Tag Archives: Rule of Law

Building a case for the ICC

The Prosecutor for the International Criminal Court (Fatou Bensouda) warned Israel in early April that it might be subject to prosecution for the crimes committed against the protesters at the #GreatReturnMarch.

Ms Fatou Bensouda

Ms Fatou Bensouda – Prosecutor

I remind all parties that the situation in Palestine is under preliminary examination by my Office. While a preliminary examination is not an investigation, any new alleged crime committed in the context of the situation in Palestine may be subjected to my Office’s scrutiny. This applies to the events of the past weeks and to any future incident.

I am aware that the demonstrations in the Gaza Strip are planned to continue further. My Office will continue to closely watch the situation and will record any instance of incitement or resort to unlawful force. I urge all those concerned to refrain from further escalating this tragic situation.

Any person who incites or engages in acts of violence including by ordering, requesting, encouraging or contributing in any other manner to the commission of crimes within ICC’s jurisdiction is liable to prosecution before the Court, with full respect for the principle of complementarity. The resort to violence must stop.

Israel clearly and boldly says it will not investigate the deaths attributed to its sharpshooters who are picking off Palestinians (young, old, men and women, and journalists) inside the Gaza Strip.

Israel’s decision not to investigate is important to note because of the principle of complementarity.

‘Complementarity’ is a fundamental principle on which the functioning of the International Criminal Court is based. Under the Rome Statute, which established the Court, the ICC can only exercise its jurisdiction where the State Party of which the accused is a national, is unable or unwilling to prosecute.

Israel, it appears, is inviting the ICC to assume jurisdiction in this case. Alhamdulillah!

Now, the ICC Prosecutor must do more than merely threaten, she must follow through with an independent investigation of the actions on both sides of the fence. The killings by IDF sharpshooters (40 dead, 5,511 wounded as of April 25) have been documented on video and there are numerous eyewitnesses whose testimony must be preserved.

I’ve been searching online for evidence of violence from the Palestinian side of the fence and haven’t found anything beyond burning tires and rocks. The protesters have been peaceful and have not posed any threat to the well-armed IDF sharpshooters.  The ICC Prosecutor’s investigation must be thorough and independent. I hope Israel will cooperate and turn over any evidence it might have regarding the protesters.

Palestinian youth are documenting what’s going on from the Gaza side of the fence, such as this piece from We Are Not Numbers.

While Israel and some Western media label Gaza Palestinians’ ongoing, six-week protest a “riot,” what visitors and participants see on the ground is completely different. The tire and (Israeli) flag burning that may seem “riotous” to some are actually carefully planned by a coordinating committee to obscure the vision of Israeli snipers (the former) and serve as a peaceful outlet for frustration and anger (the latter). And while those activities are occurring on the front lines of the border protest, the “Great Return March” (so-named because of the desire of the refugees in Gaza to return to the homes they were forced to evacuate in 1948), also is hosting many family-oriented cultural celebrations. On any given day, you may encounter women cooking Bedouin bread, young men dancing dabka and children flying kites.

“By including cultural activities in the Great Return March, we send a reminder message to the world that we will never forget our heritage and customs, which remind us of home,” says organizer Ahmed Abu Ertima. “At the same time, these cultural demonstrations show we are peaceful in the demand for our rights.”

Thousands of Gaza families take their children and head off to the border to participate in the Great Return March every day, raising the Palestinian flag and chanting the event’s motto, “We have the right to return to our ancestral land.” They sit on the ground, in sight of stolen lands just a few hundred meters away, while listening to their elders’ tales about their ancestral villages and towns.

Justice and the rule of law require that the ICC Prosecutor follow through with her investigation and prosecution.

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Filed under Gaza, IDF, Israel, Israel Defense Forces, People, Uncategorized, United Nations

Day #47 – Aug. 22, 2014 – Rule of Law

Yesterday (actually, I mean yesterday – a year ago) the Israeli Defense Forces (IDF) killed 3 top commanders of the military wing of Hamas in Gaza.

Today (a year ago), Hamas responded by executing 18 suspected Palestinian collaborators in Gaza. The executions were very public and meant to send a strong message to anyone who might be considering collaborating with the Israelis.  The New York Times reported:

Al Majd, a website managed by the Internal Security Service of the Hamas government that ran Gaza until June (2014), warned that future collaborators would be dealt with in the field, not in courthouses, to create deterrence.

