Now out in paperback: The United States and Torture - A "gripping, interdisciplinary work" - see NYU Press.
"the best collection of essays on the topic" (Erwin Chemerinksy, Dean, UC Irvine Law School)
"an extraordinarily important book" (John W. Dean, Nixon White House counsel)

Order Rules of Disengagement“on the side of US service members who didn't check their conscience - and their sense of honor - at the door when they signed up." - see Truthout review.

Also, order Cowboy Republic - Makes the case for prosecuting Bush officials "with equisite legal detail" in "straightforward, everyman language" - see William Fisher review.

View Featured Broadcasts on Google and Professor Cohn's congressional testimony, interview on C-SPAN Book TV and
San Diego's "No War With Syria" rally.


Wednesday, September 17, 2014

Obama Declares Perpetual War

President Barack Obama escalated the drone war he has conducted for the past five and a half years by declaring his intention to "degrade and ultimately destroy" the Islamic State, also known as ISIS, or ISIL. Since August 8, Obama has mounted at least 154 airstrikes in Iraq. He will send 475 additional US troops, increasing the total number in Iraq to about 1,600. Obama announced he would conduct "a systematic campaign of airstrikes" in Iraq, and possibly in Syria. But, not limiting himself to those countries, Obama declared the whole world his battlefield, stating "We will hunt down terrorists who threaten our country, wherever they are . . . if you threaten America, you will find no safe haven."

If, indeed, there were an imminent threat of attack on the United States, Obama would be legally entitled to launch a military operation. The United Nations Charter, which prohibits the use of military force, allows an exception when a country acts in self-defense. Under the well-established Caroline doctrine, the "necessity for self-defense must be instant, overwhelming, leaving no choice of means, and no moment for deliberation." The only problem is, Obama admitted, "We have not yet detected specific plotting against our homeland." Citing only the vague possibility of future "deadly attacks," Obama nevertheless declared a perpetual war with no specific end time.

The only other exception to the UN Charter's prohibition on military force is when the Security Council has given its approval. Obama said he would chair a meeting of the Council in two weeks' time to "mobilize the international community." But the Charter requires that the Council countenance the military operation before it occurs. The proposed resolution the Council is slated to adopt will reportedly call on countries to criminalize recruitment and travel of foreign fighters that join extremist military forces, and require the sharing of airline passenger information. It will not, however, authorize military force. Obama's war violates the UN Charter, a treaty the United States has ratified, making it part of US law under the Supremacy Clause of the US Constitution.

Obama's war also violates the War Powers Resolution, which permits the president to introduce US Armed Forces into hostilities or imminent hostilities only in three situations. First, after Congress has declared war, which has not happened in this case. Second, in "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces," which again, has not occurred. Third, when there is "specific statutory authorization." Obama has not asked Congress to authorize his military attacks.

Indeed, Obama declared, "I have the authority to address the threat from ISIL." He was relying on the Authorization for the Use of Military Force (AUMF) that Congress passed in 2001, which President George W. Bush used to invade Afghanistan. But that AUMF only authorized force against individuals, groups and countries that "planned, authorized, committed or aided" the September 11 terrorist attacks. ISIS did not even exist in 2001. In fact, Ayman al-Zawahiri, al-Qaeda's leader, formally kicked ISIS out of al-Qaeda earlier this year.

When it passed the 2001 AUMF, Congress specifically rejected the Bush administration's request for open-ended military authority "to deter and preempt any future acts of terrorism or aggression against the United States." Moreover, in the National Defense Authorization Act of 2012, Congress specified, "Nothing in this section is intended to . . . expand the authority of the President or the scope of the [2001 AUMF]."

Apparently, Obama is also relying on the 2002 AUMF, in which Congress authorized the president to use the armed forces as he determines necessary and appropriate to defend the national security of the United States against the continuing threat posed by Iraq, and to enforce all relevant UN Security Council resolutions regarding Iraq. But since that threat and those resolutions were aimed at Saddam Hussein's weapons of mass destruction, that license, too, has ended. Indeed, in June, the White House declared that the 2002 AUMF "is no longer used for any US government activities." That means Obama's current war is not simply a continuation of Bush's Iraq war, and the 2002 AUMF does not provide Obama with legal license to mount his military attacks.

The War Powers Resolution requires Obama to secure a new Congressional authorization for his war within 60 days of launching "hostilities," or he must withdraw US forces within 30 days. The 60-day period runs out on October 7. Obama apparently feels unconstrained to comply with this law.

During the 2008 presidential campaign, Obama told the Boston Globe, "The President does not have the power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation." Earlier this year, Obama said, "no country can maintain its freedom in the face of continual war." Yet that is exactly what he is doing with his declaration of perpetual war.

Obama is violating both US and international law. He is also risking even more blowback against the United States. The US government has destabilized the region with Bush's Afghanistan and Iraq wars, and Obama's killing of thousands of people with drones. Many Sunnis are less afraid of ISIS than they are of the puppet Shiite government the United States installed in Iraq, which tortured, raped, murdered and arbitrarily detained Sunnis during the last two and a half years.

ISIS is a brutal group. But Obama is imploring Congress to fund the Free Syrian Army, which according to The New York Times, "went on to behead six [captured] ISIS fighters."

Playing both ends against the middle, Obama wants to fight ISIS in Syria without emboldening President Bashar Assad, who is also fighting ISIS. And Obama reserves the right to bomb in Syria, a sovereign country, in defiance of Assad. Obama is playing with fire.

Besides being illegal, Obama's war promises to exacerbate the volatile situation in the region, resulting in more hostility against the United States. Obama has said in the past there is no military solution to this conflict. He should use his leadership in the Security Council to secure a cease-fire, create a peacekeeping force, mount an embargo of all arms being sent to the region, and pursue a regional diplomatic solution enlisting Iran and Syria in the process. Perpetual war is not the answer.

Copyright, Truthout. Reprinted with permission.

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Monday, September 8, 2014

US Slammed for Failure to Fulfill Legal Obligation to Eliminate All Forms of Racial Discrimination

Three weeks after the shooting of Michael Brown in Ferguson, the Committee on the Elimination of Racial Discrimination (CERD) published a report detailing how the United States has failed to fulfill its legal obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (Convention). The CERD report was scathing in its criticism of the US for not complying with the Convention’s mandates. Since the US ratified this treaty, thereby becoming a State Party, it is part of US law under the Supremacy Clause of the Constitution.

States parties must comply with the obligations under the Convention, including submitting periodic reports to CERD regarding their progress in fulfilling their obligations. CERD is the body that monitors compliance of States Parties with the Convention. After reviewing the most recent US report, CERD responded with its concluding observations as follows:

CERD urged the US to prohibit racial discrimination in all its forms, including indirect discrimination. (The US currently prohibits only intentional discrimination, but not legislation and programs that are discriminatory in effect).

CERD urged the US to comply with the Convention’s mandate that States Parties adopt special measures to eliminate persistent disparities based on race or ethnic origin. (The US Supreme Court has narrowed the use of affirmative action in education).

CERD urged the US to specifically outlaw racial profiling. (The FBI, TSA, border enforcement officials and local police engage in racial profiling).

CERD urged the US to clean up radioactive and toxic waste, particularly in areas inhabited by racial and ethnic minorities and indigenous peoples. CERD also urged the US to prevent US-registered transnational corporations from adversely affecting, in particular, minorities and indigenous peoples. (Racial and ethnic minorities, and indigenous peoples are disproportionately affected by negative health impacts of pollution caused by extractive and manufacturing industries).

CERD urged the US to adopt legislation to prevent implementation of voting regulations with discriminatory impact. (The US Supreme Court invalidated procedural safeguards in the Voting Rights Act aimed at preventing the implementation of voting regulations that may have discriminatory effect). CERD also urged the US and all states to reinstate voting rights to persons convicted of felonies who have served their sentences.

CERD urged the US to abolish laws and policies making homelessness a crime. (A high number of homeless persons are disproportionately from racial and ethnic minorities, and homelessness is criminalized by loitering statutes).

CERD urged the US to intensify efforts to eliminate racial discrimination in access to housing, and ensure affordable and adequate housing for all. (There is persistent racial discrimination in housing and a high degree of segregation and concentrated poverty).

CERD urged the US to develop a concrete plan to address racial segregation in schools, and increase federal funds for such programs. (Students from racial and ethnic minorities attend segregated schools with unequal facilities).

CERD urged the US to ensure that everyone, particularly racial and ethnic minorities, who reside in states that have opted out of Medicaid expansion under the Affordable Care Act (ACA), and undocumented immigrants and their families living in the US for less than five years, have effective access to affordable and adequate health-care. (The US Supreme Court allows states to opt out of Medicaid expansion, and undocumented immigrants and their children are excluded from coverage under the ACA).

CERD urged the US to fulfill its obligation to protect the right to life and reduce gun violence by adopting legislation expanding background checks and prohibiting the practice of carrying concealed handguns in public. CERD also urged the US to review Stand Your Ground Laws to remove far-reaching immunity and ensure strict adherence to necessity and proportionality when deadly force is used in self-defense. (There is a high number of gun-related deaths and injuries, and Stand Your Ground laws are used to circumvent the limits of legitimate self-defense).

CERD urged the prompt and effective investigation of each allegation of excessive force by law enforcement officials, prosecution of alleged perpetrators and effective sanctions for those convicted, re-opening of investigations when new evidence becomes available, and adequate compensation for victims and their families. (Brutality and excessive force by law enforcement officials against racial and ethnic minorities has a disparate impact on African-Americans and undocumented migrants crossing the US-Mexico border; US Customs and Border Protection (CBP) agents enjoy impunity for abuses committed against Hispanic/Latino Americans and undocumented migrants).

CERD urged legal protection for the rights of non-citizens, including protection of migrants from exploitative and abusive working conditions; dealing with breaches of immigration law through civil, rather than criminal immigration system; guaranteeing legal representation in all immigration matters; and raising the minimum age for agricultural field work. (Immigration enforcement is increasingly militarized, leading to excessive and lethal force by CBP personnel; local law enforcement increasingly uses racial profiling to determine immigration status; immigrants are detained for prolonged periods of time; and undocumented immigrants are deported without access to justice).

