For the past few days I’ve had the delightful task of hanging around the Yitzhak Rabin Guest House in West Jerusalem. I was covering the latest round of questioning by (Israeli) judges, appointed by the (Israeli) government to examine the legality of their deadly raid on the Gaza-bound aid ship last May. The inquiry is called the Turkel Commission, named after retired Justice Turkel – the big chief.
Now, I could tell you how, at various points, I saw every member of the panel fall asleep during the testimonies.
Or, I could describe the humiliating and condescending way in which the panelists spoke to the Arab-Israeli passengers who came to testify (compared to the respect they showed whilst interviewing Opposition leader Tzipi Livni and military chief Gabi Ashkenazi).
I could even explain how for 45 minutes I watched the panelists argue with the Arab passenger about how, being that “he seemed like a reasonable man,” he could breach Israeli law (as an Israeli citizen) and decide to get on a ship to Gaza. Indeed – a Palestinian going to a Palestinian territory seemed more absurd to these judges than the actual policy that stops him getting there (and by extension anyone getting out).
Every step of the way it was obvious that this commission, which was tasked with determining whether Israel is in breach of international law in blockading Gaza, had made up their minds long before they stepped into the Rabin Guest House.
But put all that aside, here are five simple reasons why this Commission is a sham.
1) The average age of the five original panelists is 84. They have all spent their careers defending the state of Israel and between them have very little expertise in international law…
2) …Except for one of the panelists – Proff Rosenne – but sadly he died a few weeks ago. He was 93-years-old and he was not replaced, so the panel has now gone down to four.
3) The panelists were all hand picked by Binyamin Netanyahu, the Israeli prime minister, and Ehud Barak, the defence minister. The two token international observers on the panel are also widely known as sympathetic to Israel.
4) The coverage of the Turkel Commission in the Israeli papers is virtually non existent. Apart from a local TV channel, Al Jazeera English was the only outside channel broadcasting the proceedings the last two days.
5) Turkel said two weeks ago, during proceedings, that “the people of Gaza have brought this hardship on themselves”. Another panelist stated, despite the mass of data provided to the Commission by Israeli human rights groups on the situation in Gaza, “there is no humanitarian crisis in Gaza”.
Israel’s blockade of Gaza is illegal irrespective of the manner in which it is imposed because a blockade is an act of war and an occupying power cannot declare war upon the territory it occupies. To do so would conflate the right to initiate war (jus ad bellum) with the laws of occupation (jus in bello) and render useless the distinction of the permissible use of force in each case. This analysis is different in kind from the one that characterizes the blockade as illegal for its contravention of Article 33 of the Fourth Geneva Convention prohibiting collective punishment.
The prohibition on collective punishment stipulates that if indeed Israel is imposing the blockade in order to repress and prevent Hamas mortar and rocket fire then it should do so in a way that does not severely harm the civilians to whom it owes a duty to protect as an Occupying Power. Several humanitarian and human rights law organizations, (e.g., ICRC , Gisha, Amnesty International, OPT Special Rapporteur) have established the blockade’s illegality for its contravention of Article 33 at considerable length. Significantly, this duty is not unique to occupying powers as non-occupying belligerents also have the duty to ensure the welfare of the civilian population. Accordingly, Israel has a duty to protect the civilians in Gaza irrespective of whether or not it remains an Occupying Power. However, specifically because Israel remains an Occupying Power, its blockade is illegal even if Israel were to ensure the welfare of Gaza’s 1.5 million inhabitants. Israel’s status as an Occupying Power prevents it from invoking legal self-defense, and from using force beyond that permissible during police operations, against Gaza-the territory it occupies.
As it stands, the existing legal order prohibits an occupying power from initiating force against its occupied territory because where there exists a belligerent occupation, presumably, an armed attack has already occurred in response to which a belligerent initiated force. Therefore Article 51 self-defense is not available to Israel because “the time when self-defense could be invoked has passed: the resort to force has already occurred, and the situation is now governed by the different regime of international humanitarian law.”
