The US routinely shares private information about its citizens of Arab and Palestinian descent with Israel, the New York Times revealed yesterday.
In an Op-Ed in the newspaper, James Bamford said that the former National Security Agency (NSA) contractor Edward Snowden told him that the US “routinely passed private, unedited communications to Israel”.
Documents leaked by Snowden reveal that the US passes on “unevaluated and unminimised transcripts, gists, facsimiles, telex, voice and Digital Network Intelligence metadata and content,” to Unit 8200, an elite Israeli intelligence department.
He said the intercepts included communications of Arab and Palestinian-Americans, whose relatives in Israel and the Palestinian territories could become targets based on the information.
Whistleblower Snowden said this is ”one of the biggest abuses we’ve seen”, Bamford reported.
Bamford cited a memorandum of understanding between the NSA and Unit 8200 outlining transfers that have occurred since 2009.
Snowden, a former NSA contractor, is wanted by the US on espionage charges after leaking thousands of secret NSA documents.
He claimed asylum in Russia, where he has been granted a three-year residency that allows him to travel abroad.
Last Wednesday Israeli Police filed an indictment against an officer who was filmed beating Tariq Abu Khdeir, a 15 year old Palestinian-American teenager from Florida. He was beaten and arrested during a demonstration to protest the brutal murder of his cousin Mohammed Abu Khdeir. On 2nd July 16 year old Mohammed was abducted and burned alive by Israeli extremists in supposed revenge for the killing of three Israeli teenagers.
Tariq’s bruised face caused outrage in the United States and the State Department called for a “speedy, transparent and credible investigation and full accountability for any excessive use of force” used against the American teen. As a result of mounting pressure from the US, Tariq was released and able to fly home just under two weeks after the ordeal.
Speaking at a press conference following the news of the charges filed, Abu Khdeir and his mother called it “groundbreaking.” Suha Abu Khdeir, the boy’s mother, said it was “a shame that in order for [Israeli authorities] to take action it had to be an American citizen that this happened to.” They believe that the charges were only filed because the incident was recorded and because Tariq is a citizen of the United States.
In sharp contrast, at the time US pressure was mounting for the soldiers behind Tariq’s beating to be held accountable, Israeli General Danny Efrni, closed the investigation into the killing of Yousef Sami Shawamreh.
In March, Yousef and his two friends had gone to pick the thistle like plant gundelia which farmers from his village in the South of Hebron harvest at the same time every year, when he was fatally shot in the hip by an Israeli soldier.
According to the army, three Palestinians approached the fence and started cutting it. The guards performed the standard procedure for stopping a suspect, shooting first in the air and then toward the Palestinian. According to local residents, the separation wall annexed some of the villages land, including the land of Shawamreh family, and so the boys had crossed over to harvest the crop on the other side of it, a routine that the soldiers were aware of.
The two boys who were with Yousef claim they heard three shots, causing them to get down on the floor. Yousef then reportedly got up to cross back over into the village, when another shot was fired causing him to fall. One of the boys, Muntaser, attempted to carry him to safety, but was told by 6 soldiers who arrived at the scene to put Yousef down, threatening to shoot him if he did not obey.
The prosecution, however, found that, “the force prepared for the operation professionally and acted in line with rules for opening fire”- concluding there was no suspicion of a criminal act on their part.
Yousef’s case joins the hundreds of cases that fail to end in an indictment. An Amnesty International report found that 41 Palestinians had been killed by live ammunition in the West Bank between 2011 and 2013 alone. The same report found that between September 2000 and June 2013, only 16 investigations ended in indictment of Israeli soldiers.
According to statistics released last week rights group Yesh Din, in 2013, out of the 239 notifications submitted to the Military Police Criminal Investigations Division (MPCID), the body which deals with complaints regarding offenses committed by Israeli Defence Force (IDF) soldiers, only six resulted in indictments.
Neta Patrick, Executive Director of Yesh Din said: “Every year, we caution against the sorry state of the investigation system. However, it appears that Israel refuses to deal with these structural failings or take minimal steps to correct them, despite harsh criticism voiced by public commissions and by civil society organizations.”
She added: “The inescapable conclusion is that the Government of Israel is not willing to investigate harm caused to Palestinians.”
Speaking of McCarthyism, 43 veterans of an elite Israeli intelligence unit have not only come out against Israel’s treatment of Palestinians but declared that they will no longer “take part in the state’s actions against Palestinians.” The intelligence on Palestinians that they gathered, they claim, “is used for political persecution,” which “does not allow for people to lead normal lives, and fuels more violence, further distancing us from the end of the conflict.” According to the Times:
In the testimony and in interviews, though, the Unit 8200 veterans described exploitative activities focused on innocents whom Israel hoped to enlist as collaborators. They said information about medical conditions and sexual orientation were among the tidbits collected. They said that Palestinians lacked legal protections from harassment, extortion and injury.
One of the hallmarks of a repressive state, particularly in the twentieth century, is the use of blackmail against gays and lesbians in order to get them to collaborate and inform on their friends, colleagues, acquaintances, and other potential or actual dissidents. The Stasi was notorious for turning gays and lesbians into collaborators (see pp. 567ff); one of the key figures in Timothy Garton Ash’s The File—Schuldt—is just such an informant. So pervasive was the use of this type of blackmail during the Cold War that it also figured prominently on the US side: one of the main justifications proffered for drumming out gays and lesbians from the federal government during the McCarthy era was that they were susceptible to being blackmailed by the Soviets. Though no one ever found a single instance of that.
Now here comes news that the Israeli state is doing the same thing among Palestinians. It will be interesting to see how the people who were so rightly appalled by the Stasi’s recruitment of gays and lesbians to a repressive state apparatus—including Israel defenders like James Kirchick—and who routinely hold up Israel’s record on gays and lesbians as a measure of its freedom and democracy (critics of Israel call that “pinkwashing”) will rationalize this away.
The Secrecy of the Legal Justifications for NSA Surveillance Violates International Human Rights Law
Let’s be clear. Under international human rights law, secret “law” doesn’t even qualify as “law” at all.
The Human Rights Committee confirms that law is only law if people know it exists and can act based on that knowledge. Article 19 of the ICCPR, protecting the freedoms of opinion and expression, requires that “to be characterized as a “law,” [a law] must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly and it must be made accessible to the public. . . . “1 This same conclusion applies to Article 17, the right to privacy. The European Court of Human Rights similarly notes in the context of surveillance:
[T]he law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence.2
This includes not just the law itself, but the judicial and executive interpretations of written laws because both of those are necessary to ensure that people have clear notice of what will trigger surveillance.