CERD urged the US to intensify efforts to prevent and combat violence against women, particularly against American Indian and Alaska native women, and ensure all cases of violence against women are effectively investigated, prosecuted and sanctioned, and victims are provided appropriate remedies. (A disproportionate number of women from racial and ethnic minorities continue to be subjected to violence, including rape and sexual violence).

CERD urged the US to take concrete and effective steps to eliminate racial disparities at all stages of the criminal justice system. CERD also urged the US to impose, at the federal level, a moratorium on the death penalty with a view to abolishing the death penalty. (Members of racial and ethnic minorities are disproportionately arrested, incarcerated and subjected to harsher sentences, including life imprisonment without parole (LWOP) and the death penalty).

CERD urged the US to intensify efforts to address racial disparities in disciplinary measures, as well as the “school-to-prison pipeline”; and ensure juveniles are not transferred to adult courts and are separated from adults in custody. CERD also urged the US to abolish LWOP for those under 18 at the time of their crime, and the commutation of sentences for those already serving LWOP. (Youth from racial and ethnic minorities are disproportionately arrested at school and referred to the criminal justice system, prosecuted as adults, incarcerated in adult prison, and sentenced to LWOP).

CERD urged the US to end administrative detention without charge or trial at Guantanamo and the closure of the prison facility there without further delay. CERD also urged the US to guarantee the right to a fair trial in compliance with international human rights standards, and to ensure that any detainee not charged and tried is released immediately. (Non-citizens continue to be arbitrarily detained without effective and equal access to the ordinary criminal justice system, and risk of being subjected to torture or cruel, inhuman or degrading treatment or punishment).

CERD urged the US to adopt necessary measures to eliminate the disproportionate impact of inadequate criminal defense programs on racial and ethnic minorities, by improving the quality of legal representation and adequately funding legal aid. (There is no right to counsel in civil proceedings, which disproportionately affects indigent racial and ethnic minorities seeking effective remedies for evictions, foreclosures, domestic violence, employment discrimination, termination of subsistence income or medical assistance, loss of child custody, and deportation).

CERD urged the US to guarantee the right of indigenous peoples to effective participation in decisions affecting them, eliminate undue obstacles to recognition of tribes, protect sacred sites, and halt the removal of indigenous children from their families and communities. (There is a lack of concrete progress in guaranteeing informed consent of indigenous peoples in decisions that affect them, burdensome obstacles to tribal recognition, insufficient protection of sacred sites, and continued removal of indigenous children from families and communities through the US child welfare system). 

CERD also urged the adoption of a National Action Plan to combat structural racial discrimination, and ensure that school curricula, textbooks and teaching materials address human rights themes and promote understanding among racial and ethnic minority groups.

CERD urged the US to recognize the competence of CERD to hear individual complaints. CERD also urged the US to ratify the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of All Forms of Discrimination Against Women; the Convention on the Rights of the Child; the International Convention on the Protection of the Rights of All Migrant Workers and Members of the Their Families; the Convention on the Rights of Persons with Disabilities; and the International Convention for the Protection of All Persons from Enforced Disappearance. 

Finally, CERD urged the US to widely publicize the CERD’s recommendations. When the US ratifies a treaty, the legal obligations it assumes apply at the federal, state and local levels. And although, by ratifying a treaty, the US undertakes an obligation to publicize the terms of the treaty, the US government has not taken this responsibility seriously.

Copyright, Truthout.org. Reprinted with permission.

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Friday, August 22, 2014

National Lawyers Guild, other legal organizations urge International Criminal Court to investigate war crimes by Israeli, U.S. leaders in Gaza

The National Lawyers Guild (NLG), Center for Constitutional Rights, International Association of Democratic Lawyers, Arab Lawyers Union, and American Association of Jurists (Asociacion Americana de Juristas) sent a letter on Friday, August 22 to Fatou Bensouda, Prosecutor of the International Criminal Court (ICC), urging her to initiate an investigation of war crimes, genocide, and crimes against humanity committed by Israeli leaders and aided and abetted by U.S. officials in Gaza. Under the Rome Statute, the ICC has the power to hold individuals criminally accountable for the most serious of crimes.

“In light of the extreme gravity of the situation in the occupied Gaza Strip, in particular the large number of civilian casualties and large scale destruction of civilian property, including schools, mosques and hospitals, and the ongoing incitement to genocide perpetrated by Israeli political figures and leaders, the [NLG] and endorsing organizations strongly urge the Office of the Prosecutor to use its power under Article 15 of the Rome Statute to initiate a preliminary investigation” of crimes within the ICC’s jurisdiction.

“[Under the Rome Statute, an] individual can be convicted of a war crime, genocide or a crime against humanity . . . if he or she ‘aids, abets or otherwise assists’ in the commission or attempted commission of the crime, ‘including providing the means for its commission’,” the letter reads. “By transferring financial assistance, weapons and other military aid to Israel, members of the U.S. Congress, President Barack Obama and Defense Secretary Chuck Hagel have aided and abetted the commission of war crimes, genocide and crimes against humanity by Israeli officials and commanders in Gaza.”

The letter states that on July 20, 2014, in the midst of criminal behavior, Israel requested, and the U.S. Defense Department then authorized, the transfer to Israel of ammunition from the War Reserve Stockpile Ammunition. And in August 2014, Congress overwhelmingly approved, and Obama signed, a $225 million payment for Israel’s Iron Dome missile defense system.

“Israel’s clearly disproportionate use of force against the 1.8 million residents of Gaza appears to have little to do with any claim of security,” the organizations wrote, “but seems to be calculated to exact revenge against Palestinian civilians.” The letter quotes statements of Israeli officials advocating vengeance against “the entire Palestinian people “and “calling for the internment of Palestinians in concentration camps in Sinai and the destruction of the civilian infrastructure in Gaza.”

Allegations of War Crimes

The letter lists the following war crimes, and cites supporting factual allegations for each crime:

-willful killing (over 2,000 Palestinians, 80% civilians)
-willfully causing great suffering or serious injury (wounding nearly 10,000 Palestinians, 2,200 children)
-unlawful, wanton and unjustified extensive destruction and appropriation of property (tens of thousands of Palestinians lost homes, severe damage to infrastructure)
-willful deprivation of fair trial rights (450 Palestinians held without charge or trial)
-intentional attacks against civilians or civilian objects or humanitarian vehicles, installations and personnel (bombing of numerous schools, UN places of refuge, hospitals, ambulances, mosques)
-intentionally launching unjustified attacks, knowing they will kill or injure civilians, damage civilian objects, or cause long-term and severe damage to the natural environment (use of ‘Dahiya Doctrine’ to apply “disproportionate force” and cause “great damage and destruction to civilian property and infrastructure, and suffering to civilian populations,” as defined in UN Human Rights Council [Goldstone] Report) (Israel virtually flattened town of Khuza’a).

Allegations of Genocide

Article 6 of the Rome Statute defines “genocide” as the commission of any of the following acts with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group: (a) killing members of the group; (b) causing serious bodily harm to members of the group; or (c) deliberately inflicting on the group conditions of life calculated to bring about its destruction in whole or in part.

The letter says, “In light of the fact that Palestinians in Gaza had no ability to flee for safety, it must be assumed the responsible Israeli officials knew that huge casualties and destruction of civilian property and infrastructure were certain during the massive bombardment by land, air and sea of the occupied Gaza Strip.” The letter also lists “the repeatedly inciting public statements made by Israeli officials before and during the course of Operation Protective Edge and the history of Israel’s repeated bombardment of Palestinian refugee camps and populations in Lebanon and in Gaza” as evidence that “Israeli officials may be implementing a plan to destroy the Palestinian population, at least in part.” 

Allegations of Crimes against Humanity

Article 7 of the Rome Statute defines “crimes against humanity” as the commission of any of the following, when part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Persecution against a group or collectivity based on its political, racial, national, ethnic or religious character; or (c) The crime of apartheid (inhumane acts committed in the context of an institutional regime of systematic oppression and domination by one racial group over another racial group, with the intent to maintain that regime).

The letter states, “Israeli forces have killed, wounded, summarily executed and administratively detained Palestinians, Hamas forces and civilians alike. Israeli forces intentionally destroyed the infrastructure in Gaza.” It also says Israel keeps Palestinians caged in “the world’s largest open air prison,” and “controls all ingress and egress to Gaza, and limits … access to medicine and other essentials.” Finally, the letter cites arbitrary arrest and administrative detention; expropriation of property; destruction of homes, crops and trees; separate areas and roads; segregated housing, legal and educational systems for Palestinians and Jews; the illegal barrier wall encroaching on Palestinian territory; hundreds of illegal Jewish settlements on Palestinian land; and denying the right of Palestinians to return to their homeland because they are not Jews.

The signatories to the letter conclude that “[t]he initiation of an investigation would send a clear message to all involved either in committing or in aiding and abetting of the aforementioned crimes that they stand to be held personally accountable for their actions.”

It remains to be seen whether the ICC will exercise jurisdiction in such a case since neither Israel nor the United States is a party to the Rome Statute. But if the ICC determines that Palestine can accede to the Rome Statute, the ICC could take jurisdiction over crimes committed by Israelis and Americans in Palestinian territory.

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Friday, August 8, 2014

US Leaders Aid and Abet Israeli War Crimes, Genocide & Crimes against Humanity

By sending vast amounts of military aid to Israel, members of the US Congress, President George W. Bush, President Barack Obama and Defense Secretary Chuck Hagel have aided and abetted the commission of war crimes, genocide and crimes against humanity by Israeli officials and commanders in Gaza. An individual can be convicted of a war crime, genocide or a crime against humanity [PDF] in the International Criminal Court (ICC) if he or she "aids, abets or otherwise assists" in the commission or attempted commission of the crime, "including providing the means for its commission."

There is growing evidence that Israeli leaders and commanders have committed the following war crimes, genocide and crimes against humanity as defined in the Rome Statute for the ICC. US military aid has aided, abetted and assisted the commission of these crimes by providing Israel with the military means to commit them.

During Operation Protective Edge, Israeli forces again used the Dahiye Doctrine, which, according to the UN Human Rights Council [Goldstone] Report [PDF], involves "the application of disproportionate force and causing of great damage and destruction to civilian property and infrastructure, and suffering to civilian populations."