That regime is jus in bello, and in particular, the laws of occupation. The laws of occupation place the responsibility for maintaining law and order, and for breaches of said order in Occupied Territories, upon the Occupying Power. The permissible use of force available to an Occupying Power to do so is derived from Article 43 of the Hague Regulations and is significantly more restricted than the force available to belligerents during hostilities. Article 43 limits permissible force to law enforcement or policing purposes. According to Marco Sassoli,
Police operations are subject to many more restrictions than hostilities. To mention but one example, force may be used against civilians only as a last resort after non-violent means have proved unsuccessful in maintaining law and order. As for the use of firearms it is an extreme measure in police operations, while it is normal against combatants in hostilities.
Accordingly, Israel has the right and the duty to police the Gaza Strip but it can neither use force permitted during hostilities, nor can it invoke Article 51 self-defense. As a blockade amounts to an act of war under international customary law, its imposition on Gaza both breaches the limitation on Israel’s permissible use of force as well as flagrantly challenges the definition of Article 51 self-defense. Israel dismisses these restrictions arguing that on the one hand, it is no longer an occupying power in Gaza, and on the other, that even if it was, it would still have the right to legal self-defense.
Upon its unilateral disengagement from Gaza in 2005, Israel declared its occupation over and its responsibility for Gaza’s civilian population, expired. However according to in international law, occupation hinges on the something called “effective control” which is derived from Article 42 of the 1907 Hague Regulations. The “effective control” test does not require the military presence of the Occupier throughout the territory but rather “the extent to which the Occupying Power, through its military presence, is exerting effective control over the territory and limiting the right of self-determination of the occupied population.” The controlling element is whether a belligerent has established its authority and has the ability to exercise it.
Consider that in its Disengagement Plan, Israel reserved the right to use force against Palestinians living in Gaza in the name of preventive and reactive self-defense. Since 2005, Israel has conducted several military operations in the Strip in the name of such self-defense. Consider also that Israel has maintained control of its air space, its seaports, its telecommunications network, its electromagnetic sphere, its tax revenue distribution, and its population registry. Finally, Israel has complete control of Palestinian movement as it controls its five border crossings with Gaza and therefore the ingress and egress of all its goods and people. The confluence of its ongoing control, its continuous military operations, as well as its capacity to redeploy its troops within a reasonable time, demonstrate that Israel remains in effective control of the Gaza Strip. There exists general international consensus affirming the Gaza’s ongoing status as an occupied territory and Israel’s status as an occupying power. Accordingly, the laws of occupation remain in force.
Israel argues that even if it is still an occupying power that it can invoke Article 51 self-defense and to complete its circle, Israel frames its argument within the framework of the U.S.’s War on Terror. In direct response to Al-Qaeda’s attacks on the United States on September 11, 2001 the UN Security Council passed Resolutions 1368 and 1373. The Resolutions affirm that terrorist acts amount to threats to international peace and security and therefore trigger the “inherent right of individual or collective self-defense as recognized by the Charter of the United Nations.” Israel has deliberately worked to first cast all acts of Palestinian violence as terrorist acts; secondly to frame those acts as amounting to armed attacks; and thirdly to argue that such armed attack triggers Article 51 self-defense pursuant to Resolutions 1368 and 1373 irrespective of the West Bank and Gaza’s status as Occupied Territories.
The International Court of Justice dealt with this challenge in its Advisory Opinion on the Legal Consequences on the Construction of a Wall in the Occupied Palestinian Territory. There, the Court reasoned that Article 51 contemplates an armed attack of one State and against another State and “Israel does not claim that the attacks against it are imputable to a foreign state.” Moreover, the Court held that because the threat to Israel “originates within, and not outside” the Occupied West Bank, “the situation is thus different from that contemplated by Security Council resolutions 1368 (2001) and 1373 (2001), and consequently, the Court concludes that Article 51 of the Charter has no relevance in this case.” While there is considerable controversy about whether an armed attack must be imputed to a foreign state, beyond the challenge posed by Israel and its political agents, there is no controversy that where the laws of occupation apply, Article 51 self-defense cannot be imposed.
To assert otherwise is arguably unfair as it affords the occupying power both the right to use police force in a Territory and, if and when it feels that those powers are inadequate, it expands its use of force by invoking a broader right to self-defense. Moreover, an occupying power should not be able to justify its use of military force as self-defense in response to a breakdown in order within a Territory for which it is responsible for maintaining order. In doing so an occupying power would be conflating, and rendering useless, two otherwise distinct legal regimes of jus in bello and jus ad bellum. Nonetheless, Israel continues to challenge the legal order and to insist that international law is not mature enough to handle its security concerns. To this end, Israel’s challenge and insistence is a deliberate attempt to change the law. For more on this challenge and its implications, come back to read Part II.