This is a basic and old legal requirement: it can be found in all of the founding human rights documents. It allows people the fundamental fairness of understanding when they can expect privacy from the government and when they cannot. It avoids the Kafkaesque situations in which people, like Joseph K in The Trial and the thousands of people on the secret No Fly Lists, cannot figure out what they did that resulted in government scrutiny, much less clear their names. And it ensures that government officials have actual limits to their discretion and that when those limits are crossed, redress is possible.
Just how far has the US strayed from this basic principle in its mass surveillance practices? Very far. The existence of the mass surveillance was kept officially secret from the world for over a decade, from when it started in earnest in 2001 until June of 2013 after the Snowden revelations. The surveillance at first had no judicial authorization whatsoever. Various pieces of it were brought under judicial authority — email records in 2004, U.S. domestic telephone records in 2006 and backbone and other content collection in 2007 — but these court decisions also happened entirely in secret, so the public still didn’t know. Even today, large amounts of both the caselaw and the Executive Branch’s internal legal guidance have been kept from the public. To the extent we know anything about what the government is doing, this has been based on the piecemeal (and often highly fragmented) release of information as the result of dogged FOIA work and the legal cases brought by EFF plus our friends at the ACLU and EPIC.3
The breadth of the secret law is astonishing. For instance, only after the Snowden revelations did the government first admit its legal theories — that its mass spying relied on outrageous secret interpretations of section 215 of the PATRIOT ACT and section 702 of the FISA Amendments Act — neither of which even mentions mass surveillance much less authorizes it. We also now know about the NSA’s domestic telephone records collection and a past program that collected cell location information but we still don’t know the NSA’s full use of section 215. In fact, on September 2 the government sidestepped questions from the Second Circuit about whether its legal arguments in support of its telephone records collection could also support the mass collection of all credit card or bank records of Americans (hint: it could).
Nor are these secret, often extremely weak interpretations of otherwise public laws the only problem. Sometimes there’s no “law” at all. The NSA’s foreign collection processes, which are much more extensive than their domestic collections, are only ostensibly justified by an Executive Order, currently Executive Order12333. While E.O. 12333 is public, it’s not law at all and it certainly does not mention mass surveillance of millions of innocent people around the world. None of the government’s legal interpretations of it are public either. We’ve now seen evidence that this non-law with secret interpretations is the basis for the NSA’s mass surveillance of communications not just in one place, but at nearly every step of their journey: from remote access to computers, to man-in-the-middle attacks on messages in transit, to attacking direct service providers like Google, to tapping into the undersea cables. Yet the legal basis for these unprecedented intrusions into privacy remains opaque.
To bring the U.S. in line with international law, it must stop the process of developing secret law and ensure that all Americans, and indeed all people who may be subject to its surveillance have clear notice of when surveillance might occur. Terrorists and other criminals already well understand that they can be subject to surveillance during an investigation, so the people who are hurt are the innocent. Some operational details can and should remain secret, of course, but the law must be sufficiently clear to allow innocent people to understand when and how they may be subject to surveillance and, as they wish, take steps to regain their privacy. Only then will the U.S. fulfill its obligations under international law.
1 See UN Human Rights Committee, General Comment no. 34 on freedoms of opinion and expression (Article 19 ICCPR), available at: http://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf. The European Court of Human Rights applied the principles developed under Article 10 ECHR (right to freedom of expression) in Sunday Times in the case of Silver and others v. the United Kingdom, nos. 5947/72; 6205/73; 7052/75; 7061/75; 7107/75; 7113/75; 7136/75, 25 March 1983, paras. 85-86, which concerned the right to privacy of prisoners under Article 8 ECHR.
2 Malone v. the United Kingdom, no. 8691/79, 2 August 1984, para. 67.
3 All too often the Intelligence Community shamefully elides the fact that its public releases were due to pressure from our work and even then only releases what it decides to release, likely skewing what the public learns.
Via Amy Alkon, we learn of yet another bizarre moment in the world of security theater known as the TSA. It involves a young man from Orono, Minnesota, named Kahler Nygard, who for reasons no one will ever explain, happens to be on a “selectee” list for flying. It’s not quite the no fly list, but it’s the list where you get four S’s on your boarding pass (“SSSS”), and the TSA is then supposed to give you and your bags that extra level of privacy-destroying attention, including a full gropedown. Nygard claims he got the full groping in Minnesota, but the TSA (or potentially a Spirit airlines employee) apparently believed it was overlooked — though, they didn’t “realize” this until the flight was halfway to Denver. Frantic calls were made and the TSA was eagerly waiting for Nygard when he landed in Denver, leading him to be pulled off the plane first (that’s a self-recorded video where he cheerfully announces to those on board, “No, I have not committed a crime!”), at which point the TSA demands to grope him again:
Yes, after he’s already flown from Minneapolis (where he claims he was groped, though the TSA claims it was missed) to Denver, the TSA wishes to grope him (and search through his bags again). Apparently, they believe that he might magically reverse time and go back in time to blow up the plane or something.
The TSA agent, Andrew Grossman, first demands Nygard’s boarding pass. Nygard points out that he no longer has it (you don’t need it after you board), which stumps Grossman, leading him to have to make a phone call — where he helpfully tells whoever he’s talking to at the other end that Nygard is “pretty objectionable, filming me.” Nygard keeps asking why they need to search him, and the TSA has no good answer, other than saying they need to do so. Nygard asks if he’s being detained, and they don’t answer. He asks if it’s an order or a request, and the TSA’s Grossman again doesn’t really answer (other than to say that he’s following orders). Finally, Nygard just walks away, saying that if he’s not being detained, he’s leaving. The TSA claims it’s calling the Denver police, who apparently did not do anything to stop Nygard, who walked out of the airport without any further problems.
I’m curious if the TSA’s Blogger Bob will step up with an explanation for why a passenger should be groped post-flight.
Global Information Society Watch | September 2014
Years before Edward Snowden leaked his first document, human rights lawyers and activists have been concerned about a dramatic expansion in law enforcement and foreign intelligence agencies’ efforts to spy on the digital world. It had become evident that legal protections had not kept pace with technological – that the state’s practical ability to spy on the world had developed in a way that permitted it to bypass the functional limits that have historically checked its ability to spy. These concerns culminated in the International Principles on the Application of Human Rights to Communications Surveillance, a set of principles intended to guide policymakers, activists and judges to better understand how new surveillance technologies have been eating away at our fundamental freedoms and how we might bring state spying back in line with human rights standards.
Over a year and a half in the making, the final version of the Principles appeared on July 20, 2013, the first weeks of what we might call the Snowden era. An updated version was issued in May 2014. The Snowden revelations, once they started rolling in, affirmed the worst of our concerns. Intelligence services as well as law enforcement had taken it upon themselves to spy on us all, with little consideration for the societal effects. Lawmakers and even the executive had little comprehension of the capabilities of their own spymasters, and how our digital networks were being turned against all individuals everywhere. The need for the Principles was confirmed in spades, but the long and difficult job of applying them to existing practices was just beginning.