A summary of Israeli leaders' extensive crimes is presented below.

US military aid to Israel

According to the Congressional Research Service, in 2007, the Bush Administration agreed to provide Israel with $30 billion [PDF] in military assistance from 2009 to 2018, provided in annual increments of $3.1 billion. During his March 2013 visit to Israel, Obama pledged that the US would continue to provide Israel with multi-year commitments of military aid subject to the approval of Congress.

Since 2012, the US has sent $276 million worth of weapons and munitions to Israel, not including exports of military transport equipment and high technologies. From January to May 2014, the US transferred to Israel almost $27 million for rocket launchers, $9.3 million worth of parts of guided missiles and nearly $762,000 for bombs, grenades and munitions of war.

On July 20, 2014, Israel requested additional ammunition, including 140mm tank rounds and 40mm illumination grenades, and the Defense Department approved the sale three days later. It came from a $1 billion stockpile of ammunition the US military stores in Israel for that country's use; it is called War Reserve Stockpile Ammunition-Israel. In early August 2014, both houses of Congress overwhelmingly passed, and Obama signed, an appropriation of $225 million for Israel's Iron Dome missile defense system, which has also been used in Gaza. The Senate vote was unanimous. With no debate, the House of Representatives voted 395 to 8 to approve the deal.

Here is a summary of the crimes, as defined in the Rome Statute, Israeli leaders have committed and US leaders have aided and abetted: 

War crimes

(1) Willful killing: Israeli forces have killed nearly 2,000 Palestinians (more than 400 children and over 80% civilians). Israel used 155-millimeter artillery, which, according to Human Rights Watch, is "utterly inappropriate in a densely populated area, because this kind of artillery is considered accurate if it lands anyplace within a 50-meter radius."

(2) Willfully causing great suffering or serious injury to body or health: Nearly 10,000 people, 2,500 of them children, have been wounded. Naban Abu Shaar told the Daily Beast that the dead bodies from what appeared to be a "mass execution" in Khuza'a looked like they were "melted" and were piled on top of each other; assault rifle bullet casings found in the house were marked "IMI" (Israel Military Industries). UNICEF said the Israeli offensive has had a "catastrophic and tragic impact" on children in Gaza; about 373,000 children have had traumatic experiences and need psychological help. The UN Relief and Works Agency for Palestine Refugees (UNRWA) said: "There's a public health catastrophe going on. You know, most of the medical facilities in Gaza are non-operational."

(3) Unlawful and wanton, extensive destruction and appropriation of property not justified by military necessity: Tens of thousands of Palestinians have lost their homes. More than 1,300 buildings were destroyed and 752 were severely damaged. Damage to sewer and water infrastructure has affected two-thirds of Gazans. On July 20, Israeli forces virtually flattened the small town of Khuza'a; one man counted 360 shell attacks in one hour. Reconstruction of Gaza is estimated to cost $6 billion. Israel shrunk Gaza's habitable land mass by 44 percent, establishing a 3 km "no-go" zone for Palestinians; 147 square miles of land will be compressed into 82 square miles. Oxfam described the level of destruction as "outrageous ... much worse than anything we have seen in previous [Israeli] military operations."

(4) Willfully depriving a prisoner of war or a civilian the rights of fair and regular trial: Nearly 2,000 Palestinians were arrested by Israeli forces during July 2014, according to the Palestinian Prisoners Center for Studies. Prisoners include 15 members of the Palestinian Legislative Council, about 240 children, dozens of women, journalists, activists, academics and 62 former prisoners previously released in a prisoner exchange. Israeli forces executed many prisoners after arrest, either by directly firing on them, refusing to allow treatment or allowing them to bleed to death. More than 445 prisoners are being held without charge or trial under administrative detention.

(5) Intentionally directing attacks against the civilian population, civilian objects, or humanitarian vehicles, installations and personnel: "The civilian population in the Gaza Strip is under direct attack," reads a joint declaration of over 150 international law experts. Israeli forces violated the principle of "distinction," which forbids deliberate attacks on civilians or civilian objects. Israeli forces bombed 142 schools (89 run by the UN), including six UN schools in which civilians were taking refuge. Israeli forces shot and killed fleeing civilians (warnings, which must effectively give civilians time to flee before bombing, do not relieve Israel from its legal obligations not to target civilians). Israeli forces repeatedly bombed Gaza's only power plant and other infrastructure, which are "beyond repair." Israeli forces bombed one-third of Gaza's hospitals, 14 primary healthcare clinics and 29 ambulances. At least five medical staff were killed and tens of others were injured.

(6) Intentionally launching attacks with knowledge they will cause incidental loss of life or injury to civilians or damage to civilian objects or long-term severe damage to the natural environment, if they are clearly excessive in relation to the anticipated military advantage: The principle of "proportionality" forbids disproportionate and excessive civilian casualties compared to the claimed military advantage gained in the attack. The Dahiye Doctrine directly violates this principle. Responding to Hamas' rockets with 155-millimeter artillery is disproportionate. Although nearly 2,000 Palestinians (over 80 percent civilians) have been killed, 67 Israelis (all but three of them soldiers) have been killed. The coordinates of all UN facilities were repeatedly communicated to the Israeli forces; they nevertheless bombed them multiple times. Civilians were attacked in Shuja'iyyah market.

(7) Attacking or bombarding undefended towns, villages, dwellings or buildings, or intentionally attacking religious, educational and medical buildings, which are not military objectives: On July 20, Israeli forces virtually flattened the small town of Khuza'a; one man counted 360 shell attacks in one hour. Israeli forces bombed 142 schools (89 run by the UN), one-third of Gaza's hospitals, 14 primary healthcare clinics, and 29 ambulances. Israeli shelling completely destroyed 41 mosques and partially destroyed 120 mosques.

Genocide

(a) With the intent to destroy, in whole or in part, a national, ethnical, racial or religious group: Palestinians, including primarily civilians, and Palestinian infrastructure necessary to sustain life were deliberately targeted by Israeli forces.

(b) The commission of any of the following acts

(i) killing members of the group: Israeli forces killed nearly 2,000 Palestinians.

ii) causing serious bodily or mental harm to members of the group: Israeli forces wounded 10,000 Palestinians.

(iii) deliberately inflicting on the group conditions of life calculated to bring about its destruction in whole or in part: Israeli forces devastated Gaza's infrastructure, knocking out Gaza's only power plant, and destroying homes, schools, buildings, mosques and hospitals.

Crimes against humanity

(A) The commission of murder as part of a widespread or systematic attack against any civilian population: Israeli forces relentlessly bombed Gaza for one month, killing nearly 2,000 Palestinians, more than 80 percent of whom were civilians. Israeli forces intentionally destroyed Gaza's infrastructure, knocking out Gaza's only power plant, and destroying homes, schools, buildings, mosques and hospitals.

(B) Persecution against a group or collectivity based on its political, racial, national, ethnic or religious character, as part of a widespread or systematic attack against any civilian population: Israeli forces killed, wounded, summarily executed, and administratively detained Palestinians, Hamas forces and civilians alike. Israel forces intentionally destroyed the infrastructure of Gaza, populated by Palestinians. UN Secretary General Ban Ki-moon said: "the massive death and destruction in Gaza have shocked and shamed the world." He added the repeated bombing of UN shelters facilities in Gaza was "outrageous, unacceptable and unjustifiable."

(C) The crime of apartheid (inhumane acts committed in the context of an institutional regime of systematic oppression and domination by one racial group over another racial group, with the intent to maintain that regime): Ali Hayek, head of Gaza's federation of industries representing 3,900 businesses that employ 35,000 people, said: "After 30 days of war, the economic situation has become, like, dead. It seems the occupation intentionally destroyed these vital factories that constitute the backbone of the society." Israel maintains an illegal barrier wall that encroaches on Palestinian territory and builds illegal Jewish settlements on Palestinian lands. Israel keeps Gazans caged in what many call "the world's largest open air prison." Israel controls all ingress and egress to Gaza, limits Gazans' access to medicine, subjects Palestinians to arbitrary arrest, expropriates their property, maintains separate areas and roads, segregated housing, different legal and educational systems for Palestinians and Jews and prevents mixed marriages. Only Jews, not Palestinians, have the right to return to Israel-Palestine.

Collective punishment

Although the Rome Statute does not include the crime of collective punishment, it is considered a grave breach of the Fourth Geneva Convention, which constitutes a war crime. Collective punishment means punishing a civilian for an offense he or she has not personally committed; it forbids reprisals against civilians and their property (civilian objects).

Ostensibly to rout out Hamas fighters, Israel has wreaked unprecedented devastation on the people of Gaza, killing nearly 2,000 people (more than 80 percent of them civilians) and destroying much of the infrastructure of Gaza. This constitutes collective punishment.

On August 5, 2014, veteran Israeli military advisor Giora Eiland advocated collective punishment of Gaza's civilian population, saying: "In order to guarantee our interests versus the other side's demands, we must avoid the artificial, wrong and dangerous distinction between the Hamas people, who are 'the bad guys,' and Gaza's residents, which are allegedly 'the good guys.'" That is precisely the strategy Israel has employed during Operation Protective Edge.

Israel's occupation of Palestinian lands also constitutes collective punishment. Israel maintains effective control over Gaza's land, airspace, seaport, electricity, water, telecommunications and population registry. Israel deprives Gazans of food, medicine, fuel and basic services.

Prospects for criminal accountability

Both Israel and the US have refused to ratify the Rome Statute. But if Palestine were a party to the statute, the ICC could exercise jurisdiction over crimes committed by Israelis and Americans in Palestinian territory. The ICC could also take jurisdiction if the UN Security Council refers the matter to the ICC, or if the ICC prosecutor initiates an investigation of the crime. The US would veto any Security Council referral to the ICC. And the ICC prosecutor has not initiated an investigation. So the question is whether Palestine can ratify the statute, thereby becoming a party to the ICC.