*This is based on a paper entitled, “Is it Wrong or Illegal? Israel’s Blockade of Gaza in International Law” to be published by the Issam Fares Institute, American University of Beirut.
Clashes between the main Palestinian movements Hamas and Fatah date back to the late 1980s when Hamas was officially founded and the early 1990s when Fatah took control of the Palestinian Authority, newly established under the 1993 Oslo accords.
In the wake of the first Palestinian intifada, there were confrontations between Hamas and Fatah supporters over the leadership of the intifada. Fatah refused to admit that a new Islamic movement was rising from within the occupied West Bank and Gaza Strip and taking part in leading the struggle, which Fatah had been leading for decades from neighboring countries. After Fatah was forced to leave Jordan and Lebanon, it recognized that the next stage of the Palestinian struggle would take place inside the occupied West Bank and Gaza Strip and therefore tried to diminish Hamas’s influence in the area.
Hamas’s attacks against Israeli soldiers escalated in response to the Oslo accords and its terms, which in Hamas’s opinion was biased in Israel’s favor and abandoned basic Palestinian rights. It is worth noting that Hamas initiated its first suicide bomb attack against Israeli civilians just weeks after Israeli settler Baruch Goldstein massacred dozens of Palestinians praying in Hebron’s Ibrahimi Mosque on 25 February 1994. Since then, Hamas has continuously offered Israel to come to an agreement to avoid civilian deaths on both sides, but Israel has always refused.
The main dispute between Hamas and Fatah is the result of what is known in the Oslo accords as “security coordination” between the Palestinian Authority and Israel. Article XV of the 1995 Israeli-Palestinian Interim Agreement states: “Both sides shall take all measures necessary in order to prevent acts of terrorism, crime and hostilities directed against each other, against individuals falling under the other’s authority and against their property and shall take legal measures against offenders.”
Moreover, Article XVI states: “Palestinians who have maintained contact with the Israeli authorities will not be subjected to acts of harassment, violence, retribution or prosecution. Appropriate ongoing measures will be taken, in coordination with Israel, in order to ensure their protection.” This article can be interpreted as offering a guarantee of protection to those Palestinians who work with the Israeli occupation forces.
The “Roadmap” plan promoted by US President George W. Bush in 2002 also stressed the importance of ending “Palestinian violence.” This ideology of persecuting those who resist Israel and protecting those who spy for Israel created friction within Palestinian society.
While some people strive to use all necessary means to resist the occupation, a right recognized for all occupied peoples under international law, others make every effort to sabotage them and treat them as criminals, in an attempt to follow the terms of the “peace process.” The Palestinian Authority’s actions, it must be stressed, do not target only those who have engaged in attacks on Israeli civilians, but any and all resistance against the occupation, even the Israeli army.
Furthermore, the Palestinian Authority has sentenced, tortured and even killed some members of Hamas, Islamic Jihad, and even Fatah back in the 1990s. And immediately after Hamas took full control of Gaza in 2007, Fatah began persecuting Hamas activists in the West Bank at the behest of the United States and Israel as a required step to “advance the peace process.”
The heads of the Palestinian security forces, in private meetings, clarified to the Israeli army that there is no rivalry between them. Instead, they both agreed that they are at war against Hamas, the leader of the Palestinian resistance movement. Recently, they made clear their close ties when PA security officials received the chief of staff of the Israeli army, General Gabi Ashkenazi, as their guest in Bethlehem and gave him a guided tour of the city (“Israeli army chief visits Bethlehem,” Ma’an News Agency, 3 October 2010).
Such statements and actions — which have become all too common — clearly portrays that the Palestinian security forces have become a replica of the South Lebanon Army (SLA). Israel’s collaborator militia during its two-decade-long occupation of Lebanon, the SLA was paid to fight against Lebanese and Palestinian resistance in that country.
