text:
caged but undaunted
stanley l cohen
Israeli Justice… a Futile Chase
From Tel Aviv to Tallahassee
The Enemy is not Resistance
The Brazen Detention of Marzieh Hashemi, America's Newest Political Prisoner
He Raised Legal Hell for 35 Years. Now He's Back.
The Two-State Solution is Neither
A Short History of Collective Punishment: From the British Empire to Gaza
The Peace Deal That is All Israel
Broken Dreams and Lost Lives: Israel, Gaza, and the Hamas Card
The Apprentice: the Education of Mohammed bin Salman
Building For Sale, All Bids Considered: the UN and the Middle East
When Zionism Rubs Up Against Reality
The Marketplace of Ideas: Assaulting the First Amendment
Thirteen Russians: a Defense Lawyer Decodes the Mueller Indictments
On Resistance: BDS and Israel's Declining Support Among Diaspora Jews
In the Occupied Territory, Justice for Jews
Parallel Worlds: Gaza and Israel
Donald Trump: A president swallowed by history
Peter Kassig the Untold Story
Sessions' Jaded Justice
Decency Lost: McCarthyism Revisited
Charlottesville Redux
Why Netanyahu's Departure Will Mean Nothing
Palestinians have a legal right to armed struggle
The Attack on Al Jazeera
Los palestinos tienen un derecho legal a la lucha armada
View from the Outside/The Danger of a Single Media Voice
Breaking With Qatar
Where Food is More than Nourishment
Theatre 80 Discussion
House of Hate
The White House . . . Denial and Cover-ups
Jim Crow is alive and well in Israel
Trump's 'Muslim ban' is not an exception in US history
Move the Embassy: End the Charade
From war to more war
It's Not Just Settlements
An Open Letter to American Jews
Not Our President
To some, ignorance is bliss
Comey's Blindside: You're Just a Cop
Israel: 1984 Everlasting
Equality and Justice for All, It Seems, But Palestinians
The lone wolf of Gaza
American Nightmare: the Criminal, Justice System
Israel and Academic Freedom: a Closed Book
When US Congress chases votes and not the law
The Road from Standing Rock to Gaza is a Straight Line
Boycotts, Now and Then: an Open Letter on BDS to the City Council of New York
November 8, 2016 Offers No Relief For Palestine
Attica Lives
BDS is a war Israel can't win
The Road Home for Prisoner 19846 052
In Re: South Africa Jewish Board of Deputies vs. Radio 786
We Feared Witches. We Hung Women
Stanley Cohen unbound: Radical lawyer out of jail, headed abroad
It Ain't The Promised Land…Part Seven
It Ain't The Promised Land…Part Six
It Ain't The Promised Land… Part Five
It Ain't The Promised Land… Part Four
It Ain't The Promised Land…Part Three
It Ain't The Promised Land… Part Two
It Ain't the Promised Land
We Are Truly Legion…The Appeal Continues
Declare Victory, Come Home
Forgotten Words
"We Are Truly Legion"
The Children of Oslo
In the Matter of the International Community v Israel
Staying Strong
Prison America
Prison America Part II
It Ain't Vigilantism
Eulogy for Said
Lights Dim
He isn't dead…he's just moved on
"We Wanted Coltrane – We Got Kenny G With a Tan" Dr. Cornell West
The Persecution of Ahmed Mansour
To the Haters
Just Kids
Child of Gaza
She's Magic
Song for Walaa
New Faces Old Rhetoric and Hatred
If Rand Paul is the answer…
Succinct Response
Take your pick.
Ode to Said
sleepless nights and long anxious days
Archives Select Month January 2020 July 2019 June 2019 May 2019 October 2018 August 2018 July 2018 June 2018 May 2018 December 2017 November 2017 August 2017 July 2017 June 2017 April 2017 March 2017 February 2017 January 2017 November 2016 October 2016 September 2016 July 2016 June 2016 May 2016 April 2016 March 2016 February 2016 January 2016 December 2015 November 2015 October 2015 September 2015 August 2015 July 2015 June 2015
(Originally published JANUARY 3, 2020 in Counterpunch)
by STANLEY L. COHEN
"Doctrine of Futility"
Seventeen years ago, 23 year old Rachel Corrie (a Washington State volunteer with the International Solidarity Movement) was crushed to death by an armored military bulldozer as she stood on top of a mound of dirt trying to prevent the dozer from destroying a civilian home in the Southern Gaza Strip village of Rafa. Wearing a bright orange vest and shouting out at the bulldozer through a megaphone, Corrie was murdered for the temerity of her unarmed act of peaceful defiance. More than a dozen years later the Israeli Supreme Court rejected her parents' suit to hold Israel's military accountable for her death. In finding that an "explicit statutory provision of the Knesset overrides the provisions of international law", the Israeli High Court sacrificed well more than a century of settled international protections, including those memorialized under the laws of war and human rights, to the endless Israeli talisman of "wartime activity."
More than a few historians can recall that very chant, raised and rejected at the Nuremberg Tribunals, which held Nazis accountable for targeted attacks on civilians throughout World War II.
Less than two months after the murder of Corrie, 34 year old James Henry Dominic Miller (a Welsh cameraman, producer and director who had won five Emmy awards for his work) was shot dead by an Israeli soldier, at night, while filming a documentary in the Rafah refugee camp. Moments after he and his crew left a Palestinian home bearing a white flag, two shots rang out. After the first shot a crew member cried out, "…we are British journalists.". Soon, a second shot hit Miller, killing him instantly. Initially, one spokesperson reported that after the IDF discovered a tunnel at the house Miller had exited, he was shot in the back when caught in the middle of a crossfire precipitated by an anti-tank missile fired at Israeli troops. Another spokesperson said his death occurred during "…an operation taking place at night, in which the [Israeli] force was under fire and in which the force returned fire with light weapons."
Later, both versions were retracted when it turned out that the round that killed Miller had entered not through his back but the front of his neck. Likewise, the tale of crossfire fell apart with witnesses reporting no such exchange of gunfire and none having been heard on an audio recording made contemporaneous to the incident.
Some two years later, an Israeli military police investigation into Miller's killing was closed without returning any criminal charges against the Israeli soldier suspected of firing the fatal shot … though he was to be "disciplined" for violating the rules of engagement and for altering his account of what had occurred.
The following year, an inquest jury at St Pancras Coroner's Court in London returned a verdict finding that Miller had been "murdered" and that the fatal shot matched rounds used by the IDF. Not long thereafter, the UK Attorney General made a formal request to Israel for it to prosecute the soldier responsible for firing the shot. That request was ignored. To date, no such proceedings have been undertaken by Israel …be it by an independent investigatory body, the military or the office of the state prosecutor.
In March of 2009, thirty-eight year old California native, Tristan Anderson, was hit in the forehead by a high-velocity teargas canister fired directly at him by an Israeli border policeman, some 60 metres away, following a regular joint Palestinian -Jewish demonstration against the Israeli separation barrier in the West Bank village of Ni'lin. When struck, Anderson was simply talking with three or four other activists in the center of the village some distance from the "shame wall" where the demonstration had earlier occurred. In the months prior, four Palestinians had been killed by soldiers during like demonstrations.
Taken to a hospital with his head split open, Anderson underwent three emergency brain operations which required the partial removal of his frontal lobe. The surgery, which left him in a coma and in critical condition, blinded his right eye and paralyzed half of his body. After fifteen months of hospitalization, Anderson returned home where, a decade later, he continues to require around the clock care because of permanent cognitive impairment and physical disability.
Several days after Anderson was crippled, Israeli police opened an investigation into the circumstances of the shooting. Given the 400 plus metre range of the canister, and their respective positions, there was clear evidence of criminal intent on the part of the soldier who shot Anderson. Despite this, the investigation was closed, some six months later, without explanation or any public finding… and with no criminal charges filed against any police or military personnel.
When no criminal charges were filed against those involved, the Andersons filed a civil law suit against Israel but waited years for the case to proceed in an Israeli court. Years later, the case remains very much in a state of judicial limbo with no determination as to it merits. Not unusual at all, counsel for the Anderson's has noted that "…[t]he astonishing negligence of this investigation and of the prosecutorial team that monitored its outcome is unacceptable, but it epitomizes Israel's culture of impunity. Tristan's case is actually not rare; it represents hundreds of other cases of Palestinian victims whose investigations have also failed."
As she walked out of the courtroom after a judicial proceeding into the civil lawsuit regarding the shooting of her partner, Gabby Silverman, who is Jewish, was served with an order that she had to leave Israel within the following 7 days because there was "insufficient proof that there was a lawsuit going on, and insufficient proof that she is a Jew."
These three matters involving the murder or cripple of foreign nationals by Israel are very much the rule and not the exception in a state that sees dissent or disobedience as an open invitation for retaliation. For the fortunate, it means but arrest or expulsion for the less so …outright assassination.
For those who survive politically rooted Israeli assault, or their mourning heirs, the road to equity remains a dead end… one blocked by walls of incompetence or indifference… smothered by systemic delay and legislative fiat that convert black robes of justice to mere rubber stamps of state. To be sure, Israel's failure to promptly and thoroughly investigate facts and circumstances, let alone to prosecute its agents… military or otherwise… who commit crimes against foreign nationals or to provide for an equitable and expeditious civil remedy for them or their loved ones, is well-known, indeed, notorious throughout the world.
For Palestinians, every step outside their home is to navigate a mine field of uncertainty; every encounter with an Israeli soldier or police officer a literal tempt to their life or liberty. The famed Israeli human rights center, B'Tselem, has archived a veritable cemetery of Palestinians victimized by extra-judicial Israeli assassination. Most cry out for justice from beyond the headstones that mark their name with little else but the smile of their memory. Meanwhile, loved ones wait for the call of justice… an echo, for almost all, never to be heard.
On July 13, 2011, twenty-one year old Ibrahim 'Omar Muhammad Sarhan was shot dead at al-Far'ah Refugee Camp by soldiers who ordered him to stop during an arrest operation. When he refused, he was killed. Though a military investigation into his killing was opened, it was eventually closed, with no one charged, on the grounds "…that the shooting soldier's conduct was not unreasonable given the overall circumstances and his understanding of the situation at the time."
On February 23, 2012 twenty-five year old Tal'at 'Abd a-Rahman Ziad Ramyeh was shot dead at the northeast corner to a-Ram, al-Quds District, after throwing a firecracker at soldiers during a clash with demonstrators. A military investigation into his death was closed "…on the grounds that the gunfire that killed Ramyeh was carried out in accordance with open fire regulations."
On March 27, 2012, twenty-seven year old Rashad Dhib Hassan Shawakhah was wounded, in the village of Rammun, when he and his two brothers confronted two out-of-uniform soldiers who approached their home in the middle of the night. Believing the men to be burglars, the brothers, armed with a knife and a club, confronted the soldiers who, without identifying themselves, shot the three of them. Uniformed soldiers arriving at the scene shot Rashad, again, as he lay wounded on the ground. He died six days later. Although a military investigation was opened, more than seven years later no action has yet been taken.
On January 15, 2013, sixteen year old Samir Ahmad Muhammad 'Awad of Budrus, Ramallah District, was shot and killed by soldiers near the Separation Barrier. After crossing the first barbed wire fence of the barrier, Awad was shot in the back and in the head as he tried to flee the soldiers' ambush and return to Budrus. Although two soldiers were indicted, several years later, for reckless and negligent use of a firearm, the charges were eventually dismissed when prosecutors told the court that because their evidence had "weakened" there was no longer "…a reasonable prospect of conviction."
On January 23, 2013, twenty-one year old Lubna Munir Sa'id al-Hanash was shot and killed while walking on the grounds of Al-' Arrub College, after a Molotov cocktail was thrown at an Israeli car traveling ahead of the vehicle in which the soldier who fired and the second-in-command of the Yehuda Brigade were passengers. The following year, an investigation into the killing by the military was closed after a finding that the "… shooting did not breach protocol and did not constitute any type of criminal offense."
On December 7, 2013, fifteen year old Wajih Wajdi Wajih a-Ramahi was shot in the back and killed by soldiers, at the Jalazon Refugee Camp, while standing in the vicinity of teenagers in the camp who were throwing stones at the soldiers from approximately 200 meters away. Six years later, the case remains under military "investigation."
On March 19, 2014, fourteen year old Yusef Sami Yusef a-Shawamreh of Deir al-'Asal al-Foqa, Hebron District, was shot by soldiers after he and two friends crossed a gap in the Separation Barrier to gather gundelia [Arabic: 'Akub], a thistle-like edible plant. Not long thereafter, a military investigation of the shooting was closed with a finding of the "…absence of a suspected breach of open fire regulations or criminal conduct on the part of any military personnel."
On May 15, 2014, sixteen year old Muhammad Mahmoud 'Odeh Salameh was shot in the back and killed in a protest near the village of Bitunya, near the Ofer military base, that included stone-throwing. He was not throwing stones when killed. Two years later, the military closed an investigation into the killing after it claimed that no evidence was found connecting a soldier to the shooting.
On July 22, 2014, twenty-nine year old Mahmoud Saleh 'Ali Hamamreh of Husan, Bethlehem District, was shot in the chest and killed by soldiers when he stepped out of his grocery shop to observe clashes underway in the village. While a military investigation was initiated soon thereafter, four years later no decision has yet to be reached.
On August 10, 2014, ten year old Khalil Muhammad Ahmad al-'Anati of the al-Fawwar Refugee Camp was shot in the back by a soldier while near other boys who were throwing stones at a military jeep in the Camp. He died of his wounds in hospital. Several years later, a military investigation into the child's killing ended after "…the investigation found that the troops had acted out of a sense of mortal danger, and that no link between the gunfire and the death of the boy… could be proven."
On July 23, 2015, fifty-three year old Fallah Hamdi Zamel Abu Maryah of Beit Ummar, Hebron District, was killed after soldiers entered his home, to make an arrest, and shot and wounded his son. When Abu Mariyah threw pottery at the soldiers from a second floor balcony of his home, soldiers shot him three times in the chest. A military "investigation" continues.
On September 18, 2015, twenty-four year old Ahmad 'Izat 'Issa Khatatbeh of Beit Furik, Nablus District, who was congenitally deaf, was shot in the back by soldiers near the Beit Furik Checkpoint. He died six days later. To date, it appears no investigation into his killing has been initiated.
On September 22, 2015, eighteen year old Hadil Salah a-Din Sadeq al-Hashlamun of Hebron was shot and killed when hit multiple times in her legs and upper body after refusing to stop on her way out of the Police (Shoter) Checkpoint. As it turned out a concealed knife was recovered from her. No criminal investigation into her killing was undertaken.
On October 5, 2015, thirteen year old 'Abd a-Rahman Shadi Khalil 'Obeidallah of the 'Aydah Refugee Camp, Bethlehem District, was shot dead by soldiers as he stood, with other teenagers, approximately 200 meters away from a military post at Rachel's Tomb where minor clashes were underway between Palestinians and soldiers. Although a military investigation into the child's killing was initiated, no decisions have been reached more than four years later.
On November 6, 2015, seventy-two year old Tharwat Ibrahim Suliman a-Sha'rawi was shot dead by soldiers standing on a road after they "suspected" she was trying to run some of them over. Even after the car passed, soldiers continued firing at her. The military reported no investigation was launched as a "…preliminary review of the incident did not indicate suspicion of a criminal offense."
On November 13, 2015, twenty year old Lafy Yusef Mustafa 'Awad of Budrus, Ramallah District, was critically injured when shot in the back by soldiers after he broke free from their grasp and began to flee. Driven to hospital in a civilian vehicle, which necessarily took longer because of a military checkpoint, he was pronounced dead upon arrival. No investigation was undertaken as the military stated "…a preliminary review of the incident did not indicate suspicion of a criminal offense."
On December 11, 2015, fifty-six year old 'Issa Ibrahim Salameh al-Hrub of Deir Samit, Hebron District was shot and killed by Border Police and soldiers who "suspected" he was trying to run them over. Six months later, the military advised that no investigation would be launched into the incident as a "…preliminary review of the incident did not indicate suspicion of a criminal offense."
On December 18, 2015, thirty–four year old Nasha't Jamal 'Abd a-Razeq 'Asfur of Sinjil, Ramallah District, was shot and critically wounded, while walking home, by soldiers more than a hundred meters away who opened fire while other Palestinians threw stones at them. He died later that day in hospital. While a military investigation was opened it was apparently closed without any charges.
On February 10, 2016, fifteen years old 'Omar Yusef Isma'il Madi of the al-'Arrub Refugee Camp, Hebron District, was shot dead by a soldier in a military tower, at the entrance to the camp, while stones were being thrown at the tower. Though an investigation was launched, more than three year later no conclusion has been reported.
On May 4, 2016, twenty-three year old Arif Sharif 'Abd al-Ghafar Jaradat of Sa'ir, Hebron District, (who had Down's syndrome) was shot as he approached soldiers as they were leaving his village. He died six weeks later. Although a military investigation was closed because "…the gunfire at the casualty did not deviate from open-fire regulations" an appeal has been filed.
On June 21, 2016, fifteen year old Mahmoud Raafat Mahmoud Mustafa Badran of Beit 'Ur a-Tahta, Ramallah, was fatally shot… and four other young men injured… by soldiers who fired on their car while they were driving through a tunnel on their way home from a night at a swimming pool. An investigation was closed by the military which concluded "…in light of the circumstances of the incident, the miss-identification of the car was an honest and reasonable error, and it was permissible for the troops to initiate suspect apprehension procedure."
On October 20, 2016, fifteen year old Khaled Bahar Ahmad Bahar of Beit Ummar, Hebron District, was shot in the back and killed as he ran into a grove fleeing soldiers. Although an investigation was reportedly begun, more than three year later no action has ensued.
On October 31, 2017, twenty-six year old Muhammad 'Abdallah 'Ali Musa of Deir Ballut, was shot dead by soldiers, while driving to Ramallah with his sister, after soldiers had reportedly been alerted that a suspicious vehicle was approaching. Ordering the car to stop, one of the soldiers began to fire at the car, and continued even after it had passed by, without any of its passengers having tried to harm anyone. It was reported that Musa lay wounded on the ground for some 10 minutes without receiving any medical care and was later seized by soldiers while being treated by a Palestinian ambulance team. Two years after the military opened an investigation, it was closed because the soldiers had "…acted in accordance with open-fire regulations and because their operational actions did not evince ethic deficiency."
On January 30, 2018, sixteen year old Layth Haitham Fathi Abu Na'im of al-Mughayir, Ramallah, was shot in the head and critically injured by a rubber-coated metal bullet fired by a soldier from 20 meters away, after returning to his village post clashes he had taken part in had ended. A military investigation is pending.
On December 4, 2018, twenty-two year old Muhammad Husam 'Abd a-Latif Hbali of Tulkarm Refugee Camp, was shot in the head by soldiers from behind. Intellectually disabled, when shot, he was moving away from soldiers while carrying a stick. All was quiet at the time he was shot. A military investigation has been on-going since.
On December 14, 2018, eighteen year old Mahmoud Yusef Mahmoud Nakhleh of al-Jalazun Refugee Camp Ramallah, was shot in the back by soldiers from about 80 meters away while running near the entrance to the refugee camp… after others had thrown stones at a military post at its entrance. Soldiers dragged Nakhleh away by the arms and legs and denied him medical treatment for about 15 minutes. He died soon thereafter. A year ago, a military investigation was launched.
On December 20, 2018, seventeen year old Qassem Muhammad 'Ali 'Abasi of Ras al-'Amud, East Jerusalem, was fatally shot in the back by soldiers, who were stationed near a checkpoint, as the car in which he and three of his relatives were passengers was driving away from the checkpoint. A military investigation was opened.
On March 20, 2019, twenty-two year old Ahmad Jamal Mahmoud Manasrah of Wadi Fukin, Bethlehem, was shot dead by a soldier who fired at him from a military tower near a local checkpoint. At the time he was killed, he was helping a family whose car had been shot at by soldiers and had pulled over. An investigation is pending.