Since then, the Principles have, we hope, been a lodestar for those seeking solutions to the stark reality exposed by Snowden: that, slipping through the cracks of technological developments and outdated legal protections, our governments have adopted practices of mass surveillance that render many of our most fundamental rights effectively meaningless. The Principles have been signed by over 470 organizations and individual experts, by over 350,000 individuals throughout the world, and endorsed by the United Kingdom’s Liberal Democratic Conference, as well as European, Canadian, and German parliamentarians.The Principles have played a central guiding role in a number of the rigorous debates on the need to limit states’ increasingly expansive surveillance capacities. Their impact is already evident in, for example, the United States’ President Review Group on Intelligence and Communications Technologies report, the Inter-American Commission on Human Rights report and the the United Nations High Commissioner for Human Rights’ recent report on the right to privacy in the digital age. Their influence has also manifested in some of the administrative, legislative and administrative attempts to address surveillance problems post-Snowden. Perhaps most importantly, they have functioned as a rallying point for campaigning and advocacy initiatives around the world.
Below, we spell out some of the key features of the Principles. A more detailed explanation of the legal grounding for our conclusions in human rights jurisprudence can be found in a Legal Analysis and Background Materials document generated in support of the Principles.
Core Definitions in International Human Rights Law
The Principles begin with defining two core concepts that spell out the “what” and the “how” of measured surveillance. The first concept focuses on the type of data to be protected, while the second one ensures that a broad range of surveillance activity constitutes an interference with privacy rights. Outdated definitions of these two terms have led to expansive surveillance practices, as wide swaths of sensitive data or surveillance activities have been deemed outside the scope of legal protections. These definitional changes are designed to re-focus privacy protections away from artificial examinations of the kind of data or method of interference, and back on the ultimate effect on the privacy of the individual.
The Principles make clear that it’s time to move beyond the fallacy that information about communications does not pose as serious a threat to privacy as the content of communications. Information about communications, also called metadata, subscriber information or non-content data, can include the location of your cell phone, clickstream data, search logs, or anonymous online activity. Individually, these can be just as invasive as reading your email or listening to your phone calls. When combined and analyzed en masse, the picture painted by such data points can be far more revealing than the content of the communications they accompany. In spite of this reality, pre-Internet age (in fact, postal service-based!) legal conceptions have persisted in some legal systems, offering less or, in some instances, no protection at all to information that is not classified as ‘content’. What is important is not the kind of data is collected, but its effect on the privacy of the individual.
As explained in Legal Analysis and Background Materials which have been prepared for the Principles:
“The Principles use the term “protected information” to refer to information (including data) that ought to be fully and robustly protected, even if the information is not currently protected by law, is only partially protected by law, or is accorded lower levels of protection. The intention, however, is not to make a new category that itself will grow stale over time, but rather to ensure that the focus is and remains the capability of the information, alone or when combined with other information, to reveal private facts about a person or her correspondents. As such, the Principles adopt a singular and all-encompassing definition that includes any information relating to a person’s communications that is not readily available to the general public.”
This concern has been addressed by the latest report of the Office of the High Commissioner for Human Rights, who made clear that:
“From the perspective of the right to privacy, this distinction between [content and metadata] is not persuasive. The aggregation of information commonly referred to as “metadata” may give an insight into an individual’s behaviour, social relationships, private preferences and identity that go beyond even that conveyed by accessing the content of a private communication.”
Given the revealing nature of metadata and content alike, states should be restrained from unchecked interference with any protected information: from revealing a speaker’s identity if it is not public; from wantonly vacuuming up the websites or social media one has visited; from stockpiling information on all the people one has communicated with; and tracking the ‘when’, ‘from where’, and ‘for how long’ of all our digital activities. In the pre-Internet age, the much more limited amount and kind of “metadata” available to law enforcement was treated as less sensitive than content, but given current communications surveillance capabilities, this can no longer be the case.
Communication Surveillance: Much of the expansive state surveillance practices confirmed during the past year depend on confusion over whether actual “surveillance” has occurred and thus whether human rights obligations even apply. Some have suggested that if information is merely collected and kept but not looked at by humans, no privacy invasion has occurred. Others argue that computers analysing all communications in real-time for key words and other selectors does not amount to “surveillance” for purposes of triggering legal privacy protections. Still others seek to reduce privacy protections to ‘harmful uses’ of information. Such legal variations can mean the difference between reasonable and carefully targeted investigations and a surveillance state built on the continuous mass surveillance of everyone.
In the digital age, where the most sensitive portions of our lives are constantly communicated over digital networks, it has never been more important to ensure the integrity of our communications. It means little whether the interference takes the form of real-time monitoring of Internet transmission, hacking into individuals’ mobile devices, or mass harvesting of stored data from third party providers. The mere recording of Internet transactions – even if ultimately unviewed – can have serious chilling effects on the use of our most vital interactive medium. We have to ensure that all acts of communications surveillance are within the scope of human rights protections and, hence, are “necessary and proportionate”.
On this front, the Office of the High Commissioner for Human Rights (OHCHR) report, made clear that:
“any capture of communications data is potentially an interference with privacy and, further, that the collection and retention of communications data amounts to an interference with privacy whether or not those data are subsequently consulted or used. Even the mere possibility of communications information being captured creates an interference with privacy, with a potential chilling effect on rights, including those to free expression and association.”
To remedy this issue, the Principles define “communications surveillance” as encompassing the monitoring, interception, collection, analysis, use, preservation and retention of, interference with, or access to information that includes, reflects, or arises from or a person’s communications in the past, present or future.
Scope of Application
The Principles also address a long-standing problem arising from narrow interpretations adopted by some states regarding the extraterritorial application of their human rights obligations. Some have argued that the obligation to respect privacy and other human rights of individuals effectively stops at their national borders. In a world of highly integrated digital networks, where individual interactions and data routes defy any semblance of territorial correspondence, such distinctions are meaningless. The Principles therefore apply to surveillance conducted within a state or extraterritorially, and regardless of the purpose for the surveillance – including enforcing law, protecting national security, gathering intelligence, or another governmental function.
The OHCHR’s report explicitly underscores the principle of non-discrimination:
“Article 26 of the International Covenant on Civil and Political Rights provides that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law” and, further, that “in this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
In this regard, the OHCHR’s report has underscored its importance:
“measures to ensure that any interference with the right to privacy complies with the principles of legality, proportionality and necessity regardless of the nationality or location of individuals whose communications are under direct surveillance.”
The 13 Principles
The substantive Principles are firmly rooted in well-established human rights law. Generally, any limits on human rights should be necessary, proportionate and for a set of permissible purposes. These limits must be set out in law, and cannot be arbitrary.