The PA is very keen to fulfill its security commitments to the Israeli occupation because that is the basis of its relationship with Israel. Therefore, the PA is compelled to continuously hunt down and jail any resistors to the occupation, and to provide Israel with security information. Keeping Hamas members in jails, restricting their movement in the West Bank, or shutting down their grassroots movement makes it all but impossible for Hamas to proceed with a national reconciliation, which it has long sought and which the Palestinian public overwhelmingly wants.
In addition, the US, along with Israel, will not give Fatah — which is dependent on them for political and other kinds of support — the green light to have a unity agreement with Hamas. The US has spent millions of dollars to build a strong Palestinian security force in the West Bank that has worked to bring security for Israel since 2007.
It is very clear that if Fatah decides to halt its work with the Israeli army, the US and other donors will cut off financial aid to the PA. This leaves Fatah leaders in a critical position where they must choose between returning to the national Palestinian camp, or remaining on good terms with Israel and its occupation army.
Raja Abdulhaq is a Palestinian activist who has worked with Al-Awda New York: The Right to Return Coalition, founder of GUPS (General Union of Palestine Students) in New York, and currently works with American Muslims for Palestine.
Pity the nation that has to silence its writers for speaking their minds. Pity the nation that needs to jail those who ask for justice.
Kashmir — I write this from Srinagar, Kashmir. This morning’s papers say that I may be arrested on charges of sedition for what I have said at recent public meetings on Kashmir. I said what millions of people here say every day. I said what I, as well as other commentators have written and said for years. Anybody who cares to read the transcripts of my speeches will see that they were fundamentally a call for justice. I spoke about justice for the people of Kashmir who live under one of the most brutal military occupations in the world; for Kashmiri Pandits who live out the tragedy of having been driven out of their homeland; for Dalit soldiers killed in Kashmir whose graves I visited on garbage heaps in their villages in Cuddalore; for the Indian poor who pay the price of this occupation in material ways and who are now learning to live in the terror of what is becoming a police state.
Yesterday I traveled to Shopian, the apple-town in South Kashmir which had remained closed for 47 days last year in protest against the brutal rape and murder of Asiya and Nilofer, the young women whose bodies were found in a shallow stream near their homes and whose murderers have still not been brought to justice. I met Shakeel, who is Nilofer’s husband and Asiya’s brother. We sat in a circle of people crazed with grief and anger who had lost hope that they would ever get insaf-justice-from India, and now believed that Azadi-freedom-was their only hope. I met young stone pelters who had been shot through their eyes. I traveled with a young man who told me how three of his friends, teenagers in Anantnag district, had been taken into custody and had their finger-nails pulled out as punishment for throwing stones.
In the papers some have accused me of giving ‘hate-speeches’, of wanting India to break up. On the contrary, what I say comes from love and pride. It comes from not wanting people to be killed, raped, imprisoned or have their finger-nails pulled out in order to force them to say they are Indians. It comes from wanting to live in a society that is striving to be a just one. Pity the nation that has to silence its writers for speaking their minds. Pity the nation that needs to jail those who ask for justice, while communal killers, mass murderers, corporate scamsters, looters, rapists, and those who prey on the poorest of the poor, roam free.
One of the cases the Supreme Court of the United States will take up in its 2011 session is Ashcroft vs. al-Kidd. John Ashcroft was the Attorney General under President George Bush Jr. In that capacity he appears to have knowingly violated the U.S. Constitution (as well as periodically forced his employees to listen to his horrendous singing voice). Abdullah al-Kidd is a Muslim American citizen who Ashcroft illegally ordered detained through the illicit use of a material witness warrant. Kidd was one of 70 detained in this manner. He was picked up at Dulles International Airport after the FBI lied to a judge in order to get the warrant for his seizure. Al-Kidd was subsequently held for long periods in a security cell where the lights never went out.
That John Ashcroft is the criminal and al-Kidd his victim is certain. That is how the Ninth Circuit Court of Appeals sees it. That court has refused to dismiss al-Kidd’s lawsuit against Ashcroft noting that the former Attorney General can be held personally responsible for action “repugnant to the Constitution.” That he knowingly and criminally acted to “arrest and detain American citizens for months on end, in sometimes primitive conditions, not because they have committed a crime, but merely because the government wants to investigate them for possible wrongdoing.” Ashcroft’s lawyers avoid the question of the illegality of his actions and simply say that he is immune from lawsuits for actions he took as Attorney General. On that basis they have asked the Supreme Court to dismiss the suit. The Justices have now decided to consider Ashcroft’s request.