On March 7, 2019, seventeen year old Sajed 'Abd al-Hakim Helmi Muzher, a volunteer medic, from the a-Duheisheh Refugee Camp, Bethlehem District, was shot in the stomach as he ran to evacuate a Palestinian who had been shot in the leg when stones were being thrown at troops who had entered the camp. He died later that day. A military investigation is on-going.
These horrors are but a microcosm of a deadly, systemic tradition that has raged unabated for generations in which thousands of largely young Palestinians have been targeted, crippled and murdered without penalty of consequence to Israel's military or security structure… essentially unmonitored and uncontrolled… indifferent to human rights and international law. Yes, there have been those rare empty exceptions in which a perverse judicial performance has made a mockery of life and law with token punishment meted out for crimes that shock the conscience of humanity.
Thus, on January 1, 2013, twenty-one year old 'Udai Muhammad Salameh Darawish of a-Ramadin, Hebron District, was shot dead by soldiers near the Meitar checkpoint as he fled them after he entered Israel, for work purposes, without a permit. Following a military investigation and plea bargain to negligent manslaughter, a soldier received a seven-month suspended sentence and was demoted to sergeant.
Two more recent judicial miscarriages remind us, once again, that law in Israel remains but a gavel for Jews and a bludgeon for all others:
On May 10th of this year, Elor Azaria, an Israeli medic who faced up to 20 years upon his conviction for manslaughter, walked out of prison after serving but nine months of an eighteen month sentence originally imposed on him by a military court. It was subsequently reduced to fourteen months by the IDF chief of staff and then again by the army's prison parole board (and agreed to by military prosecutors) for his cold-blooded execution of twenty-one year old Abdul Fatah al-Sharif who lay injured and motionless on the ground after stabbing, but not seriously injuring, an Israeli soldier in Occupied Hebron. With calm, deliberate ease, Azaria was recorded as he approached his victim, cocked his rifle and executed him with a single shot to his head.
Not long ago, an Israeli military court sentenced a soldier to one month of the military's equivalent of community service over the execution of fifteen year old Othman Rami Halles who he shot dead during protests near the Israel fence east of the Gaza Strip on July 13, 2018. The unnamed soldier was convicted for "…acting without authorisation in a manner endangering to life and well-being."
These sentences pale in comparison to those routinely imposed upon Palestinian children convicted of throwing stones. For example, sixteen year old stone thrower Saleh Ashraf Ishtayya was sentenced to three years and three months in prison. Fourteen year-olds Muhammad Ahmad Jaber and Murad Raed Alqam received three year sentences. Seventeen year old Muhammad Na'el and sixteen year old Zaid Ayed al-Taweel each received two years and four months in prison for the same offense. None of these children injured, let alone, took the life of an Israeli.
Tragically, casualties have long been the anguished, up-close face of the Occupation with an historical character that wields a deadly reach unmatched and long ignored by the world. As very much a perverse rite of passage, thousands of Palestinian civilians have paid the ultimate price for little more than their presence… lost to multiple high-tech military operations that have targeted residential communities and schools, hospitals and core infrastructure. Many more have been wounded or crippled by relentless Israeli attacks designed to leave survivors not just overwhelmed and battered but with a sense of isolation and futility. Nowhere has this brutal assault on fundamental human rights and international law been more conspicuous than through the sniper attacks on Gaza, over the past 18 months, that have slaughtered or injured tens of thousands of demonstrators whose only weapons have been the step of their march and the resound of their voice. And what of international law?
Volumes have been written on humanitarian law… the law of war and human rights. No doubt they line the walls of judicial halls throughout Israel… from its lowest military courtroom in the Occupied Territories to the highest civilian chamber that claims to rule supreme as the guardian of due process and equal protection for Israeli citizens and those held captive by it. Yet, even a cursory glance by an untrained eye leaves the imprint of a judicial system that is subservient to the chant of state security and legislative fiat and slowed to a process of delay that drags on and on for years leaving no one but Israeli Jews comfortable in the notion that they will have their day in court and with speed and fairness.
Millions of Palestinians are held captive in the Occupied Territories be it in the West Bank by security onslaught or military patrol or by the heap of Concertina wire, sniper mounds and air force and naval watch that keeps all of Gaza imprisoned every minute of every hour of every day. For these foreign nationals… and they are foreign nationals… they never see the inside of an Israeli civilian court or the due process it infers. For these perpetual prisoners, the uniformed soldiers that carry weapons become uniformed soldiers that investigate and prosecute cases to uniformed soldiers that pass judgment adorned not by robes of independence but by order of salute. As noted above in the archive of causality, few if any Palestinians ever obtain due process and equal protection of the law, let alone with independent and foreseeable resolution, as investigations and cases linger on for years pushed, predictably, to the back of the line as each new public outrage unfolds. This is not justice but the "Doctrine of Futility" at its primordial worst.
It is settled law that before seeking international relief, aggrieved parties must first seek redress for harm, caused by a state, within its own domestic legal system. Exhaustion of local remedies (ELR) is intended to uphold state sovereignty by recognizing its own judicial process as a presumptive vehicle for the independent, equitable and expeditious resolution of claims against the state. ELR presumes a state's judicial and administrative systems provide for a credible and apolitical avenue for injured foreign nationals to obtain their day in court before moving-on for diplomatic protection or undertaking international proceedings directly against the state. Yet, very much the proverbial beauty locked in the eyes of the beholder, provisions like equitable, independent and expeditious are routinely recast by repressive regimes across the globe to mirror little more than partisan safeguard of the state's tyrannical needs and agenda.
Nowhere is that more palpably evident or painfully clear than it is in Israel where judicial remedies have long and repeatedly proven to be little more than a convenient faith based tease… a non-existent march to the beat of the overarching political gavel of the Knesset. For Israeli Jews, "all rise" portends opportunity denied all others. For Israeli Jews, lady justice cheats as she peeks out from behind her blindfold… for all others, she is but a symbol without a sign.
The ELR rule is a foundational mainstay of all global and regional international human rights entities and covenants. For example, within the UN, the International Covenant on Civil and Political Rights mandates that it's Human Rights Committee "shall deal with a matter referred to it only after it has ascertained that all available domestic remedies have been invoked and exhausted in the matter, in conformity with the generally recognized principles of international law."
Likewise, the European Convention on Human Rights provides that the European Court of Human Rights "may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognized rules of international law."
The American Convention on Human Rights requires exhaustion of local remedies "in accordance with generally recognized principles of international law" before the submission of petitions or communications to the commission.
The African Charter on Human and Peoples' Rights provides that the Commission "can only deal with a matter submitted to it after making sure that all local remedies, if they exist, have been exhausted, unless it is obvious to the Commission that the procedure of achieving these remedies would be unduly prolonged."
This exemption is but one of several that find smooth fit within the so-called "Doctrine of Futility." Under this doctrine, while release from the requirements of the ELR fluctuates from venue to venue, by-in-large one need not chase domestic justice where none can be had. Thus, in general, ELR may be bypassed:
a. If the domestic legislation of the state concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated;
b. If the party alleging violation of his rights has been denied access to the remedies under domestic law or has been prevented from exhausting them; or
c. If there has been unwarranted delay in rendering a final judgment under these remedies.
Israel is a veritable primer, a law school's teach, on when and where all three damning exemptions merge to validate an apt and speedy march to the nearest international forum in pursuit of justice and human rights otherwise willfully denied foreign nationals in any courthouse or military barrack that flies the banner of the Star of David.
And just who are foreign nationals? In most jurisdictions they cut a relatively narrow swath; typically but a handful of tourists, temporary workers, or businesses and those incidentally injured by practices of cross-border states. Yet, the numbers balloon to millions of foreign nationals in occupied Palestine where all aspects of every Palestinian's life is impacted… if not controlled… daily by an occupation force and judicial process of another state.
Independent of the pervasive culture of military and security violence and its companion lack of fairness and accountability, the Israeli judicial system… both criminal and civil… presents a compelling case study in a double standard delayed and disabled based solely upon ones faith and national identity.
Child Prisoners
Over the last two decades, more than 8,000 Palestinian children (foreign nationals) have been arrested in the Occupied Territories and prosecuted in an Israeli military system devoid of any meaningful due process or equal protection for the most vulnerable and traumatized among those that have known nothing but the bark of occupation their entire lives. It is a military justice process notorious for the systematic ill-treatment and torture of Palestinian children.
Several hours after their arrest, these children arrive at an interrogation and detention center alone, tired, and frightened. All interrogations, by their very nature, are inherently coercive no matter the age or experience of its victim. None are more so than for an often bruised and scared child forced to go through the process without the benefit of counsel or the presence of parents who are never permitted to participate.
Israeli law provides that all military interrogations must be undertaken in a prisoner's native language and that any statement made must be reduced to writing in that language. Despite this prohibition, Palestinian detainees are typically coerced into signing statements, through verbal abuse, threats, and physical violence, that is memorialized by police in Hebrew… which most cannot understand. These statements usually provide the main evidence against children in Israeli military courts.
The Military Court Process
The military "courts" themselves are held inside military bases and closed to the public… and usually family members of the accused. Within these courts, military orders supersede Israeli civilian and international law.
In military courts, all parties… the judge, prosecutor and translators… are members of the Israeli armed forces. The judges are military officers with minimal judicial training and, by-in- large, served as military prosecutors before assuming the bench. The prosecutors are Israeli soldiers, some not yet certified as attorneys by the Israeli Bar. Under the rules of Occupation, all defendants in military courts are Palestinian… as the jurisdiction of the Israeli military court never extends to some eight hundred thousand Jewish settlers living in the West Bank who are accorded the full panoply and safeguard of Israeli civil law.
Under military law, Palestinians can be held without charge, for the purpose of interrogation, for a total period of 90 days during which they are denied the benefit of counsel. Detention can be extended without limit and requires but an ex parte request of military prosecutors. By comparison, a Jewish citizen accused of a security offense, within the Occupied Territory, can be held without indictment in the civil process for a period of up to 64 days during which time counsel is available at all times.
Though Palestinian detainees are entitled to military trials which must be completed within eighteen months of their arrest, their detention can be extended indefinitely, by a military judge, in multiple six-month increments. It is this limitless process which has left thousands of Palestinian political detainees imprisoned for years on end without the benefit of counsel, formal charges, or trial. The comparable time limit for detainees in Israeli civilian courts is no more than nine months.
While criminal liability begins at age twelve for Palestinians and Israelis alike, under the military system Palestinians can be tried as adults at sixteen. For Israelis, prosecution as an adult in a civilian court is eighteen. This two year difference, without physical distinction of consequence, can mean a sentence disparity of many years should a conviction ensue. In some cases, it can literally mean a difference between a few years in prison versus decades upon conviction.
Although the United Nations has repeatedly held that the military justice system in the Occupied Territory violates international law, it has done nothing to ensure equal protection and due process to hundreds of thousands denied justice by virtue of being Palestinian and nothing else. This continues to be true for Palestinian minors. According to B'tselem "…at the end of October 2019, 185 Palestinian minors were held in Israeli prisons as security detainees and prisoners, including one under the age of 14."
Neighborhood Cleansing
With the onset of the Occupation in 1967, Israel initiated a wide range of largely extrajudicial strategies in its incessant effort to claim new municipal boundaries and to remake the age old Palestinian character of east Jerusalem. What began with the seize of large swaths of vacant land surrounding the Old City… for the construction of illegal Jewish settlements… eventually gave rise to the de facto annexation of East Jerusalem… universally condemned as a flaunt of international law. However, never ones to allow legal standards to become barricade to political needs, successive Israeli governments have accelerated the Judaization of the historic capital of Palestine, typically using the call of security as a pretext, while Israel's judiciary has looked away…largely indifferent to its responsibility to ensure that equal justice be done.
Recently, Israel destroyed 10 mostly unfinished buildings containing some 70 apartments, in the Wadi Hummus neighborhood on the edge of southeast Jerusalem, which were being built with permits issued by the Palestinian Authority in an area under its recognized jurisdiction. Displacing 17 Palestinians, including an older couple and five children, from apartments that were finished, the demolitions also left several hundred others, awaiting housing in the buildings, saddled with ensuing economic loss. Though condemned by the United Nations, the government nonetheless proceeded with the demolitions after Israel's High Court refused to intervene on the grounds that the project was being built in a military-declared buffer zone near a "security" fence that had gone up years before. That barrier, which is part of the system of steel fences and concrete walls which runs throughout the West Bank and around Jerusalem, was subsequently found to be illegal by the International Court of Justice in 2004. Like hundreds of other international declarations, Israel ignored the findings.
The destruction of these residential buildings is by no means an isolated or unpredictable phenomenon. In point of fact, another one-hundred buildings completed, or under construction, under similar circumstances in the same neighborhood, face the same risk.
While the proffered basis for demolitions has changed to suit the Israeli needs of the moment, they play an essential mainstay in its intended policy of ethnic cleansing throughout east Jerusalem. This modern-day pogrom finds its genesis in a cap that was placed on the expansion of Palestinian neighborhoods in the days following the seizure of east Jerusalem, thereby forcing many to build illegally according to the laws of the Occupation. This artificial limit has been exacerbated by systemic discrimination when it comes to the issue of building permits in east Jerusalem. Though Palestinians make up more than 60% of the population of the Old City according to the Israeli civil rights group Peace Now, they have received just 30% of the building permits issued by Israel dating back to 1991. Given these circumstances, it has been estimated that more than twenty-thousand housing units built in traditional Palestinian neighborhoods dating back to 1967 fall into the category of illegal… thus placing them at risk of demolition no matter what their condition, how long they have stood or the numbers of their occupants.
This danger has found new impetus since the United States moved its Embassy to east Jerusalem, essentially declaring it to be the capital of Israel. Emboldened by this act, and not now fearing either political or economic reprisal by the United States (or meaningful intervention by its own courts), Israel has recently accelerated its demolition policy leading to the destruction of several hundred residential and commercial structures… leaving hundreds of Palestinians homeless and dozens of businesses in ruins.
While precise figures are unknown, it is estimated that, over the last fifteen years, more than one thousand- five hundred residential and commercial units have been demolished by Israel leaving more than three-thousand Palestinians homeless… including some one thousand- five hundred minors.
Of late, we have seen an increase in the number of demolitions carried out by Palestinians, themselves. While some construe the demolition of several dozen Palestinian structures by their own residents as almost a willful, romanticized act of political defiance, self-demolition has less to do with self-determination than it does the unbearable cruelty and cost of the moment. The aching reality is that a judicial system without justice has authorized the state to bill those for the cost of the destruction of their own homes… lest they do so themselves.
Collective Punishment
While Israeli authorities have argued that punitive home demolitions provide "…a severe message of deterrence to terrorists and their accomplices", such demolitions violate the Fourth Geneva Convention as well as a host of Israel's human rights obligations… in particular that no-one should be punished for an act they did not commit. Under Israeli law, those subject to punitive home demolitions are accorded an opportunity to appeal a demolition order to a court. However, Israel's High Court has routinely refused to consider the absolute prohibition in customary international law against collective punishment of civilians in occupied territory when ruling on petitions against punitive home demolitions in the West Bank, including in east Jerusalem. As almost settled law, the Court has held that demolitions can, in general, be justified as "proportionate" when balanced against the need to deter other Palestinians from carrying out future attacks. Moreover, as a practical matter, rare are the opportunities for prospective victims to obtain timely judicial relief thru applications for review of looming military demolitions.
Thus, according to Article 119 of the Military Authority, the IDF commanders responsible for application of military measures in the West Bank and East Jerusalem are empowered to confiscate and demolish any property, if he determines that the inhabitant…and not necessarily owner… of the property resorted to terrorist violence. That power is not vested or required to go through judicial process but rather is purely administrative. Thus there is no need for a court order to authorize house demolitions and the evidence required to demolish a home carries for the military a low threshold of internal administrative proof …"…convincing in the eyes of a reasonable decision maker."
Though reprisal has long enjoyed a high degree of support among the Israeli public, and thus politicians, there can be no reasoned debate over whether house demolitions constitute a form of collective punishment, and thus a war crime. Prohibited under basic principles of human rights law and Articles 33 of the Fourth Geneva Convention of 1949 and Article 50 of the 1907 Hague Regulations, demolitions also constitute cruel, inhuman and degrading punishment and are selectively applied as against Palestinians and never Jews who commit acts of terrorism.
At their core, these demolitions, which also violate the prohibition on the destruction of private property set forth under Article 53 of the Fourth Geneva Convention and Article 23(g) of the 1907 Hague Regulations, seek not to penalize a "terrorist" who is likely dead or in custody charged with serious offenses and facing years, if not decades, in prison, but rather, family members who reside in the home targeted for military reprisal. Thus, innocent parents, husbands or wives, children and siblings or other residents are left homeless as they are forced to bear the consequences of the acts of loved ones, even in the absence of any prior knowledge or nexus to them.
Although Israel has periodically suspended home demolitions, in times of heightened tension or militant resistance they have become very much part of the military mainstream since the onset of the Occupation. While the exact number of such demolitions is neither documented nor certain, it is estimated that more than 2,000 Palestinian homes have been destroyed pursuant to Article 119 since 1967. Though the Israeli High Court requires the IDF commander to hold a hearing for the residents of a property to be destroyed and permits a petition to the court to stay the demolition, these "safeguards" have proven to be a promise without purpose. While the court has stressed those demolitions are harsh security measures that should be used only in "extreme circumstances" not once has it overridden the authority of the IDF to proceed accordingly.
Lest there be any doubt that history can be but a harbinger of things to come, some of those that run the bulldozer of today in Palestine are progeny of those who picked through the rubble of homes and businesses ransacked and destroyed as collective punishment for acts of terrorism. Undoubtedly a pretext, in 1938, following the assassination of a German Embassy attaché in Paris by a young Polish-German Jew, a campaign of collective reprisal was unleashed against Jews in Germany. Known as Kristallnacht, crowds set fire to synagogues, smashed shop windows, demolished furniture and stocks of goods with the approval of the German Government. Years later Nazis applied the principle of Sippenhaft (collective responsibility) to avenge the assassination of Reinhard Heydrich ,the architect of the "Final Solution to the Jewish question", through mass executions and the destruction of two Czech villages… Lidice and Lezaky.
With predictable promote, Prime Minister Netanyahu recently indicted the ICC investigation of Israel for war crimes and crimes against humanity as little more than anti-Semitism. Putting aside Netanyahu's readily transparent canard, at its core, the ICC typically does not exercise its jurisdiction pursuant to the Rome Statute unless and until a state fails to provide a meaningful domestic remedy for violations of international law. On this score, few can deny that no such equitable and effective opportunity exists within Israel. As noted by Human Rights Watch, "…the impetus for the establishment of the ICC is the stark failure of national court systems to hold the perpetrators of genocide, crimes against humanity, and war crimes accountable under law."
Be it by virtue of the blanket political control of the Knesset or the deadly untamed reach of its security apparatus, Israel's judiciary stands as an emasculated reminder that foreign nationals, whether occupied Palestinians or Westerners seen as enemies of the state, have not, and cannot, obtain due process and equal protection of the law, let alone in an independent and expeditious manner, through Israel's judicial process. Under these circumstances, the Doctrine of Futility overshadows the need to exhaust local remedies to seek international relief for domestic wrongs. The Doctrine does not provide for an easy and settled pathway for foreign nationals to obtain justice outside the confines of extant domestic procedure. Yet, at its core, this international exemption finds its greatest potential and need when and where, as here, a judicial system is built upon a double standard of law… one for Palestinians, the other for Jews.
Stanley L. Cohen is lawyer and activist in New York City.
Posted on January 13, 2020 Author mala1143 Comments on Israeli Justice… a Futile Chase
Any discussion of the detention of journalist Marzieh Hashemi must begin in the historical context that all presidents have used the Department of Justice for constitutionally prohibited personal ends. The calculated seizure and political intimidation of Mrs. Hashemi and her family in the United States is but the most recent flagrant instance.
Whether it's the deportation of political enemies during the Palmer Raids of the early 1900's, or the COINTELPRO attacks a half a century later upon dissidents of color through assassination, mock show trials and indefinite detention of political prisoners, or the post 9-11 hysteria that drove hundreds of thousands of Muslims from the United States, or the targeted attack on whistle blowers and construct of the surveillance state by the last president, all have seen their executive power as essentially boundless, and their thirst to use it . . . largely unrestrained.