In 2009, the Palestinian National Authority filed a declaration [PDF] with the ICC accepting the court's jurisdiction. In 2012, the UN General Assembly overwhelmingly recognized Palestine as a non-member observer state. During the present war, the Palestinian minister of justice and the deputy minister of justice both submitted documents to the ICC indicating that the 2009 declaration is still valid. On August 5, 2014, the Palestinian minister of foreign affairs met with officials from the ICC and inquired about the procedures for Palestine to become a party to the statute.

On July 25, 2014, a French lawyer filed a complaint with the ICC on behalf of the Palestinian justice minister. Citing Israel's military occupation of Palestinian territories, Israel's blockade of the Gaza Strip and the ongoing military operations there, the complaint alleges that Israel committed war crimes and other crimes. The Palestinian government has not formally commented on this complaint.

On July 23, 2014, the UN Human Rights Council established a commission of inquiry into Israeli violations of international human rights and international humanitarian law. The resolution also called on parties to the Fourth Geneva Convention to convene and respond to the alleged violations. That convention requires parties to prosecute violators. Countries can bring foreign nationals to justice for war crimes, genocide and crimes against humanity under the well-established doctrine of universal jurisdiction. Genocide charges could also be brought under the Genocide Convention, to which both Israel and the United States are parties. That convention also punishes complicity in genocide; US leaders' provision of military aid would constitute complicity.

Although the Israeli and US governments continue to maintain that Israel has only acted in self-defense against Hamas' terrorism, the weight of world opinion points in the opposite direction. There is overwhelming opposition to Israeli aggression in Gaza and calls for justice and accountability.

Both Israeli and US leaders must be criminally prosecuted for committing and aiding and abetting these crimes.

This piece first appeared on Jurist.

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Tuesday, July 15, 2014

Israel Inflicts Illegal Collective Punishment on Gaza

Israel has commenced full-scale warfare on the people of Gaza. The recent tensions began about six weeks ago when Israeli forces abducted 17 Palestinian teenage boys in the occupied West Bank. Then, on June 12, three Israeli teenagers were abducted in the southern West Bank; Israel blamed Hamas. After the three youths were found dead, a group of Israelis tortured and killed a Palestinian teenager in Jerusalem. Finally, on July 7, Israel launched a large military operation dubbed "Operation Protective Edge" in the Gaza Strip.

During the past week, Israel has killed 162 Palestinian civilians and counting, including 34 children. In addition to more than 1,200 Israeli airstrikes, Israel has threatened to launch a ground invasion of Gaza. Israel attacked a center for the mentally and physically disabled in Beit Zahiya, killing three patients and a nurse. In addition, Israel has stepped up demolitions of Palestinian homes, and administrative detentions of Palestinians without charge or trial.

The UN Office for the Coordination of Humanitarian Affairs(OCHA) reported that 77 percent of the people Israel has killed in Gaza were civilians. Although Hamas has launched about 1,000 rockets into Israel in the past week, no Israelis have been killed.

UN High Commissioner for Human Rights Navi Pillay expressed alarm at the Israeli military operations as well as the indiscriminate firing of rockets from Gaza into Israel. "For its part, the Government of Israel must take all possible measures to ensure full respect for the principles of distinction, proportionality and precautions in attack, during the conduct of hostilities, as required by international humanitarian law. In all circumstances, they must avoid targeting civilians," she said. In light of "deeply disturbing reports that many of the civilian casualties, including of children, occurred as a result of strikes on homes," Pillay continued, "serious doubt [has been raised] about whether the Israeli strikes have been in accordance with international humanitarian law and international human rights law."

The principle of distinction forbids deliberate attacks on civilians or civilian objects. The proportionality principle forbids disproportionate and excessive civilian casualties compared to the claimed military advantage gained in the attack. Precaution requires that measures be taken in advance to ensure compliance with the principles of distinction and proportionality, to minimize incidental loss of civilian life, injury to civilians and damage to civilian objects, and requires taking all feasible precautions in the choice of means and methods of warfare.

Collective Punishment by Israel

Headlines in the mainstream media falsely portray an equivalence of firepower between Israelis and Palestinians in Gaza. But Israel's use of force greatly exceeds that of the Palestinians, and the asymmetric warfare continues to escalate. The Obama administration and Congress have condemned the rocket fire into Israel by Hamas and the "deliberate targeting of civilians." But Washington says Israel has a right to defend itself, justifying Israel's bombing campaign in Gaza and blaming Hamas, while minimizing Israel's role in creating and escalating the violence.

Israel's overwhelming use of military force constitutes collective punishment, which is a war crime. The laws of war, also known as international humanitarian law, are primarily found in the Geneva Conventions. Article 33 of the Fourth Geneva Convention, to which Israel is a party, specifically forbids collective punishment. It says, "No protected person [civilian] may be punished for an offense he or she has not personally committed . . . Reprisals against protected persons and their property are prohibited."

Israel's collective punishment of Palestinians in Operation Protective Edge constitutes a deliberate policy to punish the entire population of Gaza. Since the Palestinians concluded a unity agreement between Fatah in the West Bank and Hamas in Gaza in June, Israel has stepped up the construction of illegal Israeli settlements in the West Bank and Jerusalem. Richard Falk, former UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied by Israel since 1967, noted that Israel broke off the peace talks with the Palestinians before the formation of the Palestinian unity agreement.

Israeli Prime Minister Benjamin Netanyahu has blamed Hamas for the kidnapping and killing of the three Israeli teens in order to discredit the new Palestinian unity agreement. In what amounts to a catch-22, Netanyahu has cynically stymied the peace negotiations because, he said, there was no unified voice to speak for the Palestinians. But now that the Palestinians have a unity agreement, Netanyahu is driving a wedge between Fatah and Hamas in an effort to justify and maintain Israel's occupation of Palestinian territory.

The 140 square-mile Gaza Strip, home to 1.7 million people (half of whom are children), is one of the most densely populated areas in the world. It is often described as the world's largest "open air prison," as Israel maintains a tight blockade, restricting all ingress and egress. Since mid-2013, unemployment has dramatically increased and delivery of basic services has decreased. More than 90 percent of the water in Gaza is unsuitable for drinking. The health system is close to collapse, according to the World Health Organization. Last year, the UN Committee on the Rights of the Child reported, "Palestinian children arrested by [Israeli] military and police are systematically subject to degrading treatment, and often to acts of torture." The committee also concluded that Israel's "illegal long-standing occupation" of Palestinian land, continued expansion of "unlawful" Jewish settlements, construction of the barrier wall into the West Bank [found by the International Court of Justice 10 years ago to violate international law], and the confiscation of land and demolition of homes and livelihoods "constitute severe and continuous violations of the rights of Palestinian children and their families."

After Israel's 2008 to 2009 Operation Cast Lead, in which nearly 1,400 Palestinians (82 percent of whom were civilians) and 13 Israelis were killed, a UN Human Rights Council report by a commission headed by Justice Richard Goldstone concluded, "Disproportionate destruction and violence against civilians were part of a deliberate policy [by Israel]."

In its 2009 report, the Public Committee Against Torture in Israel (PCATI) found, "During Operation Cast Lead no type of property was left untouched: residences, hospitals, schools, mosques, factories and agricultural fields were demolished by the IDF."

Israel, according to PCATI, employed "a coherent strategy that incorporated two major elements into the planning of Operation Cast Lead: 1) The implementation of the 'Dahiye Doctrine,' the principal tenet of which was to cause intentional suffering to civilians so that they would bring pressure to bear on those who were fighting against the IDF [Israel Defense Forces], and 2) The 'No Risk' policy, which placed absolute priority on preventing harm to IDF soldiers, even at the cost of greater danger to Palestinian civilians." Israel is apparently pursuing the same policy in Operation Protective Edge.

In 2013, Falk said, "the people of Gaza have endured the unendurable and suffered what is insufferable for six years. Israel's collective punishment of the civilian population in Gaza must end today." He added, "Israel has the responsibility as the Occupying Power to protect the civilian population."

"In circumstances of prolonged occupation and state terrorism," Falk observed, "Hamas is entitled to claim rights of resistance, although their precise contours are not clearly established by international law. Hamas is certainly entitled to act in self-defense within the constraints of international humanitarian law."

International Reaction

On July 12, 2014, the UN Security Council issued a unanimous statement calling for an immediate ceasefire and "de-escalation of the situation, restoration of calm, and reinstitution of the November 2012 ceasefire." That ceasefire ended eight days of bombings of Gaza by Israel that killed 140 Palestinians, and rocket attacks by Hamas along the border that killed five Israelis. In its July 12 statement, the Council expressed "serious concern regarding the crisis related to Gaza and the protection and welfare of civilians on both sides" and called for respect for international humanitarian law, including the protection of civilians.

Hanna Amira, a member of the executive committee of the Palestine Liberation Organization in the West Bank, said of the Council's statement, "This announcement deals with the oppressor and the victim in the same way; it is a general call to end the fighting, without setting any mechanism to end the fighting. What is needed is an end to the aggression against the Palestinian people in Gaza."

The Palestinian Boycott, Divestment and Sanctions (BDS) National Committee has called on "international governments to impose a two-way arms embargo immediately and to suspend bilateral agreements until Israel fully complies with international law." Indeed, US military aid to Israel also violates US law. The Human Rights and Security Assistance Act requires that the United States halt all military aid to Israel because the latter has engaged in a consistent pattern of gross violation of internationally recognized human rights.

"Because collective punishment is a war crime under the Geneva Conventions, [the Palestinian BDS National Committee] urge[s] the international community to pressure Israel to end its all-out military assault aimed against the total population of Gaza, open the Rafah crossing [between Egypt and Gaza] permanently and heed our call for boycotts, divestment and sanctions." Organizations such as the Bill Gates Foundation, the Presbyterian Church USA and the United Methodist Church are divesting from companies that profit from Israel's occupation, including Hewlett Packard, Motorola Solutions and Caterpillar.

"Israel is able to act with utter impunity because of the military, economic and political support it receives from governments around the world," according to Zaid Shuaibi, a spokesperson for the Palestinian BDS National Committee. Indeed, Israel would be unable to carry out its policies of aggression in Gaza without the support of the United States, which gives Israel more than $3 billion per year.

The United States should demand an immediate ceasefire from both Israel and Hamas. The US government should condemn Israel's escalation, bombing and collective punishment of civilians just as forcefully as it has condemned Hamas' firing of rockets. The Gaza blockade and limitations on freedom of travel of Gazans should be lifted and Israel's occupation of the Palestinian territories should be ended.