Certainly John Ashcroft is not the first high U.S. official to reveal himself as an alleged criminal. Nor is it the first time that high government officials have acted in an unconstitutional manner. Right out of the starting gate , so to speak, the young United States created the Alien and Sedition Acts (1798) through which the Federalist party sought, quite unconstitutionally, to jail its political opponents. Andrew Jackson spit in the eye of both the Supreme Court and the Constitution by evicting the Cherokee Indians (1838), James Polk should have been impeached for high crimes and misdemeanors for lying to the Congress in order to start the Mexican-American War (1846), Abraham Lincoln probably violated the Constitution by some of his police actions during the Civil War, the raids and deportations that took place as a result of the Red Scares of the 1920s were at least in part unconstitutional, then you have Watergate, Irangate and now multiple potential Bushgates. Few of the politicians who ordered these criminal actions, or those who carried out those orders, ever faced punishment.
The Position of the Obama Administration
What is interesting about the present case of Ashcroft vs. al-Kidd is that the Obama administration has decided to make illegality acceptable by institutionalizing the concept of immunity for highly placed men like Ashcroft. The administration will try to do this not through legislation, but through precedent– by defending Ashcroft’s claim to immunity before the Supreme Court. At first it seems strange that a professed liberal president such as Barack Obama would do this. But unfortunately, it is quite consistent with the illiberal stance he has maintained on the question of the constitutional responsibility of his predecessors in the Bush White House. From the beginning of his presidency, Obama decided to shield them from the consequences of their crimes. This position was initiated by the president’s “we should look forward” statement in January of 2009. In this statement he made it clear that he did not want to pursue those who had ordered or implemented (in this case) torture under the Bush administration. When popular pressure forced the president to allow his attorney general, Eric Holder, to open an investigation of the issue of torture it was arranged so the inquiry would have no teeth. Publically and up front we were told that no one would be prosecuted whatever the outcome of the probe. That is the last anyone has heard of Holder’s investigation of torture American style. The long and short of this is that the principle set down at Nuremberg, to wit following orders is no excuse for criminal behavior, will not be applied. Nor will giving the orders incur a penalty. The decision to defend Ashcroft’s claim of immunity is in solid accord with this position.
The logic of this position, and its likely consequences, warrants close examination. If we were to ask President Obama why he has decided to defend the immunity of alleged criminals who happen to be high government officials, and if he were to be perfectly candid in his reply, here is what he might say:
1. President Obama – It would be difficult for the president, or those who carry out his orders, to act freely and as needed if they had always to worry about litigation after the fact. This is particularly true in time of war and emergency.
My Reply – This assertion has been made by leaders of states from time immemorial. It is a variation on the raison d’etat argument that has historically allowed all manner of bad behavior under the guise of state interests. On the other hand, it is true that following the law can prove inconvenient under wartime or emergency conditions. Nonetheless, in the long run, lawlessness is much worse than inconvenience. It is to be noted that, in the American case, appointed and elected high officials (particularly attorney generals!) are sworn to uphold the law not to transgress it.
2. President Obama – While I have stopped the more egregious policies of the Bush administration, I am still responsible for the safety of all American citizens and, in our modern age, I have to be able to use all the methods, high tech and otherwise, to achieve this goal. Some of these methods might very well prove unconstitutional (warrantless wiretaps, for instance) and yet I must be free to use them because another 9/11 style attack must be prevented. And, if I am to use these methods, then I can not prosecute those who have done so before me. Otherwise I would be accused of being a hypocrite by my political foes.
My Reply – This argument juxtaposes unattainable 100% security against the traditional freedoms that makes America the country its founders intended. Do we want to sacrifice the latter for the illusion of the former? As James Madison once observed, “The means of defense against foreign danger historically have become instruments of tyranny at home.” That is the slippery slope President Obama seems willing to take us down. It also prioritizes the president’s political interests over the Constitution. This latter point of view can be carried further.
3. President Obama – You have to understand, that if I do not do all that is possible, be it constitutional or otherwise, to protect the nation I put myself in mortal political danger. I open myself to the accusation by my political rivals that I am “soft” on security or terrorism. And, if something does happen, such as another terrorist attack, then I am politically dead.
