Category Archives: People

Gaza Facts vs. Propaganda – Shame on the Washington Post

Mike Merryman-Lotze is the Middle East Program Director at the American Friends Service Committee.  When the Washington Post published an opinion piece (7/19/2018) about Gaza which begged for some facts and objectivity, Mike responded.  His response is reprinted below with permission. Mike headshot

The Washington Post has given Jason Greenblatt, Jared Kushner, and David Friedman room to write about Gaza. What they have written has to be one of the most dishonest and transparently propagandistic pieces I’ve read on Gaza.

I’ve therefore taken a few minutes to add my own quick comments into the text of the article:

WP Article: At the end of a productive six-day trip to the region recently, one reality was painfully clear: The nightmare of Hamas’s leadership is continuing and needlessly prolonging the suffering of the Palestinian people in Gaza.

WP Article: Despite the billions of dollars invested for the benefit of Palestinians in Gaza over the past 70 years, 53 percent of the people there live below the poverty level , and the unemployment rate is a crippling 49 percent. The Palestinians of Gaza are stuck in a vicious cycle where corrupt and hateful leadership has provoked conflicts leading to reduced opportunities and the poverty and hopelessness that follow.

Mike’s Comment: Most of the investment in Gaza is reconstruction money given to rebuild infrastructure and homes destroyed by Israeli bombings. The economy has been devastated by the blockade. If you want to deal with employment the issue is the blockage of imports, exports, and goods needs to produce economic output. There has been a conscious decades long policy of dedevelopment implemented by Israel in Gaza. The unemployment and poverty rates in Gaza are not linked to the Palestinian leadership but to Israeli policies. If you are concerned about this push for an end to the blockade.

WP Article: International donors are conflicted: Should they try to help the people directly, at the certain risk of enriching terrorists, or withhold funding to Hamas and watch the people it is supposed to govern suffer? In the past, investments in badly needed infrastructure have been diverted for weapons and other malign uses, and even the projects that are built are often destroyed as a consequence of Hamas’s aggression.

Mike’s Comment: The vetting procedures for foreign aid going into Gaza are more restrictive than in any other place in the world. There is no money going from foreign governments to Hamas. Foreign aid goes to help people. If you consider rebuilding electrical infrastructure and water systems assistance to Hamas and not repair of basic infrastructure that people need then there is something wrong. No money for basic infrastructure is diverted for weapons. While Hamas does spend a portion of its money on weapons, even Israeli government sources report that it spends 80% or more of its funds in Gaza on governance. Even if it moved the $100 million it spends on weapons towards infrastructure it could not meet needs, and it also could not get the supplies needed to repair infrastructure with that money because of the blockade and international sanctions. The issue again is not Hamas but the blockade and Israeli and international policies that deny Gaza access to the world.

WP Article: Until governance changes or Hamas recognizes the state of Israel, abides by previous diplomatic agreements and renounces violence, there is no good option.

Mike’s Comment: Hamas has repeatedly indicated that it is willing to consider a state in the areas occupied in 1967 and that it will talk with Israel. This has been the case for years. At the same time, the Likud Party platform formally rejects two states and nearly every other party in the ruling Israeli coalition formally rejects two states. Israeli actions also move to materially change the situation so that two states are not possible. The Nation State Law passed this week furthers the settlement enterprise and violates previous diplomatic agreements. Israeli has not rejected violence.

Further, if we really want to get technical it should be pointed out that according to the Israeli Defense Ministry, in 2015 a total of 21 rockets were fired from Gaza. In 2016 a total of 15 rockets were fired from Gaza. In 2017 a total of 35 rockets were fired from Gaza. Between January 1 and May 29 of 2018 only 10 rockets were fired from Gaza, with none fired during March, April, and the first weeks of May. At the same time, according to the United Nations Office for the Coordination of Humanitarian Affairs, in 2015, 2016, and 2017, Israel killed 64 Palestinians in Gaza, injured over 2,700, and carried out attacks on Gaza nearly every day. Also, between January 1, 2018 and March 26, 2018 the Israeli military entered the Gaza buffer zone nine times to destroy property and clear land. During the same period, the Israeli military opened fire in the Gaza buffer zone 181 times, killing 2 people and injuring 13. These actions occurred before the start of the Great Return March. So where should we look if we are concerned about violence?

WP Article: Seventy years after the founding of Israel, it would be wise for Hamas to acknowledge that the existence of Israel is a permanent reality. Almost all in the Middle East have come to accept this fact, and many even embrace it. At the expense of the Palestinian people, Hamas is fighting a morally bankrupt, decades-old war that has long been lost.