Under international human rights law, each right are divided in two parts. The first paragraph sets out the core of the right, while the second paragraph sets out the circumstances in which that right may be restricted or limited. This second paragraph is usually called the “permissible limitations” test.
Regarding the right to privacy, the UN Special Rapporteur on Counter-Terrorism and the UN Special Rapporteur on Freedom of Expression have stated that the “permissible limitations” test under Article 19 of the International Covenant on Civil and Political Rights among other articles are equally applicable to Article 17 of the International Covenant on Civil and Political Right
The OHCHR report has neatly summarized these obligations with respect ot Article 17 of the International Covenant on Civil and Political Rights (ICCPR), which prohibits the arbitrary or unlawful interference with privacy rights
“To begin with, any limitation to privacy rights reflected in article 17 must be provided for by law, and the law must be sufficiently accessible, clear and precise so that an individual may look to the law and ascertain who is authorized to conduct data surveillance and under what circumstances. The limitation must be necessary for reaching a legitimate aim, as well as in proportion to the aim and the least intrusive option available…Any limitation placed on the right (an interference with privacy, for example, for the purposes of protecting national security or the right to life of others) must be shown to have some chance of achieving that goal. The onus is on the authorities seeking to limit the right to show that the limitation is connected to a legitimate aim. Furthermore, any limitation to the right to privacy must not render the essence of the right meaningless and must be consistent with other human rights, including the prohibition of discrimination. Where the limitation does not meet these criteria, the limitation would be unlawful and/or the interference with the right to privacy would be arbitrary.”
Legality – No Secret Laws: The principle of legality is a fundamental aspect of all international human rights instruments and the rule of law. It is a basic guarantee against the state’s arbitrary exercise of its powers. For this reason, any restriction on human rights must be prescribed by law. The meaning of “law” implies certain minimum qualitative requirements of clarity, accessibility, and predictability. Laws limiting human rights cannot be secret or vague enough to permit arbitrary interference.
On that front, the Office of the High Commissioner on Human Rights made clear that:
“To begin with, any limitation to privacy rights reflected in article 17 must be provided for by law, and the law must be sufficiently accessible, clear and precise so that an individual may look to the law and ascertain who is authorized to conduct data surveillance and under what circumstances.”
The need to meaningfully and publicly explain rights-infringing practices—while important in all contexts—is key to any effective check on communications surveillance as such practices tend to be surreptitious and difficult to uncover. Given the highly technical and rapidly evolving nature of communications surveillance, it is also incumbent that laws are interpreted publicly and not through secret processes effectively free from public scrutiny. The state must not adopt or implement a surveillance practice without public law defining its limits. Moreover, the law must meet a standard of clarity and precision that is sufficient to ensure that individuals have advance notice of, and can foresee, its application. When citizens are unaware of a law, its interpretation, or the scope of its application, it is effectively secret. A secret law is not a legal limit on human rights.
In her landmark report Pillay made clear that:
“Secret rules and secret interpretations even secret judicial interpretations of law do not have the necessary qualities of “law”. Neither do laws or rules that give the executive authorities, such as security and intelligence services, excessive discretion; the scope and manner of exercise of authoritative discretion granted must be indicated (in the law itself, or in binding, published guidelines) with reasonable clarity. A law that is accessible, but that does not have foreseeable effects, will not be adequate. The secret nature of specific surveillance powers brings with it a greater risk of arbitrary exercise of discretion which, in turn, demands greater precision in the rule governing the exercise of discretion, and additional oversight.”
Laws should only permit communications surveillance by specified State authorities to achieve a Legitimate Aim that corresponds to a predominantly important legal interest that is necessary in a democratic society.
Under international human rights law, any restriction on our fundamental freedoms must generally pursue a permissible purpose or “legitimate aim.” These purposes or aims are often enumerated within the Article itself. The Principles therefore require that communications surveillance only be undertaken in pursuit of a predominantly important legal interest. Such interests have been described by Germany’s highest court as “the life, limb and freedom of the individual or such interests of the public a threat to which affects the basis or continued existence of the state or the basis of human existence.”
Regarding the right to privacy, the UN Special Rapporteur on Counter-Terrorism and the UN Special Rapporteur on Freedom of Expression have stated that the “permissible limitations” test under Article 19 of the International Covenant on Civil and Political Rights among other articles are equally applicable to Article 17 of the International Covenant on Civil and Political Rights, which prohibits arbitrary interference with the right to privacy.
The Office of the High Commissioner on Human Rights has similarly affirmed, in its 2014 Report, that “any limitation to privacy rights reflected in article 17 must be necessary for reaching a legitimate aim”. The Report elaborates:
“Surveillance on the grounds of national security or for the prevention of terrorism or other crime may be a “legitimate aim” for purposes of an assessment from the viewpoint of article 17 of the Covenant. The degree of interference must, however, be assessed against the necessity of the measure to achieve that aim and the actual benefit it yields towards such a purpose.”
Finally, communications surveillance cannot be employed in a manner that discriminates on the basis of grounds such as race, colour, sex, language religion or national origin, as such discrimination constitutes an illegitimate purpose.
Necessity, Adequacy and Proportionality
International human rights law makes clear that any interference with our fundamental freedoms must be “necessary in a democratic society”. In its General Comments No. 27, the Human Rights Committee clearly indicates that it is not sufficient that such restrictions serve a legitimate aim, they must also be necessary to it. Restrictive measures must also be adequate or appropriate to achieving their protective function. They must also be the least intrusive options amongst those which might be expected to achieve the desired result, and they must be proportionate to the interest to be protected. Finally, any restrictive measure which undermines the essence or core of a right is inherently disproportionate and a violation of that right.
Applying these foundational principles to the context of communications surveillance, the Principles affirm that:
Necessity: Often, a surveillance objective might be achieved using far less intrusive mechanisms. While it is by no means necessary to exhaust other options, it should be recognized the communications surveillance is inherently invasive and should not be a tool of first recourse.
Adequacy: It is not sufficient to show that a given surveillance practice is necessary for achieving a given objective, it must also be adequate and appropriate to it. As noted by the High Commissioner, at minimum, communications surveillance which interferes with privacy “must be shown to have some chance of achieving [its] goal.”
Proportionality: Communications surveillance should be regarded as a highly intrusive act that interferes with human rights and poses a threat to the foundations of a democratic society. Communications surveillance for investigative purposes, in particular, should only occur once the state has convinced an objective third party – a judge – that a serious threat to a legitimate interest exists and that the communications mechanism in question will yield information that will assist with that serious threat.
No voluntary cooperation:
Current digital networks and interactions entrust vast amounts of personal and sensitive data in the hands of a wide range of third party intermediaries, including ISPs, email providers, hosting companies and others. Through their discretionary decisions to comply (or not) with state surveillance requests, these intermediaries can dramatically impact on the privacy rights of all. Such voluntary sharing bypasses due process and poses a serious threat to the rule of law. The Necessary and Proportionate principles therefore prohibit any state communications surveillance activities in the absence of judicial authorization.