My Reply – Well, yes, this is so. However, what is also true is that prioritizing politics above law always leads us in the direction of corruption, or worse. By defending Ashcroft isn’t President Obama saying it is all right to break the law if you are highly placed and so lacking in imagination that you can not figure out a legal way of dealing with an emergency? For let us be clear, there is no evidence that after 9/11 the unconstitutional route was the only possible route to defend the country. Were the legal options and their constitutional variants ever seriously itemized and discussed? The Obama administration, like the Bush operatives, have never publically addressed this question.
If the Obama Justice Department proceeds with its plans to defend Ashcroft’s immunity claim and if, as is likely, the Supreme Court upholds that claim, we will be left with a politically based two tier legal system. It will set free to break the law every highly placed federal official every time he or she can claim an emergency situation. Then, after the fact, they will cite the immunity precedent. In the meantime, the fact that high federal officials are sworn to uphold the laws of the land will be rendered worthless, just another bit of political hypocrisy.
So what is it that we want for America? Do we want a two tier legal system where presidents and their appointees can break the law with impunity? Do we want a legal system where it is accepted that citizens and residents can disappear into federal dungeons? Is it all right with us that our fellow citizens, following the orders of the president, will torture, detain, shackle and otherwise abuse others without any regard for law – and they too will be immune? Because, whether they realize it or not, that is what the Obama Justice Department is arguing for when it defends John Ashcroft.
DR. LAWRENCE DAVIDSON is professor of Middle East history at West Chester University in West Chester, PA, and the author of America’s Palestine: Popular and Official Perceptions from Balfour to Israeli Statehood (University of Florida Press, 2001), Islamic Fundamentalism (Greenwood Press, 2003), and Foreign Policy, Inc.: Privatizing American National Interest (University of Kentuck Press, 2009).
More Transparency Needed On Detention Practices At Massive U.S. Prison In Afghanistan, Says ACLU
NEW YORK – The Defense Department can continue to withhold key information from the public about the hundreds of detainees imprisoned by the U.S. military at Bagram Air Base in Afghanistan, according to a federal court ruling today.
The ruling came in an American Civil Liberties Union Freedom of Information Act (FOIA) lawsuit against the Defense Department and the CIA for records related to the detention and treatment of prisoners at Bagram (now known as Parwan). The Defense Department has released the names of the 645 prisoners who were detained there as of September 2009, but has kept secret other vital information including their citizenship, how long they have been held, in what country they were captured and the circumstances of their capture. The ACLU charged that the Defense Department is improperly withholding these basic facts about Bagram prisoners and their detention, and asked the U.S. District Court for the Southern District of New York to order the Defense Department to turn over the information. In denying the ACLU’s motion, the court also ruled that the CIA did not act improperly when it refused to even confirm or deny whether the CIA had records about the rendition and interrogation of Bagram detainees.
The U.S. military has announced its intention to transfer control of Bagram prison to the Afghan government next year. However, media outlets have reported that the Obama administration intends to maintain control over a portion of the prison and to continue detaining some prisoners in U.S. custody there, including non-Afghan terrorism suspects captured outside of Afghanistan and prisoners considered “enduring security threats.”
The following can be attributed to Melissa Goodman, staff attorney with the ACLU National Security Project:
“Despite concerns that Bagram has become the new Guantánamo, the public remains in the dark when it comes to basic facts about the facility and whom our military is holding in indefinite military detention there. The public has a right to know how long the U.S. has kept people locked up in military detention and under what circumstances. The lack of transparency about these key facts is even more disturbing considering the possibility that the U.S. will continue holding and interrogating prisoners at Bagram well into the future. Unfortunately, today’s ruling will allow the government to continue hiding this vital information.”
More information about the ACLU’s FOIA lawsuit, including today’s filings, is online at: www.aclu.org/national-security/bagram-foia
CONTACT: (212) 549-2666
The US would not be allowed to use its base in Qatar to launch attacks against Iran and US President Barack Obama should try to re-engage with Tehran, said the Emir of Qatar, Sheikh Hamad bin Khalifa al-Thani, in Doha during interview with the Financial Times published Tuesday.