This article first appeared on Truthout.

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Monday, June 30, 2014

Will Supremes Apply Cell Phone Privacy to Metadata Collection?

In one of the most significant Fourth Amendment rulings ever handed down by the Supreme Court, all nine justices agreed in an opinion involving two companion cases, Riley v. California and United States v. Wurie, that police generally need a warrant before reading data on the cell phone of an arrestee. This decision may well presage how the Court will rule on the constitutionality of the National Security Agency (NSA) metadata collection program when that issue inevitably comes before it.

Warrants Needed to Search Cell Phone Data

There has always been a preference for search warrants when the police conduct a Fourth Amendment search or seizure. But, over the years, the Court has carved out certain exceptions to the warrant requirement, including the search incident to a lawful arrest. The 1969 case of Chimel v. California defined the parameters of this exception. Upon a lawful arrest, police can search the person of the arrestee and areas within his immediate control from which he could secure a weapon or destroy evidence. Four years later, in United States v. Robinson, the Court confirmed that the search incident to a lawful arrest is a bright-line rule. These types of searches will not be analyzed on a case-by-case basis. If the arrest is lawful, a search incident to it needs no further justification. It does not matter whether the officer is concerned in a given case that the arrestee might be armed or destroy evidence.

In Riley/Wurie, the Court declined to apply the search incident to a lawful arrest exception to searches of data contained on an arrestee’s cell phone. Chief Justice John Roberts wrote for the Court that the dual rationales for applying the exception to the search of physical objects – protecting officers and preventing destruction of evidence - do not apply to the digital content on cell phones: “There are no comparable risks when the search is of digital data.”

Moreover, “[m]odern cell phones, as a category,” Roberts noted, “implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.” Responding to the government’s assertion that a search of cell phone data is “materially indistinguishable” from searches of physical items, Roberts quipped, “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.” Indeed, Roberts observed, the search of a cell phone would typically provide the government with even more personal information than the search of a home, an area that has traditionally been given the strongest privacy protection. Modern cell phones, Roberts wrote, “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Roberts was referring to the ubiquitous presence of cell phones appended to our ears as we walk down the street.

But the Court held that while a warrant is usually required to search data on an arrestee’s cell phone, officers could rely on the exigent circumstances exception in appropriate cases. For example, when a suspect is texting an accomplice who is preparing to detonate a bomb, or a child abductor may have information about the child’s location on his cell phone, or circumstances suggest the phone will be the target of an imminent attempt to erase the data on it, police may dispense with a search warrant. 

Metadata Collection Implicates Similar Privacy Concerns

The Riley/Wurie opinion provides insights into how the Court will decide other digital-era privacy issues. Roberts was concerned that “[a]n Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns – perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD.” The Chief Justice could have been describing the NSA metadata collection program, which requires telecommunications companies to produce all of our telephone communications every day. Although the government claims it does not read the content of those communications, it does monitor the identities of the sender and recipient, and the date, time, duration, place, and unique identifiers of the communication. As Roberts pointed out in the cell phone case, much can be learned from this data. Calls to a clinic that performs abortions or visits to a gay website can reveal intimate details about a person’s private life. A URL, such as www.webMD.com/depression, can contain significant information, even without examining the content. Whether we access the Internet with our cell phones, or with our computers, the same privacy considerations are implicated.

Roberts quoted Justice Sonia Sotomayor’s concurrence in United States v. Jones, the case in which the Court held that a warrant is generally required before police install and monitor a GPS tracking device on a car. Sotomayor wrote, “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” U.S. District Court Judge Richard J. Leon also cited that concurrence by Sotomayor in his 2013 decision that the metadata collection probably violates the Fourth Amendment (Klayman v. Obama).

And both Roberts and Leon distinguished the cell phone search and metadata collection, respectively, from the 1979 case of Smith v. Maryland, in which the Court held that no warrant is required for a telephone company to use a pen register to identify numbers dialed by a particular caller. The Smith Court concluded that a pen register was not a Fourth Amendment “search,” and therefore the police did not need to use a warrant or an exception to the warrant requirement. In order to constitute a “search,” a person must have a reasonable expectation of privacy that is violated. The Court said in Smith that a person does not have a reasonable expectation of privacy in numbers dialed from a phone since he voluntarily transmits them to a third party – the phone company.

Roberts stated in the Riley/Wurie decision: “There is no dispute here that the officers engaged in a search of Wurie’s cell phone.” Likewise, Leon wrote that the issue of “whether a pen register constitutes a ‘search’ is a far cry from the issue in the [metadata collection] case.” Leon added, “When do present-day circumstances – the evolution of the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and the telecom companies – become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now.”

If the Court is consistent in its analysis, it will determine that the collection by the government of all of our electronic records implicates the same privacy concerns as the inspection of the data on our cell phones. It remains to be seen if and when the metadata collection issue comes before the Court. But the fact that the cell phone decision was 9-0 is a strong indication that all of the justices, regardless of ideology, are deeply concerned about protecting the privacy of our electronic communications.

This piece first appeared on Jurist.
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Thursday, June 19, 2014

Obama on the Brink: War or Peace?

Once again, we are poised on the brink of a war that could violate US and international law. President Barack Obama faces a critical decision: will he meaningfully pursue a peaceful solution - even collaborating with Israel's archenemy Iran - or will he succumb to pressure from the hawks responsible for destabilizing Iraq during the misnamed "Operation Iraqi Freedom?"

The Crisis in Iraq and "Operation Iraqi Freedom"

After two horrific wars that killed millions of people, the countries of the world adopted the United Nations Charter "to save succeeding generations from the scourge of war." Although the Charter is part of US law, President Obama is poised to violate it if he mounts a military attack on Iraq.

All hell has broken loose in Iraq. The Islamic State of Iraq and Syria (ISIS) and its Sunni allies have taken control of Mosul, Iraq's second largest city; they control most of the western and northern sections of Iraq, and they're headed for Baghdad. Nearly 500 civilians have been killed and more than 1,600 have been wounded. Close to 53,000 people have been displaced from Anbar Province. The bloodshed is directly attributable to the illegal and ill-advised 2003 US-led invasion of - and regime change in - Iraq.

ISIS, a Syrian group, is a successor to Al-Qaeda in Iraq, which did not even exist before "Operation Iraqi Freedom" destabilized Iraq and much of the Middle East, attracting extremist groups. The US-led war wreaked devastation on Iraq, killing tens of thousands of Iraqis and leaving untold numbers maimed. The war and punishing sanctions destroyed Iraq's infrastructure, leaving the country in shambles.

Saddam Hussein, who was deposed and later executed by US-supported forces, was a secular Sunni Muslim. Although a tyrant (like many of the dictators the United States has supported), he held Iraq together, preventing it from devolving into sectarian chaos.

"Operation Iraqi Freedom" was based on the lie that Hussein had weapons of mass destruction (WMD) that he would share with al-Qaeda. The price of the US-led war there was astronomical. The Costs of War report, just issued by Brown University, found that the war in Iraq claimed 190,000 lives and will cost the United States at least $2.2 trillion. More than 70 percent, or about 134,000, of the dead were civilians. Of those killed, 4,488 were US troops, and at least 3,400 were US contractors (mercenaries). Moreover, the US government has spent $60 billion on reconstruction in Iraq, most of which has gone to the Iraqi military and police, not to rebuild the country's infrastructure.

"Operation Iraqi Freedom" also violated the United Nations (UN) Charter, which forbids a country from using military force against another country unless carried out in self-defense or with the blessing of the UN Security Council. Iraq had not attacked any country since it went into Kuwait in 1990, and the Security Council did not sanction the 2003 US-led attack on Iraq. George W. Bush, Dick Cheney, Condoleezza Rice and Donald Rumsfeld mounted a war of aggression in Iraq, a crime the judges at Nuremberg called "the supreme international crime."

Repression by al-Maliki

The US-led invasion of Iraq helped install Nuri Kamal al-Maliki, a Shiite Muslim, as prime minister. But instead of uniting the different religious groups after the US troops left two and a half years ago, the al-Maliki government viciously cracked down on its opponents. Torture, rape and arbitrary, mass arrests of Sunnis were common. Protestors were murdered, their leaders assassinated. What began as a peaceful opposition movement during the "Iraqi Spring" turned violent in response to al-Maliki's repression. Many of those nonviolent protestors have joined ISIS.

Some Republicans argue that Obama should have kept our troops in Iraq instead of withdrawing them two years ago in accordance with the Status of Forces Agreement (SOFA) the Bush administration negotiated. In fact, Obama, who later took credit for pulling US troops out of Iraq, tried to negotiate a new SOFA with the Iraqi government to postpone our departure. However, al-Maliki refused to continue to grant US soldiers immunity for any criminal or civil wrongs they might commit. This followed Chelsea Manning's publication of the "Collateral Murder Video," which depicted the commission of war crimes by US forces in Iraq.

More US intervention in Iraq?

Meanwhile, "the US government - the prime cause of these problems to begin with - prepares to intervene however it chooses," according to Falah Alwan, of the Federation of Workers' Councils and Unions in Iraq.

US Secretary of State John Kerry announced that Obama was considering all available options, including drone strikes, in Iraq. Manned US warplanes based in the Gulf might also be used to mount air strikes. This course of action promises to exacerbate the violence and could prove disastrous, inviting terrorist attacks against US interests in the Gulf. US defense and intelligence officials told The Daily Beast that the Pentagon and CIA are not sure exactly who US forces should target. Bombing would inevitably kill many civilians in urban areas. Moreover, the United States would once again be violating the UN Charter. The United States would not be acting in self-defense because Iraq has not attacked us or any other UN member country. And the Security Council has not given its approval for a US attack on Iraq; the United States would have to secure agreement from all five permanent Council members: the Russian Federation, China, France, United Kingdom and United States. Under the War Powers Resolution, the President can introduce US troops into hostilities, or into situations “where imminent involvement in hostilities is clearly indicated by the circumstances,” only after (1) a Congressional declaration of war, (2) “specific statutory authorization,” or (3) in “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” This is the current situation: First, Congress has not declared war. Second, neither the 2002 Authorization for the Use of Military Force (AUMF) (which Bush used to invade Iraq), nor the 2001 AUMF (which Bush used to invade Afghanistan), would provide a legal basis for an attack on Iraq at the present time. Third, there has been no attack on the United States or US armed forces. Moreover, the UN Charter only allows a military attack on another country in the case of self-defense or when the Security Council authorizes it; neither is the case at the present time.