Mike’s Comment: Equally, it might be important for the Israeli government to recognize the rights of Palestinians to a state. As noted above, no party in the ruling Israeli coalition supports two states. The Israeli government is taking action to make two states impossible, and the Israeli government just passed a law declaring that Palestinians have no right to self-determination.

WP Article: Peace will provide opportunity to break this stalemate, and peace will be achieved only by embracing reality and dismissing a flawed ideology. Life could significantly improve in short order for the Palestinian people if Hamas allowed it. There are engaged, interested parties with resources who are ready to get to work. Yet without real change accompanied by reliable security, progress is impossible. If Hamas demonstrates clear, peaceful intentions — not just by word but, more importantly, by deed — then all manner of new opportunities becomes possible.

Mike’s Comment: If you want change from Hamas engage with Hamas. Don’t write a mendacious article in the Post full of lies that the editors seem unable to fact check. Stop the blockade, end sanctions, allow Hamas to engage with the PA without that triggering new sanctions that would collapse the PA. All of this is meaningless if what is really demanded is one-sided capitulation and surrender.

WP Article: There is no reason the Palestinians (in both the West Bank and Gaza) can’t enjoy economic success and integrate into a thriving regional economy — if they let us help. As President Trump has said so many times, economic security is national security. By encouraging economic recovery in the region, we can enhance our efforts to increase stability as well.

Mike’s Comment: Economic prosperity under occupation is not possible, economic growth without rights and self-determination is meaningless. The issue isn’t economics, it is freedom.

WP Article: Hamas must immediately cease provoking or coordinating attacks on Israelis and Egyptians, and on infrastructure projects sponsored by donor nations and organizations. Rather than looking for opportunities to weaponize everything from kites to mirrors in order to attack Israel, Hamas should focus its ingenuity on improving the Gazan economy.

Mike’s Comment: What attacks on Egyptians and donor projects? These types of attacks simply haven’t occurred. Where are our fact checkers? What is the context of actions against Israel? Are those actions proactive or reactive? What is Israel’s role in all of this? Where do Israeli attacks on Gaza fit in and should they also stop? What about the blockade and the systematic denial of Palestinian rights? What about the continued loss of Palestinian life in Gaza? Is any of that a concern?

WP Article: Rather than cynically attempting to exploit its barbaric holding of Israeli soldiers and citizens, Hamas must return them to their families.

Mike’s Comment: Hamas holds a couple of Israeli soldiers captured while in Gaza and a few bodies of soldiers killed while fighting in Gaza. I agree with the idea that they should be returned home. However, also note that Israel holds literally thousands of Palestinian prisoners and hundreds (if not more) bodies of Palestinians it has killed. Israel has set up whole graveyards to hold the bodies of Palestinians that it refuses to return to families. The holding of bodies is a policy that Israel developed. All bodies should be returned.

WP Article: Instead of exploiting crossings such as Rafah and Salah al-Din to smuggle weapons and siphon off tax revenue for illicit purposes and personal enrichment, Hamas must hand those functions over in their entirety to the Palestinian Authority so that badly needed materials can get through to the people of Gaza. The international community stands ready to work with the Palestinian Authority on this vital effort.

Mike’s Comment: This is simply misinformation. Weapons have never been smuggled through formal crossings. While Hamas may have limited control of one side of the crossing, Egypt and Israel control the other sides of the crossings. This means that weapons must be smuggled through Israel and Egypt and it is those states that control what goes into Gaza. The PA does control crossings in Gaza and the US knows this. The PA is the force in Gaza that coordinates with Israel at crossings and Hamas has allowed that control. The issue is not changing who controls borders, it is the Israeli enforced blockade.

WP Article: The cycle is clear: Rockets, mortars, terror tunnels, kite bombs and other weapons of aggression lead only to stricter constraints on the people of Gaza. Hamas’s acts of aggression have only produced misery for the people of Gaza. The true victims of this terrible situation are the many Palestinians who are not rioting but whose futures are dimmed by Hamas’s radical approach.

Mike’s Comments: Again, according to the Israeli Defense Ministry, in 2015 a total of 21 rockets were fired from Gaza. In 2016 a total of 15 rockets were fired from Gaza. In 2017 a total of 35 rockets were fired from Gaza. Between January 1 and May 29 of 2018 only 10 rockets were fired from Gaza, with none fired during March, April, and the first weeks of May. Tunnels may exist but simply haven’t been used to attack Israel. Burning kites didn’t start flying until long into the Gaza Return March and after more than 50 Palestinians had been killed and thousands injured.