“As a neighbor to Iran, and we have lived with Iranians for a long time together, we believe that the best thing is dialogue. The Americans should speak with Iran. The Iranians are all the time mentioning that their nuclear (program) is there for peaceful purposes. What is the role of the United Nations, the Security Council? They should go and check this,” said Thani.
The emir also told the Financial Times that Qatar would not allow the US using its base there to launch a strike on Iran, should it decide to do so, and warned that the Israelis are those “who have the most dangerous weapons, the nuclear weapons.”
He said Qatar’s relations with Iran would continue and “We never thought to [support] the Americans against Iran or against Hezbollah. Again, we feel that we know our region more than the Americans.”
Thani said that in the Gaza war the Israelis “refused to allow us to send mobile hospitals to Gaza and we were seeing the children being killed and they didn’t allow us to send food.” “We told them, we are the only country in the Gulf where you have your [trade] office and you should treat us better,” he said.
Thani also commented on the so-called peace process, saying that “The Americans should tell the Israelis that they have to do something to achieve peace in the Middle East. And the Americans should tell them that we are not going to follow you. We have other friends in the region and they are suffering because of your decisions against the Palestinians.”
The emir stated that the peace process is not “in the hands of the Arabs, because the Arabs until now have not been able to represent themselves to find a way for peace,” adding that an alternative to the Arab Peace initiative has not been developed.
Yesterday morning, wearing a dark suit, a white shirt and a dark tie, Omar Khadr, the Canadian citizen who was just 15 years old when he was seized after a firefight in Afghanistan in July 2002, ended an eight-year struggle — first by the Bush administration, and then by the Obama administration — to convict him in a war crimes trial at Guantánamo, when he accepted a plea deal in exchange for a reported eight-year sentence.
According to an article in the Miami Herald, drawing on comments made by “two legal sources with direct knowledge” of the deal, Khadr said he “eagerly took part in a July 28, 2002 firefight with US Special Forces in Afghanistan that mortally wounded Sgt 1st Class Christopher Speer.” This was the crux of the case against him, and a charge that he had always previously denied. He also said that he had “aspired as a teen to kill Americans and Jews,” and described his father, Ahmed Said Khadr, who had been responsible for taking him on numerous visits to Pakistan and Afghanistan as a child, leading to the events on the day of his capture, as “a part of Bin Laden’s inner circle, a trusted confidant and fundraiser.”
Khadr’s plea was submitted to the judge, Army Col. Patrick Parrish, by his military defense lawyer, Army Lt. Jon Jackson, and Col. Parrish made sure that he knew what he was doing as he ran through the charges. “Yes,” Khadr replied. “You should only do this if you truly believe it is in your best interests,” Col. Parrish then told him. “Yes,” Khadr replied again. According to the Miami Herald, his voice was “a near whisper,” but became stronger as Col. Parrish read out the charges.
As the Globe and Mail described it, Khadr “assented to knowing that he was attacking civilians, that he wanted to kill US troops, that he planted mines and that he received one-on-one terrorist training from an al-Qaeda operative.” He also agreed that he was a member of al-Qaeda, and was an “alien, unprivileged, enemy belligerent,” who was “unqualified therefore to shoot back or engage in combat hostilities with US or other coalition forces,” and also said that he understood that he was guilty of “murder in violation of the laws of war.”
For the United States, the plea deal means that a trial has been avoided, dimming the glare of the global media spotlight on the embarrassing prospect of the first war crimes trial of a child soldier since the Second World War. Instead, according to the Military Commission rules, a limited amount of evidence will be submitted this week — including testimony from Tabitha Speer, the widow of the Special Forces soldier killed by the grenade in the firefight that led to Khadr’s capture, and statements by mental health professionals for both the prosecution and the defense — before a seven-member military jury will deliver its own sentence. As the details of Khadr’s plea deal have not been made public, this strange formality (which involves a sentence without a trial) will only mean anything if the jury delivers a less severe sentence than the one negotiated in secret.
This, however, is not the main problem with yesterday’s outcome, which blurs the parameters of justice horribly, creating the impression that Khadr is guilty, even though he may only have agreed to confess in order to secure a favorable sentence. This is something that Daphne Eviatar, an observer for Human Rights First, noted in an excellent article in the Huffington Post, when she explained that “it was clear that prosecutors had taken the opportunity to throw the kitchen-sink-full of charges at him — including far more crimes than he’d even been charged with. Most importantly, Khadr pled guilty to killing two Afghan soldiers who accompanied US forces in the 2002 assault on the compound. The government has never presented any evidence whatsoever that Khadr was responsible for that, and did not claim he was in its opening statement at trial.”
