its thickening settlement enterprise, as noted by the ICJ in para. 121 of the Wall Advisory Opinion and by Professor Omar Dajani.

Israel’s predominant reply-arguments are that it has a superior title to East Jerusalem and the West Bank because they were acquired in a defensive war and because Jordan was never the true sovereign at the time of the 1967 war. In response, the absolute rule against the acquisition of territory by force makes no distinction as to whether the territory was occupied through a war of self-defence or a war of aggression; annexation is prohibited in both circumstances: S. Korman, The Right of Conquest (1996), pp. 259-60. And, as the 2016 commentary of the International Committee of the Red Cross states, in para. 324, the legal status of occupation does not require the existence of a prior legitimate sovereign over the territory in question.

(ii) An Occupation is inherently temporary, and the Occupying Power must seek to end the occupation as soon as reasonably possible.

Occupation is by definition a temporary and exceptional situation where the occupying power assumes the role of a de facto administrator of the territory until conditions allow for the return of the territory to the sovereign. In the words of Jean Pictet, at p. 275, this is what distinguishes occupation from annexation. Because of the absolute prohibition against the acquisition of territory by force, the occupying power is prohibited from ruling the territory on a permanent or even an indefinite basis. While the laws of occupation do not set out a specific length of time for the lawful duration of an occupation, the purposive conclusion to be drawn is that the territory is to be returned to the sovereign power – the people of the territory – in as reasonable and expeditious a time period as possible, so as to honour the right of those people to self-determination. (As  UNSC Resolution 1483 (22 May 2003), dealing with the American-led occupation of Iraq, noted, the occupying powers committed to return the governance of Iraq to its people “as soon as possible.”) Indeed, the longer the occupation, the greater the justification that the occupying power must satisfy to defend its continuing presence in the occupied territory.

The duration of the 50-year-old Israeli occupation is without precedent or parallel in today’s world. Modern occupations that have broadly adhered to the strict principles of temporariness, non-annexation, trusteeship and good faith have not exceeded 10 years, including the American occupation of Japan, the Allied occupation of western Germany and the American-led occupation of Iraq. Every Israeli government since 1967 has pursued the continuous growth of the settlements, and the scale of the financial, military and political resources committed to the enterprise belies any intention to make the occupation temporary. As Professor Gershon Shafir has observed at pp. 155 and 161 in A Half Century of Occupation(2017): “temporariness remains an Israeli subterfuge for creating permanent facts on the ground”, with Israel able to employ a seemingly indeterminate nature of the occupation’s end-point to create a ‘permanent temporariness’ that intentionally forestalls any meaningful exercise of self-determination by the Palestinians.

(iii) During the Occupation, the Occupying Power is to act in the best interests of the people under Occupation

The occupying power, throughout the duration of an occupation, is required to govern in the best interests of the people under occupation, subject only to the legitimate security requirements of the occupying military authority. This principle has been likened to a trust or fiduciary relationship in domestic and international law, where the dominant authority is required to act in the interests of the protected person or entity above all else: A. Gross, The Writing on the Wall (2017), at pp. 26-29. The 1907 Hague Regulations, the 1949 Fourth Geneva Convention and modern body of international human rights instruments contain a number of provisions which protect the lives, property, natural resources, institutions, civil life, fundamental human rights and latent sovereignty of the people under occupation, while curbing the security powers of the occupying power to those genuinely required to safely administer the occupation. Accordingly, the occupying power is prohibited from administering the occupation in a self-serving or avaricious manner and it must act in a manner consistent with its trustee responsibilities.

The pervasive barriers and restrictions in the civil and commercial life of the Palestinians have created a disfigured territorial space, resulting in a highly dependent and strangled economy, mounting impoverishment and receding hope for a reversal of fortune for the foreseeable future. According to recent reports by the World Bank, the United NationsB’Tselem, the Association for Civil Rights in Israel and Badil, the Palestinians in the West Bank endure distinctly inferior civil, legal and social conditions compared to Israeli settlers; they suffer from significant restrictions on their freedom of movement and a denial to access to water and natural resources; Israel has imposed a deeply discriminatory land planning and housing permit system to support its settlement enterprise; and a number of West Bank communities live under the threat of forcible transfer and land confiscation. Palestinians in East Jerusalemand Gaza also endure distressing living conditions occasioned by the occupation.