Human Rights Watch, Amnesty International  and other organizations condemned the summary executions. The United Nations Independent Commission appointed to investigate Operation Protective Shield concluded that these summary executions constituted violations of international humanitarian law and international human rights law. (para #501)

Hamas and others may try to justify these extrajudicial killings but there can be no justification for killing someone without giving him due process and a trial. Either Palestinians live under the rule of law, or they live under the law of the jungle. There is no middle ground.  The perpetrators of these extrajudicial killings must be brought to justice.

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Below are excerpts from the U.N. Commission’s report:

Based on its research, the commission documented summary executions of at least 21 persons, including one woman, committed between 5 and 22 August 2014 in Gaza City, allegedly for being collaborators for Israel. Five summary executions occurred on 5 August, one on 11 August, and at least 15 on 22 August. The people executed on 5 August, and at least 11 persons executed on 22 August, were taken from Al-Katiba prison where they had been held in the custody of the local authorities in Gaza and shot by firing squad. Of these 16 executions, 8 persons had trials ongoing and 2 had received prison sentences after conviction. The other 6 individuals had challenged death sentences imposed under the PLO Revolutionary Penal Code of 1979 and were waiting for the decisions on their appeals.

On 7 August, Al Qassam Brigades, the armed branch of Hamas, claimed responsibility for the 5 August executions, declaring that the persons executed were “found guilty of giving information on the whereabouts of fighters and civilian houses”. On 22 August, Al Qassam Brigades announced the execution of 11 persons in the morning and 7 after the Friday prayers at Al Omari mosque.

The 22 August executions occurred a day after three Al Qassam commanders were killed by the IDF in Rafah  and were followed by the announcement of a security campaign against “collaborators” dubbed “Operation Strangling Necks”. In the morning of 22 August, 11 Al Katiba detainees were executed outside the abandoned Al Jawazat police station and Hamas reportedly warned that “the same punishment would soon be imposed on others”. On the same morning, masked men reportedly read a Hamas statement outside Al Omari mosque announcing that several “collaborators” had been sentenced to death. As worshippers were leaving the mosque, at least six persons were executed in front of them by masked men.

Representatives of the local authorities in Gaza told the commission that the executions were carried out by self-organized Palestinian factions operating in secrecy, without instructions from the authorities. They informed the commission that the local authorities had purportedly created a body to investigate allegations of extrajudicial killings. The Ministry of Interior of the State of Palestine said that “The Palestinian President and Government have frequently condemned the arbitrary executions carried out during the attack against the Gaza Strip, describing them as illegal. The Government of National Consensus, formed just days before the attack, did not have a presence on the ground in the Gaza strip effective enough to enable its judicial organs to investigate such acts. The Palestinian Public Prosecutor’s Office has still not been able to exercise its legal jurisdiction by investigating and prosecuting the perpetrators of those actions.” The commission learned that a draft law to strengthen judicial and procedural safeguards for the prosecution of alleged “collaborators” and pave the way for the abolition of the death penalty has been put forward by the State of Palestine. Government authorities have pledged to investigate 25 cases of summary executions that were brought to its attention once it recovers control over the Gaza strip.

The summary executions had devastating consequences that extend well beyond the acts themselves. Since they are widely perceived as evidence of the victims’ guilt, the stigma that accompanies them “punishes” the relatives.  Witnesses spoke of the executions as indelible stains on the family’s reputation and honour, which can be long-lasting and translate into various forms of discrimination, including in terms of access to education and employment. Witnesses described how relatives of those executed face exclusion and could not find jobs as a result of the executions. They also pointed out that they did not believe that there was any chance that the perpetrators would be brought to justice. Moreover, the witnesses requested that their identities remain confidential as they feared retaliation by members of the political leadership or by society at-large for speaking out. Although the local authorities told the commission that specialized social affairs committees had been set up to support the families of persons accused of collaboration, the far-reaching effects of stigma call for a stronger response to ensure that the civil, political, social and economic rights of the relatives are fully protected. With regard to the detainees taken from Al Katiba prison, where they had been in the custody of the local authorities in Gaza while their judicial proceedings were pending, the commission is concerned by the statement by the local authorities that the executions were carried out by Palestinian armed groups without any participation by the local authorities. Given that ensuring the safety of the detainees was the responsibility of the authorities, the latter appear to have been complicit in the executions.