Obama has ordered 275 US troops to Iraq to protect the US embassy there. He has reserved the option of sending 100 "security forces" who would coordinate US airstrikes, share intelligence with Iraqi security forces, and provide the Iraqi army with tactical advice. If Obama attacks Iraq, "Bush's war" will become "Obama's war."

But Obama is poised on the horns of a dilemma. On June 13, he said, "We're also going to pursue intensive diplomacy throughout this period both inside of Iraq and across the region." Obama has expressed a willingness to collaborate with Iran, a Shiite-led country with close ties to the al-Maliki government, about ending the bloodshed in Iraq. This is a positive development, which hopefully will encompass broader issues, including the conflict in Syria, where Iran supports President Bashar al-Assad.

Kerry called ISIS an "existential" danger to Iraq. Ironically, Israel considers Iran an "existential" threat to its security. Thus far, Obama has proceeded cautiously with Iran during negotiations over Iran's alleged nuclear weapons program, but, siding with Israel, maintains that "all options are on the table," including US military force against Iran.

Obama has an unprecedented opportunity to be a real peacemaker in Iraq. The wisest course of action is a diplomatic solution that embraces the entire region. The United States should propose a resolution in the Security Council that would require an immediate ceasefire in Iraq and peacekeepers under UN auspices be sent to Iraq. Obama should also return to the Geneva process in collaboration with Iran, and seek a political solution to the Syrian crisis. The Security Council should pass a resolution mandating an immediate ceasefire in Syria and a peaceful resolution of that dispute. Iran, which supports the al-Maliki government in Iraq and the Assad regime in Syria, is key to any regional peace agreement in the Middle East. Peace is within reach if Obama has the fortitude to stand up to the "experts" who are invariably advising him to pursue military options in Iraq. What course will he choose? 


Copyright, Truthout.org. Reprinted with permission. [http://truth-out.org/news/item/24452-obama-on-the-brink-war-or-peace]

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Tuesday, June 10, 2014

U.S. Nearly Used Nukes During Viet Nam War

We came dangerously close to nuclear war when the United States was fighting in Viet Nam, Pentagon Papers whistleblower Daniel Ellsberg told a reunion of the Stanford Anti-Viet Nam War Movement in May 2014. He said that in 1965, the Joint Chiefs assured President Lyndon B. Johnson that the war could be won, but it would take at least 500,000 to one million troops. The Joint Chiefs recommended hitting targets up to the Chinese border. Ellsberg suspects their real aim was to provoke China into responding. If the Chinese came in, the Joint Chiefs took for granted we would cross into China and use nuclear weapons to demolish the communists. Former President Dwight D. Eisenhower also recommended to Johnson that we use nuclear weapons in both North and South Viet Nam. Indeed, during the 1964 presidential campaign, Republican nominee Barry Goldwater argued for nuclear attacks as well. Johnson feared that the Joint Chiefs would resign and go public if Johnson didn’t follow at least some of their recommendation and he needed some Republican support for the “Great Society” and the “War on Poverty.” Fortunately, Johnson resisted their most extreme proposals, even though the Joint Chiefs regarded them as essential to success. Ellsberg cannot conclude that the antiwar movement shortened the war, but he says the movement put a lid on the war. If the president had done what the Joint Chiefs recommended, the movement would have grown even larger, but so would the war, much larger than it ever became.

“The Most Dangerous Man in America”

Ellsberg, a former U.S. military analyst and Marine in Viet Nam, worked at the RAND Corporation and the Pentagon. He risked decades in prison to release 7,000 top-secret documents to the New York Times and other newspapers in 1971. The Pentagon Papers showed how five Presidents consistently lied to the American people about the Viet Nam War that was killing thousands of Americans and millions of Indochinese. Ellsberg’s courageous act lead directly to the Watergate scandal, Nixon’s resignation, and helped to end the Viet Nam War. Henry Kissinger, Nixon’s National Security Advisor, called Ellsberg “the most dangerous man in America,” who “had to be stopped at all costs.” But Ellsberg wasn’t stopped. Facing 115 years in prison on espionage and conspiracy charges, he fought back. The case against him was dismissed due to egregious misconduct by the Nixon administration. Ellsberg’s story was portrayed in the Oscar-nominated film, “The Most Dangerous Man in America.” Edward Snowden told Ellsberg that film strengthened his intention to release the NSA documents.

The April Third Movement

On April 3, 1969, 700 Stanford students voted to occupy the Applied Electronics Laboratory (AEL), where classified (secret) research on electronic warfare (radar-jamming) was being conducted at Stanford. That spawned the April Third Movement (A3M), which holds reunions every five to ten years. The sit-in at AEL, supported by a majority of Stanford students, lasted nine days, replete with a printing press in the basement to produce materials linking Stanford trustees to defense contractors. Stanford moved the objectionable research off campus, but the A3M continued with sit-ins, teach-ins, and confrontations with police in the Stanford Industrial Park. Many activists from that era continue to do progressive work, drawing on their experiences during the A3M. This year, we discussed the political economy of climate change, and the relationship between the counterculture of the 1960’s and the development of Silicon Valley. Highlights of the weekend included three keynote addresses – Ellsberg’s; one delivered by Stanford political science Professor Terry Karl; and a talk by Rutgers Professor of English and American Studies, H. Bruce Franklin.

“Accountability for war crimes: from Viet Nam to Latin America”

Terry Karl is a Stanford professor who has published widely on political economy of development, oil politics, Latin America and Africa, and human rights. She also testifies as an expert witness in trials against Latin American dictators and military officers who tortured, disappeared and killed civilians in the 1970’s and 1980’s, when their governments were supported by the United States. Karl’s testimonies have helped to establish guilt and accountability for the murders of El Salvador’s Archbishop Romero, the rape and murders of four American churchwomen, and other prominent cases.

Karl quoted President George H. W. Bush, who announced proudly after the first Gulf War in 1991, “The specter of Viet Nam has been buried forever in the desert sands of the Arabian peninsula.” Nevertheless, Karl observed, we have been involved in “permanent war” since Vietnam, in part because there had been no accountability, abroad or at home, for each of our past wars. The U.S. global military presence around the world, according to Karl, is not there for defense, but rather to maintain the United States “at the top.” No defense can be based on having soldiers in 150 countries.

Beginning with Vietnam, we stopped paying taxes for the wars we fight, Karl said. The Korean War was financed with taxes, but the Viet Nam War was paid for through inflation. This helped to produce the recession that was the basis for the election of Ronald Reagan in 1980. Wars in Central America, Iraq and Afghanistan have been “paid for” through debt. In this respect, permanent war not only threatens our democracy, Karl pointed out, but also our economic future. In one example, Karl noted that the United States fights wars to secure oil and gas; yet the largest consumer of oil in the world is the Department of Defense because of those very wars.

Karl also observed that we have not “won” all of these unpaid wars – if measured against their original objectives. The United States fought in Viet Nam to prevent communist reunification of the country; yet that is exactly what happened. The Reagan administration decided to “draw the line” in El Salvador to prevent FLMN rebels from coming to power; yet the FMLN is the government today. And the Reagan administration supported the contras in Nicaragua to prevent the Sandinistas from governing that country; the Sandinistas are now in control. She predicted we would see similar “victories” in Iraq and Afghanistan.

“The cultural memory of the Viet Nam War in the epoch of Forever War”

H. Bruce Franklin was the first tenured professor to be fired by Stanford University, and the first to be fired by a major university since the 1950’s. Franklin, who was a Marxist and an active member of A3M, was terminated because of things he said at an anti-war rally, statements that, according to the ACLU, amounted to protected First Amendment speech. Franklin, a renowned expert on Herman Melville, history and culture, has taught at Rutgers University since 1975. He has written or edited 19 books and hundreds of articles, including books about the Viet Nam War. Before becoming an activist, Franklin spent three years in the U.S. Air Force, “flying,” he said, “in operations of espionage and provocation against the Soviet Union and participating in launches for full-scale thermonuclear war.” Franklin told the reunion about myths the U.S. government has promulgated since the Viet Nam War. “One widespread cultural fantasy about the Viet Nam War blames the antiwar movement for losing the war, forcing the military to ‘fight with one arm tied behind its back’,” Franklin said. “But this stands reality on its head,” he maintains. Franklin cited the American people’s considerable opposition to the war. “Like the rest of the movement at home,” he noted, “the A3M was inspired and empowered by our outrage against both the war and all those necessary lies about the war coming from our government and the media, as well as the deceitful participation of institutions that were part of our daily life, such as Stanford University.” The war finally ended, Franklin thought, because of the antiwar movement, particularly opposition to the war within the military.

The other two myths Franklin debunked are first, that the real heroes are the American prisoners of war (POW’s) still imprisoned in Viet Nam; and second, that many veterans of the Viet Nam War were spat upon by antiwar protestors when they returned home. The black and white POW/MIA (missing in action) flag has flown over the White House, U.S. post offices and government buildings, the New York Stock Exchange, and appears on the right sleeve of the official robe of the Ku Klux Klan, according to Franklin. “The flag now came to symbolize our culture’s dominant view of America as the heroic warrior victimized by ‘Viet Nam’ but then reemerging as Rambo unbound,” he said. After talking to several Japanese scholars he met on a trip to Japan, Franklin realized he had missed the “most essential and revealing aspect” of the POW/MIA myth. The scholars told him, “When militarism was dominant in Japan, the last person who would have been used as an icon of militarism was the POW. What did he do that was heroic? He didn't fight to the death. He surrendered." Franklin told the reunion: “Both the POW and the spat-upon vet become incarnations of America, especially American manhood, as victim of ‘Vietnam,’ which is not a people or a nation but something terrible that happened to us.” He also said that there is absolutely no evidence that any Viet Nam vet was spat upon by an antiwar protestor. “These two myths turned ‘Vietnam’ into the cultural basis of the forever war,” Franklin said. He quoted George H. W. Bush who proclaimed in 1991, “By God, we’ve kicked the Viet Nam Syndrome once and for all.”