Contrary to many official statements, the modern reality is that state intelligence agencies are involved in a much broader scope of activities than simply those related to national security or counterterrorism. The Necessary and Proportionate Principles state that communications surveillance (including the collection of information or any interference with access to our data) must be proportionate to the objective they are intended to address. And equally importantly, even where surveillance is justified by one agency for one purpose, the Principles prohibit the unrestricted reuse of this information by other agencies for other purposes.
The Office of the High Commissioner for Human Rights report also emphasized that point:
“The report explained that the absence of effective use limitations has been exacerbated since September 11, 2001, with the line between criminal justice and protection of national security blurring significantly. The resultant sharing of data between law enforcement agencies, intelligence bodies and other State organs risks violating Article 17 of the Covenant on Civil and Political Rights, because surveillance measures that may be necessary and proportionate for one legitimate aim may not be so for the purposes of another.”
Integrity of Communications And Systems:
No law should impose security holes in our technology in order to facilitate surveillance. Undermining the security of hundreds of millions of innocent people in order to ensure surveillance capabilities against the very few bad guys is both overbroad and short-sighted, not least because malicious actors can use these exploits as readily as state agents. The assumption underlying such provisions—that no communication can be truly secure—is inherently dangerous, akin to throwing out the baby with the bathwater. It must be rejected.
The Office of the High Commissioner for Human Rights report supports that conclusion, stating that:
“The enactment of statutory requirements for companies to make their networks “wiretap-ready” is a particular concern, not least because it creates an environment that facilitates sweeping surveillance measures.”
Notification And Right To An Effective Remedy
Notification must be the norm, not the exception. Individuals should be notified that access to their communications has been authorized with enough time and information to enable them to appeal the decision, except when doing so would endanger the investigation at issue. Individuals should also have access to the materials presented in support of the application for authorisation. The notification principle has become essential in fighting illegal or overreaching surveillance. Any delay in notification has to be based upon a showing to a court, and tied to an actual danger to the investigation at issue or harm to a person.
Before the internet, the police would knock on a suspect’s door, show their warrant, and provide the individual a reason for entering the suspect’s home. The person searched could watch the search occur and see whether the information gathered went beyond the scope of the warrant. Electronic surveillance, however, is much more surreptitious. Data can be intercepted or acquired directly from a third party such as Facebook or Twitter without the individual knowing. Therefore, it is often impossible to know that one has been under surveillance, unless the evidence leads to criminal charges. As a result the innocent are the least likely to discover their privacy has been invaded. Indeed, new technologies have even enabled covert remote searches of personal computers and other devices. Any delay in notification has to be based upon a showing to a court, and tied to an actual danger to the investigation at issue or harm to a person.
The OHCHR report lays out four characteristics that effective remedies for surveillance-related privacy violations must display:
“Effective remedies for violations of privacy through digital surveillance can thus come in a variety of judicial, legislative or administrative forms. Effective remedies typically share certain characteristics. First, those remedies must be known and accessible to anyone with an arguable claim that their rights have been violated. Notice (that either a general surveillance regime or specific surveillance measures are in place) and standing (to challenge such measures) thus become critical issues in determining access to effective remedy. States take different approaches to notification: while some require post facto notification of surveillance targets, once investigations have concluded, many regimes do not provide for notification. Some may also formally require such notification in criminal cases ; however , in practice , this structure appears to be regularly ignored.”
The 2014 OHCHR report continues, stressing the importance of a “prompt, thorough and impartial investigation”; a need for remedies to actually be “capable of ending ongoing violations”; and noting that “where human rights violations rise to the level of gross violations…as criminal prosecution will be required”.
Safeguards for International Cooperation:
Privacy protections must be consistent across borders at home and abroad. Governments should not bypass national privacy protections by relying on secretive informal data sharing agreements with foreign states or private international companies. Individuals should not be denied privacy rights simply because they live in another country from the one that is surveilling them. Where data is flowing across borders, the law of the jurisdiction with the greatest privacy protections should apply.
More to Be Done: The Necessary and Proportionate Principles provide a basic framework for governments to ensure the rule of law, oversight and safeguards. They also call for accountability, with penalties for unlawful access and strong and effective protections for whistleblowers. They are starting to serve as a model for reform around the world and we urge governments, companies, NGOs and activists to use them to structure necessary change.
But while the Principles are aimed at governments, government action isn’t the only way to combat surveillance overreach. All of the communications companies, Internet and telecommunications alike, can help by securing their networks and limiting the information they collect and retain. Online service providers should collect the minimum amount of information for the minimum time that is necessary to perform their operations, and to effectively obfuscate, aggregate and delete unneeded user information. This helps them in their compliance burdens as well: if they collect less data, there is less data to hand over to the government. Strong encryption should be adopted throughout the entire communications chain and, where possible, for data in storage.
It’s clear that under the cloak of secrecy, malfunctioning oversight and the limited reach of outdated laws, the practice of digital surveillance in countries from the far north to the far south, have overrun the bounds of human rights standards. We all hope to see activists around the world showing exactly where a country has crossed the line, and how its own policymakers and the international community might rein it back. We must call for surveillance reform to ensure that our national surveillance laws and practices comply with human rights standards and to ensure cross-border privacy are in place and effectively enforced. Working together, legal plus technical efforts like deploying encryption, decentralization of services and limiting information collected, can serve as a foundation for a new era of private and secure digital communications.
- International Principles on the Application of Human Rights to Communications Surveillance, updated July 2014 https://neccessaryandproportionate.org/text
- EFF, Article19: Legal Analysis and Background Materials: International Principles on the Application of Human Rights to Communications Surveillance, May 2014 https://en.necessaryandproportionate.org/LegalAnalysis
- The Right to Privacy in the Digital Agehttp://www.ohchr.org/EN/Issues/DigitalAge/Pages/DigitalAgeIndex.aspx
- Report of the High Commissioner for Human Rights on the right to privacy in the digital age
- Annual Report of the Inter-American Commission on Human Rights 2013. Annual Report of the Office of the Special Rapporteur for Freedom of Expression http://www.oas.org/en/iachr/expression/docs/reports/2014_04_22_%20IA_2013_ENG%20_FINALweb.pdf
- Human Rights Committee, General Comment 27, Freedom of movement (Art.12), U.N. Doc CCPR/C/21/Rev.1/Add.9 (1999).
- UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, A/HRC/13/37
- UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, A/HRC/23/40
Bureau of Investigative Journalism | September 15, 2014
The Bureau of Investigative Journalism is asking a European court to rule on whether UK legislation properly protects journalists’ sources and communications from government scrutiny and mass surveillance.