Yet none before has been so public, indeed brazen, as is the current one in his utter contempt for the settled rule of law and procedure. Indeed in Trump's view the Department of Justice exists as but a mere extension of his own political thirst and agenda and may be employed as a tool to implement personal and political reprisal. In this light, the lawless seizure of Marzieh Hashemi was as predictable as it is ominous in both process and substance.
The history of the Foreign Agent Registration Act (FARA) has largely lain dormant with few prosecutions, if any, for violations and none before that have triggered the seizure of an American journalist pursuant to the subterfuge of a material witness order, here employed as little more than political handcuffs.
As of now there has been no official comment by the Department of Justice as to the nature of the grand jury dodge that served for the illegal and unnecessary seizure of Mrs. Hashemi when she recently de-boarded a flight in St. Louis, Missouri.
Initial grounds for the unprecedented seizure of the highly respected anchor for Press TV swung wildly, ranging from leverage to obtain the release of other Americans "held" in Iran to a US investigation into possible violations of the recently re-imposed political sanctions against Iran to OFAC violations (Office of Financial Assets Control) arising from her unlicensed work for a designated foreign state.
If, as it turns out, the seizure of Mrs. Hashemi finds its genesis in an unprecedented criminal investigation of a news outlet pursuant to FARA, to understand just how calculated and arbitrary a step it is, one need only look at its very different application against the Russian state owned media outlets Sputnik and RT.
Cast in the light of the hysteria over alleged Russian interference in the 2016 election, Congress and various government agencies turned their attention to both outlets. Claiming the need to provide listeners with notice as to their partisan bent, in point of fact FARA was used against Sputnik and RT as so much a legislative bully-pulpit in a readily transparent effort to "purify" if not control the message of these two foreign owned outlets.
Yet, if FARA triggered the stunning seizure of Marzieh Hashemi, that precipitous step bears no likeliness whatsoever to the procedural and substantive approach employed by the US government with regard to like violations by Sputnik and RT.
In neither case were journalists of the networks seized by the government for possible violation of FARA. In neither case were the networks targeted for grand jury investigation. In fact, unlike here, both media outlets were given ample opportunity to raise objections to the applicability of FARA to their activity and when their arguments proved unavailing a chance to either register with it or to cease operations within the United States. Failing this, the government threatened but did not, at any time, undertake criminal prosecutions or arrests of employees, let alone journalists, who worked for the outlets.
That is not what has apparently happened here with Press TV. In this regard there is no evidence that Press was put on notice that it's "presence" within the United States or acquiring and using information it received in and about controversial US issues for airing in Iran, and elsewhere, triggered FARA oversight let alone a criminal violation of its reach. Nor, does it appear, Press was given an opportunity to challenge a claim that its activity fell within the rubric of FARA. Finally, there is no evidence Press was given an option to either register with FARA or to cease its operation or a warning that failure to do so could result in the prosecution of the network or the arrest of its journalists.
In this light it is palpably clear that the Department of Justice has employed a double standard between its approach to the application of FARA to Sputnik and RT and to that applied as against Press TV.
Given a grand jury investigation into Press for an alleged criminal violation of FARA and the arrest of one of its most respected journalists, it is beyond cavil that the US government has chosen to selectively enforce and punish it for political reasons driven, no doubt, by an Oval Office agenda.
Can it be that this double standard is as much the result of the administration's conscious effort to curry favor with the Russian government at the same time it seeks to punish Iran for the temerity of its political will and social independence?
Putting aside the government's arbitrary application of FARA to Press, there can be no informed debate that the seizure and detention of Mrs. Hashemi pursuant to a material witness order is not just well beyond the norm, but here borders on political kidnapping.
As a rule subpoenas are served many thousands of times each year in the United States during the course of federal criminal or civil proceedings to ensure the availability of witnesses before grand juries or at trial who possess material and relevant information that is probative of a fact or an issue in controversy.
For those who, without legal challenge, simply refuse service of a subpoena or who seek to avoid or evade it the government or a private litigant may seek relief from the court to enforce compliance. Known as a material witness order, that relief compels the recalcitrant witness to appear before the court to determine for itself whether any further judicial intervention is necessary to ensure compliance with the subpoena.
A rare, by design, intimidating exception to the rule, a material witness order can only be issued pursuant to 18 U.S.C § 3144following a sworn fact based assertion that the necessary witness will not make herself available for testimony pursuant to normal process of law. Generally an affirmative showing must be made that the witness has by voice or conduct attempted, or will attempt, to flee or place herself beyond the reach of the court and thus unavailable to provide testimony in a given proceeding.
Once issued, a material witness order does not allow for indefinite detention of a witness but simply permits federal agents, in this case the FBI, to temporarily detain and present the witness to the court forthwith for a determination as to what steps, if any, must be taken to ensure the on-going availability and appearance of them as needed.
Although not charged with a crime, the court essentially considers the same factors for release or detention of a witness that it would weigh and balance if they had otherwise been arrested for an offense. Among other things it must consider whether she is a flight risk or poses a danger to the broader community if released. It considers whether the witness is a citizen or lawful resident and if he or she has ties to the community such as family and employment. It may consider what affirmative acts if any have been taken by the witness to avoid process and appearance and what steps the government undertook before seeking judicial relief to obtain their availability before the grand jury or at trial.
Most important, the court must keep in mind that the witness has not been charged with an offense and should undertake such examination as is necessary to determine to the degree possible whether she will in fact appear for testimony of her own volition, thus militating against the need for imposition of any court imposed conditions.
Should the court remain unsettled over the willing availability of the witness to appear at a future proceeding, it has at its disposal a full range of coercive but non-custodial options ranging from bail or secured bond to home confinement or supervised release including reporting to pre-trial services and electronic monitoring such as an ankle bracelet. Typically, if released, the court will require that the witness surrender travel documents including any passport and restrict domestic transit during the pendency of the proceeding to the district where she is to reside and to that where her testimony is compelled.
Although the law varies from circuit to circuit there is generally a presumption that detention of a prospective witness especially long-term incarceration should be used sparingly and only as a last resort and where there is no less burdensome alternative. Nowhere is that more applicable, than here, where Marzieh Hashemi is a US citizen with extensive family and life-long ties to the United States and who has made frequent travel to her home and community for family and professional reasons. Indeed, there is nothing before us that indicates that she would willingly avoid or evade the jurisdiction of the court or has indicated any failure to comply with the lawful requirements of a duly issued subpoena.
To the contrary it beggars the imagination that Mrs. Hashemi would travel to the United States to visit with her children and grand children and to continue working on a documentary apparently long under way and, yet, without more, pose a risk of non-compliance with a subpoena for her testimony while here.
The voluntary arrival of Marzieh Hashemi in St. Louis Airport under her lawful name, with her duly issued passport and high profile persona puts the lie to any government claim that she is a fugitive, evasive or unwilling to voluntarily comply with lawful process of any court. Yet upon arrival, this prominent journalist and long standing critic of US policy at home and abroad was seized by the government and essentially disappeared as so much an unconstitutional domestic rendition. That she subsequently appeared before a court does little to salvage her abduction at the hands of government agents.
The public record with regard to the arrest and detention of Mrs. Hashemi is sparse indeed. In this light it is, at this point, impossible to discern the basis for any claim that a material witness order was appropriate or necessary to assure her appearance before the grand jury.
Under the law, the government cannot seek nor can the court issue a material witness order on the basis of mere soothsay that non-compliance is expected at some future date on the part of a witness once served with a subpoena. Nor can it argue that it anticipates a potential witness will seek to avoid service or lawful obligation at some future date. To hold otherwise would be to empower the government to ignore long settled and basic procedure to obtain the testimony of a witness without resort to rank force and encourage its use as a systematic tool of coercion and intimidation. Yet that is precisely what appears to have occurred with regard to Marzieh Hashemi.
Under the law it is not possible that the government could have been in possession of a material witness order for Mrs. Hashemi's arrest upon arrival in St. Louis in the absence of any evidence that she had previously evaded service of a subpoena or fled the United States to avoid one only later to return. Nor is there any evidence that while living in Iran the US government attempted to serve a subpoena upon her or through counsel for some future appearance which she willfully ignored.
Under these circumstances it is well grounded to assume that as a Muslim and a popular Iranian employed journalist long critical of the United States, Mrs. Hashemi was, at some point, added to a list of political dissidents to be detained upon her return to the United States. Once here, she was moved quickly by the government from dissident status to that of presumptive disobedient witness and arrested.
Marzieh Hashemi has appeared before a federal grand jury in the District of Columbia at least once, if not twice, yet remains detained in isolation under severe conditions that violate her fundamental religious rights and practices–a political prisoner, perhaps indefinitely.
There is simply no compelling reason that she remain in custody. As a United States citizen with no criminal history, and strong ties to her family and community here, there is no lawful basis upon which to conclude that she cannot and should not be released immediately under conditions that are routinely accorded to persons accused of federal crimes, at times even serious breaches of law.
Years ago in the shadow of 9-11 hundreds perhaps thousands of Muslims were rounded up and detained in political sweeps throughout the United States under the talisman and license of material witness orders as judges became blind gavels for government repression. Among them were citizens, resident aliens and lawful tourists. The one criterion that united all victims of the political frenzy was their faith and little else. I represented more than a few who sat frozen in federal detention facilities from coast to coast searching for truth and justice; for many, none was to be had for years to come. Others, upon release, fled the United States seeking refuge elsewhere from its mindless fear and blind hate.
Almost two decades later the political rage of this administration against Iran has once again unleashed its Justice Department as so much a partisan batter and little else.
Today Marzieh Hashemi sits alone. Isolated and entombed deep in a government catacomb, she stands charged with no offense but in the eyes of this administration guilty as charged . . . a Muslim, a journalist, and a US ex-pat who has found shelter from its storm in Iran.
[Marzieh was released January 23, 2019]
Posted on July 12, 2019 Author mala114Leave a comment on The Brazen Detention of Marzieh Hashemi, America's Newest Political Prisoner
{Originally published in Counterpunch 6-21-19}
"Please take your seat, sir," said the steward to Governor Ron DeSantis "we will be landing at Ben Gurion Airport shortly." Snapping his seat-belt firmly into place, the edgy Governor fingered his rosary beads as he wondered, to himself, whether Israeli Jews would have big noses like those of Miami. Do they tan well? Would he understand what they say, given their heavy, Eastern European accents? What was the exchange rate for his pocketful of "Benjamins"? Looking around the first class section, DeSantis eyed a man with a long, thick, black beard seated one aisle away. For a moment, he thought about getting up to ask him for the missing answers… but he stopped, The guy was too tall and fit with no hook nose… and where was his black beanie? Goyim, he thought to himself, using a term he had picked up in a Boca campaign stop. He looked away uncertain of what awaited.
No… I've not lost my mind. And for those of you who I have offended by this frenzy of odious, dark canards… good! It was intended to cause reaction. It's a parody. It's called protected speech. It's the First Amendment. It allows me to say what I want… to affront who I please, to stand on any street corner shouting out to passersby they should boycott that damn lunch counter that won't serve people of color or that country that will not allow Palestinians to breathe. And to do so without any imposition of government will upon my voice… be it through a penalty on my purse or the loss of my personal liberty.
On May 29th, Florida Governor, Ron DeSantis, flew to Israel with his cabinet for a closed, political moot court session. Barring journalists, and thus, ultimately, the public who elected him and paid for his trip, the governor performed a symbolic signing of a bill that places the interests of Tel Aviv clearly ahead of the constitutional rights of Tallahassee.
Surrounded by Israeli dignitaries, accompanied by AIPAC checkbooks, Sheldon and Miriam Adelson, and Morton Klein of the Zionist Organization of America, the DeSantis journey was nothing short of a full on fidelity cheer for Israel. A staunch supporter of the move of the U.S. Embassy to Jerusalem, earlier this year attending a meeting of the Jewish Federation of South Palm Beach County, the governor urged sanctions against Airbnb unless it reversed its decision barring lodging listings in the occupied West Bank of Palestine. While still in Congress, he supported several Florida anti-BDS laws prohibiting public entities from contracting with any company or non-profit group engaged in an Israeli boycott. He also embraced legislation that prohibits state pension funds from investing in companies which participate in "politically motivated" challenges to Israel.
DeSantis has an opportune history of vilifying those who confront Israeli apartheid. Indeed, like his predecessor, former Gov. Rick Scott, who took three Florida funded trips to Israel, he is an astute politician who knows just what it takes to get elected. Describing BDS as "nothing more than a cloak for anti-Semitism", he has boasted that, "as long as I'm Governor, BDS will be DOA." Yet, the bill DeSantis lobbied for, and signed but two days after his empty performance in Israel, is much more insidious than the mere imposition of civil penalties upon activists who advocate a non-violent boycott.
In relevant part, HB 741 states that, "A public K-20 educational institution must treat discrimination by students or employees or resulting from institutional policies motivated by anti-Semitic intent in an identical manner to discrimination motivated by race."
With sweeping unconstitutional reach, this legislation conflates mere criticism of Israel with anti-Semitism. It lays bare the authoritarian groundwork for criminal prosecution for those in public schools and universities with the temerity to challenge Israel through words… and nothing more. Using provocative tripwires of Holocaust denial and conspiracy theories that target Jews as examples of prohibited academic speech, the statute remains at odds with the First Amendment nonetheless. Moreover, to the extent HB 741 equates a challenge to Israel with bias motivated by racial animus, it is an interesting legislative recast in the light of the personal history of DeSantis… indeed, of Florida as a whole.
To be sure, in his campaign for governor, DeSantis drew support from various self-professed neo-Nazis. He spoke at a conference chaired by a man who believes that African Americans should thank white people for freeing slaves. His campaign used ads with jungle music and the call of monkeys in their background. He, himself, urged voters "not to monkey up" by voting for his African American opponent. The divide between one who has never hesitated to use vile, painful speech to promote his voice and his proud, eager squeeze of a censorship whip has rarely been so vivid. Not one to walk alone, from coast to coast the governor's duplicity drives statehouse halls as legislators speak in selective tones promoting constitutional protections such as the right to bear arms while suppressing others that extol fundamental rights of speech, association and peaceful boycott.
DeSantis is a true son of Florida. While it has long prided itself on the mirage of cultural, religious and political diversity, it has an insidious history of ignoring, if not accepting, the very brand of political and social disenfranchisement and violence that is synonymous with Israel. Thus, in the shadow of the Civil War, Florida enacted laws called Black Codes that, by design, were intended to disenfranchise its black citizens. Can a Nation State be far off?
Twenty years later, the white-Democrat controlled legislature passed a poll tax which finished the job. Losing what little remaining political power they had, African American voters were essentially stripped of all legal and political rights. No longer able to vote, they were excluded from sitting as jurors and barred from running for elective office. Before the turn of the century, there was no black political influence anywhere in Florida. Not long thereafter, Governor Napoleon Bonaparte Broward suggested that African Americans find a location outside the state for them to live. To be named the deal of the century?
In the mid-1920's, the Ku Klux Klan moved the political assault upon African American communities throughout Florida to one of sheer terror and outright violence. With power bases in major cities such as Jacksonville, Tampa and Miami, the Klan soon became the very public face of the hatred that had long found comfort through the state's legislative batter. So brazen was the Klan's thumb-print on the life and death of black Floridians that it held publicized group initiations at the Miami Country club. During this time, Klan-like violence flourished throughout rural Florida,,, with mob attacks on African Americans so frequent that local newspapers rarely covered it and law enforcement typically looked away. In1920, a white mob broke into a jail in Macclenny and lynched four black men accused of raping a white woman. In Ocoee, the same year, a white mob destroyed its black community… causing as many as 30 deaths and destroying 25 homes, two churches, and a Masonic Lodge. This devastation was later mirrored in the Rosewood massacre, a racially charged slaughter that resulted in the deaths of upwards of 150 black residents in rural Levy County and which left the town of Rosewood completely destroyed. To be, later, rebuilt with new white "settlers"?
Decades have passed since the Klan and mob rule shaped Florida with a public iron fist. Yet, in the years since, a walk down its streets from the Panhandle to Miami Beach remains very much a tempt of fate for persons of color. Once adorned with sheets of hate, the attacks are now most often carried out by those who wear the badge of law enforcement.
It would be far too easy to simply cluster police violence in Florida with that endemic across the country. However, that toll bears a dramatic face in Florida, a state driven by a transparent legislative show of support for the agenda of a far off country that flaunts international law while it shows palpable indifference to the constitutional rights and physical safety of its own citizenry.
As of five years ago, the African American population in Florida was outnumbered 3 to 1 by their white counterparts. An investigation, by the Tampa Bay Times, found that during the six year period preceding it, Florida police shot 827 people… 343 of them were black. More than half were fatal… the majority of them black.
Paring off cases involving crimes of "violence" or where there was actual evidence that those shot had threatened police with weapons, the Tampa Bay Times investigation found there were 147 cases that presented no apparent grounds for the use of deadly force by police,.. 97 of them involved black Floridians. Of those who were unarmed, African Americans outnumbered whites two to one. They were twice as likely to be shot after being pulled over for a traffic violation, or by reaching for something harmless such as a license or gearshift. They were also three times as likely to be shot while being chased by police on foot, while suspected of a minor crime such as smoking pot, or while not committing any offense at all.The report found African American victims were four times more likely to be shot in the back.
These statistics give no one with knowledge of the recent history of Florida reason to pause. They reflect but one short period of unbroken police violence directed at the African American community throughout the state.
In 1967, Martin Chambers, 19, was shot dead by police in Tampa. Fleeing with two other young black men from the scene of a robbery of a photo supply store, he was shot in the back by an officer who later said he feared that Chambers would escape. In noting that lawbreakers accept the risk that "officers might have to use force to do their jobs", the State Attorney ruled the shooting justified because the victim was a "felon fleeing apprehension." Within hours, rioting broke out which lasted three days… destroying a large swath of the African American community.
Rodney Mitchell, 23, was stopped in Sarasota for not wearing a seat belt. Police shot him as he reached to put the car in park… claiming they feared he had a gun.
After being stopped by police for riding his bicycle on the wrong side of the road in West Palm Beach, 22 year old Dontrell Stephens was shot in the back and paralyzed when an officer said he saw Stephens flash a dark object at him with his left hand. The object was a cell phone.
17-year-old Jeremy Hutton, with Down syndrome, who took his mom's minivan for a joyride, was shot three times during a low-speed car chase.
Alens Charles, 21, fell asleep in his car, unarmed, and in his own driveway. He woke up to investigating officers who shot him when he sat up.
Gregory Frazier, 55, was using a small pocket knife to eat near his home in Pompano Beach when police responded to a phone call of an argument between him and his daughter. Knowing he had a knife, officers told Frazier to get down on the ground. Not long after saying "leave me alone", he was shot dead.
Corey Jones was shot and killed by a plainclothes officer while he stood waiting by his disabled car in Palm Beach Gardens. 31 years of age, Jones was struck by three of six shots fired by the officer who falsely claimed that he had identified himself and shot in self defense.
Latasha Walton, 32 years old, was shot and killed by a Florida Highway patrol officer after being pulled over for allegedly driving erratically. Officers claim a trooper opened fire as she attempted to flee the scene.
Charles Kinsey, a mental health therapist, was shot by police in North Miami while he sat on the ground with his hands in the air… seated next to his autistic 23 year old patient who had wandered away from his group home. Unarmed, Kinsey asked the police not to shoot him while trying to convince his patient who was playing with his toy truck to obey officers. After being shot, he was handcuffed and left bleeding on the ground for 20 minutes with no medical aid.
Recently, Dyma Loving, a 26-year-old mother-of-three, called police after getting into an argument with a white neighbor who threatened her and a friend with a rifle. Responding officers pushed Loving against a metal fence and put her in a headlock before forcing her to the ground.
Not long thereafter, police slammed a 15 year old boy's head into the pavement during a "trespassing" incident in which he had been seen merely reaching down to pick something up off the ground outside of a McDonald's in Tamarac, Florida.
These are but a few of the faces of African American women and men, of all ages and backgrounds, that have long been victimized by police violence throughout Florida. The fortunate ones have been injured or left crippled but lived to tell their story. Countless others have been buried leaving family to wonder why, seeking not just answers… but justice. For them, it never came.