(iv) The Occupying Power must act in good faith

The principle of good faith is a cardinal rule of treaty interpretation in the international legal system and has become an integral part of virtually all legal relationships in modern international law. The principle requires states to carry out their duties and obligations in an honest, loyal, reasonable, diligent and fair manner, and with the aim of fulfilling the purposes of the legal responsibility, including an agreement or treaty. Conversely, the good faith principle also prohibits states from participating in acts that would defeat the object and purpose of the obligation or engaging in any abuse of rights that would mask an illegal act or the evasion of the undertaking.

Accordingly, an occupying power is required to govern the territory in good faith, which can be measured by its compliance with the following two obligations: (i) its conformity with the specific precepts of international humanitarian law and international human rights law applicable to an occupation; and (ii) its conformity with any specific directions issued by the United Nations or other authoritative bodies pertaining to the occupation.

Israel has been deemed to be in breach of many of the rules of international humanitarian and human rights law throughout the occupation. Apart from its illegal annexation of East Jerusalem, its settlement enterprise has been repeatedly characterized as illegal by the United Nations Security Council. As well, the prohibited use of collective punishment has been regularly employed by Israel through the demolition of Palestinian homes of families related to those suspected of terrorism or security breaches, and by extended closures of Palestinian communities. Additionally, it is in non-compliance with more than 40 resolutions of the United Nations Security Council adopted since 1967 with respect to its occupation.

Namibia Advisory Opinion

In 1971, the International Court of Justice, in its Namibia Advisory Opinion, stated that annexation by a mandatory power is illegal, the mandatory must act as a trustee for the benefit of the peoples of the territory, it must fulfil its obligations in good faith, and the end result of the mandate must be self-determination and independence. It also held that the breach of the mandatory power’s fundamental obligations under international law can render its continuing presence in the mandate territory illegal, notwithstanding that the Covenant of the League of Nations (Article 22) was silent on this issue. The ICJ found South Africa to have become an illegal mandatory as a result of its aspirations for annexation, its prolonged stay, its failure as a trustee, and its bad faith administration.

The same reasoning would apply, mutatis mutandis, to a determination as to whether an occupying power is still the lawful occupant. Although mandates are governed by the Covenant and occupations are regulated primarily by the Fourth Geneva Convention, they are different branches of the same tree. Both South Africa (as a mandatory power) and Israel (as the occupying power) were/are prime examples of alien rule, the governing power in both cases was/is responsible for respecting the right to self-determination, annexation in both cases was/is strictly prohibited, and the international community on both cases was/is responsible for the close supervision of the alien rule and for bringing this rule to a successful conclusion.

Conclusion

A determination that Israel – or any occupying power whose administration of the occupation has breached one or more of the fundamental principles – has become an illegal occupant would elevate the duty on the international community to bring the occupation to a successful and speedy close. Among other benefits, such a determination would re-establish the framework of international law as the principled path to a just and durable resolution of the Israeli-Palestinian conflict.”

*     I didn’t ask permission to republish this commentary, preferring to ask forgiveness later if I’ve overstepped.  The original commentary can be accessed here.

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Israel and Annexation by Lawfare

by Michael Sfard — an Israeli human rights lawyer and the author of The Wall and the Gate: Israel, Palestine and the Legal Battle for Human Rights (2018).

The following excerpts are from a longer commentary published in the New York Review of Books — April 10, 2018

I always thought that if Israel were to unilaterally annex the occupied Palestinian territories, it would come under an international spotlight, with denunciations and protests around the world. I was wrong. Annexation is underway, but out of the spotlight, away from international attention. In the dismal offices of the fortified Justice Ministry in East Jerusalem, in the cramped meeting rooms of the Knesset, and in the august chambers of the Supreme Court, Israel’s finest lawyers are working around the clock to shape the biggest paradigm shift since the West Bank was conquered in 1967. The government’s lawyers are busy giving their counsel, drafting laws, and defending Israel’s efforts to expand the jurisdiction of its law and administration beyond the 1949 ceasefire lines to serve the interests of Jewish settlers at the expense of the occupied Palestinians, whose civil rights are suspended. Knesset committees are drawing up legislation to expand and entrench the dual legal system that already exists in the West Bank: one code for settlers, another for Palestinians. These new laws are to be applied in a setting in which the colonized are dominated by the colonizers, with a clear intention of maintaining that domination. Even the Israeli judiciary is joined to the task, allowing the exploitation of Palestinian property for the benefit of Israeli settlers.