The Bureau’s application was filed with the European Court of Human Rights on Friday. If the court rules in favour of the application it will force the UK government to review regulation around the mass collection of communications data.
The action follows concerns about the implications to journalists of some of the revelations that have come out of material leaked by Edward Snowden.
These have made it clear that by using mass surveillance techniques, government agencies can not only collect, store and scrutinise the content of electronic communications but also analyse masses of metadata – the details about where digital communications such as emails originate and the subject area of those communications.
Gavin Millar QC, who is working on the case with the Bureau, believes UK authorities are routinely carrying out such data collection and analysis and says this enables a sophisticated picture to be developed of a journalist’s or organisation’s network of contacts, sources and lines of enquiry as well as materials, subjects and persons of interest to them.
Click here for a summary of the case.
Why data harvesting is a human rights issue – find out why we’re doing this.
Gavin Millar QC: A breach of international law.
JERUSALEM (AFP) — Forty-three reservists and former members of an elite Israeli army intelligence unit condemned alleged “abuses” of Palestinians in the occupied territories, in an open letter published on Friday.
The letter, addressed to Israel’s prime minister, armed forces chief and head of military intelligence and distributed to media, said information gathered by Unit 8200 was used by civilian intelligence agencies to coerce Palestinians uninvolved in militant activity.
The signatories of the letter said they would refuse to be party to such acts in future.
“There’s no distinction between Palestinians who are, and are not, involved in violence,” an English language copy of the letter says.
“Information that is collected and stored harms innocent people. It is used for political persecution and to create divisions within Palestinian society by recruiting collaborators and driving parts of Palestinian society against itself.”
The soldiers also said that they had spied on the sexual “preferences” of Palestinians in order to use them as blackmail against individuals they wanted to “turn into collaborators” for the Israeli occupation forces.
The admission verifies long-standing Palestinian claims that the Israeli military has pressured gay Palestinians into working with them by using their sexuality against them.
“We cannot continue to serve this system in good conscience, denying the rights of millions of people,” the 43 soldiers and officers wrote.
The signatories gave just their ranks and first names or first initials.
“Those among us who are reservists, refuse to take part in the state’s actions against Palestinians,” the letter, seen by AFP said.
“We call for all soldiers serving in the Intelligence Corps, present and future, along with all the citizens of Israel, to speak out against these injustices and to take action to bring them to an end.”
The letter, published less than three weeks after the Israeli military’s fierce military offensive against Palestinian militants in the Gaza Strip, slammed the “collective punishment of inhabitants” of the coastal territory.
Army questions their motive
It did not specifically mention the July-August war which took the lives of more than 2,100 Palestinians, most of them civilians, and 73 people on the Israeli side, 67 of them soldiers.
The army on Friday questioned the accuracy and motivation of the protesters’ accusations.
“The Intelligence Corps has no record that the … violations in the letter ever took place,” it said in a statement.
“Immediately turning to the press instead of their officers or relevant authorities is suspicious and raises doubts as to the seriousness of their claim.”
Members of Unit 8200, considered among Israel’s best and brightest, carry out electronic communications monitoring and surveillance, similar to work performed by the US National Security Agency and Britain’s GCHQ.
The unit is one component of the broader military intelligence corps and shares information with Israel’s civilian intelligence agencies.
A former commander of the unit, reserve Brigadier General Hanan Gefen, accused the letter’s authors of a grave breach of trust.
“If this is true and if I were the current unit commander, I would put them all on trial and would demand prison sentences for them, and I would remove them from the unit,” he was quoted as saying by Maariv newspaper on Friday.
“They are using information that reached them in the course of their duties to promote their political position.”
One of the signatories, speaking on condition of anonymity, told top-selling Yediot Aharonot newspaper: “I think that all of us who signed the letter did so because we understood that we are unable to sleep well at night.”
Most Israeli men perform three years of compulsory military service after school, and women two years, followed by regular spells of reserve duty for years afterwards.
Ma’an staff contributed to this report.
Arms firms that provide core military components for drones deployed by the US to conduct covert strikes in violation of international law allegedly bought access to NATO’s summit in Wales last week, a British human rights charity says.
The defense companies concerned doled out up to £300,000 to ‘exhibit’ their military wares at the conference in Newport. Among the firms present were General Dynamics, Raytheon, Lockheed Martin and MBDA, according to a British government press release.
General Dynamics manufacture Hellfire missiles utilized in most US drone strikes, while Raytheon make the targeting system for the Reaper drone deployed by the CIA and other actors to conduct strikes across the globe. Lockheed Martin operates as a contractor to provide select support services for both the Reaper and Predator, and MBDA is a European company that manufactures the unmanned aerial vehicle (UAV) Brimstone – a variant of the Hellfire missile.
The US drone program has received widespread public criticism both at home and abroad. Critics say attacks carried out in foreign countries, including Yemen and Pakistan, are in violation of both international and US law.
Although US drone strikes have culminated in hundreds of civilian casualties, they are subject to little oversight, according to Reprieve. President Barack Obama has refused to formally acknowledge the program’s existence.
Reprieve’s Legal Director Kat Craig said it’s “deeply worrying” that a group of firms who potentially profit most from this breach of international law were able to buy access into an international global summit like NATO.
“It is unacceptable that the US’ drone campaign, and the UK’s support for it, has been allowed to remain in the shadows for so long”, he added.
“President Obama must be far more open about it – as must his European allies, especially the UK and Germany, about the support they provide.”
Craig suggested the drone manufacturers’ presence at NATO signaled their inherent capacity to buy political influence “behind closed doors,” highlighting the opaque, illicit and legally questionable nature of much of the global arms trade.
Israeli forces took at least 127 Palestinians across the occupied West Bank into custody, during the first week of September alone, according to recent statements by the Palestinian Prisoner’s Society (PPS).
PPS said, according to Ma’an news, that most detainees came from the Hebron district, where 28 Palestinians were taken by Israeli forces.
PPS further stated that 23 of the detainees were from the Jenin district, in the northern West Bank, 21 from Ramallah, 20 from Jerusalem, 12 from Bethlehem, eight from Tulkarem, six from Nablus, three from Qalqiliya, and six from the Tubas/Salfit district.
Israeli forces abducted 10 Palestinians overnight, on Saturday, seven of whom were taken from Hebron, with one from Bethlehem, and two from Beit Sira village, western Ramallah district.
More than 7,000 Palestinians are currently being held in Israeli prisons, including some 2,000 detained during the massive arrest campaigns which have taken place over the last three months.