Just what is there about Florida that lingers-on for its African American community forced to relive the horrors of Macclenny, Ocoee and Rosewood far removed in time and place… but not outcome? It's far too easy and academic to simply write it off to the residual effects of "badges and incidents of slavery". Can it be the North Miami Police Department using images of black men for target practice which reinforces it daily? Or the once Biscayne police chief who told his officers "… if they have burglaries that are open cases that are not solved yet, if you see anybody black walking through our streets and they have somewhat of a record, arrest them so we can pin them for all the burglaries." Or the scathing indictment by the Department of Justice of the Miami Police Department in 2013 concluding it's officer's shot and killed way too many people of color yet doing nothing of consequence about it.
Meanwhile, as DeSantis posed in Jerusalem, life and death for Palestinians went on very much as it has these past ten, thirty, fifty, seventy plus years… an unbroken march of death and destruction fed by excuse… fueled by hate. According to B'Tselem (The Israeli Information Center for Human Rights in the Occupied Territories) over the last decade, approximately three-thousand five hundred Palestinians have lost their lives to the Israeli armed forces or paramilitary settler violence. (I have no idea what it based these figures on… they seem low with my figures well over 4K… including the three "wars" and the great March) Among those killed have been seven-hundred eighty two minors and three-hundred thirty eight women. According to a data base maintained by Israel-Palestine Timeline, since 2000, approximately 10,000 Palestinians have been killed by Israel… including 2,172 children. Another 100,000 have been injured.
Over the last year, much of the world has watched fixated on the Great Return March in which Israeli snipers have murdered more than 300 Palestinian demonstrators on the eastern edge of Gaza. Another 30,000 have been injured by gunshots or teargas. Nearly 60 of those killed and 7,000 of those injured have been children. Hundreds, including children, have had their limbs amputated as a result of being shot with ammunition designed to tear apart limbs. Apparently the Florida State Legislature has slept through the carnage. Perhaps a match between some recent numbers and names and backdrop might awaken Tallahassee politicians who fear words but seem perfectly comfortable with violence.
On January 11, 2019 Abdul-Rauf Ismael Salha, 14 was shot in the head with live fire by an Israeli sniper while demonstrating during the Great Return March in Northern Gaza. He died three days later.
On May 31, 2019 Israeli soldiers shot and killed Abdullah Luay Gheith, 16, from Hebron, as he and several other young men tried to enter Jerusalem by climbing over a border fence from just outside Bethlehem to attend Friday prayers at the al-Aqsa Mosque. He died instantly after being shot in the heart. Mo'men Abu Tbeish, 21, was also shot and seriously injured in the same incident.
On May 5, 2019, Maria Ahmad Ramadan al-Ghazali, 4 months, was killed along with her father, Ahmad Ramadan al-Ghazali, 31, and Eman Abdullah Asraf, 30, when their high-rise apartment in a Beit Lahiya building was hit by Israeli missiles.
On May 4, 2019, Seba Abu Arar, 14 months, and her pregnant aunt, Falastin Abu Arar, 37, were killed by a rocket that struck close to their apartment building. The infant died instantly when, while sitting on her aunt's lap, was hit by shrapnel which entered their apartment. Her aunt succumbed later to her wounds.
On April 18, 2019 Fatima Suleiman, 42, a school teacher, was killed after the car she was driving was rammed by a large truck driven by a settler near her home in Teqoua'. Thrown from her car, the truck struck and killed her before fleeing the scene.
On March 6, 2019 Malak Rajabi, 18 months, and her brother, Wa'el, age 4, died in a fire in Hebron when Palestinian rescue crews were blocked, by the Israeli military, from reaching their home before they were burned alive inside.
On December 15, 2018, Sumayya Mahmoud Nasser, 68, died in Jerusalem when she suffered a heart attack while praying at the al-Aqsa Mosque. Israeli forces outside the mosque prevented an ambulance with life saving equipment from reaching her.
On October 13, 2018 Aisha Rabi, 48, mother of eight, was on her way home with her husband, to Bidya in the northern West Bank, when her family's car was struck, near the Za'tara roadblock, by a hail of large rocks thrown by a group of young settlers just south of Nablus. One of the rocks smashed the windshield and struck her in the cheek and ear. She bled for about two minutes and died.
On August 9, 2108, Israeli air force dropped a guided bomb on a home in the al-Ja'frawi neighborhood which lies on the southeastern outskirts of the Gazan town of Deir al-Balah. The bomb, which failed to detonate, went through the roof of a house rented by Muhammad and Inas Abu Khamash and into their living room… killing Inas, 22, an education student who was nine months pregnant, and Bayan, the couple's 22-month-old daughter.
On August 27, 2017, eight year old Aseel Tareq Abu 'Oun was run over and killed by a settler as she left a supermarket near her home in Foroush Beit Dajan village in Nablus.
On August 11, 2017, Amir and Hamza Abu Sbeih, Anas Haymouni and Youssef Roman, each six years old, were severely injured when a settler mounted a curb in East Jerusalem and crashed his vehicle into them.
On May 20, 2017, Fatima Jibril 'Ayed Taqatqa, 15, died two months after she had been shot in the head by an Israeli soldier at the Etzion junction, south of Bethlehem. Shot on March 15th, soldiers claimed she had tried to ram them with her car. Evidence showed she had no driver's license, was an inexperienced driver who panicked upon seeing soldiers and was shot after her car came to a complete halt.
On July 1, 2016, Sara Daoud Ata Tarayra, a 27 year old pregnant woman living in Hebron, was shot dead at the entrance of the Ibrahimi Mosque in the city. Ordered to accompany a female soldier to a room to be searched, after being sprayed with pepper spray and fleeing, she was shot and killed by other soldiers. Palestinian medics were prevented from treating her as she lay bleeding on the ground.
On July 1, 2016, Muhammad Mustafa Habash, 63, from Nablus, died after suffering from severe tear gas inhalation after being fired upon by Israeli troops. He was one of 40 who suffered from excessive tear gas as they attempted to cross the Qalandiya checkpoint from Ramallah, in the central occupied West Bank, to attend prayers at the al-Aqsa Mosque in Jerusalem.
On April 28, 2016, Maram Saleh Abu Ismael, 24, from Beit Surik, five-months pregnant and a mother of two young daughters, and her 16 year old brother, Ibrahim Taha, were shot dead by Israeli soldiers at the Qalandia terminal north of occupied Jerusalem. On her way for a visit to Jerusalem for the first time in her life, the two were apparently approaching soldiers in a drive through lane not intended for pedestrians. Told to stop in Hebrew, a language which neither understood, they continued on until shot dead in a hail of 20 rounds fired from a distance. Both lay bleeding on the ground while soldiers prevented Palestinian medics from treating them.
On August 1, 2014, the extended family of Salem Al Mahmoum was wiped out by indiscriminate Israeli tank and artillery shelling, on a street in Rafah, after fleeing a house that had been attacked just moments before by an Israeli war plane.
The 16 extended family members who were killed in that attack:
Aziza Mahmoud Salaman Al Mahmoum (50), Salem's wife;
Wafa' Salem Suleiman Al Mahmoum (25, Aziza and Salem's daughter;
Hani Salem Suleiman Al Mahmoum (23), Aziza and Salem's son;
Yahia Salem Suleiman Al Mahmoum (13).Aziza and Salem's son
Asma Salem Suleiman Mahmoum (16), Aziza and Salem's daughter;
Iqzaya Hammad Salman Al Mahmoum (36), wife of Mustafa Nasser Al Mahmoum;
Bisan Mustafa Nasser Al Mahmoum (9), Mustafa and Iqzaya's daughter;
Hiba Mustafa Nasser Al Mahmoum (7), Mustafa and Iqzaya's daughter;
Dou'a Mustafa Nasser Al Mahmoum (4), Mustafa and Iqzaya's daughter;
Ubada Mustafa Nasser Al Mahmoum (2), Mustafa and Iqzaya's son;
'Itaf Hammad Suleiman Al Mahmoum (30), Iqzaya's sister;
Ibtisam Hammad Suleiman Al Mahmoun (18), Iqzaya's sister;
Anas Ibrahim Hamdan bin Hamad (4);
Mohammed Anas Mohammed Arafat (4 months);
Usama Hussein Hassan Abu Sneima (30); and
Su'ad Jum'a Hamad Al Tarabin (31)
On July 30, 2014, Israeli tanks fired two artillery shells at the house of Mohammed A'ta Al Khalili located in Al Sanafour area in At-Tuffah neighborhood, east of Gaza City. One shell landed on a group of family members awaiting evacuation, killing eight, including two women and three children. The eight were:
Ashraf Mahmoud Al Khalili (33)
Nedaa Ziyad Al Khalili (27). Ashraf's wife
Deema Ashraf Al Khalili (5). Ashraf's daughter
Ziyad Ashraf Al Khalili (2). Ashraf's son.
Mahmoud Ashraf Al Kahlili (7). Ashraf's son.
Ahmed Mahmoud Al Khalili (28). Ashraf's brother
Aya Mohammed Al Khalili (23). Ahmed's wife who was three months pregnant
Lama Ahmed Al Khalili, 4. Ahmed's daughter
Israeli Demolitions
On June 11, 2018, Israeli forces demolished a house, a multi-story residential building and 2 commercial facilities in the villages of sour Baher and al-Mukaber Mount, south of occupied East Jerusalem. The next day, their bulldozers razed a residential building, 7 stores and a gas station in the vicinity of the Qalendia checkpoint north of occupied East Jerusalem. Elsewhere, they seized a large plot of Palestinian land to build a new "settlement" street Northeast of Nablus. That same day, they destroyed another multi-story residential building under construction and back-filled a well in Khelet al-Surbat in southern Hebron. Southeast of Nablus, the Israeli military moved boundaries to seize Palestinian agricultural land in the village of 'Asirah al-Qibliyah.
There was nothing remarkable about these two days. In all respects they were typical ones in the life of occupied Palestine. A small seize in a timeless grab, the destruction of these homes, residential buildings and shops, along with the confiscation of Palestinian land for Israeli military purpose or settler convenience, was a continuum of a boundless land snatch that started long before the occupation. One year later the targets may have changed… the theft has not.
On June 10, 2019, as part of "settlement" expansion, a Palestinian woman… unable to pay the demolition costs of her home… was forced, pursuant to an Israeli municipality order, to demolish her own home in Sur Baher village, south of occupied East Jerusalem, rendering her and her six children homeless. That same day Israeli forces compelled a Palestinian civilian to self-demolish his residential building, under-construction, in Sho'fat refugee camp, north of occupied East Jerusalem.
Meanwhile, other Israeli vehicles demolished a residential house, an under-construction building and a commercial facility in Surbaher village and al-Mukaber Mount area, south of occupied East Jerusalem. Accompanied by dozens of soldiers and police officers, streets surrounding the demolition sites were closed before the properties were raided and leveled. Later that day, a military order was issued to confiscate a sizeable plot of land to construct a new street for the Alon Moreh settlement northeast of Nablus.
On Wednesday, June 12, 2019, Israeli forces moved into Um al-Khair village, southeast of Yatta, south of Hebron, and demolished a Palestinian house that was home to ten persons, including 7 children. Meanwhile, other Israeli forces and a bulldozer moved into Kherbit Khashem al-Daraj, east of Yatta, south of Hebron, where they uprooted barbed wire and demolished a Palestinian barn. That same day, Israeli forces moved into Kherbit Ras al-Ahmar, in the northern Jordan Valley, where they uprooted tents and demolished houses and barns belonging to 4 families. Later, they destroyed a residence and 4 barracks for grazing sheep and horses in Beer 'Onah village, north of occupied East Jerusalem.
On June 11, 2019, Israeli forces and 2 bulldozers moved into Kherbet Abu Kbaish, east of Tamoun village, southeast of Tubas. Uprooting some 550 forest and 240 olive trees and destroying two wells in one location… and an additional 310 forest trees and an agricultural well in another, they declared the now leveled woodlands to be a "nature reserve.". The trees and wells had been donated by the Brazilian Consulate. Later that day, military forces and 3 diggers moved into Khelat al-Sharbati area near Jawhar Mount neighborhood, in the southern area of Hebron, where they demolished an under-construction multi-unit building and a well.
Elsewhere, the military issued 3 orders: one to change borders and seize agricultural lands belonging to Palestinian civilians in 'Asirah al-Qabaliyah village, southeast of Nablus… another to confiscate agricultural lands belonging in Burin village, also in southeast of Nablus,.. and a third to change borders and seize around nearby land to expand a military camp assigned security for a nearby settlement. Not long thereafter, Israeli forces demolished a residence, 4 barracks used to raise livestock and horses, and four agricultural facilities in Ber 'Ounah. Eyewitnesses reported that Israeli forces randomly fired rubber bullets during the demolition process.
By no means a rarity, increasingly, demolition orders, have become the rai·son d'ê·tre for the Judaization of Jerusalem as Israel seeks to transform its physical and demographic landscape and character at the expense of its Muslim and Christian ones. Just several days ago, Israeli occupation forces issued demolition orders for all Palestinian homes in Jerusalem's Wadi Yasul neighbourhood… leaving some 550 Palestinians homeless.
Settler Attacks
Never ones to leave the theft and destruction of Palestinian land and homes to military forces, alone, illegal "settlers" were active during the same period… typically under the watchful eyes and protection of Israeli troops. For example, on June 5, 2019, settlers from "Ahiya" settlement, which sits on the southern side of Jaloud village, southeast of Nablus, attacked the village outskirts from the southern side. They threw stones at the village secondary school breaking several windows and set fire to olive fields destroying over 1000 olive trees planted some 65 years ago. The following day settlers seized agricultural lands in the al-Makhrour area in Beit Jala, where they planted various crops before enclosing it with barbed wire and placing mobile homes on what was Palestinian land. On June 8, 2019, settlers attacked a land trust in the Al-Khader village, in southern Bethlehem, where they placed water pipes and planted hundreds of olive, apricot, and peach trees.
Not long thereafter, settlers from the nearby Yitzhar settlement vandalized Palestinian homes in Einabous village, South of Nablus city, in the northern West Bank… as well as a local mosque, and clinic. According to local residents, they slashed the tires of Palestinian vehicles and spray-painted the Star of David on the mosque, clinic, and homes, along with racist, anti-Palestinian slogans spray-painted in Hebrew.
These are but a few of the thousands of instances of theft, violence and outright murder perpetrated by the Israeli military and deadly settler movement against Palestinian civilians for as far back as one can see. Yet, in the run-up to his fawning recital in Israel, even a casual glance of recent events in Palestine should have given DeSantis reason to pause. Predictably… he did not.
In the run-up to the DeSantis arrival, Israeli forces conducted at least 90 military incursions into Palestinian communities throughout the occupied West Bank… including 7 in Jerusalem and its suburbs. During those raids, Israeli forces killed a Palestinian child and wounded 17 civilians,,, including 6 children. Ten of them, including 2 children, were wounded during their participation in the weekly protest, at Kafr Qaddoum, against Israeli land confiscations and the closure of the village's southern road by Israeli forces. Six, including 4 children, were wounded while protesting a military incursion into Nablus to secure the entry of hundreds of settlers into the eastern area of the city to perform rituals in Joseph's Tomb. During this same period, Israeli forces arrested at least 82 Palestinians…including children. Among them were 45 civilians and 3 women in Jerusalem and its suburbs.
In early May of this year, Israeli bombings in Gaza took the lives of at least 12 civilians… including two women, one of them pregnant, and a number of toddlers. Another 100 were injured. This past Friday, the 61st Friday of the Great Return March, Israeli snipers wounded 92 Palestinian civilians… 28 of them children and four paramedics, one a female, in the eastern Gaza Strip. One of the wounded was a child who was hit with a live bullet to the chest sustaining serious wound. In addition, dozens of civilians suffered tear gas inhalation and seizures due to tear gas canisters that were fired by Israeli forces from military jeeps and rifles in the eastern Gaza Strip.
Against this light, Governor DeSantis flew to Israel to show support for a country which cripples and murders with impunity, while ignoring the precise violence perpetrated daily against citizens of his own state. Against this light, the State of Florida seeks not to end violence which targets generations of African American citizens but, rather, to silence protected speech that seeks little more than to express solidarity and support with others who know all too well that same deadly aim some 6,500 miles away.
It would be far too easy to confront the conspicuous marrow of the latest legislative attacks on BDS by reliance on constitutional purpose and precedent alone. That pure non-violent speech, association and boycott carry and further the stamp of First Amendment approval is, by now, beyond peradventure.
Long ago, in NAACP v. Claiborne Hardware Co. the United States Supreme Court unanimously recognized that economic boycotts constitute a form of constitutionally protected expression no different than traditional means of communication such as speaking or writing and that those who exercise that right may not be penalized for any such lawful conduct.
In Claiborne, a local branch of the NAACP launched a boycott, in 1966, of white merchant's to obtain a long list of demands for equality and racial justice from civic and business leaders. Though the boycott was largely limited to speeches encouraging others to support their cause through nonviolent picketing, some acts and threats of violence did result. Several years later, the merchants sued the NAACP seeking damages for the boycott alleging it caused malicious interference with business interests, for antitrust violations and for violation of a state boycott statute.
Rejecting First Amendment claims, the lower Mississippi state court found for the merchants and ordered the NAACP to pay $3.5 million in damages. It also issued a permanent injunction prohibiting the protesters from posting "store watchers" at the premises of the boycotted businesses; persuading others to withhold patronage from the boycotted businesses; "using demeaning or obscene language to or about any person" for continuing to patronize the boycotted merchants; "picketing or patrolling" the premises of the boycotted businesses; and "using violence against any person or inflicting damage to any real or personal property." On appeal, the verdict was largely upheld by the Mississippi Supreme Court.
In a unanimous decision, the U.S. Supreme Court overturned the state court decision finding that the boycott was a form of political speech entitled to protection under the First Amendment. In doing so, it noted that "…the boycott clearly involved constitutionally protected activity" through which the NAACP "… sought to bring about political, social, and economic change."
The high court found that while the boycott may have negatively impacted local businesses, it was part of broader peaceful political activity on an issue of public significance: "Through speech, assembly, and petition… rather than through riot or revolution… petitioners sought to change a social order that had consistently treated them as second-class citizens."
Moreover, it reasoned that, without proof of an organization's unlawful goals, an individual cannot be held liable for exercising their First Amendment right to assemble with other people… even if some of the others committed violent acts. Under those circumstances, the Supreme Court noted that when acts of violence are committed in conjunction with lawful expression, regulations must be sufficiently precise to impose damages only upon those who are guilty of wrongful conduct.
There should be no doubt about the continuing vitality, indeed, controlling application of Claiborne to the latest spate of legislative efforts to silence BDS. In a series of recent cases that have considered the state's power to prohibit political boycotts, district courts have fallen clearly on the side of those who engage in BDS, and related speech activity, as a fundamental constitutional right.
For example, in Amawi v. Pflugerville Indep. Sch. Dist, Texas sought to require an oath from public employees that they would not support BDS or, essentially, any other challenge to Israel as a condition of their employment. The lead plaintiff, Bahia Amawia, a U.S. citizen and speech pathologist, is a Palestinian, with family in Palestine, who participates in the BDS movement because she "advocate[s] for Palestinian human rights and justice [and to that end] support[s] peaceful efforts to impose economic pressure on Israel, with the goal of making Israel recognize Palestinians' dignity and human rights." For almost a decade, she contracted with a local school district in Texas to provide speech therapy and childhood evaluations. When she refused to certify that she did not, and will not in the future, boycott Israel, she was fired and sued.
Rejecting the state's power to prohibit the boycott of Israel as a condition of public employment, the court scoffed at the Texas argument that BDS was merely an effort to "…refuse to buy things." In siding with the broadest reach of First Amendment protection the court reminded Texas of the now almost four decade old teach of Claiborne "… that boycotts are "deeply embedded in the American political process"—so embedded not because "refusing to buy things" is of paramount importance, but because in boycotts, the "elements of speech, assembly, association, and petition… "are inseparable" and are magnified by the "banding together" of individuals "to make their voices heard." With quick dispatch, the court ruled the Texas statute unconstitutional.