This epic transformation is taking place after close to fifty years of occupation. During that time, Israel made profound changes to both the landscape and the demography of the territory it conquered. Palestinians were subjected to a military government that denied them participation in the political process that shaped the rules applied to them and determined their future. Israel used the authoritarian powers that international law gives an occupying force to exploit the territory in a way never envisaged by the framers of those laws. It unilaterally annexed East Jerusalem, a move that was widely condemned abroad. The international community does not recognize the unified city as Israel’s capital; even Trump’s declaration on moving the US embassy to Jerusalem stops short of acknowledging the annexation of the city’s eastern parts.

…. 

The policies that evolved over decades—a creeping process of de facto annexation—stopped short of a wholesale application of Israel’s sovereignty over the Occupied Territories; the legal and political distinctions between the West Bank and Israel were preserved.

Now, this crucial legal-political status is being dismantled. The government is peeling away the last remnants of loyalty to the notion of the occupation as temporary and to any obligation to negotiate with the Palestinians. The goal is clear: a single state containing two peoples, only one of which has citizenship and civil rights.

….

Justices in the Supreme Court, housed in a hilltop building that faces the Knesset, have set precedents of their own: last November, three judges ruled that the settlers constitute a “local population” in the West Bank, and that therefore, under certain conditions, private Palestinian land can be “temporarily” allocated to serve their needs. Their judgment overturned a principle, upheld for over forty years, that barred the use of private Palestinian land for settlement expansion. Within days of the ruling, the attorney general authorized the army to consider the expropriation of private land owned by Palestinian farmers to pave a settlement road.

Israel’s charade of adhering to the principles of international law is over. Every branch of government is contributing to this overhaul, with jurists taking the lead. In another set of buildings, some even shabbier than the dingy Ministry of Justice, a different group of lawyers, myself among them, wield the legal tools at our disposal with an opposite aim. We enlist the law to fight oppression and dispossession: in one case, we have challenged the confiscation law (also known as the Settlements Regularization law); in another, we have petitioned for a further hearing on the November ruling that allows (temporary) use of Palestinian lands for settlements. We have launched countless petitions, on behalf of our Palestinian clients, demanding that the settlers be evacuated from private land and the structures they have built be demolished. Our legal struggles, which often seem Sisyphean, take years first to liberate, then to restore access to, the occupied lands on which more than a hundred settlers outposts, such as Migron and Amona, have sprung up since the 1990s. We have invoked legal principles to win the lifting of restrictions placed on the movement of Palestinians, fighting to overturn orders that the army frequently issues to deny Palestinians access to their farm lands as an easy way to avoid friction with violent settlers. And we have demanded countless times that the court end its disgraceful failure to enforce the law against settlers: astonishingly, construction companies, settlers associations, and even heads of settler municipal councils, which are all involved in illegal construction on private Palestinian lands, have never been charged for their role in this huge collective crime. We are filing petitions to secure a remedy that sounds simple but is extremely difficult to get: to force the police to investigate these violations and the prosecutors to prosecute them.

Our petitions against the confiscation law, filed on behalf of some forty Palestinian local councils, sixteen Israeli human rights NGOs, and several individual land owners, will be heard in June before an unusual tribunal of nine justices (the Supreme Court usually sits in panels of three). It will be a significant test for the highest Israeli court, which over the years has approved many practices that strengthened Israel’s military and civilian presence in the Occupied Territories.

….

Much could be said about the integrity of a jurisprudence that sustains such internal contradictions.

….

The activist bench of the 1980s, 1990s, and 2000s, which saw a steady majority of justices who professed allegiance to liberal legal philosophy, became the number one target of the Israeli right. The generational turnover on the court’s bench gave successive Netanyahu-led governments the opportunity to liquidate its liberal wing. The new appointments of conservative, illiberal, and nationalistic judges, two of them settlers, changed the balance in favor of justices who emphasize nationalism rather than universal values.

….

The battle for the future of Israel’s dominion over millions of Palestinians and the colonization of their land is at a critical juncture. Will the current reality of repression and discrimination through “temporary” control of one nation over another be reinforced and institutionalized by official annexation into one permanent state?