The commission is of the view that inmates were transferred out of the prison and summarily executed with the apparent knowledge of the local authorities in Gaza, in violation of their obligation to protect the right to life and security of those in their custody. These extrajudicial executions, many of which were carried out in public, constitute a violation of both international humanitarian law and international human rights law. Article 6 of the International Covenant on Civil and Political Rights protects the right to life and cannot be derogated from, not even “in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed” (article 4). International human rights law imposes the duty on relevant authorities to investigate, prosecute and punish violations of the right to life, in line with the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions.

Because of their link to the armed conflict, the extrajudicial executions constitute a violation of article 3 common to the 1949 Geneva Conventions, which, in relation to “persons taking no active part in the hostilities […] and those placed “hors de combat” by […] detention, prohibits (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture […]; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples” and amount to a war crime. Whoever is responsible for the killings, whether the Al Qassam Brigades, other Palestinian armed groups, or the local authorities, must be brought to justice.

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Death Penalty in Gaza

Hamas gunmen provide security for Khaled Meshaal's visit to Gaza.

Hamas gunmen provide security for Khaled Meshaal’s visit to Gaza.

I’ve written about the death penalty before, check it out here.

The subject came up again recently after Hamas-led gunmen publicly executed several men in Gaza who were allegedly guilty of collaborating with Israel.

Reuters video of Hamas gunmen executing 18 collaborators in Gaza

A Facebook friend wrote:

Hamas’ recent execution of a number of people whom they deemed traitors shifted their image into a very bad place. “Bad optics” does not begin to describe it. I sympathize greatly with Gaza.. but I have zero respect or trust in Hamas. Too bad the people of Gaza do not have another leadership option. How does one stand up to people who will summarily shoot you if they decide you are not on their side?

My Facebook friend continued:

In civilized societies – there are trials, with witnesses and defense – before punishment. Lining people up and shooting them was a horrendous PR mistake, if nothing else – but it was also a criminal act.Any “uncertainty” I had about Hamas – mean

ing, any chance I was leaning their way, evaporated immediately. I am anti-Zionist – but now just like with the mess of Syria – there is no good side to be on, other than the side of the civilians who are victims caught in the fighting.

I share my friend’s visceral opposition to public executions, but that’s where our agreement appears to end.

I oppose the death penalty in all forms, whether carried out by #1 — “civilized societies” behind a glass window in an execution chamber after the requisite due process has been provided, or #2 — by the military superpowers (the U.S. and Israel) summarily executing people on the streets or in the desert by a drone strike (where’s the due process there?) or #3 — by masked Hamas gunmen who shoot suspected collaborators on the street.

In each case, the executioner provides justification for taking the life of another, but in my book only God/Allah has the responsibility to make life and death decisions, not humans.

I’m no sissy. Severe punishment (life imprisonment without parole) might be appropriate in some cases, but never the death penalty.

So let’s be consistent. If we’re going to condemn Hamas, as my Facebook friend did, then lets condemn the United States and Israel. Striking and killing a grandmother in Pakistan without warning or due process, or blowing Palestinians to smithereens with a drone strike on the streets in Gaza, are no less abhorrent than lining up suspected collaborators and killing them in front of witnesses.

My Facebook friend asks: “How does one stand up to people who will summarily shoot you if they decide you are not on their side?”

This statement belies the truth. There’s absolutely no evidence that Hamas summarily executes people it decides are not on their side. The men who were killed by Hamas gunmen were suspected collaborators who had been recruited by Israel as spies.  Read this very good piece by Jonathan Cook about collaborators.

I’ve written about the rule of law in Gaza, see here. Americans can best help strengthen the rule of law in the Gaza Strip by calling upon Israel to abide by the rule of law.

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Ceasefire conditions

Two friends — one a Hasidic Jew who supports Israel and the other a solidarity activist who supports the Palestinians — asked me for my recommendations to end the bloodshed in Gaza.

Here goes.

#1  Have a clear understanding of the current position of each side. 