If, over a period of three and a half years you have, on average, two to three rockets fired towards Israel each month and they don’t cause significant damage and at the same time you have daily attacks by Israel on Gaza and the maintenance of a brutal blockade, it seems clear that the cycle is not starting with rocket fire.

WP Article: It is evident that the leaders in this region are tired of being on this hopeless treadmill and are hungry for real change. There is a clear divide between the bad actors looking to cause destruction, violence and human misery, and the responsible leaders trying to create a better and sustainable future for their citizens. The world is moving forward, but bad choices are causing Palestinians to fall further and further behind.

Mike’s Comment: So the link included here in the original article notes that the world is moving beyond two states. I’m perfectly OK with that, but let’s be clear that closure of the two state possibility is only due to Israel actions. Palestinians can be intransigent and can say no, but they can’t change the situation on the ground in any material way that changes what a possible solution will look like.

What has changed the situation? Settlements, and the authors should know this since Greenblatt served as a guard on a settlement and both Friedman and Kushner were major donors to settlements. Hey wait a minute, isn’t that relevant information that the editors should consider?

WP Article: The international community also bears some blame. More countries want to simply talk and condemn than are willing to confront reality, propose realistic solutions and write meaningful checks. The United States has invested more money in helping the Palestinian people than has any other country in the world.

Mike’s Comments: Damn right the international community bears much of the blame. Countries want to simply talk, condemn, not confront reality, and not propose realistic solutions? Really? Here is a mirror.

WP Article: For far too long, Gaza has lurched from crisis to crisis, sustained by emergency appeals and one-time caravans of aid, without dealing with the root cause: Hamas leadership is holding the Palestinians of Gaza captive. This problem must be recognized and resolved or we will witness yet another disastrous cycle.

Mike’s Comment: We can agree, Gaza has existed in crisis for far too long. And the authors are a major reason why that crisis continues. To give them a platform to put forward such garbage is indefensible. To simply let them write without any editorial oversight is wrong. The Post should be ashamed for publishing such transparent propaganda, although the post editorial page itself is pretty atrocious on this issue.

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Bridges

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A Muslim-American journalist has recently been the target of serious anger and hostility by some other Muslim-Americans who claim he was wrong to visit the West Bank and sit down with Jewish settlers to hear their side of the story, the Zionists’ perspective. They claim he was a stooge for the Zionists, manipulated into presenting the two sides (Israel and Palestine) as equal and equally justified. The term of art is a “false equivalency”.

Wajahat AliWahajat Ali’s article in June 2018 issue of The Atlantic is long, but well worth the time to read carefully before delving into the controversy. I read it two times and was starting on my third time around when my attention was redirected elsewhere. Maybe I’ll go back to it.

 

I found his story interesting, illuminating and nuanced. I’ve heard that some pro-Palestine activists on the other hand consider Ali’s article “problematic,” one-sided (the Zionists’ side), normalizing the occupation, and promoting false equivalencies. Read the article for yourself and be the judge.

(I first heard that term “false equivalency” from a Zionist family member in 2001, complaining about something I said about Palestinians. I came to realize that people who hear two very disparate perspectives/sides discussed in the same breath might be offended because they don’t believe the other perspective deserves to be included or they believe their side was unfairly treated in the discussion.)

The unintentional beauty of this current ‘controversy’ — Muslims attacking a Muslim for meeting and writing about Jewish settlers in the West Bank — is that it highlights the challenge of understanding the ‘other’ (whether the ‘other’ is a Jewish settler, a white nationalist, a refugee or a migrant).

If half the energy expended by many who are dissecting The Atlantic article was directed, instead, to building bridges with the ‘other’ (whoever that may be in your life) …. the energy might have made a real difference.

Some may object and say “[t]he problem is that one cannot build a bridge to those who have consistently demonstrated in actions that there are no bridges to even be considered. Zionists will not change their attitude in the same way as those who endeavor to support justice will not change their’s. They are not, however, equal. Justice does not equate with continued, unmitigated oppression. It is fantasy to believe that this can be done.”

  • My notion of bridge-building does not envision a bridge expanding the wide divide separating us so that I can drag the ‘other’ back to my side.
  • My notion of bridge-building does not require me to accept or believe the ‘other’ perspective, it only gives me a channel to learn more about the ‘other’.
  • My notion of bridge-building does not weaken my convictions and beliefs; in fact, it may strengthen them because I will have the opportunity to examine my beliefs in the context of the ‘other’.

In my first year of law school, I took a criminal procedures class with 100+ other students. One day, Professor Kreitzberg asked me to stand up and argue in favor of the death penalty. (She knew I strongly opposed the death penalty).  I was shocked but I did as I was asked and mumbled through some half-baked ideas in favor of the death penalty. Then she turned to another student and asked him to speak in opposition to the death penalty, knowing full well that he personally supported it. He also did as he was instructed.