Likewise, in Koontz v. Watson, the court rejected an attempt by the Kansas legislature to impose a fidelity clause upon state contractors which prohibited them from engaging in a boycott of Israel. In Koontz, the plaintiff, a Mormon, became motivated to boycott Israel by a documentary she saw, in 2016, about conditions in Palestine. The following year, she began to boycott Israeli businesses not long before the Mennonite Church USA passed a resolution that called on its members to boycott products associated with the occupation. As a result, Ms. Koontz decided she would not purchase any products or services from Israeli companies or from any company which operates in Israeli-occupied Palestine.
Because of her refusal to sign the required certification, Ms. Koontz, a curriculum coach at a public school, was denied an opportunity to participate as a teacher trainer in a statewide program under a contract that would have enhanced her career and increased her income.
In revisiting Claiborne, the court noted that Ms. Koontz, and other members of the Mennonite Church, have "banded together" to express their dissatisfaction with Israel and to influence its governmental action which, they see, as one riddled with injustice and violence.
Drawing no distinction between the unconstitutional anti-boycott efforts of Mississippi, some fifty years ago, and that of Kansas, today, the court reasoned Ms. Koontz "and others participating in this boycott of Israel seek to amplify their voices to influence change… as did the boycotters in Claiborne." Agreeing with Ms. Koontz, that the law violated her First Amendment rights, the court granted a preliminary injunction enjoining the state from enforcing the law.
A similar conclusion was recently reached in the matter of Jordahl v. Brnovich. In 2016, Arizona enacted legislation "… aimed at divesting state funding from companies that engage in a boycott of Israel.". In relevant part Arizona Revised Statute § 35-393.01 states :
"A public entity may not enter into a contract with a company to acquire or dispose of services, supplies, information technology or construction unless the contract includes a written certification that the company is not currently engaged in, and agrees for the duration of the contract to not engage in, a boycott of Israel."
Mikkel Jordahl is an attorney who participates, on a personal level, in a boycott of consumer goods and services offered by businesses which support the occupation of the Palestinian territories. Jordahl was moved by the Peace Not Walls campaign, promoted by the Evangelical Lutheran Church in America, which calls on "… individuals to invest in Palestinian products to build their economy and to utilize selective purchasing to avoid buying products made in illegal Israeli settlements built on Palestinian land." Mr. Jordahl is a non-Jewish member of Jewish Voice for Peace and supports its endorsement of BDS campaigns. As head of his own law firm, he desired that it participate in his boycott of "all businesses operating in Israeli settlements in the occupied Palestinian territories."
For more than a decade, Mr. Jordahl's firm contracted with an Arizona county jail to provide legal services to incarcerated individuals. Following passage of Arizona's anti-BDS law, the County asked him to execute a written certification, on the Firm's behalf, that it "is not currently engaged in a boycott of Israel,", that "no wholly owned subsidiaries, majority-owned subsidiaries, parent companies, or affiliates" of the Firm are "engaged in a boycott of Israel," and that neither the Firm nor any of the above-mentioned associated entities would "engage in a boycott of Israel" for the duration of the contract agreement." He refused. As a result, the county stopped paying for his firm's legal services although Mr. Jordahl continued its work, free of charge, at significant personal expense.
The Arizona court had little difficulty in siding with Mr. Jordahl and his firm. Beginning with the settled proposition that citizens do not forfeit their First Amendment rights by accepting public employment, the court found no difference of constitutional consequence between Claiborne and its progeny and the Arizona law at hand.
From there it was a quick judicial walk to the conclusion that Arizona's anti-BDS law impermissibly "burdens the protected expression of companies wishing to engage in such a boycott. The type of collective action targeted by the Act specifically implicates the rights of assembly and association that Americans and Arizonans use "to bring about political, social, and economic change.".
In light of these cases, it is wishful sophistry to see the Supreme Court do a 180 degree turn if, and when, an anti-BDS case reaches its historic bench and to find that such legislation passes constitutional muster. Yet, Florida and its toadying Governor, desperate for political pomp, have gone one step further in its most recent law that not only impermissibly prohibits boycotts, but seeks to criminalize mere words,themselves. Under their broken view of the First Amendment, one can silence public discussion and debate over the policies and practices of Israel by simply reducing it to little more than a trendy puerile talisman of anti-Semitism. It will not work.
If there is any remarkable feature of the American experience, it is the First Amendment. By its very language, it is imposing. It is meant to be. "Congress shall make no law… abridging the freedom of speech or of the press…" While this unqualified phrasing was not intended to safeguard all expressions, First Amendment protection of speech and press is the exalted cornerstone of our Republic.
Nowhere is there more compelling than it is with regard to political speech. As noted by the Supreme Court… "Speech concerning public affairs is more than self-expression; it is the essence of self-government." To be sure, the High Court has often "… reaffirmed that speech on public issues occupies the highest rung of the [hierarchy] of First Amendment values and is entitled to special protection" The constitution thus permits only the most minimal of interference with political speech.
The constitution permits but minimal interference with political speech. And when it takes the form of a "prior restraint" suppressing it before the fact, it is presumptively unconstitutional whether from a court or by legislative act. The right of speech stretches from the speaker's voice to the listener's right to hear what others have to say… free from government interference.Ultimately, it is only through a robust exchange of ideas and opinion that decisions can be drawn on essential issues of public concern.
Ripped from the historical presence of Palestine, Israel has received hundreds of billions of dollars from the United States since its founding. In the decades since, it has provided Israel an endless supply of high grade weaponry, technical assistance and unbridled support in the United Nations. It has shaped much of its own foreign policy in the Middle East, Gulf and parts of North Africa in reliance upon what is described, by some, as a bilateral relationship that has furthered the interests of both states. Over these years, the United States has inflicted millions of casualties in the region and suffered tens of thousands of its own. While some choose to describe the relationship between the United States and Israel as one of architect and proxy, with vigorous disagreement over which is which, there can be no reasonable quarrel over the fact that they have been inexorably intertwined with one another on issues of public interest and policy for more than seventy years. Given this history, to suggest that discourse and debate about that relationship, indeed, about Israel itself, does not constitute protected speech about pressing public issues is sheer folly.
That is not to suggest that all comment and speech about Israel, its leadership, its people, its property must be constitutionally countenanced under all circumstances at all times. Indeed, it is well settled that, under limited circumstances, speech can cross the line from protected observation and comment to illegal conduct.
Thus, in the landmark case of Brandenburg v. Ohio the Supreme Court noted that speech "directed to inciting or producing imminent lawless action" and "likely to incite or produce such action" may be punishable via criminal law. However it went on to note that speech may encourage or even advocate lawless action, yet be unlikely to incite such action, leaving it fully protected under the First Amendment.
Cut to its essential chase, Brandenburg and its progeny reaffirm a call for calculation and consideration of words and context not whitewash of thoughts. Florida would silence that calculus by legislative fiat. It would convert any challenge to Israel, any dare to its policies, any opposition to its practices to prohibited, perhaps criminal speech.
Whether by ignorance or political convenience, the fundamental disconnect between the secular evil that is Zionism and the age-old faith that is Judaism seems to narrow day by day across certain political divides. BDS is a movement of non violence and humanity… it singles out no one faith, race, or sexual identity for either scorn or praise. Yet, with unsurprising ease and clear purpose, it has been reworked, by some, to turn aside its well defined goal and, by now, settled history and practice. Short on cover, excuse and allies, desperate Zionists have never hesitated to exploit painful historical events to further their faithless geopolitical blueprint. And while many wince at the claim of an age-old international Jewish conspiracy, Zionists welcome the screed as so much supporting fodder for their all too convenient baseless charge that Jews are under attack, everywhere. Make no mistake about it, Israeli hate and violence is under attack… as well it should be. But to cast its long, supremacist and deadly shadow as vulnerable victim to "anti-Semitism" by critical speech,.. and speech alone… is little more than cheap obfuscation and petty rewrite.
While HB 741 may please Florida's political benefactors, ultimately it will fail as but another cheap pander to those who find comfort in lofty self-praise but flee the search for truth. That search will not permit the future of Palestinians to remain high jacked through the fabrication of a shallow Zionist chronicle.
When the history of our time is written, anti-BDS legislation will be dispatched as little more than opportune political chant. As for BDS, itself, it will have proven to have played a defining role as a loud and powerful megaphone that confronted the longest and most insidious system of apartheid of our day… bar none.
Posted on June 24, 2019 June 24, 2019 Author mala114Tags AIPAC, al-Mukaber Mount, Amawi v. Pflugerville Indep. Sch. Dist, anti-semitism, BDS, Black Codes, Brandenburg v. Ohio, First Amendment, Gaza Strip, Governor Ron DeSantis, HB 741, Jordahl v. Brnovich., Kherbit Khashem al-Daraj, Koontz v. Watson, Ku Klux Klan, Morton Klein, NAACP v. Claiborne Hardware Co, Qalendia checkpoint, Rosewood massacre, Sheldon and Miriam Adelson, sour Baher, Tampa Bay Times, U.S. Embassy to Jerusalem, Zionist, Zionist Organization of America1 Comment on From Tel Aviv to Tallahassee
{Originally published May 10, 2019)
The Islamic Resistance Movement began more than thirty years ago at an historical moment in time which it knew to be fraught with absolute peril for their people. The founders of this national liberation struggle examined the overwhelming military capabilities of Israel, fostered by its global superpower sponsor, the United States. They looked at Israel's expansionist programs… the Zionist project of illegal settlements erasing their homes and villages, dispossessing mothers and fathers, sisters and brothers… and at the failure of the international community to stop them. They knew then, that within a generation Palestinians would lose it all … their motherland and patrimony and their nation… leaving them homeless captives to the whims of another man's door. In that moment, resistance was not a lifestyle choice or a revolutionary pose. It was existential necessity, just as it is now.
Everything Hamas predicted then has come to pass. Here, a generation later, it should take no comfort reminding the world that they were right in its analysis. Israel has grown only stronger and more rapacious, more intransigent and murderous in its deeds. Its "democracy" did not save it from becoming a racist, apartheid state presiding over a military occupation of millions of Palestinians. Israel's policy of creating "facts on the ground"… that is, the illegal settlement project… has transitioned from a de facto expulsion and annexation policy into a de jure one, as its prime minister calls for the removal of Palestinians and the annexation of the West Bank, and the American president and congress pre-emptively applaud the crime-to-be. The Golan Heights… sovereign territory of another nation… is now Israel's by force, cynically annexed while Syria struggles in the throes of war. And Jerusalem (al Quds) is ringed by new, fortified suburbs and restricted highways demolishing Palestinian neighborhoods and cutting off their city from them. America now calls Jerusalem Israel's capital… in direct violation of international law. Since 1967, successive U.S. administrations have told Palestinians to trust in their good faith as brokers of a just peace. This has been a lie… as Hamas anticipated then, America was running cover, a stalling tactic, for the slow-motion destruction of Palestinian national aspirations. Tragically, tens of thousands of Palestinians have been killed and maimed and many more imprisoned by Israeli state violence since Hamas began. The international community has done little to stop the monstrous crime unfolding.
Palestinians were right to resist then. The world surely can see that now. The tragedy of retrospection should, at the very least, accord Palestinians their due: resistance is morally right, history has proven it so. Yet, even last month, in the pages of America's official paper of record, the New York Times, the U.S. administration through its craven spokesman Jason Greenblatt… a Zionist real estate lawyer from New York, charged with shepherding the "peace process" for the President as the Special Representative for International Negotiations, heaps insult upon injury, twisting history and recent events in a grotesque parody of a policy statement, adopting the Likud Party platform as the publicly declared U.S. position. None of us should be surprised by the falsifications in the Trump Administration's official pronouncements. It has proven itself, after all, to be a presidency built on lying. Yet only the most gullible American readers could possibly believe its juvenile "blame Hamas" refrain. Hamas did not create the thirteen-year siege of Gaza, cutting Palestinians off from the world. It did not commence any of the three wars launched by Israel against Gaza in 2008, 2012 and 2014 or it's countless other attacks and outrages since. It did not destroy Gaza's industries, its water treatment plant, its power generation, its hospitals, houses, mosques, schools, television stations and roads… Israeli missiles and bombs did that. Hamas does not keep two million people penned in an open-air prison, with a prison economy in tatters… Israel does that. The cynicism of the Administration's statement is unparalleled: "The countries of the world have attempted to help the people of Gaza," …but their good works have been destroyed by Hamas, according to the Special Representative. Perhaps he had in mind the post-Oslo airport, built by multinational leadership, attacked in 2001 by Israeli air forces, with its runways bulldozed by Israel a few years later? Or the catastrophic damage wrought upon the water system by Israeli air strikes during Operation Cast Lead in 2008? Or the extensive bombing of the sanitation system in Operation Pillar of Defense in 2012? Or Gaza's only power plant, attacked in 2006, 2008 and finally leveled by Israeli missiles in 2014's Operation Protective Edge? All of these key infrastructure projects, indeed, were funded by international donors, but destroyed by American jet planes, flown by the Israeli armed forces. Empty-headed slogans, scribbled by a huckster and moral fraud that has no more business posing as a diplomat than he does as a man of sincere religious belief, cannot smother the truth. The continuing tragedy of Gaza, indeed, all of Palestine, is not so easy to conceal… and Palestinian resistance continues. There is no choice.
Palestinians were right to resist then. The world surely can see that now. The tragedy of retrospection should, at the very least, accord Palestinians their due: resistance is morally right, history has proven it so. Yet, even last month, in the pages of America's official paper of record, the New York Times, the U.S. administration through its cravens pokesman Jason Greenblatt… a Zionist real estate lawyer from New York, charged with shepherding the "peace process" for the President as the Special Representative for International Negotiations, heaps insult upon injury, twisting history and recent events in a grotesque parody of a policy statement, adopting the Likud Party platform as the publicly declared U.S. position. None of us should be surprised by the falsifications in the Trump Administration's official pronouncements. It has proven itself, after all, to be a presidency built on lying. Yet only the most gullible American readers could possibly believe its juvenile "blame Hamas" refrain.
Hamas did not create the thirteen-year siege of Gaza, cutting Palestinians off from the world. It did not commence any of the three wars launched by Israel against Gaza in 2008, 2012 and 2014 or it's countless other attacks and outrages since. It did not destroy Gaza's industries, its water treatment plant, its power generation, its hospitals, houses, mosques, schools, television stations and roads… Israeli missiles and bombs did that. Hamas does not keep two million people penned in an open-air prison, with a prison economy in tatters… Israel does that. The cynicism of the Administration's statement is unparalleled: "The countries of the world have attempted to help the people of Gaza," …but their good works have been destroyed by Hamas, according to the Special Representative. Perhaps he had in mind the post-Oslo airport, built by multinational leadership, attacked in 2001 by Israeli air forces, with its runways bulldozed by Israel a few years later? Or the catastrophic damage wrought upon the water system by Israeli air strikes during Operation Cast Lead in 2008? Or the extensive bombing of the sanitation system in Operation Pillar of Defense in 2012? Or Gaza's only power plant, attacked in 2006, 2008 and finally leveled by Israeli missiles in 2014's Operation Protective Edge? All of these key infrastructure projects, indeed, were funded by international donors, but destroyed by American jet planes, flown by the Israeli armed forces. Empty-headed slogans, scribbled by a huckster and moral fraud that has no more business posing as a diplomat than he does as a man of sincere religious belief, cannot smother the truth. The continuing tragedy of Gaza, indeed, all of Palestine, is not so easy to conceal… and Palestinian resistance continues. There is no choice.
Israel daily blocks some 650 basic goods from entry to the Gaza Strip for alleged "security" reasons… including medicines, hospital equipment and even some types of baby formula. Israel denies fishing nets to Gaza's fishermen, or materials to repair boats. Infrastructure materials… from pumping equipment to water and sanitation piping,to electrical supplies and cement… are all but forbidden. Communication supplies and the technology of the internet… server and switching equipment… are embargoed, leaving Gaza lagging behind in poverty and despair, cut off from the world. A United Nations-approved system instituted after the cease-fire in 2014 exists for monitoring so-called "dual use" materials, yet, Israel continues to ignore it as it stifles the free flow of goods needed to rebuild Gaza… in a deliberate policy of attrition. Hundreds of Palestinians die annually, per the World Health Organization, because they cannot travel for medical treatment and the health care infrastructure and supply chain is destroyed.
Gaza suffers, but not because of Hamas and its administration. Hamas has done everything in its power to spare the Palestinian people in Gaza the devastating effects of the Israeli siege. It opened the doors wide to facilitate international support reaching Gaza's residents. It accepted that infrastructure and public health projects should be implemented under full international supervision in coordination with government agencies. It has sought to ensure the Rafah border crossing between Gaza and Egypt will be open in both directions as an alternative to the dehumanizing caged passageway at Beit Hanoun (Erez). It has worked in coordination with the United Nations and Egypt to reach understandings that can achieve calm with the occupation and avoid escalation… a step on the road to lifting the siege and alleviating the hardships facing the people in Gaza.
At the strategic political level, Hamas has made great efforts to bring about Palestinian reconciliation, achieve unity, end the division and form an internationally recognized Palestinian unity government… but these efforts have been thwarted by the American veto and Israeli sabotage. Moreover, Hamas has worked with all its Palestinian partners to reach a consensus and internationally recognized formula on the national vision… in order to find a way out of the current crisis, as expressed most recently in May 2017, wherein it again accepted a state configured upon the 1967 borders, with Jerusalem as its capital, while simultaneously preserving the right of return for the millions in the Palestinian Diaspora.
Hamas is a national liberation movement democratically elected by a majority of Palestinians in 2006 under the watchful eye of the world community. At its core it promotes and fights for the fundamental right of Palestinian self-determination fueled byfull equality, independence and return. It does not embrace gratuitous violence. Nor, however, does it leave the people of Gaza defenseless at the mercy of an occupation force that has proven itself unworthy of trust and unwilling to exercise even a modicum of respect for international law. A long settled tenet of that law is the right of the occupied to engage in resistance, that includes armed struggle. Palestinians continue to resist legally. They do not owe their occupier passive surrender.
Not long ago, Israel sent an assassination-squad surreptitiously into Gaza to kill Palestinian leaders. In the weeks since, it has repeatedly attacked civilian targets and infrastructure. It has been met by Palestinian defensive measures; and Israel responds, predictably, with F-16 attacks and tank shelling throughout Gaza… killing some two dozen including three children and two pregnant women, one who was clutching her 14 month old in her arms as both perished. More than a hundred and fifty other civilians were wounded over the last several days of Israeli attacks. This latest assault does not yet have an operational name to sell it to the world… marketing Israel's "bravery" narrative… but surely they'll think of something catchy to disguise the carnage.
This past year, the Palestinian people, with all its factions and vital forces, including Hamas, took part in peaceful demonstrations… as affirmed by UN monitoring, along the separation fence at the eastern part of the Gaza Strip, demanding the lifting of the siege on Gaza and the right of return. How did the occupation respond? With live ammunition and sniper fire intended to kill and maim. Approximately 280 Palestinians have died and more than 28,000 have been wounded during this time… many of whom will live the rest of their lives disabled. Not one Israeli on the other side was killed because of the demonstrations. These protests also persist on a smaller scale in the West Bank where Israel continues to steal Palestinian land, destroy Palestinian homes and imprison Palestinian women and children at a pace second to none.
To the Greenblatts and Trumps and their Zionist cheer no amount of campaign sloganeering in puerile public statements can rewrite the palpable facts of Israeli aggression and its deadly occupation or recast Hamas from a lawful indigenous defense force into a mercenary political outlier. Nor can the soon to come US "deal of the century" entice millions of Palestinians to surrender an age-old history and tradition to the cheap ring of a common real estate cash box.
Hamas is no rogue militant group, with anonymous, shadowy operators. It will not disappear or shirk its leadership responsibility. It remains an authentic and powerful part of the Palestinian people, for over thirty years… much older than some of the current Israeli political parties in the Knesset. While many of its founders, all those years ago, have been killed by Israel, Hamas continues to speak on behalf of the dignity and hope of millions of Palestinians worldwide. Like them, it carries the kindle of resilience and self-determination of a People rendered stateless but neither hopeless nor powerless by a European colonial project. Like them, it will not cease to exist or fade into silence.