Every Palestinian I’ve talked with says the same thing – “We would rather die together with our families than return to the status quo which was a slow death with no dignity. No ceasefire unless Israel lifts the 7-year siege.” Hamas makes the same demands.

Netanyahu can’t give Hamas a “win” by lifting the siege. He wants to eliminate the tunnels between Gaza and Israel and a demilitarized Gaza. He’s also stated he wants to eliminate Hamas altogether because he views Hamas as an existential threat to the State of Israel.

#2  The mediator must be neutral.

OK …. I know that’s an obvious point but apparently it’s beyond the comprehension of President Obama who has sent Secretary of State John Kerry to mediate a ceasefire. Kerry has no street cred with either side. I won’t explain the whole long sorry tale here but suffice it to say, the parties need a neutral mediator to help them hammer out a lasting agreement.

Since most nations of the world have already taken sides in this match, I think the United Nations is the only party capable of serving in that capacity.

#3  Israel and Hamas must talk with each other.

I know, I know, I know. Israel doesn’t recognize Hamas and refuses to endow it with any legitimacy by talking or negotiating with Hamas. The mediator can ferry messages back and forth between the parties if the two can’t sit in the same room, but a viable ceasefire will not come through dictates (as Israel and Egypt attempted a few days ago). There must be honest and transparent negotiations and both sides must be treated as equals.

#4  The Rule of Law must govern.

This should be a no brainer but it’s not acknowledged, and it should be. Both sides must be held to the rule of law. Israel doesn’t want the responsibilities or legal duties that flow from the Law of Occupation. Israel claims the right of self-defense and Hamas claims the right of self-defense but both endanger innocent civilians in contravention of international law and the laws of war. Unless the world is descending into lawless anarchy, the mediator must stipulate the ground rules — and the Law of Occupation, International Humanitarian Law, Refugee Law, etc. must be the basis for any negotiation.

#5  Address the legitimate needs of both sides.

The State of Israel needs security but can’t bomb its way to a sustainable peace with its neighbors. The people in Gaza need the suffocating siege lifted. Each side has more demands that will require more trust before compromises can be made, but to end the bloodshed now, these two issues (Israel’s security and lifting the siege on Gaza) must be addressed immediately.

Since every indication is that Netanyahu is not inclined to lift the siege, he needs outside “help” to make the right decision. It’s time for sticks, not carrots. Ideally, President Obama should signal his intention to withhold $8.5 million per day that the U.S. sends to support Israel’s military. Unfortunately, the U.S. has not proven to be a very effective partner for peace in the Middle East despite Obama’s words to the contrary. So the EU and others who have already taken steps to wield some serious sticks at Israel should be counseled to do so now.

In exchange for lifting the siege, the tunnels between Gaza and Israel should be dismantled under the supervision of an international body. This must be documented to the satisfaction of Israel and the community of nations.

There’s much more that could be said —- should be said —- about the occupation and the long-term prospects of co-existence. For the time being, the bloodshed must end. The rule of law must prevail.

As international correspondent Jon Snow says — “We can each make a difference if we care.”

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Free Anas Barghouthi!

A Palestinian lawyer who spends his days advocating for Palestinian prisoners now finds himself behind bars.

Palestinian Lawyer Anas Barghouthi

Palestinian Lawyer Anas Barghouthi

Anas Barghouthi was picked up by Israeli forces on September 15, 2013 at a checkpoint in the West Bank. He’s been charged with “membership in the Palestinian Front for the Liberation of Palestine” and “leadership of a committee to organize demonstrations.” Barghouthi denies both charges.

He has been sharply critical of the Palestinian Authority’s practice of security cooperation with the Israeli occupation, as well as politically motivated detentions and arrests of Palestinian political figures. He continues to volunteer with Addameer to work on the cases of political detainees held by the PA. Barghouti himself was summoned on March 6 of this year to the PA’s Preventive Security headquarters for questioning.

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This reminds me of the 50 Turkish lawyers arrested in Istanbul this past June.  They were protesting at Çağlayan Justice Palace (the main justice court in Istanbul) to denounce the repression of the “Occupy Gezi” protesters and were rounded up by members of Turkey’s special forces and hauled off to jail.