The legacy of the Viet Nam War

But, as Karl and Franklin observed, we are now engaged in a “permanent war” or “forever war.” Indeed, the U.S. government has waged two major wars and several other military interventions in the years since Viet Nam. And in his recent statement on U.S. foreign policy, President Barack Obama said: “The United States will use military force, unilaterally if necessary, when our core interests demand it – when our people are threatened; when our livelihoods are at stake; when the security of our allies is in danger.” Obama never mentioned the United Nations Charter, which forbids “unilateral” intervention - the use or threat of military force unless carried out in self-defense or with the consent of the Security Council.

The U.S. military, Karl noted, teaches that the Viet Nam war was a success. And, indeed, during the next eleven years, leading up to the 50th anniversary of that war, the U.S. government will continue to mount a false narrative of that war. [See http://www.vietnamwar50th.com/]. Fortunately, Veterans for Peace has launched a counter-commemoration movement, to explain the true legacy of Viet Nam. [See http://www.vietnamfulldisclosure.org/]. It is only through an accurate understanding of our history that we can struggle against our government’s use of military force as the first, instead of the last, line of defense.
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Thursday, May 15, 2014

Death to the Death Penalty

The recent torturous execution of Clayton Lockett in Oklahoma has propelled the death penalty into the national discourse. The secret three-drug cocktail prison authorities administered to Lockett – the first to render him unconscious, the second to paralyze him, and the third to stop his heart and kill him - didn’t work as planned. After writhing in pain for 43 minutes, he finally died of a heart attack. Madeline Cohen, a lawyer who witnessed the botched execution, said Lockett had been “tortured to death.” Seasoned reporters, also witnesses, called it “horrific.” President Obama found it “deeply disturbing” and promised a review of how the death penalty is administered.

But the issue is not simply the most “painless,” fair, and efficient method the 32 death penalty states should use to put someone to death. It is not just a problem of executing innocent people, or the dubious constitutionality of the death penalty, or racism in its application and imposition, or that the death penalty does not deter homicide, or the higher cost of keeping someone on Death Row, or that nearly all industrialized countries have abolished capital punishment. The premeditated killing of a human being by the state is just plain wrong and the United States should abolish it.

A week after Lockett’s execution, the Constitution Project released its report after one of the most comprehensive examinations of capital punishment in the United States. Calling the administration of the death penalty “deeply flawed,” the report focused on procedural deficiencies. It recommended that death penalty states should use one drug instead of three to kill their citizens. It called for fewer constraints on post-conviction review of exonerating evidence, and videotaping of interrogations to identify false confessions, concluding that over 80 percent of 125 documented false confessions occurred in homicide cases; 20 percent of the defendants in those cases were sentenced to death. It recommended the abolition of the death penalty for “felony murder,” in which a person participates in, but does not commit, the homicidal act. It expressed concern about inconsistent application of the ultimate penalty since the Supreme Court ruled in 2002 that intellectually disabled individuals should not be executed. It criticized states such as Texas, Alabama and Pennsylvania for compensating capital defense lawyers so poorly that it is “nearly impossible” to receive a proper defense. And it urged death penalty states to determine whether there are racial disparities in the application of the death penalty. The bipartisan panel did not, however, recommend abolition of capital punishment.

Innocents on Death Row

A new study just released by the Proceedings of the National Academy of Sciences determined that 1 in every 25, or 4.1 percent, of people on death row, are innocent. But the innocence rate is 4.1 percent, more than twice the rate of exoneration. That means an unknown number of innocent people have been put to death. “Every time we have an execution, there is a risk of executing an innocent. The risk may be small, but it’s unacceptable,” said Richard Dieter, executive director of the Death Penalty Information Center.

Cruel and Unusual Punishment

The Eighth Amendment to the Constitution outlaws “cruel and unusual punishments.” Although the Supreme Court has upheld the death penalty, some justices have concluded it violates the Eighth Amendment. In 1972, in Furman v. Georgia, the high court imposed a moratorium on the death penalty because it was arbitrarily imposed. Justice Potter Stewart wrote for the majority that executions were “so wantonly and so freakishly imposed” that they are “cruel and unusual in the same way that being struck by lightning is cruel and unusual.” But Stewart was only opposed to capital punishment as a matter of policy. States revised their death penalty statutes to eliminate arbitrariness, and four years later, the Court upheld Georgia’s new and improved death penalty law in Gregg v. Georgia. Unlike Justices William Brennan and Thurgood Marshall, Stewart did not believe the death penalty was unconstitutional.

Marshall noted in his concurrence in Furman, “Perhaps the most important principle in analyzing ‘cruel and unusual’ punishment questions is [that] . . . the cruel and unusual language ‘must draw its meaning from the evolving standards of decency that mark the progress of a maturing society’ . . . Assuming knowledge of all the facts presently available regarding capital punishment, the average citizen would, in my opinion, find it shocking to his conscience and sense of justice. For this reason alone, capital punishment cannot stand.”

Brennan also concurred in Furman. He wrote, “When examined by the principles applicable under the Cruel and Unusual Punishment Clause, death stands condemned as fatally offensive to human dignity. The punishment of death is therefore ‘cruel and unusual,’ and the States may no longer inflict it as a punishment for crimes. Rather than kill an arbitrary handful of criminals each year, the States will confine them in prison.”

Eighteen years after Furman, Justice Harry Blackmun came to the conclusion that the death penalty was unconstitutional. In 1994, his last year on the Court, Blackmun famously wrote, “From this day forward, I no longer shall tinker with the machinery of death.”

Most recently, in 2008, Justice John Paul Stevens decided the death penalty amounts to cruel and unusual punishment. Stevens concluded, “[T]he imposition of the death penalty represents ‘the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.’” [quoting Justice Byron White’s Furman concurrence]. In his new book, Six Amendments, Stevens proposes the Eighth Amendment be changed to read, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted.”

Racism in Imposition

According to Death Penalty Focus, the race of the victim and the race of the defendant in capital cases are major determinants in who is sentenced to death in the United States. A 1990 report by the General Accounting Office found "in 82 percent of the studies [reviewed], race of the victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e. those who murdered whites were more likely to be sentenced to death than those who murdered blacks." The Innocence Project reports that of the 316 post-conviction DNA exonerations, 198 involved African Americans.

Think Progress reports that African American defendants convicted of killing whites are much more likely to receive a sentence of death than white defendants convicted of killing African Americans. Since 1976, only 20 white people have been have been executed in the United States for killing a black person. But 269 black defendants were executed for killing a white person. Death sentences in Louisiana are 97 percent more likely in murder cases when the victim is white. Florida has never executed a white person for killing a black person.

Not a Deterrent Capital punishment does not deter people from committing homicide. Dartmouth University statistician John Lamperti notes “an overwhelming majority among America’s leading criminologists [have concluded that] capital punishment does not contribute to lower rates of homicide.” In fact, murder rates in non-death penalty states are lower than murder rates in states with the death penalty, according to the Death Penalty Information Center.

Life Without Parole Saves Money

The alternative to the death penalty is life in prison without the possibility of parole. Judge Arthur Alarcon and Prof. Paula Mitchell concluded that the cost of the death penalty in California has totaled over $4 billion since 1978. They calculated that a gubernatorial commutation of those sentences would result in an immediate savings of $170 million per year, a savings of $5 billion over the next 20 years. The California Commission on the Fair Administration of Justice found in 2008: “The additional cost of confining an inmate to death row, as compared to the maximum security prisons where those sentenced to life without possibility of parole ordinarily serve their sentences, is $90,000 per year per inmate.”

International Consensus

International treaties and customary norms forbid capital punishment. They include the International Covenant on Civil and Political Rights (ICCPR) and its Second Optional Protocol, and Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty. Last year, only 22 countries not involved in military conflict carried out executions. The United Nations Human Rights Committee found the United States to be in noncompliance with its obligations under the ICCPR due to the excessive number of offenses subject to the death penalty and the number of death sentences imposed. The Death Penalty Information Center reports that the countries that carried out the most executions in 2013 were China, Iran, Iraq, Saudi Arabia, Somalia and the United States. Does the United States really want this to be its peer group? 

End Institutionalized Murder

Five U.S. states have abolished capital punishment in the last seven years. Support for the death penalty in the United States is waning. In October 2013, 60 percent of Americans favored capital punishment, down 20 percent from 1994.

The American Medical Association, the American Public Health Association, the American Board of Anesthesiology, and the American Nurses Association prohibit members from assisting in executions; they consider it a violation of their medical code of ethics.

Years after witnessing the excesses of the French Revolution, the Marquis de Lafayette told the French Chamber of Deputies in 1830, “I shall ask for the abolition of the punishment of death until I have the infallibility of human judgment demonstrated to me.” Indeed, as Eugene Robinson wrote in the Washington Post, “We fool ourselves if we think there is a ‘humane’ way to kill someone . . . The death penalty has no place in a civilized society . . . [T]here is no way to impose capital punishment without betraying the moral standards that our justice system is theoretically designed to uphold. Put simply, when we murder we become murderers.” Supreme Court Justice Arthur J. Goldberg wrote in 1976, “The deliberate institutionalized taking of human life by the state is the greatest conceivable degradation to the dignity of the human personality.”

It is high time for all of the states in this country and the federal government itself to outlaw capital punishment. There is no good reason to retain it, and compelling reasons to abolish it.

Copyright, Truthout.org. Reprinted with permission.
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Sunday, March 23, 2014

BDS: Non-Violent Resistance to Israeli Occupation

Thanks to Scarlett Johansson, the American Studies Association (ASA), and Israeli Prime Minister Benjamin Netanyahu, the Boycott, Divestment and Sanctions (BDS) movement has entered our national discourse. Representatives of Palestinian civil society launched BDS in 2005, calling upon “international civil society organizations and people of conscience all over the world to impose broad boycotts and implement divestment initiatives against Israel similar to those applied to South African in the apartheid era . . . [including] embargoes and sanctions against Israel.” The call for BDS specified that “these non-violent punitive measures” should last until Israel fully complies with international law by (1) ending its occupation and colonization of all Arab lands and dismantling the barrier Wall; (2) recognizing the fundamental rights of the Arab-Palestinian citizens of Israel to full equality; and (3) respecting, protecting and promoting the rights of Palestinian refugees to return to their land as stipulated in UN resolution 194.