The lesson that my classmate and I both learned (and maybe some of the other students picked up on it too) was (1) it’s really tough to get in the shoes of the ‘other’ and (2) we are stronger advocates when we understand and can express the position of the ‘other.’ The same may be true in the Palestine-Israel conflict. Since Wajahat Ali is a lawyer by training, this lesson has probably been drilled into him too. His article in The Atlantic helped me understand the perspective of the Jewish settlers in a way that I never could have on my own. I don’t have access to the settlers. I can’t sit in their kitchens to talk with them, as Ali did.

Some argue that Wajahat Ali’s article about the Jewish settlers speaks over (perhaps drowns out) the voices of the Palestinians and Palestinian-Americans who are the ‘legitimate’ voices that the West needs to hear. I simply don’t buy it. The whole notion of ‘legitimate’ voices (implying that others’ are illegitimate) is very problematic in itself.

In the marketplace of ideas, competing voices and ideas are valuable and should be valued. Certainly, the Western narrative of Israel-Palestine has been heavily skewed by Israel’s Hasbara for many years, and push-back is warranted to influence and educate public opinion in the U.S. and elsewhere. But let’s not fall for the mistaken belief that there’s a monolithic Palestinian narrative, or a monolithic Muslim narrative. There isn’t. Maybe this fact is creating some angst for those who would like to control the Muslim narrative.

Wajahat Ali’s article has done a great service in furthering the art of bridge-building. Sadly, many on his own side of the bridge may not appreciate that fact yet.

 

 

 

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Filed under Media, Occupation, People, Settlers, Uncategorized, Video

All People Have Value

 

Kids and signsTrump’s policy of separating young children from their parents when they cross the border has galvanized Americans of all stripes to stand up and fight back.

Governors (Democrats and Republicans) are refusing to deploy their state’s National Guard to the border; television journalists are shedding tears on camera; mental health professionals are telling us about the long-term trauma these children will suffer; and members of Congress on both sides of the aisle are telling the Administration to end this outrageous policy while proclaiming that “America is better than this!”

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Protests were organized in many U.S. cities this week. I joined 500+ people in El Paso to March about 1.5 – 2 miles to the detention facility where many immigrants are being processed through the system after their children are removed and taken somewhere else. We chanted, yelled and some swore while the national and international media captured our stories.

By every measure, this action was successful, and Border Network for Human Rights in El Paso must be recognized for its effective organizing efforts.  Within 24 hours, President Trump had signed an Executive Order ending the separation policy.

Was it the media attention, or the Governors’ actions, or Congress, or a combination of many actions that caused Trump to reverse course? We may never know. But I have no doubt that when Americans are aroused and angry, we can move mountains.

All People in All Countries Have Value

Then why aren’t Americans aroused and angry over our government’s funding and support for Israel’s systematic killing, maiming and traumatizing of Palestinian children in Gaza?

If “All People in All Countries have Value” — how do Americans not recognize and become incensed with our government’s complicity in Israel’s war crimes?

[This isn’t the blog post to explain or convince anyone about Israel’s war crimes, but I acknowledge that lack of education may be part of the answer to my question.]

If Rachel Maddow and other journalists started crying on camera when reporting about American-made (and American financed) bombs falling on Palestinian children in Gaza, would that move anyone?

If a few Governors proclaimed their distaste for U.S. priorities, such as allocating $3+ billion each year to Israel’s war machine while cutting social programs at home, would that move anyone?

If there were simultaneous demonstrations and marches in large U.S. cities protesting Israel’s willful and deliberate killing of Palestinian children, would that move anyone?

Probably not.

Most humans (not just Americans) have a finite wellspring of empathy which seems to be doled out sparingly, as though we’re fearful that the well might run dry.  Immigrant families crossing the southern border with their children? That we can get our hearts and minds around. Palestinian families half way around the world, not so much, even though our government is directly responsible for the suffering of both.

Love Thy Neighbor

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Iftar for Gaza

Ramadan is a holy time for Muslims around the world when they celebrate the moment the Koran was unveiled to Muhammad. It’s a time of fasting, praying and reflection. It’s also a time to forgive and ask for forgiveness, which I find very healing. Whether Muslim or not, the world would be a better place if we followed this instruction.

So I ask forgiveness from friends, family and anyone I have hurt this past year. And I forgive those who have slighted me, hurt me or disappointed me.  A new year and a new beginning.

IFTAR for GAZA

To honor my friends in Gaza and to raise funds for UNRWA-USA, I organized an Iftar in Albuquerque with friends and neighbors. The Iftar is the meal to break the daily fast after sunset.