In countries that respect the Rule of Law, no one questions the critical role of lawyers in the justice system. Their advocacy for the rights of “you and me and all of us” is what makes the system work. Without lawyers, there simply is no justice system. When the government intimidates lawyers and judges, like throwing them into jail, the government is demonstrating its contempt for an independent and fair judiciary and the Rule of Law.

Amnesty International considers Barghouthi a prisoner of conscience and has issued an appeal for people to write Prime Minister Netanyahu and Military Judge Advocate General Efroni to demand Barghouthi’s immediate release. I wrote my letters today. I ended each letter with:

Israel prides itself as a nation upholding democratic values, however the detention of Anas Barghouthi is a flagrant violation of the cherished principles of freedom of political expression and freedom of peaceful assembly. Barghouthi is a prisoner of conscience and the eyes of the world are closely watching Israel’s actions in his case. I urge you to unconditionally release Barghouthi immediately and put an immediate end to harassment of human rights defenders in the Occupied Palestinian Territories.

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Rule of Law or Lawlessness in Gaza?

One of the most shocking things I learned during my 8-9 months in Gaza was how justice can be administered so violently and outside the justice system.

Last November, six men were killed by Palestinian gunmen on suspicion of collaborating with Israel.  Their bodies were left dumped in a busy intersection and one body was dragged through the streets on a rope behind motorcycles.

In March, a 23-year-old young woman in Nuseirat Refugee Camp, in the middle of the Gaza Strip, was killed by her father and brother — an honor killing. Although the two were arrested, it is likely that they will receive lenient sentences according to this article.

As horrific as these events might seem to Westerners, what I found even more shocking was that Palestinians with whom I talked about these events seemed unperturbed.  Some tried to justify these actions, while others just shrugged them off.

Is Gaza governed by the rule of law or the rule of force?  Is the rule of law so easily dismissed in Gaza?  Or is Sharia law so contrary to our secular laws that the two cannot coexist?

I want to learn a lot more about Sharia law before sharing any opinions, but I was very excited when a good friend of mine, a Palestinian lawyer in Gaza, took me to the Palestinian Bar Association (PBA) and I learned about the United Nations Development Programme (UNDP) Rule of Law and Access to Justice Programme.  The Legal Aid Clinics in Gaza are a big component of that project.

Visiting the Legal Aid Clinic at the PBA

Visiting the Legal Aid Clinic at the PBA

The Palestinian Bar Association (PBA) recently moved into a new building in Gaza and I was given the grand tour.  This state-of-the-art facility looks very impressive; the people and programs there are even more impressive.

Lora standing with the President of the Palestinian Bar Association in Gaza

Lora standing with the President of the Palestinian Bar Association in Gaza

Based on a March 2012 UNDP report, these lawyers have a huge challenge in front of them. Public Perceptions of Palestinian Justice and Security Institutions” shares the findings of a survey of 6,710 Palestinian households in the summer of 2011.

Although the data shows Palestinians throughout the Occupied Palestinian Territories (oPt) consider the courts, lawyers and civil society organizations which support their work play a pivotal role in promoting and protecting the rule of law, there is a significant gender justice gap and the formal justice system is considered too slow.  Satisfaction with justice and security institutions is lowest in the Gaza Strip, as compared to the West Bank and East Jerusalem.

The one question the report does not address is how do we improve the rule of law in the oPt when Israel appears to be outside of the rule of international law in many aspects of its occupation?

Some of the recommendations included in the report:

  • Discriminatory legislation and service provision must be reformed to extend justice to all Palestinians.
  • There is a need for quicker, dialogue-based, human-rights focused alternative dispute resolution (ADR) mechanisms.
  • Strengthen the performance of court clerks and make the courts more “user-friendly”.
  • Encourage “judicial activism and judicial vocalism”.   Hmmmm!
  • Support development of gender-sensitive case management protocols.
  • Enhance protection and confidentiality measures.
  • Research Sharia courts
  • Support justice sector monitoring and oversight mechanisms to support the “emergence of a unitary justice system which protects the rights of all Palestinians, under the democratic control of the Palestinian people”.

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The Palestinian people manifestly have the courage to speak truth to power, the magnanimity to take action to promote human freedom, and a strong desire to use formal justice and security institutions. This combination is essential for addressing the most critical need revealed by the data: for greater accountability to improve service delivery.

 

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