See also — 08/31/14 PPS: 597 Palestinians Arrested During August
Once the surveillance cameras of Palestinian shopkeepers in East Jerusalem’s Shuafat neighborhood revealed the images of the Israeli abductors of Muhammed Abu Khdeir, the fabricated Israeli propaganda that the 16-year-old Palestinian boy had been gay and the victim of an honor killing perpetrated by his own people became completely unsustainable. Soon after, hoping to contain the resulting clashes that erupted in Shuafat and extended to many nearby neighborhoods, Israeli police announced that they had captured six suspects involved in the crime.
Just days later, however, it was announced that three of them already had been freed. The others were described as two minors and a mentally unstable adult with a dominating personality who is on psychiatric medication, according to Yediot Ahronot.
That has a familiar ring to it! In 1969 Dennis Michael Rohan, an evangelical Protestant from Australia, set fire to the al-Aqsa mosque in order to hasten the second coming of the Messiah and create an opportunity to rebuild the Jewish Temple. Rohan was later declared mentally ill and exonerated for his actions.
In 2007 Julian Soufir confessed to having murdered Palestinian taxi driver Taysir Karaki, saying he did not feel guilty because he considered Arabs the equivalent of cattle and he was simply slaughtering one. Soufir had entered the victim’s taxi in Jerusalem and asked to be driven to Tel Aviv. He then persuaded Karaki to come to his brother’s apartment with an offer of coffee and the use of the bathroom, and attacked the Palestinian with a knife he had obtained ahead of time. At his 2008 trial, the court accepted the testimonies of two defense witnesses who claimed that Soufir was not fully “conscious” at the time of the murder—despite the fact that he had explained his motive for murdering Karaki—and Soufir was acquitted.
A few years ago, I testified as an expert witness at the Jerusalem district court regarding the case of one of my psychiatric patients who, while suffering an acute psychotic episode, stabbed an Israeli soldier. My patient was 30 years old; after sustaining severe injuries during his arrest, which required 12 surgeries and left him handicapped, he was sentenced to 30 years in prison! The insanity defense certainly did not do my patient much good.
It is one of many pretexts used to avoid the prosecution, imprisonment or punishment of Jewish Israelis who murder Palestinians—but not the other way around. When a Palestinian minor attacks an Israeli, the youngster appears in court with bruises and fractures. Nor are charges dropped because he is a minor. We shall see what happens to the minors who tortured Abu Khdeir and burned him alive.
For many years—in Hebron, especially—radical Jewish settlers have been attacking Palestinians under the very noses of Israeli soldiers, who only intervene to defend the settlers from Palestinians responding to their attacks. In 1994 American-born Dr. Baruch Goldstein massacred 30 Palestinians praying at Hebron’s Ibrahimi mosque, which he entered under the eyes of Israeli soldiers who—instead of acting to stop the massacre—fired live ammunition into the fleeing crowd, killing even more Palestinians!
In 2008 Ze’ev Braude, a settler from nearby Kiryat Arba, was caught on camera as he shot at close range two Palestinians from the Matariya family during the evacuation of a Palestinian house in Hebron. The film was provided to Israeli police as evidence, but the indictment against Braude was dropped. In his ruling, Judge Elyakim Rubinstein held that “in this instance, the right of the accused to a fair trial outweighed the harm to national security!”
These and similar actions are the consequences of ideologies held by Gush Emunim and other radical movements that encourage the building of settlements in the belief that the coming of the Messiah can be hastened through Jewish settlement of occupied Palestinian land that God promised the Jews. Rather than working to eradicate these beliefs, the Israeli government instead has endorsed them through such vehicles as the Sebastia agreement, which encourages Jewish settlements on occupied Palestinian land.
Israeli intelligence, so effective in hunting down every Palestinian boy who so much as throws a stone, remains inept at imposing limits on the actions of Jewish Israelis—from the fanning of anti-Arab sentiment and racist slogans by the Beitar football team, to attacks on Arab employees of Israeli restaurants, to settler “Price Tag” vandalism and assaults, with graffiti boasting “Price tag blood vengeance.” The official Israeli response to these and other outrages is one of indulgence, and actions to counteract them are minimal. But these groups are inspired by the undercurrent of hatred and dehumanization of Palestinians—a sentiment expressed by Israeli politicians, rabbis and the arbiters of public opinion. Israel’s consistent unwillingness to bring settlers to justice for their violent actions against Palestinians only encourages and incites further settler violence.
Impunity for Israeli Soldiers
In 1984, during what became known as the Bus 300 affair, Shin Bet officers first allowed Israeli Jews to beat up two Palestinians who had hijacked a bus, then executed the two men on the spot—after the hostages had been freed and the hijackers captured and handcuffed. The Shin Bet initially claimed that the hijackers had died when the hostages were being rescued. But these lies were exposed when photos were released showing the hijackers alive after their capture. Nevertheless, Shin Bet head Avraham Shalom and all the officers involved received a presidential pardon for unspecified crimes—before any charges were even brought against them.
In 2004, Iman al-Hams, a 13-year-old Gaza student, lay injured on the ground after having been shot by Israeli soldiers when she entered a “closed military zone” on her way to school. Captain “R,” a Givati Brigade soldier, approached her and shot her at point-blank range. (See Jan./Feb. 2005 Washington Report, p. 9.) According to transcripts of radio exchanges between the soldiers during the incident, Captain “R” said he did this “to confirm the kill.” In court he later claimed that he believed the young girl posed a serious threat and that he had opened fire, not directly aiming at Iman, as a deterrent. Haaretz later reported that Israel would award Captain “R” 80,000 NIS in compensation, after he was acquitted of a charge related to the shooting.
In 2005, Israeli soldier Eden Natan-Zada opened fire on Palestinian citizens of Israel at the border of Shafa Amre, killing 4 and wounding 21. When he paused to reload his rifle, those who survived the massacre overpowered and killed him. The state of Israel, however, chose to indict 12 of the town’s residents! Many were charged with attempted murder for “taking the law into their own hands.”
Last year, Arafat Jaradat, a young student from Hebron, died five days after being detained for allegedly throwing stones at Israeli forces during a protest. An autopsy revealed three broken ribs, severe contusions on his legs and forehead, and blood in his mouth and nose. A Turkish forensic specialist found the injuries consistent with torture. The Israeli medical examiner described the same wounds on Jaradat’s body but was unable to determine a cause of death. The Israeli Foreign Ministry released a statement claiming that Jaradat died of a heart ailment—even though none of the medical specialists, including the Israeli medical examiner, had noted any evidence of a heart condition!
Just a few months ago, on March 10, Israeli troops at Allenby Bridge killed unarmed Palestinian-Jordanian Judge Raed Zeiter, 38, who was on his way to the West Bank to collect rent money to pay for the treatment of his ill son. The Israelis alleged that he tried to snatch a weapon from a soldier, but eyewitnesses told a different story: When the judge lit a cigarette while waiting to be searched; a soldier pushed him, yelling that he couldn’t smoke; Judge Zeiter pushed back, shouting, “Don’t insult me!” The soldier then shot the judge, who was left bleeding for half an hour at the feet of a crowd of Palestinians who waited in line, paralyzed by fear. Judge Zeiter finally died of his wounds. Israeli officials claim surveillance cameras were not functioning on that particular day, and the investigation is now closed, leaving the Israeli officials’ version unchallenged.