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Final exam #GreatReturnMarch

The final exam in my International Human Rights Law course included an essay on the issue of extraterritorial human rights. I’ve copied my answer below.

#10 — Consistent with the development agenda that accompanied the establishment of the post-war Bretton Woods order, article 28 of the Universal Declaration of Human Rights referred to the need to move towards an international order that enables countries’ efforts to implement economic, social and cultural rights at home, stating that “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized”. Is the emergence of extraterritorial human rights obligations, which have been increasingly recognized in recent years, sufficient to ensure that this promise is fulfilled?

“Sufficient” is the operative term in this question, and the answer must be NO.

The Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights (adopted in 2011) are a very important milestone in building the “international order” envisioned in article 28, but as current events clearly demonstrate, the nations of the world have not effectively acknowledged or fulfilled their extraterritorial human rights obligations.

The Great Return March initiated by the Palestinian civil society in Gaza on March 30, 2018 illustrates the failure of Israel and other nations to respect, protect, and fulfill the human rights guaranteed to everyone, including Palestinians living in the Gaza Strip.

Despite the fact that the State of Israel doesn’t acknowledge that it is a belligerent occupying force maintaining effective control over the Palestinians in Gaza (for the purposes of this discussion, I’m limiting the focus to Gaza and not the West Bank), the facts clearly demonstrate the contrary. The State of Israel strictly controls:

1) the movement of people and goods in and out of Gaza,

2) the territorial air space, waters and land borders,

3) the electromagnetic sphere,

4) the population registry, and

5) life and death.

The Maastricht Principles (#18) spell out that a “State in belligerent occupation or that otherwise exercises effective control over territory outside its national territory must respect, protect and fulfill the economic, social and cultural rights of persons within that territory. A State exercising effective control over persons outside its national territory must respect, protect and fulfill economic, social and cultural rights of those persons.”

For more than 10 years, the State of Israel has imposed an economic, social and cultural blockade on the Palestinians living in the Gaza Strip. As a result of the blockade, and three military operations which have directly targeted the civilian population and infrastructure in Gaza (2008-09, 2012 and 2014), the United Nations has reported that the Gaza Strip is expected to be unlivable by 2020. (Some would argue that the Gaza Strip is unlivable today.)

Few objective observers would argue that the Palestinians’ human rights are not being violated on a daily basis, but no one has been able to hold the State of Israel accountable under international law. No one has found any effective remedies for the Palestinians. In fact, when the United Nations General Assembly speaks with a nearly unified voice condemning Israel’s violations of international norms and laws, the United States steps in to condemn the United Nations.

In light of this history and current events, what does the principle that “All States have obligations to respect, protect and fulfill human rights, including civil, cultural, economic, political and social rights, both within their territories and extraterritorially” mean in practice?

What are Israel’s obligations? What obligations does the United States have as a primary financial sponsor (providing more than $3 billion to Israel every year) and supporter of Israel’s blockade and military operations? What obligations do other nations have to step in and take affirmative action to protect and fulfill the Palestinians’ human rights? Each of the three entails extraterritorial obligations. Perhaps, the answer is different for each.

The Universal Declaration of Human Rights, the Maastricht Principles, human rights treaties and international common law provide important and laudable goals but they can’t function in a vacuum. They represent the collective desires of the human community, and reflect U.S. Senator Paul Wellstone’s famous quote: “We all do better when we all do better.”

Human rights treaties are promises that States have made regarding the interests of individuals, as opposed to interests of the States themselves, and therefore holding States accountable for fulfilling those promises is challenging. Even more challenging is holding states accountable for protecting the human rights of people outside of their borders.

When and how can States intervene within the borders of another sovereign State to protect the human rights of individuals? Refraining from acts that may cause harm to individuals (#13 of the Maastricht Principles) in another country may be easier than taking affirmative actions, but there are serious hurdles nevertheless. For example, in the case of the U.S.’s responsibility to protect the human rights of the Palestinians in Gaza, withholding political support for Israel at the United Nations and reducing military aid to Israel might be actions that the U.S. could take unilaterally without infringing on Israel’s sovereignty, but domestic politics in the U.S. render those ideas very unlikely.