Posted on May 22, 2019 Author mala1143 Comments on The Enemy is not Resistance
By Corey Kilgannon
JEFFERSONVILLE, N.Y. — On the day his law license was reinstated this past summer, Stanley L. Cohen got a call from an old friend and client, Mousa Abu Marzook, a senior political leader of Hamas, the militant Islamic group that controls Gaza.
"He said, 'You're up to trouble again already?'" recalled Mr. Cohen, 67.
In certain circles in the Middle East, he said, "Word had gotten around very quickly that I was back."
That Mr. Cohen is back — after a prison sentence on federal tax charges that resulted in the suspension of his law license — is certain to infuriate many people.
He has spent much of his 35-year law career raising legal hell, defending controversial clients with an audacity that has antagonized his enemies, including United States intelligence figures and many Jewish groups.
He calls his clients "the despaired, the despised and the disenfranchised." Others call them terrorists and irredeemable criminals.
They include members of Hamas, Hezbollah and Al Qaeda, all of which the United States considers terrorist groups, as well as Sulaiman Abu Ghaith, a son-in-law of Osama bin Laden who was convicted in 2014 of conspiring to kill Americans.
He helped represent Kathy Boudin, the member of the Weather Underground involved in a 1981 Brink's robbery outside New York City that left two police officers and a security guard dead. Another client, Larry Davis, shot six police officers in a shootout in 1986 in the Bronx.
The lawyer Alan M. Dershowitz — no stranger to controversy himself, having represented O.J. Simpson and Claus von Bülow, among others — said of Mr. Cohen: "I think he's a horrible human being with horrible values, but I've defended worse."
Stanley Cohen represented Sulaiman Abu Ghaith, a son-in-law of Osama bin Laden.CreditBryan R. Smith for The New York Times
Mr. Cohen has also handled cases involving a variety of causes, including Native American rights, East Village squatters and Occupy Wall Street protesters.
The criticism and the labels — terrorist supporter, traitor to his country, Jewish anti-Semite — all "come with the turf," said Mr. Cohen, who relishes the spotlight his provocative style attracts.
In 2015, he suddenly dropped out of public view when he entered a federal prison in Pennsylvania after pleading guilty to having failed to file proper tax returns or maintain necessary financial records for his law practice.
True to form, Mr. Cohen denounced the case as politically motivated and retribution for his history of defending radicals and terrorists.
He served nearly 11 months of an 18-month sentence, in conditions he likened to a "Boy Scouts barracks." Inside, he started a blog called "Caged But Undaunted" and ran the law library. He taught inmates civil and human rights law and held classes on Middle Eastern issues, he said.
His first call from prison after his release, he said, was also from Mr. Abu Marzook, who told him, "O.K. Vacation's over."
Before he entered prison, financial pressures led Mr. Cohen to give up a funky loft on the Lower East Side where he had kept a bohemian home office. Now, with his law license reinstated after its suspension because of his conviction, he is looking for a new base in New York City.
Mr. Cohen used to work from his loft on the Lower East Side but is now based in the Catskills.CreditRobert Caplin for The New York Times
For years, the legal fees from defendants in murder, drug, robbery and other criminal cases helped sustain his pro bono work for terrorist and political activist cases, he said. But that will have to change.
"I have to make a living now," he said. "The days of 500 street arrests or 1,000 pro bono cases from Tompkins Square, I can't do that anymore."
Mr. Cohen, with his distinctive beard and ponytail, was dressed in a rugged tan outfit and leather boots. His three-legged chocolate lab, Emma, rested at his feet in the chalet-style home in the Catskills that now serves as his office, a two-hour drive northwest of New York City.
"This is all I have, after 35 years of practicing law, a house in the mountains," he said.
Mr. Cohen said he was raised in an Orthodox Jewish household but in his teens became interested in social justice issues and turned from religion toward the political activism that has fueled his law career.
He attended law school at Pace University in Westchester County and then worked in the 1980s as a Legal Aid lawyer in the Bronx. As a lawyer in private practice in the 1990s, he took on Albanian and Bosnian clients and started to become known among Muslim civil rights groups. This led to his defense of Mr. Abu Marzook against efforts to extradite him to Israel in 1995 on suspicion of terror. Mr. Abu Marzook was able to avoid the charges and was flown instead to Jordan.
Mr. Cohen represented Moataz Al-Hallak, center, the imam of the Islamic Society of Arlington, after he was linked in 1999 by federal prosecutors to Mr. bin Laden. CreditSteve Hart/The New York Times
For now, Mr. Cohen works on an aging laptop surrounded by paintings by his longtime companion, Joni Sarah White, an artist and a member of the Mohawk Nation.
The walls are also covered with newspaper articles and photos chronicling his career, showing him with other radical lawyers like William Kunstler and Lynne F. Stewart, or with Yasir Arafat, the Palestinian leader regarded by many Palestinians as a hero and by many Israelis as a terrorist.
In one photo, he is smiling broadly and sitting between two Hamas leaders who were later assassinated in rocket attacks by the Israeli military. The same image is the profile photo on his Twitter feed.
Mr. Cohen has long been a fierce supporter of Hamas, touting his friendships with its leaders and supporting their right to armed resistance against Israel.
"Occupied people, under international law, have a right to armed struggle, period," he said.
But his views on Hamas, among other things, have led to fierce criticism from Jewish groups, and he said one militant group labeled him "the world's No. 1 self-hating Jew."
Nitsana Darshan-Leitner, an Israeli lawyer who represents victims of terrorist violence, criticized Mr. Cohen for taking a tradition of representing marginalized clients "to a very extreme and dangerous place," and compared his representation of some terror groups to representing Nazi war criminals.
"Islamic terrorists are not the underdog or downtrodden deserving a zealous defense," she said. "They are aggressive perpetrators who maliciously try to murder innocent Jews."
Mr. Cohen has this broken picture frame holding a photo of a Hamas camp in his home office in Jeffersonville, N.Y.CreditEve Edelheit for The New York Times
Scarves Mr. Cohen has collected hang in his home in Sullivan County.CreditEve Edelheit for The New York Times
CreditEve Edelheit for The New York Times
Mr. Cohen countered that he has "always opposed attacks on civilians by anyone for any reason."
"But to draw any comparisons of that suffered by Palestinians with the rare injury to Israelis, is simply disingenuous or dishonest," he said.
Mr. Cohen has incensed critics by saying that, to take a case, he must feel a kinship with his clients or their cause. Mr. Cohen made headlines after the terror attacks of Sept. 11, 2001, by saying publicly that he would not rule out representing Osama bin Laden.
Mr. Dershowitz said he has represented clients he does not necessarily like or agree with, but whom he believes deserve a rigorous defense. Mr. Cohen, he said, goes a step too far.
"I pick my clients by their need for representation," he said. "If you represent people because you like them, then you can be judged by the clients you keep."
As for his tax conviction, which included failing to file tax returns for six years, Mr. Cohen said he pleaded guilty only after growing tired of fighting the charges, accumulating legal fees and having relatives, friends and clients "harassed" by the authorities.
"I'm a target till the day I die, because of what I say, who I represent and what I write," Mr. Cohen said.
Mr. Cohen spoke outside the federal courthouse in Newark in 2011 after two of his clients, Mohamed Mahmood Alessa and Carlos Eduardo Almonte, pleaded guilty to conspiring to acts of terrrorism.CreditJuan Arredondo for The New York Times
But prosecutors have dismissed his claim of selective prosecution. In pleading guilty, Mr. Cohen did not "downplay his guilt, or his conduct," said Grant C. Jaquith, the United States attorney for the Northern District of New York, the office that won a conviction against Mr. Cohen.
"In this case, as in all cases, our decision to bring charges was based on careful consideration of long-established principles of federal prosecution and our commitment to equal justice under the law," Mr. Jaquith said.
In any case, Mr. Cohen said he recently hired a scrupulous accountant and still plans on handling pro bono political work in the Middle East, albeit on a more limited basis.
"I just spent 80 hours researching a Palestinian case," he said. "I still take them — that ain't going to change."
Corey Kilgannon is a Metro reporter covering news and human interest stories. His writes the Character Study column in the Sunday Metropolitan section. He was also part of the team that won the 2009 Pulitzer Prize for Breaking News. @coreykilgannon • Facebook
A version of this article appears in print on Oct. 22, 2018 , on Page A18 of the New York edition with the headline: After Jail, a Lawyer for Extremist Clients Rehangs His Shingle. Order Reprints | Today's Paper | Subscribe
Posted on October 28, 2018 October 27, 2018 Author mala114Leave a comment on He Raised Legal Hell for 35 Years. Now He's Back.
Originally published in Counterpunch October 5, 2018
Is the Two-State Solution now the zombie of Western political-thought–an idea long dead, yet still walking the landscape, with bits of it rotting and falling off, while reason and history shoot holes in it, but it keeps staggering on, infecting the political discourse? Who can sincerely believe in it anymore? Least of all, Israel and the Zionists, since the idea's basic post-Madrid concept has been so thoroughly abused and violated, perforated with holes so big you can plant a settlement in them. The idea has been rendered no longer materially feasible, to put it politely–well and truly screwed to pieces, not so politely– while any lingering confidence by the Palestinians in the good-faith intentions of Israel and the United States has been replaced with mistrust and despair, and the cold realization that US policy does not have any interest in a just or fair outcome for the Palestinians. It never really has had any interest in helping the Palestinians. What killed the Two State Solution, we might ask? The settlements killed the Two-State Solution–but NOT as an accidental by-product of Israeli "security" issues, as if the settlements were a casual, reversible mistake. But rather they killed the Two-State Solution as part of a calculated agenda from the very start of the Zionist project to capture, de-populate and settle Jews on ALL the land of Palestine. Zionism's early generation of founders always envisioned the large-scale removal of the Arab population, and the settlement of their own descendants in land belonging to others–you can read it in their diaries and letters, in their unguarded moments when they are talking among themselves. Herschel, Jabotinsky, Ben Gurion, Meir–they all spoke privately of what they understood: that all of Palestine would be theirs, and that it would be a state for the Jews alone. This has not changed. The Israeli political establishment is today far more racist and authoritarian than the original Zionists ever dreamed of being. We see today how the orthodox right wing has taken over the official agenda entirely, with predictable results: more walls, fences, checkpoints, prisons, military forces, deadly raids by helicopters and fighter planes, and dehumanization for the occupied people. When the Israeli Occupation Forces start getting their first shipment of drones from the US arsenal, it will only get worse. The settlements–whose population has roughly quadrupled since Madrid–were ALWAYS part of the plan historically, even though the agenda of settlement has always been directly at odds with international law, and counter to the creation of a Palestinian state, or any "peace process." This contradiction has stymied forty years of negotiations–and any continued talk with settlement-building part of the equation is simply contrary to common sense.
Speaking as an American, I must note for you here today that it is fundamentally difficult to understand why Americans ever believed in the Two-State Solution at all–I don't mean the deep political establishment in my country, which is essentially pro-Zionist, strategically and sentimentally, and has used the Two State Solution as a stalling ruse to buy more time for Zionism's plan. But rather, I mean the thinking, commenting, "chattering class" of intellectuals, television hosts, and so on, tasked with the job of "selling" the idea over the last forty years or so, and those average Americans targeted for this deception. Because for Americans, a fundamental cognitive dissonance has always surrounded the very idea of Israel as an exclusive "state for the Jews": and that is the fact that American political culture and civil polity are founded on the sacrosanct, bedrock value of the Establishment Clause of the United States Constitution, which essentially says that a democracy does not establish ANY religion as the religion of the state, and may not favor any faith over another. We can't claim credit for this idea–we got it from the French revolution, and from English philosophers before them. It was a radical idea in the 18th century, but today it's a mainstream, default concept in the West. It's how we do government in the West. So how did the United States become the proponent and guarantor of the zombie idea of Israel–an exclusive state which bases citizenship on membership in one religion, while reserving a degraded, second-class citizenship for those who are not Jews? Everything about this is antithetical to the American political tradition. It has been one of the great, triumphant acts of cynical political salesmanship in my lifetime: that the exclusive "state for the Jews" has been rendered as acceptable in polite quarters– even just and fair!–to Americans, within the context of our political discourse, even though every ten year old in American Civics class learns in school that we are a nation where all people are equal, and no religion controls, but you are free to worship as you please. Selling this idea to Americans has taken decades and lots of money and influence, operating sometimes quietly, sometimes openly. US President Harry Truman in 1947 was extremely skeptical of any "state for the Jews," and generally objected to the Zionist plan on purely fundamental American values–that the establishment of a religious state was counter to what America stands for, and he didn't want any part of it. He thought he had worked out with his British counterparts a solution for partitioning Palestine that would allow 100,000 Holocaust survivors from Europe to move there, but would create a federal, democratic government with the existing majority Arab population controlling the majority of the land, in a secular state, among which the European Jews would be permitted to live. Truman even went so far as to remind advisors that "religious wars" had ravaged Europe for centuries, and had been the very thing the American Revolution had got us all away from in 1776, and that a "Jewish State" was not an American idea. Eventually, Truman went along with partition, but only if it awarded Palestine mostly to the Palestinians, with a small enclave for the Jews. He expressed his doubts that any creation of a Jewish state could ever be fair to the Arabs.
But then something happened–and this is the salesmanship of Zionism–in the circle of liberal, "progressive" Democrats surrounding the Truman White House: famous men like Judge Brandeis, or the former first lady, Eleanor Roosevelt. Liberals! They pushed on behalf of the Zionists for a Jewish state, and against the fairness doctrine that Truman wanted. The Liberal movement in the United States helped create Israel, and in doing so, robbed the Palestinians of their homes, their villages, their farms, their cities and towns. Always beware of the smiling, do-gooder liberals, is the lesson there. So much for the American ideal of the Establishment Clause. Next, the US Constitution enshrines the basic idea of "equality" before the law, and due process for all citizens. As a lawyer, I can tell you that "due process" is the mechanical operating feature of the US Constitution which triggers so many of our rights as citizens–that everyone has the same access to, relationship to, and enfranchisement under the law. The United States has fought bitterly over these issues–including its own civil war, and many rounds of social and political rights movements–but this fundamental western Enlightenment idea has held up as the core value of all our laws in the United States. The foundation of the Zionist state, of course, was a monstrous crime against the notion of "due process." Who among the 800,000 Palestinians stripped of their land and homes in 1948 ever received "due process" of the law? Who among the millions of refugees today refused the right to return to where their families come from has ever received any "due process" of the law? Speaking as a lawyer, this is the most troubling aspect of any "Two State Solution"–the constant threat by the Zionists that any Palestinian assertion of the Right of Return justifies a cancellation of all other rights Palestinians possess–it is a miserable, deceitful and coercive cruelty played out over decades by the Zionists against those displaced Palestinians and their descendants who have suffered. It is the original crime at the foundation of the Zionist state–and the Zionists continually cry for the Palestinians to renounce their human right before any other rights can be discussed. As if the human right did not precede all other rights. This is why the Two State Solution is dead–because the Zionists cannot admit that their state is founded on a crime, and the moral contradiction of their position does not permit a way forward. There is only blind advancement of conquest, subjugation and Apartheid. Speaking as a lawyer, I am most troubled by the failure of the Israeli people to understand the Right of Return in purely legalistic terms: it is a property right, and the body of law dealing with property is long and deep, and originates in many cultures and languages, including, famously, the law-giving culture of the Jews. Much of the ancient Jewish Torah and religious teachings, after all, are concerned explicitly with property, righteousness and what is fair. The foundation of their faith is, in essence, the story of a contract between a people and God, and what happens when contracts are not honored. Even this past year, we have witnessed the vindication of property claims by Jews against banks, insurance companies, and art collections, concerning the plunder of the Nazis–where property is concerned, many Jews have vindicated their rights across many decades of troubling history, recovering bank accounts, businesses, houses and art. Yet where are the Israelis who stand up and say, "the Right of Return is an issue of equity and property–the land belongs to someone else." Again, the moral failure of the Israeli state, under the corruption of Zionism, blinds all who stand on stolen ground.
Yet, the "due process" concept is even more troubling for the future that is upon us now: the Apartheid state that the Zionists have built over the years since the Madrid talks can never permit even the faintest whisper of "due process" for those who must live under it. Why do Americans support this? Do they even know what they support? The One State of Zionist Apartheid is upon us, and that needs to be spelled out in every way to folks in the United States. Because now, as the Two-State Solution is dead, the choice for even liberal, peace-seeking Israelis (and for the Americans who would support them) is a choice between a single state from the river to the sea, in which every single person has total and equal enfranchisement before the law, with a resulting Arab majority; or it is a single state ruled by an iron fist, with two classes of citizens–the official, enfranchised class, and the subjugated, serving class, with walls and fences and Bantustan villages to keep them in their place. Does this sound familiar?
But still, proponents push the zombie corpse of the Two State Solution forward. I am amazed at how hollowed out this concept has become from all the abuse it has suffered–according to the Occupiers and the United States' right wing, the future Palestinian "state" will not have control of its own borders, or ports; exclusive highways for Jews only will criss-cross its land, connecting settlements; it will not have any army or national military force; it will not be permitted armor or airplanes; it will have fences and walls, and the Israeli army and navy, surrounding all of it. That doesn't sound much like a state I'd like to live in! I wouldn't live in that state if you made me the President. Zionist phobia of a dignified Palestinian neighbor runs deep and broad–just like racism–and would provoke laughter if it were not such a sickness. This phobia is so powerful that the Israelis and the Americans won't even allow the Palestinians to take their place among the organizations of nations, and have access to international cultural and political resources–as witness the temper-tantrum Israel and the US State Department threw last year when the Palestinian Authority joined various United Nations organizations. It is time for the Zionists to grow up, and stop poisoning the phony discourse–either admit your agenda is conquest, or get out. If it's conquest, then the apartheid system shall prevail, which–as South Africa demonstrated–will lead to a protracted battle for rights by the majority population, leading to their eventual triumphant–in A ONE STATE FRAMEWORK. This is what Palestinians have to look forward to, I'm afraid! But I have been visiting South Africa quite a lot in the past few years as a lawyer–and I can tell you, I know of no more other society so determined to find a just and equitable future together, really struggling with the legacy of injustice and working creatively to make a real nation, than I find in South Africa. It holds out the promise that one day Palestine will be the state we are talking about, from the river to the sea. Yet the zombie of the Two State Solution still strides the land, spawning its infected army of zombie believers–most recently the U.S. Secretary of State, John Kerry, who staggered through the region, ineffective and clueless, then made an observation back home that Israel was flirting with Apartheid. The result? He has paid politically in Washington, where he had to go down on bended knee and apologize publicly to the Zionist lobby, and it's unlikely his political career has anywhere left to go now, because he dared to use the "A-word" in referring to Israel. Of course, popular cinema has taught us that to kill a zombie, you must hit it in the head, and destroy its brain. This tells me that we must struggle now to defeat the intellectual justifications for the Two State Solution–defeat the far-flung network of bogus think-tanks and apologists who hold up Israel as a shining beacon of polite, lawful statehood, while keeping the Palestinians disenfranchised. We must win the intellectual battle, at the same time as the fight on the ground continues–the world must learn that the American and Zionist agenda is intended to subjugate the Palestinians further, and will continue to do so until world opinion & the Palestinians themselves change that–just as happened in South Africa.
This article is adapted from an address to the "Nakba 2014" Conference in Zurich, 15 May 2014.
Translation http://www.alquds.com/pdf/1539421787168777600/1539423079000/#page=10&zoom=auto,-13,1536
Posted on October 13, 2018 October 17, 2018 Author mala114Leave a comment on The Two-State Solution is Neither
Originally published August 24, 2018 in Counterpunch
As old as war itself, collective punishment has long been the most damning and destructive weapon of all. Not satisfied with engaging combatants alone and directly, historically, it has fueled state reprisal against families, communities and entire populations in a drive to "win" a given conflict, military or otherwise, at all costs.