Laura Stokes and good food

We met at Sahara Restaurant on Central Avenue for delicious food — Basmati rice, falafel, hummous, dolmas, shawarnah, and fattoush salad. As I watched my guests serving themselves, I had a flashback to many of the families in Gaza who served me wonderful meals — too numerous to count.  I wish I could have bridged the miles and shared my Iftar with them.

Samia Assed 3

Samia Assed provided a touching introduction to Ramadan, the significance of the Iftar, and why zakat (donations) is considered a very important part of Islam. She discussed the crisis in Gaza and how difficult life is for many families. Since Trump has decided to reduce the U.S. contribution to UNRWA by 83%, the only lifeline that many Palestinians must rely on for their basic sustenance is in serious danger.

Hence, the reason for my Iftar.

For $150, UNRWA-USA can provide a package providing enough flour, rice, whole milk, oil, chickpeas, lentils and protein-rich sardines to feed a family for the summer. My goal is to raise $1500 to help 10 families in Gaza.  Thanks to generous friends, I’ve raised enough to feed 7 families and will continue reaching out to the community near and far until I meet my goal. Online donations are graciously accepted here.

This was a great chance to network. Laura Stokes announced that PDA will be showing the film Radiance of Resistance,  the story of nonviolent persistence and resistance by the Palestinian people against the theft and occupation of their lands.  This film features the courageous actions of two Palestinian girls, one of whom is now in an Israeli prison.   

June 13, 2018
First Unitarian Church
3701 Carlisle Blvd. NE Albuquerque
5:30 PM MINGLE, 6:00 PM PROGRAM

Thank you friends!   Your hearts and words at the Iftar cheered me and provided me more sustenance than you can ever imagine.

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“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.

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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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Stop talking about the “border”

We have a right to defend ourselves” just as any other sovereign nation, proclaims Israel’s leaders as they give the order to use lethal force against peaceful protesters on the other side of the fence with Gaza.

Whether Israel is correct depends on two things:

(1) Does international human rights law apply to these facts or international humanitarian law (rules of war)? The question has been presented to Israel’s High Court of Justice.

Michael Lynk, the special rapporteur on human rights in the occupied Palestinian territory, said the killings on Monday reflected a “blatant excessive use of force by Israel” and likened them to “an eye for an eyelash.”

Mr. Lynk said that protesters appeared to pose no credible threat to Israeli military forces on the Israeli side. Under humanitarian law, he said, the killing of unarmed demonstrators could amount to a war crime, and he added that “impunity for these actions is not an option.”

(2) Is the fence between Gaza and Israel an international border or a fence separating two groups of people who each claim sovereignty over their territory?

You would be excused if you erroneously thought the fence was an international border because much of the mainstream media has adopted Israel’s framing of the issue.  Israel wants us to believe it has a border with Gaza; that since its withdrawal in 2005 the Gaza Strip is no longer occupied territory; and the fence represents an inviolable demarcation between Israel and “those people we prefer to call Arabs, not Palestinians.”

If Israel’s argument was correct, then the right to defend that border might have some merit, leaving aside the important issues of “Right of Return” and method of defense.

However, we succumb to Israel’s narrative at the expense of jettisoning the law of belligerent occupation, international humanitarian law and the facts that led to the establishment of Israel 70 years ago.

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The current borders of the State of Israel are a result of war and of diplomatic agreements. The borders with Jordan and Egypt have been confirmed by peace treaties. The border with Lebanon resulted from the 1949 Armistice Agreement.  The borders with Syria and the Palestinians in the West Bank and Gaza have never been settled. In fact, Israeli Legislators have been passing laws to unilaterally extend Israel’s sovereignty into the West Bank, and they claim they no longer occupy the Gaza Strip. The U.N. and the international community have not recognized Israel’s unilateral pronouncements.

It’s time the mainstream media got the facts straight. Words matter.

Since the State of Israel does not have an internationally recognized border with the Palestinians in Gaza, the actions of both the Israeli military and the Palestinian protesters take on a significantly different cast.

The Palestinians are not trying to cross an inviolable border but rather exercising their Right of Return enshrined in Resolution 194 adopted by the United Nations on December 11, 1948.

The Israeli military is not protecting its sovereign border but rather killing unarmed protesters that have been caged in the world’s largest open air prison.

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The State of Israel may have superior military weapons, thanks in large measure to American taxpayers, but we should not capitulate to Israel’s false narrative.

There is no internationally recognized border between Israel and Gaza. It’s just a fence; actually two fences.  The New York Times is beginning to set the record straight. (May 16, 2018)

 

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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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