Ultimately, extraterritorial human rights obligations will gain traction when the actions of the human community leads or shames their States to do the right thing. The people must lead and the governments will follow. In the case of the Palestinians in Gaza:

1) Education – There are complex reasons for the human rights violations perpetrated by the State of Israel against the Palestinians, but it may stem from a fear that one side gains human rights at the expense of the other. Us vs. Them. Israeli society must learn that human rights are not a zero-sum game. In fact, their security is greatly enhanced when every man, woman and child within Israel and the occupied Palestinian territories have secured their basic human rights. Maintaining the belligerent occupation is not only contrary to international law but impedes the security and fulfillment of many human rights that Israelis seek for themselves.

2) Communication with decision-makers – Americans have a responsibility to communicate with our leaders about the long-standing human rights violations occurring in Gaza with our government’s complicity. International human rights are strongest when they are understood viscerally at the local level. The link between the Palestinians in Gaza, the Black Lives Matter Movement, the Standing Rock Water Protectors, the climate justice movement, and others, must be made clear to all because everyone’s actions to enforce human rights norms reinforces the human rights of others.

3) Changing the narrative – Israel’s hasbara has controlled public opinion in Israel and around the world for many years. Although it’s increasingly being met with skepticism, especially among the younger generation, Israel’s power and influence in controlling the narrative of the human rights violations in Gaza can even be traced back to the New York Times which refuses to denote Gaza as “occupied” since Israel removed its settlers and military from the Gaza Strip in 2005.  Palestinian voices must be given greater attention by the mainstream media if the world is going to understand the human rights issues involved in the occupation. Until the mainstream media fulfills that role, social media activists and others must elevate the Palestinian voices.

4) Boycott, Divestment and Sanctions – Palestinian civil society launched the BDS movement about 10 years ago, very similar to the BDS movement which toppled Apartheid South Africa. There’s little doubt that the BDS movement has gained traction in the past few years, and has had a significant impact. Israeli leaders recently passed a law to prevent BDS activists from traveling to Israel and Palestine. In December 2017, Israel’s government approved a plan setting aside $72 million to fighting the campaign to boycott Israel. Tying human rights to the State’s treasury and bottom line is helping move Israel towards recognizing and fulfilling Palestinian human rights by ending the occupation.

5) Freedom Flotillas and the Great Return March – Some people believe physical action is necessary to force States to recognize and fulfill their basic human rights. People from many different countries have joined together in several Freedom Flotillas to try to break Israel’s maritime siege, costing a number of them to lose their lives when the Israeli military boarded their boat and fired on them. On March 30, 2018, thousands of Palestinians in Gaza launched a peaceful march towards the border with Israel to highlight their determination to obtain their right to return to their homes and lands from which they were expelled in 1947-48 when the State of Israel was created. On the first day of the Great Return March, 16 or 17 Palestinians were killed by Israeli sharpshooters at the border.

Physical actions such as these, when combined with all of the actions described above, move world opinion and action closer to fulfilling the human rights obligations set forth in the UDHR, treaties and other formal legal mechanisms.  States will move in the right direction when individuals create the parade for them to lead.

 

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The Great Return March

UN_Palestine_Partition_Versions_1947

Many Americans know that the United Nations called for the creation of the State of Israel following a U.N. vote A/Res/181(II) in November 1947.

Some Americans may be aware that the actual founding of the State of Israel occurred on May 14, 1948 in Tel Aviv when David Ben Gurion stood up before the Jewish People’s Council gathered at the Tel Aviv Museum and read a declaration. 

Ben Gurion

 

I bet few Americans have a clue that under international law, and Resolution A/Res//194 (III) (adopted by the United Nations General Assembly on December 11, 1948)  the Palestinian refugees have the right to return to their properties, homes and businesses in what is present-day Israel.

Resolves that the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible;

Haaretz columnist Uri Avnery claims the Palestinian right of return is not such a complicated issue, (Oct. 18, 2017 article) but nothing strikes dread into the hearts of Israeli leaders (and perhaps many Israelis) more than the thought of millions of Palestinians pouring across Israel’s undefined borders. The demographics challenge, they fear, would be insurmountable for their Jewish state. Israel now wants Trump to remove the ‘right of return’ from the negotiating table. (January 2018 article).

The Palestinians are planning to put the ‘right of return’ front and center — on every dining room table in Israel, every board room in executive suites, and in the heart of the Knesset. The Great March

Beginning Friday, March 30, Palestinian refugees will begin 46 days of non-violent action entitled “The Great Return March”.