With roots that trace, literally, to the start of time, reprisal has evolved as modern warfare has became more proficient and popular resistance more prevalent. Nowhere has collective punishment proved more evident and systemic than it has in the West where it has long run the gamut from civil sanctions, to population displacement, to political penalty, to imprisonment, to outright slaughter. Of late, it has grown more subtle, yet no less pernicious, through state censorship that seeks to control the narrative of the day.
In the American Civil War, during his "march to the sea", General Sherman ordered his troops, when faced with any resistance from guerillas, to "enforce devastation more or less relentless according to the measure of such hostility." In doing so, his troops targeted non-combatants causing more than one-hundred million dollars in property damage. Today that destruction would be valued at more than one-and half billion dollars.
The strategy known as "hard war" was defined by widespread destruction of civilian supplies, infrastructure and property, which disrupted the South's economy and transportation networks. Foragers, known as "bummers", seized food from local farms for the Army while they destroyed railroads, manufacturing and agricultural infrastructure in the South.
As troops marched through Georgia, they took whatever horses, mules and wagons, owned by civilians, for military use. In leaving Atlanta, all buildings and structures that might have had a military "value", including rail depots, roundhouses, arsenals and storage areas, were disassembled and burned. Although monitored, the "controlled" fires resulted in heavy damage, if not widespread destruction, to civilian homes located throughout Atlanta.
Sherman's "scorched earth" policy was not new and was to continue after the Civil War as military forces targeted non-combatants in particular indigenous communities as an essential part of an early European colonial project.
Thus, in 1863, after a small group of miners were killed, the US military laid the blame at a band of nearby "defiant" Shoshone Indians. During the four hour onslaught that followed, 200 soldiers killed several hundred Shoshone, including at least 90 women, children and infants. They were shot, stabbed and battered to death. Others were driven into the icy river to drown or to freeze.
In1864, following an unsolved murder of a settler family not far from a reservation at Sand Creek Colorado, the territorial governor called on citizens to "kill and destroy . . . hostile natives." Seeking the "chastisement" of the Indians, a military raid followed not long thereafter. According to one soldier, "… hundreds of women and children were coming towards us, and getting on their knees for mercy, only to be shot and have their brains beat out." Of the 200 defenseless Cheyenne and Arapaho that were murdered, all but 60 were women and children. The dead, women and men alike, were scalped… with their ears and genitals cut out.
Dance has always played an essential role in religious practice and ceremony among indigenous communities in North America. Following the civil war, traditional Native dance was increasingly viewed as a threat to white "settlers" as they moved further west.
Seeing religious practice as a potential flashpoint for an Indian uprising, the U.S. and Canadian governments passed laws banning cultural and religious rituals… including all forms of traditional dance. That ban was to lead to the massacre at Wounded Knee, South Dakota.
Early one December morning in 1890, a large contingent of heavily armed soldiers of the Seventh Cavalry surrounded several hundred Lakota Sioux at a makeshift camp along the banks of Wounded Knee Creek where some were practicing the Ghost Dance… a new and spreading ritual seen as a bridge between the living and the spirits of the dead… to bring unity to natives throughout the region. Sent to arrest the native participants for their Ghost Dance, a gunshot unleashed a barrage of fire… including a military machine gun… that slaughtered several hundred Lakota men, women and children caught in crossfire as they fled to find safety in a nearby ravine.
Half a century later, on the eve of the surrender of Germany, a series of bombing raids were carried out on the city of Dresden by 800 American and British aircraft. Known as the "Florence of the Elbe", Dresden was a medieval city renowned for its artistic and architectural treasures. It played no role whatsoever in war-production and had no major industry.
The two days of bombing, which involved 3,400 tons of explosives, unleashed a veritable firestorm which continued burning for days. When the fire ended, the streets were littered with charred corpses… including many children. Although the exact number of those, mostly civilians, killed remains unknown it is estimated that upwards of 135,000 lost their lives and were buried in mass graves… including some within the eight square miles of the city that lay in ruins. While various rationales have been raised, the consensus is the attack was simply a mission to collectively punish the Germans and weaken their morale.
Six months later, on August 6, 1945, an American B-29 bomber dropped the world's first deployed atomic bomb on Hiroshima. The explosion wiped out 90 percent of the city and immediately killed 80,000 people. Three days later, a second B-29 dropped another A-bomb on Nagasaki… killing an estimated 40,000 people. Tens of thousands more would later die of radiation exposure in and around both cities. Already defeated before the use of the atom bombs, Japan's Emperor surrendered a week later citing the mass destruction and punishment wrought by "a new and most cruel bomb."
As shown by its participation in the firebombing of Dresden, the British are not at all strangers to collective punishment. Indeed, the UK often employed it during its once long reign as the world's leading colonial power. Thus, in response to the Boston Tea Party the "Intolerable Acts" were enacted by the British Parliament. These acts closed the Port of Boston, revoked the Massachusetts Charter and, thus, home rule, moved the trials of accused outside North America and required the colonies to quarter the King's troops, thereby, imposing mass punishment upon much of the colonies for the acts of a few.
During the Second Boer War of 1899-1902 the British rounded up more than a hundred thousand of the Boer civilian population, mostly women and children, and detained them in camps. Overcrowded, with little nourishment, and prone to outbreaks of disease, some twenty-seven thousand Boers and an unknown number of black Africans died.
In April of 1919 peaceful protestors defied a government ban and demonstrated against British Colonial rule in India. Blocked inside a walled off garden, they were fired upon by Gurkha soldiers who kept shooting until they ran out of ammunition. After 10 minutes, the firing stopped… leaving upwards of a thousand protestors dead and another 1,100 injured.
Although precise figures are unknown, it is estimated that between 12 and 29 million Indians died of starvation while under the control of the British Empire… as millions of tons of wheat were exported to Britain even while famine raged throughout India.
In 1943, up to four million Bengalis starved to death when Winston Churchill diverted food to British soldiers and countries such as Greece while a deadly famine swept through Bengal. When asked about the famine Churchill said: "I hate Indians. They are a beastly people with a beastly religion. The famine was their own fault for breeding like rabbits"
In 1956, in Cyprus, Britain evicted families from their homes and closed shops in neighborhoods where British soldiers and police had been attacked, purportedly to obtain information about the attackers.
During the so-called Mau Mau uprisings in "British" Kenya, Kikuyu tenants who lost their land to white settlers were detained, en masse, in camps known as "British gulags" where many suffered from torture and sexual assault. It is estimated that during 1951-1960 between 20k and 100k Kikuyu lost their lives.
In 1935-36, Italian troops carried out mass reprisals following their invasion and occupation of Ethiopia. Among other atrocities, fascists used mustard gas against civilian communities, bombed Red Cross hospitals and ambulances, destroyed monasteries and shot "witch-doctors" who foretold the end of Italian rule. Following a partisan grenade attack that wounded the Italian viceroy, some 19,000 civilians were murdered in Addis Ababa during a three day rampage carried out by local fascist militias, colonial troops and Italian soldiers. Victims were shot, hanged, burned to death, beaten with clubs and shovels and drowned… being thrown down wells or into the river.
The German Punishment
During World War II, collective punishment was very much the norm in Europe and Asia as German and Japanese troops engaged in targeted reprisals against persons and communities as revenge for the acts of the few or for purposes of population control.
Following attacks by the Serbian resistance in October of 1941 German soldiers raided the town of Kragujevac in Yugoslavia seizing some ten-thousand civilians… including high school students while in class. Beginning the next day, people were executed in groups of four hundred at a time. When the massacre ended over 5,000 civilians, including women and children, were dead.
To understand where collective punishment would eventually lead, at the hands of Nazi Germany, one must look to its activity well before World War II. Thus, in the early 1930's, it began to target its civil population by virtue of nothing more than their trade union and political activities and beliefs or religion. Soon after the election of May 2, 1933, the SA (Nazi paramilitary) and SS (initially Hitler's bodyguards) began to attack all forms of political opposition… beginning with raids on trade unions offices whose leaders were arrested and imprisoned. Later that year, they raided offices of political opposition parties… destroying equipment, confiscating funds and arresting their leaders. By the middle of that year, Nazis had banned all opposition parties.
In May 1933, the first book burnings under the Nazis occurred outside of the University of Berlin with university students leading the torch lit parade. In 1817, over 100 years earlier, students had initiated book burning with the goal of unifying the patchwork Germany of the time. Among the first works thrown into the fire in 1933 were those of Sigmund Freud's. In what was clearly prophetic, German Jewish poet Heinrich Heine had written, one-hundred years earlier, "any people that burn books, will one day burn people."
As Hitler consolidated power, thousands of communists, socialists, church leaders and anyone else who might oppose the Nazis were rounded up. Initially, these prisoners were held in local prisons and police stations. There were so many prisoners that makeshift buildings were converted to house them. Eventually, the Nazis solution to the inefficiency of the buildings was found in establishing large, purpose-built camps to hold these prisoners. These they called concentration camps. The first camp was established on 1 April 1933 at Dachau.
Between 1933 and the end of the war, some dozen years later, many thousands of people resisted the Nazis using both violent and non-violent means. Among the earliest opponents were Communists, Socialists, and trade union leaders. As punishment against this movement thousands were executed including German theologians such as Dietrich Bonhoeffer who opposed the regime.
As millions of Jews, Communists, Socialists, Gypsies, gays and political opposition were murdered in concentration camps throughout Germany and Europe, resistance continued to grow in Nazi-occupied areas outside of Germany.
In France, Denmark, the Soviet Union, Czechoslovakia, Yugoslavia, Greece and Poland, guerilla fighters engaged in anti-Nazi sabotage. After Czech agents assassinated Reinhard Heydrich, the Nazi governor of Bohemia and Moravia, the Nazis shot all of the men in the Czech village of Lidice none of whom had any involvement in the assassination.
Warsaw was, perhaps, the most legendary of all uprisings by an urban population in German-occupied territory. On April 19, 1943 an armed revolt was begun by a group of Warsaw ghetto dwellers. The Jewish Fighter Organization (ZOB) led the insurgency and battled, for a month, using weapons smuggled into the ghetto. The Nazis responded by bringing in tanks and machine guns. In massive collective punishment, the Nazis burned blocks of buildings and destroyed the ghetto in its entirety. Ultimately, many of the 60,000 remaining residents, most of whom had nothing to do with the uprising, were executed or lost their lives as buildings were bombed or set aflame.
In 1942 German troops destroyed the village of Lidice, Czechoslovakia, executing 340 civilians as reprisal for an earlier commando raid by partisans. In the French village of Oradour-sur-Glane more than 600 men, women and children were murdered as collective punishment for acts of the resistance. Similar reprisals occurred in the Dutch village of Putten, the Italian village of Sant'Anna di Stazzema and the Soviet village of Kortelisky.
The Japanese Punishment
Beginning long before the onset of World War II, during the 2nd Sino-Japanese War, Japan made widespread use of biological and chemical weapons, created in the infamous Unit 731 labs, in their drive to reduce and control China's population through weapons of mass destruction.
From 1931 through 1945, Japan employed thousands of biological and chemical weapons throughout China. Hunan, Jiangsu, Jilin, Kwangtung and Zhejiang provinces were a few of the targets of many such attacks. The biological weapons attacks in Zhejiang province offer a chilling view of Japan's routine use of biological or germ warfare as a weapon of collective punishment against a civilian population.
Thus, on October 4, 1940, a Japanese airplane dropped plague-infected fleas (causing bubonic and other plagues) over Quzhou, a small town in western Zhejiang Province. Within days the first victims died. Within a year more than a two- thousand others died.
In September of 1941 the plague was carried to another village causing the death of an additional one thousand persons. In 1942 Japan unleashed a series of anthrax and glanders (a rare infectious disease) attacks on numerous villages throughout Zhejiang Province leading to the painful deaths of some three thousand villagers soon after the onset of the infection.
Population displacement has also been a mainstay of prohibited collective punishment. Though the world map has long been artificially reconfigured to reflect changing political winds, two displacements, in particular, provide insight into how political priorities and retribution have directed the forced movement of people in contravention of international law.
In 1944, Stalin deported the entire population of the North Caucasus… more than half a million people from the republics of Ingushetia, Chechnya, and North Ossetia… to the Soviet republics of Central Asia based on an assumption they were "collaborating" with the Nazis.
The forced displacement was accomplished through crowded cattle-cars which simply dropped the displaced in a barren wilderness without any means of survival. In an earlier period of forced displacement it is estimated that between 1941 and 1949 more than three-million Russian Poles and Latvians, Lithuanians and Estonians were deported to Siberia and the Central Asian republics. It is estimated almost half of those resettled died of various diseases and malnutrition.
As a result of an agreement among the victorious parties in World War II, between 1945-1950 upwards of 14 million German speaking civilians… most of whom were women, the elderly and children… were forcibly expelled from their homes in Czechoslovakia, Hungary, Romania, Yugoslavia, and Poland and sent to the rubble of Allied-occupied Germany. Along the way perhaps half a million lost their lives to starvation, disease, attacks and executions. Tens of thousands of others died of ill treatment in forced labor camps as so much "reparations." Many of these camps were once German concentration camps which remained in operations for years after the cessation of hostilities.
The Israeli Punishment
Collective punishment is the alluring call of the desperate tyrant. It is a shameless group stab that targets communities when a despot's aim, at the few, falls short of their coveted mark. To them, how much easier it is to break a people's step by spreading anguish among all… the young, the old, those waiting to take their turn.
Collective punishment comes in many shapes. Some short, explosive and deadly. Others the kind that hang heavy like an amorphous throb that just never seems to go away… an ache always there to remind that there's something about your race, religion or heritage that panics tyranny. And, then, there is the kind that confronts every breath you take, every step you make… day in and out… generation after generation. The sort that demands you walk or run off into the past and never return to a future that is yours to claim. No tomorrow. No vision. No voice. No hope.
That is the collective punishment begun by European Zionists decades before the United Nations ripped Palestine from Palestine… when they unleashed a spree of death, dispossession and destruction that has continued unabated for more than ninety years. No modern collective punishment has been as long, as public or as perversely proud.
Though the Nakba began on May 14, 1948, it unfolded decades before when Balfour issued an open invitation to terrorists such as the Irgun, Palmach or Lehi (the Stern Gang) to commence a deadly colonial project that came to know no bounds.
For years, Palestinians were targeted in their homes, businesses, and marketplaces for no reason but their easy mark. Men, women and children were butchered by bombs or slain by shots… not as armed opposition but as civilians swept up in a pogrom of collective punishment.
No one can erase the terrorist blast of the King David Hotel ,by the Irgun in1946, that took ninety-one lives including some four dozen Palestinians. Nor can the massacres at Deir Yassin and Ein al-Zeitun, by the Irgun or Lehi in April and May of 1948, be apologized away as the unfortunate loss from competitive battle. Hundreds of executed civilians, many tethered and shot, others mutilated and raped, is not warfare but collective punishment of the worst kind… the type designed to spread mass terror through a despicable feed upon the most vulnerable in two defenseless, age-old, rural villages.
If these were to be the explosive benchmarks of early shared punishment, for more than a decade before, thousands of Palestinians were murdered or injured in a rampage of non-stop terrorism that determined life and death by little more than mere happenstance.
Crowded Souqs (marketplaces) in Jerusalem, Jaffa and Haifa were a particular favorite for collective punishment as bombs exploded… some hidden on donkeys or under fruit stands, others tossed into crowds of shoppers from passing vehicles. Many were shot and killed in random drive-bys. Small lodges, town halls, political headquarters, cinemas and trains were the scene of repeated carnage caused by explosives or ambush. More than once, the Damascus Gate of the Old City was attacked by barrel bombs or strafed by gun fire. In Jaffa, more than one hundred homes were burned to the ground as part of a coordinated bombing attack. And in a precursor of what was to come, soon, en masse, on the night of December 31, 1947- January 1, 1948, the village of Balad al-Shaykh was attacked by paramilitary forces who proceeded to blow up homes and execute 70 Palestinians as retaliation for an earlier battle elsewhere between Zionist and Palestinian fighters.
With the establishment of Israel, over night, collective punishment took on a new, more odious, meaning as mass displacement became a prime weapon of choice throughout Palestine. Fearing advancing Israeli troops or another Deir Yassin massacre by marauding militias, some eight hundred thousand Palestinians fled, or were expelled, from their age-old homes, to become stateless refugees strewn throughout the Middle East.
In the days that followed, between 400 and 600 Palestinian villages were sacked… reduced to little more than rubble. As panic spread, Israeli troops patrolled urban centers using vans and loudspeakers to order terrified inhabitants to evacuate their homes. (O'Ballance, Edgar). As mass flight took hold it became clear to international observers and journalists, alike, that cleansing Palestine of its civil population had become a formal Israeli policy. Not long thereafter, a series of laws were passed by Israel which prevented Palestinians from returning to their homes.
It sealed the fate of millions of Palestinians who 70 years later continue to suffer from an unprecedented formalized state policy of mass collective punishment and exile.
"The IDF began to attack civilian targets, including population centers, with the goal of causing the residents to understand the price of escalation and placing Hamas in a problematic situation." With these words, a recent newspaper article in the Hebrew-language version of Haaretz confirmed what informed observers had long known: that Israel sees itself above international law in its use of collective punishment as an essential element of its drive to complete its goal of ethnic cleansing throughout Palestine.
To understand the contemporary reality of collective punishment in Palestine, for context one need only look back some thirteen years to the electoral victory of Hamas in Gaza. In the years since, the Israeli government has targeted its two million civilians for direct and unremitting punishment for little more than their electoral will and political determination. Parallel to this attack has been a simultaneous one, of a different nature, on the Palestinian civil population throughout the Occupied West Bank.
Even before the on-going bloodbath in the Great Return March, few can deny Israel's frequent use of collective punishment on non-combatants in the Gaza strip. Predictably, each time, it has blamed "terrorists" within the civil society itself for the unfortunate and substantial casualties and widespread destruction of infrastructure, buildings and homes that ensued.
On January 3, 2009, Israel began a ground offensive in Gaza. When it ended some two weeks later more than eight-hundred civilians lay dead, including those who lost their lives seeking shelter in U.N. compounds that were targeted by Israel. In one such attack 43 were killed by an Israeli shelling on January 6.
In what was to become the rai·son d'ê·tre of future assaults, Israel destroyed homes, university and apartment buildings, schools, factories and infrastructure describing them as part of the Hamas "support network." Damage estimated in excess of $3 billion further strained the already dire humanitarian situation in Gaza leaving 46,000 displaced persons in UNRWA shelters.
Less than three years later, on November 14, 2012 ,Israel once again attacked Gaza using planes, mortar fire and tanks throughout the embattled enclave. According to a report by the UNHCR, during the onslaught 174 Palestinians were killed including 33 children, 13 women and three journalists by air strikes on their cars. Hundreds of others were wounded, among them at least 88 under the age of five. On November 19, 2012, an Israeli airstrike killed ten members of the Dalu family, including five children and two neighbors.
In what can only be described as an all-out attack on civil society, Al Mezan, reported that, in just one week, the Israeli army destroyed 124 homes and damaged more than 2000 others while targeting numerous residential communities and apartment blocks.
When the attack ended , 52 places of worship, 25 NGO's, 97 schools, 15 health institutions, 14 journalist offices and 16 government buildings lay in ruins. Fifteen factories and 192 trade shops, twelve water wells and large agricultural tracts were damaged or destroyed… as was the main bridge connecting Gaza City with the rest of the enclave.
In 2014, Israel undertook its most recent coordinated military assault on Gaza as it once again targeted its two millions civilians with massive disproportionate force. According to a United Nations report "the scale of the devastation was unprecedented… tallying more than 6,000 airstrikes, 14,500 tank shells and 45,000 artillery shells unleashed between July 7 and Aug. 26."
Many of these explosive devices, in particular artillery and mortars, were used in densely populated areas and designed to have a "wide-area" impact to ensure that anyone or anything within the contact area would likely be killed, injured or damaged due to their explosive power and imprecision. By design the haphazard use of these weapons destroyed entire neighborhoods.