Palestinians who kill or even attempt to kill Israelis invariably receive heavy sentences. By contrast, Israelis who kill Palestinians get away with their crimes or receive very minimal sentences, suspended sentences, or fines—if they are not given medals and awards! We have seen soldiers who film themselves while they abuse Palestinians. Many of my own patients who have been tortured under interrogation describe appalling events that took place within four closed walls. Who pays for that? Who is held accountable? Israel makes it impossible to document or track these cases, destroying the evidence and hiding the truth.
The Israeli army, Israeli institutions and individual Israelis violate Palestinians’ human rights with complete impunity. International laws have been created to provide an effective remedy to victims of human rights abuses, but Israeli laws are carefully designed and amended to make Jewish Israelis immune from them. For example, Law 5712 of 1952 was amended to make it impossible for a Palestinian who has sustained damages at the hands of a state agent in any area of the West Bank or Gaza Strip to claim compensation. While “national security” is invoked to drop all charges against Israeli Jews, “secret evidence” is used to prosecute and detain Palestinians through administrative detention without disclosing the charges against them, thus depriving them of the right to due process.
Julian Soufir did not consider himself a murderer because he believed Arabs were like cattle and he was just slaughtering one; Captain “R” felt threatened by an injured 13-year-old schoolgirl and shot her at point-blank range. Not only does the Israeli government and public opinion share these delusions, but the international community supports Israel’s paranoia by endorsing its “right to defend itself.”
After “Operation Cast Lead” in 2008-09 and “Operation Pillar of Defense” in 2012, in July Israel launched “Operation Protective Edge.” We have witnessed three wars in less than six years, all on the pretext of weakening resistance groups. The failure of the international community to set limits and hold Israel accountable for its actions and the inertia of the official Palestinian leadership in going to the International Court of Justice will only invite young people like the friends of Muhammed Abu Khdeir to overcome their fear and act on behalf of the victims of Israel’s insane policies. ❑
Samah Jabr is a Jerusalemite psychiatrist and psychotherapist who cares about the wellbeing of her community—beyond issues of mental health.
How much longer is the farce of the Palestinian Authority going to continue? I ask because it has been obvious over the past few months that the PA, under President Mahmoud Abbas, is there more for Israel’s benefit than that of the people it is meant to serve, the Palestinians. In such circumstances, any claim of “victory” by the resistance groups in Gaza is illusory.
So-called “security cooperation” with the Israeli occupation forces makes the PA’s own 70,000-strong security agencies collaborators in the eyes of many Palestinians. Has anyone ever seen any PA security forces coming to the aid of Palestinian protesters against Israel’s Apartheid Wall at the weekly demonstrations across the occupied West Bank? Such protests usually start peacefully but end in violence as those taking part are attacked by Israeli soldiers and illegal settlers. Do Palestinian security officers rush to their defence? Well, do they? Of course not, for that is not their role; they exist to police the Palestinians on Israel’s behalf and stifle any form of resistance not tackled by the absurdly-named Israel Defence Forces. Hence, mass round-ups of non-Fatah activists and the suppression of anti-Israel demonstrations during the latest of the Zionist state’s attacks on the civilians of the Gaza Strip.
The EU is the “biggest multilateral donor of assistance to the Palestinians”, and in 2011 this aid amounted to €453 million. Ostensibly there to “build up the institutions of a future democratic, independent and viable Palestinian State living side-by-side with Israel in peace and security”, the bulk of the aid is spent on security and salaries for PA officials and employees. It has been said that one of the reasons for Mahmoud Abbas’ reluctance to sign up to the International Criminal Court to pursue alleged Israeli war criminals through legal means is that the funding which pays his and his cronies’ salaries and pensions will be cut-off if he takes such a step. In other words, he has sold out, placing his personal wellbeing over and above justice for his people.
The “international community”, meanwhile, goes through with the charade that the two-state solution is still viable and, through the “Middle East Quartet”, seeks to impose its own conditions on the Palestinians to get them to acquiesce and offer yet more concessions “for peace”. Israel is spared such pressure and gets away, literally, with murder as it continues to steal ever more Palestinian land while paying lip-service to a moribund peace process.
This is why I am concerned but not surprised to learn that PA negotiator Saeb Erekat has met with US Secretary of State John Kerry in Washington to discuss ways to reopen negotiations with the Israelis. It is as if the recent slaughter of Palestinian civilians in Gaza hasn’t happened; that Israel’s intense military bombardment and destruction of the infrastructure was just a blip on the screen; that normal service will be resumed as soon as possible.
Equally shocking is that the pre-Operation Protective Edge status quo is likely to be the “norm” that prevails, because that is what Israel and the Zionist Lobby in capitals around the world want. Israel will proceed with its expansion unhindered, with more and bigger settlements, arrest campaigns, torture (by Israeli and Palestinian security forces alike), checkpoints and all of the other paraphernalia of its brutal military occupation. The Palestinians will continue to be besieged, brutalised and killed by trigger-happy Israeli soldiers and settlers.
Despite all of this, Mahmoud Abbas and his team of negotiators will be pushed into giving Israel concessions that will not be reciprocated, with little thought, one is led to believe, for the fact that illegal settlements, land grabs and ethnic cleansing should never be subject to “negotiation” in the first place. It is a question that has been asked before but is worth repeating until someone involved in the whole sordid process can provide a legitimate answer: since when have criminals been able to “negotiate” their way out of paying for their crimes?
Euphoria in Palestinian circles, especially in Gaza, over the “victory” against the IDF is, I believe, not only premature but also misleading. How many more “victories” will be celebrated before the world wakes up to the reality that the two-state solution is long dead and buried and efforts to find a “solution” serve only Israeli interests; that we have all been duped by a slick Israeli PR machine aided and abetted by a compliant media and politicians in the West (which now includes a number of Arab capitals in thrall to Zionism) into believing that Israel is the victim in all of this and entitled to “self-defence”? Such a conclusion rides roughshod over international law and natural justice, but it is accepted by Washington, London, Berlin and the other capitals which support Israel right or wrong.
Only when its Western supporters stand up to Israel’s illegitimacy and illegal activity is there ever any likelihood that peace and genuine justice may prevail. Until and unless that happens (and I am not holding my breath), the Palestinians in the occupied West Bank and Gaza Strip will be squeezed between the rock of Israeli oppression and the hard place of the Palestinian Authority. They are now two sides of the same coin, but neither carries any currency for the people of Palestine.