 

The “Great Return march” is a popular Palestinian peaceful march, where the participants (men, women, children, elders, families) will start marching from the Palestinian communities in the occupied territories (Gaza Strip, the West Bank and Jerusalem) and from (Jordan, Lebanon, Syria and Egypt) to their homes from which they were forcibly displaced in 1948.

From the Coordination Committee:

The organizers of this march and their participants will never use any means of violence, and will only be limited to a peaceful march in accordance with the truce plan, bearing in mind that this march will be totally peaceful and doesn’t involve harming or threatening any country or using any means of violence.

It should be noted that the implementation of the Great Return march will be carried out peacefully in accordance with the rules of international law and in line with the UN resolutions on the return of the Palestinian refugees and other relevant international resolutions on the Palestinian issue.

In other words, the march will for the first time, employ the popular dimension to effectively compel the Israeli occupation state to the international resolutions and recommendations that it denies and refuses to implement, which over the past decades has constituted a clear threat to international peace and security.

Great_March_of_Return_2016-

 From the 2016 Great March of Return.  VERSO

The Legal Basis for the Great March of Return:

The UN Resolution 194 of the third session, issued on 11 December 1948, constitutes the international legal basis for the great return march, especially that it clearly called for the return to be allowed as soon as possible to refugees wishing to return to their homes and live in peace with their neighbors, and compensation should be paid for the property of those who decide not to return to their homes, and for every missing or injured person … “as well as international laws, especially which organize the legal framework for refugee rights, and the universal human rights principles that obligate the international community (States – International Organizations ) to help refugees return to their land and ensure their human dignity.

Based on the foregoing, we inform you of the Palestinian refugees intention to realize the right to return to their homeland in a peaceful and legal manner, under the legitimacy of the United Nations and the international community and with a legal reference based on international humanitarian law, international human rights law and United Nations resolutions relevant to the Palestinian cause.

general_assembly_adopts_newresolutioninfocus

United Nations General Assembly

Call for Support and Assistance:

We expect the Israeli occupation forces to use excessive and lethal force against the unarmed participants in the great return march. To avoid casualties, and based on the rights granted to civilians in the occupied territories under the Universal Declaration of Human Rights and the Fourth Geneva Convention of 1949, which the occupation state signed and its Additional Protocol I of 1977, and under the Rome Statute establishing the International Criminal Court, which incorporated certain acts considered to be war crimes, the most important of which were: “deliberately directing attacks against civilians, civilian sites, personnel or facilities for humanitarian assistance functions as well as the deliberate launching of a military attack that may result human and material losses,” we urge you to exert pressure on your governments and force them to:

  • Exert sufficient political and diplomatic pressure to pressure the Israeli Occupation to respect human rights and prevent them from resorting to the use of excessive force or the implementation of any crime or violation.
  • Compel the Israeli occupation state to comply with General Assembly Resolution 194 of 1948 as one of the conditions for its acceptance as a member of the United Nations at the time.
  • Obligate the Israeli occupation state to adhere to the articles of the Universal Declaration of Human Rights, which was issued on December 12, 1948, and was one of the conditions of its acceptance as a member of the United Nations, where the second paragraph of Article 13 states that everyone has the right to leave any country, including his country or to return to his country.
  • Obligate the Israeli occupation state to implement the International resolutions relating to the return of the Palestinian refugees, including the UN Security Council Resolution 242 of 1967, and all relevant resolutions as an inalienable rights of the Palestinian people, most important of which is Resolution 3236 of 22 November 1974, which in paragraph 2: “Reaffirms also the inalienable right of the Palestinians to return to their homes and property from which they have been displaced and uprooted, and calls for their return”.
  • Compel the Government of the occupation, as a State party to the Refugee Convention and Protocol, to not detain migrants and asylum-seekers, and not to criminalize asylum-seekers for irregular entry.

I’ll be writing more about this very important action as it unfolds. This week, I’m sending a letter to my two U.S. Senators and Congresswoman with a copy of this blog post, making them aware of The Great Return March. I’m also writing a letter to my local paper and will try to tie this action to something local so that they’ll print it.

Bravo to the Coordination Committee.  These future leaders of Palestine give me hope, just as the youth in America give me hope.