When the carnage ended, 2310 Palestinians were killed… the majority of them civilians including 551 children and 299 women. More than 11,000 others were wounded, a third of them children, with over 1,000 left permanently disabled. Many of the killed or maimed had sought refuge in various shelters including U.N. schools which were hit despite the fact their coordinates had been provided to Israel in advance of the attack. [Excerpt from "Building For Sale, All Bids Considered: The UN And The Middle East" May 1, 2018 Counterpunch Stanley Cohen]
The collective punishment unleashed on Gaza during the attack of 2014 was meant to cause lasting devastation on a civil community already overwhelmed by poverty and still reeling from the last assault on its infrastructure just a few years earlier.
During the 50 day attack, Israel struck more than 5,200 targets including thousands of homes that were destroyed or severely damaged. Hundreds of factories, dairy farms (with livestock) and orange groves were destroyed, as were the lone power station and major sewage pipe in Gaza, serving 500,000 residents.138 schools and 10 out of 26 hospitals were damaged or destroyed along with 203 mosques and two of Gaza's three Christian churches. [Excerpt from "Building For Sale, All Bids Considered: The UN And The Middle East" May 1, 2018 Counterpunch Stanley Cohen]
For those in need of a painful primer on what explosive collective punishment looks and feels like today, these deadly mass attacks upon the civil society, indeed life, of Gaza leave nothing to the imagination. Each assault caused substantial casualties among non combatants and crippled essential infrastructure and support services for the health, welfare and safety of some two million men, women and children.
Make no mistake about it, carpet bombing is not an isolated military misstep. It is a determined, strategic call. Repeat targeted attacks upon residential neighborhoods and schools, shelters and hospitals by "wide area" impact weapons are not intended to minimize civilian suffer but, rather, to serve as triggers for horrific collective punishment.
Yet, military assault is but one deadly adjunct to a systematic choke upon Gaza, now in its thirteenth year of Israeli occupation, that has denied its civil population sufficient food, water, clothing, medicines, fuel, shelter, bedding, hospital equipment and freedom of movement. Recognized as guaranteed humanitarian rights, these are not mere commodities of privilege or luxuries of life. To be sure, their absence is the core distinction between victims of collective punishment and those who impose it.
Completely surrounded by walls and fences, years of Israeli attacks and a suffocating embargo on produce and supplies have left Gaza reeling from an absence of an infrastructure capable of meeting the needs of its people. Whether its electricity, clean water, healthcare, or sewage treatment and waste management, it is undergoing a humanitarian crisis now entering its second decade.
In Gaza, abject poverty is rampant. At 41.1 percent, the unemployment rate is the highest in the world. Its youth unemployment is 64 percent.
Although thousands of homes damaged or destroyed during Israel's attacks remain in need of repair, the construction sector is idle. More than a hundred thousand live in cramped shelters or remain homeless. Sixty per cent of Gaza lives under the poverty line. According to UNICEF a third of Gaza's children suffer from chronic malnutrition and micronutrient deficiencies that can stunt development and affect overall health. [Excerpted from "Parallel Worlds: Gaza and Israel" December 29, 2017 Counterpunch Stanley Cohen"]
According to the WHO, power cuts and fuel shortages have created constant crises for Gaza's 14 public hospitals; threatening the closure of essential health services leaving thousands of people without access to life-saving medical care. For well over a year electricity for Gaza has dropped to a total of just three hours daily. At any given time, power loss threatens the lives of hundreds of new-borns and adults in neonatal and intensive care units.
Only three percent of the entire water supply in Gaza is fit for human consumption with the rest contaminated and dangerous because of untreated sewage, agricultural chemicals and a large concentration of chloride.
With the shortage of clean water looms the fear of a deadly cholera epidemic particularly in a community with a young population with increasing numbers showing signs of acute malnutrition and severe wasting. [Excerpted from "Parallel Worlds: Gaza and Israel" December 29, 2017 Counterpunch Stanley Cohen"]
According to the World Bank, 56 % of all Palestinians have no access to "reasonable and customary" healthcare in Gaza. Dozens of basic drugs are unavailable. Currently, more than eight thousand chemotherapy patients including hundreds of children are unable to obtain life saving treatment due to the absence of drugs needed to sustain them.
According to Physicians for Human Rights-Israel (PHRI), the public health system is not able to provide specialized treatments for complex medical problems in a variety of fields including neonatal care, cardiology, orthopedics and oncology.
So far this year, 30 patients have died after their exit permits to obtain treatment were either denied or not granted in time. Not long ago three seriously ill babies died after permits to grant them treatment in Israel were denied. Earlier this year, 2 children died while waiting permission from Israel to leave for external treatment.
The Seeds of Collective Punishment
In November of 1998, the Yasser Arafat Airport, located between Rafah and Dahaniya, was opened with much fanfare. Capable of handling some 700,000 passengers per year, it was seen as an important step forward in the establishment of Palestinian statehood as it provided the only transit into and out of Gaza beyond the control of Israel. In 2001, Israel destroyed its radar station and control tower, in a bombing attack, after the start of the Al Aqsa Intifada in the occupied West Bank. Never again would the airport be used.
After 38 years of internal occupation in southern Gaza, the Israeli army and 21 "settlements" with almost ten-thousand settlers were, in 2005, driven from the coastal enclave. Though Israel has long claimed it was a voluntary "withdrawal" for security reasons, it is clear that increasing confrontations and resistance by Palestinian fighters in Gaza was the cause of the evacuation.
Not long after the victory of Hamas in the Palestinian legislative elections of 2006, Israel declared the Gaza strip "hostile territory." Soon thereafter it imposed a series of political, economic and military sanctions to isolate and destroy Hamas and to punish Gaza's population for the exercise of its political will.
In its thirst for collective punishment, Israel imposed a naval blockade which limited offshore fishing zones and initiated a siege that resulted in the closure of border crossings, for people, goods and services. It also implemented a "buffer zone" within the territory.
These measures have had a devastating impact on the living standards and life of all of Gaza and destroyed any prospect of economic development or independence. They have created a grave and protracted humanitarian crisis that has only been exacerbated by three unwarranted and excessive military onslaughts that have killed thousands of Palestinians and laid waste to Gaza's infrastructure.
Thirteen years later, Israel controls Gaza's air and maritime space, and six of its seven land crossings; Egypt rules the seventh. It controls Gaza's population registry and arbitrarily decides who comes into and out of the world's largest open air prison. Gaza remains dependent on Israel for its water, electricity, telecommunications, and other utilities.
And what of that buffer zone? As shown by the Great Return March, it's proved deadly… as Israeli snipers decide who will live and who will die from the safety of their mounds for the daring of Gaza's voice.
The Law of Collective Punishment
Throughout history, during times of armed conflict and occupation, military forces have repeatedly used acts of collective punishment on groups of persons without regard to whether or not they bore personal responsibility for the very acts, it was claimed, that required a response. The use of collective punishments and infliction of cruel punitive measures upon civil populations is not new. For many years, belligerent reprisals have been little more than illegal means of repression or intimidation often imposed under the guise of legitimate law enforcement.
Unable to locate insurgents responsible for so-called hostile acts, invading armies and occupation powers have long used collective punishment in the hopes of suppressing resistance and ensuring willful obedience. Ultimately, the goal of deterrence is little more than a pretext for tyranny.
International law has responded to this military ritual by increasingly restricting and outlawing the practice of collective punishment
Of the many prohibitions set forth under international law, the one most frequently ignored, yet, clearly defined, is the ban on collective punishment. The prohibition of collective punishment in international humanitarian law is based on one of the oldest, and most basic, tenets of criminal law… the principle of individual responsibility. Article 3 of the Fourth Geneva Convention Section 1 Art. 33 provides that: "No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited."
This convention codifies the Hague Regulations of 1899 which provide "No general penalty, pecuniary or otherwise, can be inflicted on the population on account of the acts of individuals for which it cannot be regarded as collectively responsible" The Hague Resolution of 1907 Section 3 Art 50 affirmed this rule with only a slight modification amending "collective responsible" to "jointly and severally responsible."
Article 4, par. 2(b), of Protocol II of the Convention further defines collective punishment as "penalties of any kind inflicted on persons or entire groups of persons in defiance of the most elementary principles of humanity, for acts that these persons have not committed." The Commentary on Protocol II emphasizes that collective punishment should be given the widest possible application and includes any kind of sanction.
Under International law, the law of wars (humanitarian law) is no less applicable to conflicts between non-international combatants than it is fighting among international forces. Accordingly, although political debate may arise over whether which category the decades old conflict between Israel and Palestinians in the Occupied Territories may fall, for purposes of humanitarian law it is difference without a distinction.
Both Israel and the resistance forces of Palestine are obligated to observe article 3 common to the four Geneva Conventions of 1949 ("common article 3"), the Second Additional Protocol of 1977 to the Geneva Conventions (Protocol II), applicable to non-international armed conflicts, and relevant customary international law.
In relevant part, humanitarian law forbids deliberately harming civilians and other persons no longer taking part in the hostilities, including wounded. It also establishes specific rules on the conduct of hostilities to minimize unnecessary suffering.
These provisions prohibit violations of the right to life, torture and other inhuman and degrading treatment, arbitrary arrest and detention, and unfair trials. They also provide for the rights to the protection of the home and family, and particularized protection of children in times of armed conflict.
Persons under the control of government in an internal armed conflict must, in all cases, be treated in accordance with international humanitarian law, which incorporates important human rights standards. (The UN Human Rights Committee, the expert international committee that monitors state compliance with the ICCPR, has stated that "the Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive."
Violations of international humanitarian and human rights law provide for personal criminal liability for those individuals found in breach of their prohibition. Human rights abuses committed as part of a widespread or systematic attack against any civilian population are crimes against humanity.
In sum, international human rights laws prohibit the arbitrary deprivation of life and, at all times, torture and other cruel, inhuman or degrading treatment. (See ICCPR, articles 5 and 7; Convention against Torture, articles 1 and 16.)
At their core, a fundamental principle of international humanitarian law is that parties to a conflict must distinguish between combatants and civilians, and may not deliberately target civilians or civilian objects.
Protocol II states, in no uncertain terms, "civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations." They are not to be the object of attack and all acts or threats of violence with the primary purpose to spread terror among the civilian population are prohibited.
Customary international humanitarian law prohibits attacks directed against civilian objects, such as homes and places of worship. (See ICRC, Customary IHL, rule 7) Protocol II specifically bans attacks, destruction, or removal of objects indispensable to the survival of the civilian population including food-stuffs, agricultural areas, crops, livestock, drinking water installations and supplies, and irrigation works. Pillage (or plunder) – the forcible taking of private property – is also prohibited.
Collective punishments are prohibited under international humanitarian law in all circumstances. The prohibition on collective punishments applies to criminal sanctions against persons for actions for which they do not bear individual criminal responsibility, but also to "all sanctions and harassment of any sort, administrative, by police action or otherwise."
Article 4 of Protocol II also sets out the fundamental guarantees of humane treatment, which explicitly includes a prohibition on collective punishments, acts of terrorism, and pillage. Commentaries of the International Committee of the Red Cross on Protocol II and customary international law make clear that these articles leave no room for reprisals in non-international armed conflict.
With respect to individual responsibility, serious violations of international humanitarian law include the mistreatment of persons in custody and deliberate attacks on civilians and civilian property, when committed with criminal intent amount to war crimes.
Criminal intent requires purposeful or reckless action. Individuals may also be held criminally liable for attempting to commit a war crime, as well as assisting in, facilitating, aiding or abetting a war crime. Responsibility may also fall on persons ordering, planning, or instigating the commission of a war crime. Commanders and civilian leaders may be prosecuted for war crimes as a matter of command responsibility when they knew or should have known about the commission of war crimes and took insufficient measures to prevent them or punish those responsible.
A "systematic" attack indicates "a pattern or methodical plan." (Tadic, para. 648). International courts have considered to what extent a systematic attack requires a policy or plan. For instance, such a plan need not be adopted formally as a policy of the state. (Akayesu, para. 580.)
The use of collective punishments and infliction of cruel punitive measures upon civil populations is not new. For many years belligerent reprisals have been little more than illegal means of repression or intimidation, often imposed under the guise of legitimate law enforcement.
Unable to locate insurgents responsible for so-called hostile acts, invading armies and occupation powers have long used collective punishment in the hopes of suppressing resistance and ensuring willful obedience. Ultimately the goal of deterrence is little more than a pretext for tyranny.
The Israeli Punishment… Continued
In Palestine the use of collective punishment began long ago through a rampage of indiscriminate bombings, kidnappings, arson and random shootings that targeted civil society. After the establishment of Israel, population displacement and exile turned upwards of eighty percent of the indigenous community into stateless refugees. Ethnic cleansing was then well underway.
In the years since the Irgun became the IDF, collective punishment has become very much the norm as the Israeli military has routinely embraced mass murder and reprisal as a strategic weapon of choice in Gaza. Wholesale destruction of homes, schools, hospitals, houses of worship and essential infrastructure has become very much the wretched political norm in Israel.
At the same time, Israel has imposed an embargo on the import of necessary food, medicine, water, and reconstruction materials and placed a stranglehold on a once flourishing maritime industry while reducing movement in and out of Gaza to a trickle. Beginning more than a decade ago, these steps were imposed against the entire civil society of Gaza as punishment for its political will and for the lawful resistance acts of the few.
Although qualitatively different, collective punishment in the occupied West Bank is no less pernicious, every bit as illegal and, beyond question, another conscious step by Israel to strip millions of occupied people of their indigenous identity and rights in violation of international law.
As in Gaza, there is no shortage of evidence of Israel's decade's old systematic attack upon the civil society and institutions of the occupied West Bank. As in Gaza, ultimately, all Israeli policies there are driven by the subterfuge of necessity.
Whether it is forced population displacement or the ever present dividing walls and checkpoints or a dozen other illegal military sanctions, Israel punishes some two and a half-million civilians for the drive of their political will or the legitimate military resistance of the relatively few.
Simply put collective punishment at its worst.
Thus, since the occupation began in 1967 mass incarceration has become the norm with more than 800,000 Palestinians from the West Bank imprisoned. Almost all have been denied any modicum of due process and were prosecuted, tried and convicted by military tribunals. Jews living in the Occupied Territory are, of course, prosecuted in civil courts and receive the full panoply of their civil criminal rights.
Most of the 800,000 were charged on the basis of unreliable secret evidence. Using the talisman of "security," those imprisoned over the years include many tens of thousands prosecuted for little more than their politics beliefs, or their speech, association or movement.
Prisons come in many forms. There are those with cellblocks and bunks and others with walls and checkpoints which keep those at liberty nonetheless prisoner to their plight. Throughout the West Bank these walls and checkpoints not only limit movement and illegally divide families into crafted segregated communities, but deny students equal education and the frail and infirm quality medical care.
Throughout the occupation mass displacement of indigenous communities, including those of Bedouin families and neighborhoods, in East Jerusalem that date back millennium, have been undertaken or razed to accommodate illegal settlements.
To date, more than 800,000 settlers reside in the West bank with much of it now annexed in clear violation of international law. Often Muslims, and increasingly Christian Palestinians, are denied the right to exercise their religious beliefs due to their age, through embargoes on travel or closure of Mosques or churches due to "security" … including the Al Aqsa Mosque and compound. It has become common place for settlers or Israeli soldiers or police to attack Al Aqsa causing damage to the third holiest site in Islam or casualties, including death, to those in prayer.
During other periods, East Jerusalem has been hard hit by Israeli "security" steps… including the military setting up dozens of checkpoints and concrete roadblocks at entrances to various neighborhoods and internal community roads causing great disruption to the lives of several hundred thousand Palestinian residents.
Typically, as an adjunct to such neighborhood closures, policing operations are undertaken in which thousands of residents, of all ages, are stopped, searched and questioned for nothing more than living on a given street. More than a few reported abusive encounters with Israeli police and soldiers… including sexual harassment either by comments or physical contact.
These measures, which arbitrarily targeted large segments of the East Jerusalem population, bear no nexus to the commission of attacks that had occurred earlier, elsewhere, in East Jerusalem. As a result tens of thousands of Palestinians had their rights to freedom of movement, access to healthcare and to maintain their standard of living unreasonably disrupted.
While many of these restrictions have been lifted, some neighborhoods continue to suffer from on-going and severe access restrictions as well as abusive policing operations. Overall, these arbitrary security measures have adversely impacted the local and whole Palestinian economies and reduced employment opportunities to a community already suffering from high rates of joblessness.
Elsewhere, on occasions, entire villages or towns have been sealed off in the West Bank because of military operations, once again unrelated to local acts of violence, thereby disrupting the lives and livelihoods of their residents. These measures constitute prohibited collective punishment.
Elsewhere, other Palestinians have not been so "fortunate" as to merely suffer from checkpoint harassment on their way back home. Punitive home demolitions have long been a mainstay of the Israeli military targeting the families and relatives of Palestinians allegedly involved in attacks, even in the absence of any evidence that the families had any prior knowledge of, or participated in, them. Although intermittent, these demolitions have destroyed dozens of homes leaving several hundred Palestinians homeless… including almost one-hundred children.
Punitive demolitions of Palestinian homes also violate a number of core human rights including the right to an adequate standard of living, the right to family life, the right to freedom of movement and physical and mental health.
Although the practice eventually reached the Israeli High Court, it was upheld on the basis that the destruction was necessary on "deterrence and security grounds." It was not the first time the Court ignored well-settled international prohibitions against collective punishment and if history is, indeed, the guidepost of what is yet to come… it will not be the last.
What greater crime can there be than to steal a child's smile… to snatch their hope, health and happiness. Yet, today, that heartless theft has become so much the norm throughout the world. Neither warrior, nor foe, they have become the soft side of hard hearts that embrace collective punishment as the sure path to conquest.
In the last three months alone, 23 Palestinian children have been murdered by Israeli snipers; their crime… the audacity to march for a dream. Just last week, in Yemen, 40 children lost their future to a bomb dropped on a school bus by a Saudi Jet supplied by a US company. Last year 50,000 Yemini children lost their lives to a measured more twisted death, one caused by starvation or disease through an embargo that has long denied its civil population food, medicine and water. In Syria it is estimated children are one out of every four who have lost their lives to bombing campaigns of the United States and Russia. Tens of thousands of others have been killed by guns and ground explosives. Greater than four hundred thousand Rohingya children now live in refugee camps in Bangladesh, fleeing genocide in Myanmar. Thousands are orphans… many of them work in the sprawling sex trade having been greeted in their flight by utter poverty and rape.
This is the face of collective punishment in all its horror. Our collective future lost to our failed past.
Battered and bruised, more than a hundred and fifty years ago, some in the community of nations began to ponder the madness that had long consumed non combatants for the folly of a fight that was not theirs to pick.
In the midst of the mayhem that was the US Civil War, the nascent Red Cross began to speak of humanitarian relief. In Europe, others stunned by seeming decades of on-going, widespread conflict began to explore the plight of the wounded.
From this discussion grew the Geneva Convention of 1864. Other conventions and protocols were soon to follow ultimately extending to the protection of civilians in enemy and occupied territories. Known simply as a ban on collective punishment, it was to be the wishful panacea that would protect most of the world from the ravage of the few. It has failed.
To walk down these roads from afar is a painful journey as so much a witness to events and places that have unfolded with tragic eyes before us, but not nearly as difficult and destructive as it has been for those who have lived it.
We of exceptional position, whether born of race, opportunity or mere providence, are witness today to an unprecedented attack on the most vulnerable among us… millions lost to the callous crosshairs of dispute and despair, some age-old, others of recent vintage.
Long ago, at the opening of the war crimes tribunal at Nuremberg, a simple question was posed that remains no less probative or powerful today than it was more than seventy years ago:
"Under the law of all civilized peoples, it has been a crime for one man with his bare knuckles to assault another. How did it come that multiplying this crime by a mil#lion, and adding fire arms to bare knuckles, makes it a legally innocent act?"
Prohibition of collective punishment is the long settled law of the international community. Yet it remains very much but a tease… a sanction without a herald.
It is a message lost to the powerful. But as we approach the midnight of our shared fate there is still time for it to become our collective call.
If not… we are all doomed, deserving victims to our own indifference.
Posted on August 31, 2018 August 31, 2018 Author mala1142 Comments on A Short History of Collective Punishment: From the British Empire to Gaza