In addition, Khadr’s guilty plea enables the Obama administration to disguise the many fundamental flaws with the Military Commissions, which might have been exposed during a trial.
Because Khadr’s plea deal is presumed to stipulate that he cannot appeal, the administration will be able to tell the world that the Commissions are “fair and just,” although they are no such thing. One problem, of course, is that a former child prisoner has been subjected to a trial after eight years of imprisonment in an experimental prison devoted to arbitrary detention and coercive interrogation, when he should have been rehabilitated, according to the UN Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (which the US ratified in December 2002), but another concerns the nature of the crimes to which he confessed.
This second problem — which focuses on the fundamental legitimacy of the Commissions — was illustrated starkly in the Globe and Mail’s description of how Khadr agreed that he was an “alien, unprivileged, enemy belligerent,” who was “unqualified therefore to shoot back or engage in combat hostilities with US or other coalition forces,” and also how he reportedly understood that he was guilty of “murder in violation of the laws of war.”
Back in April, Lt. Col. David Frakt, a law professor and the former military defense attorney for two other Guantánamo prisoners, Mohamed Jawad and Ali Hamza al-Bahlul, spelled out the problems with these charges in no uncertain terms. Writing of the central charge of “murder in violation of the law of war,” Lt. Col. Frakt explained that, even if Khadr did throw the grenade, “there is no evidence that he violated the law of war in doing so.”
As I explained in an article about Khadr two months ago, he added that “the confusion arose initially because the Bush administration wanted to find a way to ensure that ‘any attempt to fight Americans or coalition forces was a war crime,’ and that Congress, in enacting two pieces of legislation relating to the Military Commissions in 2006 and in 2009, maintained this unjustifiable position by refusing to distinguish between legitimate and illegitimate actions during wartime.”
Lt. Col. Frakt also explained that the Bush administration’s original invented charge for the Commissions — “Murder by an Unprivileged Belligerent” — was, essentially, replaced by the Congress-endorsed “Murder in Violation of the Law of War,” even though it “conflated two different concepts — unprivileged belligerents and war criminals.”
Under Article 4 of the Geneva Prisoner of War Convention it is clear that while a member of an organized resistance movement or militia may be an unprivileged belligerent (because of not wearing a uniform or failing to carry arms openly, for example) he may still comply with the laws and customs of war, so not all hostile acts committed by unprivileged belligerents are war crimes. Attacks by unprivileged belligerents which comply with the law of war (in that they attack lawful military targets with lawful weapons) may only be tried in domestic courts. In Iraq, for example, insurgents who try to kill Americans by implanting roadside bombs are properly arrested and tried before the Central Criminal Court of Iraq as common criminals. Attacks by unprivileged belligerents which violate the law of war, such as attacks on civilians or soldiers attempting to surrender, or using prohibited weapons like poison gas, can be tried in a war crimes tribunal.
With Khadr’s plea deal, the uncomfortable truth about the Commissions — that they have been established to try non-existent war crimes — has been swept aside as thoroughly as it was in the case of Ibrahim al-Qosi, who accepted a plea deal in July. As a result, Omar Khadr may have taken the only realistic route open to him, but the price has been the apparent validation of a fundamentally lawless process, which could have been legally challenged had he been subjected to a full trial.
Back in July, Omar Khadr refused to accept a plea deal, and, in a letter to Dennis Edney, one of his Canadian lawyers, wrote, “there must be somebody to sacrifice to really show the world the unfairness [of the Commissions], and really it seems that it’s me.” It is understandable that — faced with an eight-year sentence, or the possibility of a life sentence in exchange for a “sacrifice” — Khadr chose the former option.
However, it remains deeply depressing that the Obama administration will be able to maintain the fiction that the Military Commissions are capable of delivering justice, and also that it now appears to be irrelevant that Khadr was a juvenile prisoner, subjected to horrific treatment, because he has conceded, in circumstances that may not have been conducive to telling the truth, that he was in fact a terrorist.