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Filed under Gaza, Israel, nonviolent resistance, Occupation, Peaceful, Uncategorized, United Nations

Zero-sum logic – the existence of a people depends on the nonexistence of the other

A Palestinian scholar from Gaza, Jehad Abu Saleem, shared the following analysis in February 2018:

The collapse of life in Gaza has entered a critical stage. The eleven years of siege, isolation, and destructive wars of aggression are bearing their bitter fruits. What else but collapse will result from more than a decade of intense choking of a population of two million people. The collapse of Gaza manifests itself on every aspect of life there: rising suicide rates, crime, and new levels of poverty and impoverishment at unprecedented scales.

The siege on Gaza has become a forgotten part of the Palestinian experience under occupation. The siege was normalized despite several attempts to put an end to it. At this point, the fact that Gaza is under siege is a given. Gaza and siege became synonyms. The fact that the siege still persists despite all the attempts to end it should make us rethink the way we talk about Gaza, its history, and its place within the larger context of the Israeli occupation and control of Palestinian lives.

three evils

Much has been written and said about the siege from a humanitarian lens/framework. While a humanitarian framework can be useful when responding to urgent situations, sometimes it distracts us from the larger historical, political, and moral questions that need to be asked when we are faced by large-scale man-made crises like the one in Gaza.

The siege on Gaza is not an isolated event in the history of Palestine. It happened as part of the unfolding of a larger and much more complicated history and series of events. The siege on Gaza and its perpetuation to the current level is the logical conclusion of a situation that is inseparable from the logic that defines the relationship between Zionist Jews and Palestinian Arabs in historic Palestine. It’s a zero-sum logic, a mutually exclusive reality in which the existence of a people depends on the nonexistence of the other.

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The question haunting people in Gaza now is what will become of them in light of any future escalation. No one knows what will this look like, but what we know for sure by now, and it’s a terrifying thing: we know that we are now in a region where people’s wishes for dignity and liberation no longer mean anything. The triumph of counter-revolution backed by regional and international players has normalized acts of mass murder and depopulation of millions of people for the sake of crushing demands for liberation. We know that Palestinians are vulnerable in light of the current alignment of powers in the Middle East. All this nonsense about a so-called “resistance” camp rushing to the rescue of Palestinians is pure nonsense in light of the current geopolitical context. Gaza might end up paying the price of the normalization of what we saw in Syria, Yemen, the Sinai, and Iraq under the pretext of “war on terror.”

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Jewish Federation’s astonishing admission to New Orleans City Council

In an odd twist of events, on January 11, 2018, the New Orleans City Council approved a non-binding resolution to review the city’s investments and contracts to ensure that they are consistent with human rights; and two weeks later the city council unanimously withdrew the resolution. The stated reason was to correct a procedural flaw in its passage.

There’s more to this story than meets the public’s eye. But first, read the resolution, reprinted in full below.

RESOLUTION

NO. R-18-5

CITY HALL: January 11, 2018

BY: COUNCILMEMBERS CANTRELL, BROSSETT, GRAY, HEAD AND WILLIAMS

WHEREAS, the City of New Orleans (hereinafter the “City”) was declared to be a Welcoming City on October 1, 2015, to create a more inclusive, receptive city environment for all local populations; and

WHEREAS, the City commits itself to protect, respect, and fulfill the full range of inherent human rights for all, as set forth in the Universal Declaration of Human Rights and numerous other international human rights instruments; and

WHEREAS, the City enshrined these values in Ord. No. 19278 M.C.S.; 25700 M.C.S.; Code of Ord. Sec. 86-4. (Safeguard all individuals within the city from discrimination because of race, creed, national origin or ancestry, color, religion, gender or sex, sexual orientation, gender identification, marital status, age, physical condition or disability in connection with employment, housing, public accommodations, financial practices, and credit transactions; to protect their interest in personal dignity and freedom from humiliation; to make available to the city their full productive capacities in employment; to secure the city against domestic strife and unrest which would menace its democratic institutions; to presevre the public safety, health, and general welfare; and to further the interest, rights, and privileges within the city); and

WHEREAS, the City has pledged to meet its commitments to rewarding workplace diversity, promoting local industry, protecting the environment, and promoting equity through compliance with civil rights; and

WHEREAS, consistent with its responsibilities to its residents, the City of New Orleans, has social and ethical obligations to take steps to avoid contracting with or investing in corporations whose practices consistently violate human rights, civil rights or labor rights, or corporations whose practices egregiously contradict efforts to create a prosperous, educated, healthy and equitable society; NOW, THEREFORE

BE IT RESOLVED, That the City Council encourages the creation of a process to review direct investments and contracts for inclusion on, or removal from, the City’s list of corporate securities and contractual partners, according to the values of the City as referenced in this Resolution.