Johansson is a spokesperson for SodaStream, a seltzer-making company whose major factory is located in an Israeli settlement in the occupied West Bank. SodaStream generates the highest volume of settlement exports to Europe. Until recently, Johansson was also an ambassador for Oxfam, which, like many other international organizations, opposes all trade from the Israeli settlements in the West Bank because companies are operating there illegally. Shortly before Johansson’s commercial for SodaStream aired during the Super Bowl last month, Oxfam forced Johansson to choose between SodaStreama and Oxfam. She chose SodaStream, stepping down from her post with Oxfam.

Additionally, the ASA recently endorsed a boycott of Israeli academic institutions, which emerged “from the context of U.S. military and other support for Israel; Israel’s violation of international law and UN resolutions; the documented impact of the Israeli occupation on Palestinian scholars and students; the extent to which Israeli institutions of higher education are a party to state policies that violate human rights; and finally, the support of such a resolution by a majority of ASA members.” In its statement of support for the ASA boycott, faculty members at the American University in Cairo cited Israeli policies that “have rendered the Gaza Strip the world’s largest open-air penitentiary.” The ASA is the third major U.S. academic organization – together with the Asian American and Native American and Indigenous Studies Association – to endorse the academic boycott of Israel during the past year.

And, earlier this month, when he delivered the keynote address to the annual meeting of the powerful Israel lobby in the United States, American Israel Public Affairs Committee (AIPAC), Netanyahu spent almost as much time attacking BDS as he did explaining why he thinks Iran is a strategic threat to Israel. Clearly disturbed by the proliferation of BDS worldwide, Netanyahu claimed, “Those who wear the BDS label should be treated exactly as we treat any anti-Semite or bigot.” 

Is BDS anti-Semitic?

But, in the words of Rafeef Ziadah, a spokesperson for the Palestinian Boycott, Divestment and Sanctions National Committee, “The BDS movement is opposed, as a matter of principle, to all forms of discrimination, including anti-Semitism and Islamophobia.” In January, Palestinian human rights activist Omar Barghouti wrote in the New York Times, “Arguing that boycotting Israel is intrinsically anti-Semitic is not only false, but it also presumes that Israel and ‘the Jews’ are one and the same. This is as absurd and bigoted as claiming that a boycott of a self-defined Islamic state like Saudi Arabia, say, because of its horrific human rights record, would of necessity be Islamophobic.” Barghouti also noted, “BDS doesn’t pose an existential threat to Israel; it poses a serious challenge to Israel’s system of oppression of the Palestinian people, which is the root cause of its growing worldwide isolation.”

Nobel Peace Prize winner South African Archbishop Desmond Tutu concurs. “My voice will always be raised in support of Christian-Jewish ties and against the anti-Semitism that all sensible people fear and detest,” Tutu wrote in the Tampa Bay Times. “But this cannot be an excuse for doing nothing and for standing aside as successive Israeli governments colonize the West Bank and advance racist laws,” he added, noting “Israel’s theft of Palestinian land” and “Jewish-only colonies built on Palestinian land in violation of international law.”

Tutu cited the 2010 Human Rights Watch report, which “describes the two-tier system of laws, rules, and services that Israel operates for the two populations in areas in the West Bank under its exclusive control, which provide preferential services, development, and benefits for Jewish settlers while imposing harsh conditions on Palestinians.” Tutu writes, “This, in my book, is apartheid. It is untenable.” He called on “people and organizations of conscience to divest from . . . Caterpillar, Motorola Solutions and Hewlett Packard,” which profit “from the occupation and subjugation of Palestinians.”

Moreover, if BDS is anti-Semitic, why do so many Jews support it? In her recent piece in Tikkun Daily, Jewish Voice for Peace board member Donna Nevel mentioned that “respected members of the liberal Jewish community” and “a few liberal Zionist groups,” formerly opposed to BDS, are now calling for boycotts of products made in the settlements. She points out that groups like Jews Say No and Jewish Voice for Peace – “a diverse and democratic community of activists inspired by Jewish tradition to work together for peace, social justice, and human rights” - are “resonating with increasing numbers of Jews who support BDS as a natural outgrowth of their commitments.”

Some Jews in Israel have also engaged in non-violent resistance to Israeli government policies. Sixty youth recently signed an open letter to Netanyahu announcing their refusal to serve in the Israeli military due to the dehumanization of Palestinians living under occupation. In the occupied Palestinian territories, they wrote, “human rights are violated, and acts defined under international law as war-crimes are perpetuated on a daily basis.” The signatories cite “assassinations (extrajudicial killings), the construction of settlements on occupied lands, administrative detentions, torture, collective punishment and the unequal allocation of resources such as electricity and water.”

How extensive is the BDS movement?

The BDS movement is spreading throughout the world. European pension funds are divesting from banks and companies that operate in settlements, and European markets are labeling Israeli goods made in the West Bank. In January, PGGM, the Netherlands’ second largest pension fund, decided to divest from five of Israel’s largest banks because they financed companies involved in the construction of settlements. PGGM is the second Dutch company to recently break ties with Israeli companies. Also in January, two of Europe’s largest financial institutions, Nordea and Danske Bank, agreed to boycott Israeli banks with branches in the West Bank. Norway’s Government Pension Fund Global, a multibillion operation, has blacklisted Africa Israel Investments and Danya Cebus due to their ties to settlements in the West Bank. Argentine authorities have suspended a proposed $170 million water treatment plant’s deal with Israel’s state water company Mekorot, in response to local trade unions and human rights organizations that connected Mekorot’s role in Israel’s illegal theft of Palestinian water resources. Many Western artists and bands refuse to perform in Israel.

In his final report to the United Nations, Richard Falk, Special UN Rapporteur on the Occupied Palestinian Territories, called on the international community to comprehensively investigate the business activities of companies and financial institutions registered in their own respective countries, which profit from the settlements in Israel and other unlawful Israeli activities. He advocated that they “take appropriate action to end such practices and ensure appropriate reparation for affected Palestinians.” Significantly, Falk wrote, “Member States should consider imposing a ban on imports of settlement produce.”

Israel’s Maariv newspaper reported that the international boycott of Israeli settlement products has already led to financial losses of $30 million. Indeed, last August, Secretary of State John Kerry warned that Israel could face a boycott campaign “on steroids” if it continues to build settlements in the occupied West Bank.

In a recent interview, President Barack Obama asked, “Do you resign yourself to what amounts to a permanent occupation of the West Bank? Is that the character of Israel as a state for a long period of time? Do you perpetuate, over the course of a decade or two decades, more and more restrictive policies in terms of Palestinian movement? Do you place restrictions on Arab-Israelis that run counter to Israel’s traditions?” These are bold words. But it is unlikely Obama will follow them with bold action. 

Israel remains the largest recipient of U.S. foreign aid, over $3 billion a year. And Elbit Systems Ltd., Israel’s largest arms manufacturer, has just been awarded a $145 million contract by the U.S. Department of Homeland Security Customs and Border and Protection to deploy border surveillance technology in southern Arizona. Elbit is the Israeli military’s largest suppliers of drones, which were involved in the killing of 29 children during Israel’s attack on Gaza in 2008-2009, and the ongoing bombing of Gaza. In light of Israel’s documented human rights violations, U.S. assistance and the Elbit contract are unacceptable. “Those who turn a blind eye to injustice actually perpetuate injustice,” Tutu said. “It doesn’t matter where we worship or live.”

Anti-BDS legislation and blacklisting student groups

Nevertheless, there has been a vigorous campaign to pass anti-BDS legislation, both in Israel and in the United States. In 2011, the Israeli Knesset passed an anti-boycott law which would sanction anyone who declares a commercial embargo on Israel, and label any boycott a civil offense subjecting its initiators to litigation. Several Israeli and U.S. human rights groups asked that the law be annulled and a special panel of the Israeli High Court of Law held a hearing on the bill in February. The New York Times opposed the bill, noting, “this is a fundamental issue of free speech.”

Anti-boycott legislation introduced earlier this year in both New York and Maryland which would punish institutions that endorse the boycott were withdrawn after several educators and legislators criticized the bills as an attack on academic freedom. But a revised version of the New York bill has been introduced that would punish colleges that use public funds for activities that support boycotts of Israel. In early March, the Protect Academic Freedom Act was introduced in the House of Representatives, which would deny government funding to any U.S institution that endorses the academic boycott of Israel.

And bills have been introduced in several state legislatures to penalize universities if their faculty members participate in professional organizations that express a political viewpoint by endorsing a boycott. More than 150 scholars and others signed a statement recognizing boycotts as “internationally affirmed and constitutionally protected forms of political expression.” Columbia Law School Professor Katherine Frank wrote, “A law targeting the boycott today cannot be differentiated from the laws that punished boycotts in the U.S. civil rights movement or those that compelled academics to sign loyalty oaths as a condition of employment.”

In another campaign against the BDS movement, some universities, including Northeastern, have banned Students for Justice in Palestine (SJP) from campuses and threatened disciplinary measures against some SJP members. This appears to be “part of a coordinated effort by the Israeli government and the Israel lobby to blacklist all student groups that challenge the official Israeli narrative,” according to Chris Hedges.

Resistance to the banning of student groups that criticize Israeli policies should cite the well-established Supreme Court precedents protecting academic freedom of speech, including Healy v. James (“[t]he college classroom with its surrounding environs is peculiarly the marketplace of ideas”), Keyishian v. Bd. of Regents of Univ. of N.Y. (“the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools [of higher learning]”), and Snyder v. Phelps (“speech on matters of public concern . . . is at the heart of the First Amendment’s protection”).

But unless and until Israel ends its brutal occupation of Palestinian lands, grants full equality to all its people - including Palestinians - and recognizes the right of Palestinian refugees to return to their land, the non-violent BDS movement will continue to grow and cripple the Israeli economy. A system based on inequality and oppression cannot survive.
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