THE FOREGOING RESOLUTION WAS READ IN FULL, THE ROLL WAS CALLED ON THE ADOPTION THEREOF, AND RESULTED AS FOLLOWS:

YEAS: Brossett, Gray, Guidry, Ramsey, Williams – 5

NAYS: 0

ABSENT: Cantrell, Head – 2

AND THE RESOLUTION WAS ADOPTED.

Not a word about Israel, Palestine, BDS, or human rights violations in the occupied Palestinian territories. Not a peep about which investments or contracts the city should review. But as soon as the ink was dry, the Jewish Federation of New Orleans was down at City Hall lobbying councilors to rethink their support for this pro-Palestinian resolution because they found the resolution’s “anti-Israel sentiment was offensive.” And the elected officials fell right into line.

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New Orleans Mayor-Elect LaToya Cantrell ((Photo by Brett Duke, NOLA.com | The Times-Picayune) )

Mayor-Elect Cantrell explained her reason for rescinding the resolution.

Compounding the procedural deficiencies in the adoption of this resolution, [suspension of the rules is allowed via Rule 17] its passage has shrouded the city in an undesired and damaging falsehood. Statements from outsiders now claim that New Orleans is now one of the largest cities in the United States supportive of BDS (Boycott, Divestment and Sanctions), a movement aimed at delegitimizing the State of Israel. This is totally inaccurate, untruthful and does not reflect the values of New Orleans. We are a city that is welcoming, and open to all. Well intentioned actions can be taken out of context by others for their own political benefit, with negative connotations that overshadow any original motives; I believe that is what happened with this resolution.

As mayor-elect, I am committed to leading a city that champions civil and human rights, democratic engagement, and transparency. While I will continue to examine issues of civil rights and fair contracting, I want to unequivocally reiterate that I am neither supportive of the BDS movement nor in any way hostile to the Jewish community or the State of Israel.

Clearly, the Mayor-elect did not hear from the UN Special Rapporteur S. Michael Lynk (Canada), who recently called on the international community to recognize Israel’s prolonged occupation of Palestine as unlawful under international human rights law and to use the tools in its toolbox to bring an end to the occupation. (Photo on Left)

The Mayor-elect didn’t hear from Amira Hass, the Israeli journalist who has written extensively about the occupation and its impact on both Palestinians and Israelis, and most recently about Israel’s decision to blacklist people and organizations that support BDS. See her Jan. 8 column.  (Photo top right).

I suspect the Mayor-elect might not know Gideon Levy, another Israeli journalist, who has written for many years about Israel, Palestine, the occupation and BDS (photo middle right), nor Rabbi Arik Ascherman (photo bottom right) who lives in Israel and after 21 years leading Rabbis For Human Rights, recently founded “Torat Tzedek Torah of Justice,” dedicated to the human rights of Israeli single parent moms and Palestinians alike, because the Torah teaches Jews that every human being is created in God’s Image.

That a non-binding resolution — calling for the city to review its investments and contracts to ensure they’re consistent with the city’s support for human rights — might impact the State of Israel’s occupation of Palestine, is a damning confirmation by the Jewish Federation of New Orleans that at least some American Jews know that Israel’s dehumanizing treatment of Palestinians is contrary to international human rights law.

THINK ABOUT THAT FOR A MOMENT!

I hope New Orleans Mayor-elect and the full City Council will reflect on this unintended admission by the Jewish Federation, and take it upon themselves to learn more about the non-violent BDS movement whose goal is not to “delegitimize Israel” (as the Mayor-elect seems to believe) but to focus the world’s attention on the human rights of Palestinians who have lived under Israel’s occupation for half a century. The City of New Orleans needs to get on the right side of history.

Loss of Land

 

 

 

 

 

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Filed under Israel, Occupation, Peaceful, People, Politics