Posts Tagged ‘violation of international law’

US Justice Department report clears authors of Bush torture memos

February 22, 2010

By Kate Randall, wsws.org, Feb 22, 2010

A US Justice Department report released Friday has exonerated the Bush administration lawyers whose secret memos justified waterboarding and other forms of torture by CIA interrogators.

The ethics report of the Office of Professional Responsibility (OPR) said that John C. Yoo, 42, and Jay S. Bybee, 56, authors of the August 2002 and March 2003 “torture memos,” had used “poor judgment” and flawed legal reasoning. However, the report concluded they were not guilty of “professional misconduct” and would face no sanctions. Yoo and Bybee worked in the Justice Department’s Office of Legal Counsel (OLC), advising the White House.

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Wanted: Tony Blair for war crimes

January 26, 2010

Chilcot and the courts won’t do it, so it is up to us to show that we won’t let an illegal act of mass murder go unpunished

by George Monbiot, The Guardian/UK, January 26, 2010

The only question that counts is the one that the Chilcot inquiry won’t address: was the war with Iraq illegal? If the answer is yes, everything changes. The war is no longer a political matter, but a criminal one, and those who commissioned it should be committed for trial for what the Nuremberg tribunal called “the supreme international crime”: the crime of aggression.

But there’s a problem with official inquiries in the United Kingdom: the government appoints their members and sets their terms of reference. It’s the equivalent of a criminal suspect being allowed to choose what the charges should be, who should judge his case and who should sit on the jury. As a senior judge told the Guardian in November: “Looking into the legality of the war is the last thing the government wants. And actually, it’s the last thing the opposition wants either because they voted for the war. There simply is not the political pressure to explore the question of legality – they have not asked because they don’t want the answer.”

Others have explored it, however. Two weeks ago a Dutch inquiry, led by a former supreme court judge, found that the invasion had “no sound mandate in international law”. Last month Lord Steyn, a former law lord, said that “in the absence of a second UN resolution authorising invasion, it was illegal“. In November Lord Bingham, the former lord chief justice, stated that, without the blessing of the UN, the Iraq war was “a serious violation of international law and the rule of law“.

Under the United Nations charter, two conditions must be met before a war can legally be waged. The parties to a dispute must first “seek a solution by negotiation” (article 33). They can take up arms without an explicit mandate from the UN security council only “if an armed attack occurs against [them]” (article 51). Neither of these conditions applied. The US and UK governments rejected Iraq’s attempts to negotiate. At one point the US state department even announced that it would “go into thwart mode” to prevent the Iraqis from resuming talks on weapons inspection (all references are on my website). Iraq had launched no armed attack against either nation.

We also know that the UK government was aware that the war it intended to launch was illegal. In March 2002, the Cabinet Office explained that “a legal justification for invasion would be needed. Subject to law officers’ advice, none currently exists.” In July 2002, Lord Goldsmith, the attorney general, told the prime minister that there were only “three possible legal bases” for launching a war – “self-defence, ­humanitarian intervention, or UNSC [security council] authorisation. The first and second could not be the base in this case.” Bush and Blair later failed to obtain security council authorisation.

As the resignation letter on the eve of the war from Elizabeth Wilmshurst, then deputy legal adviser to the ­Foreign Office, revealed, her office had ­”consistently” advised that an ­invasion would be unlawful without a new UN resolution. She explained that “an unlawful use of force on such a scale amounts to the crime of aggression”. Both Wilmshurst and her former boss, Sir Michael Wood, will testify before the Chilcot inquiry tomorrow. Expect fireworks.

Without legal justification, the war with Iraq was an act of mass murder: those who died were unlawfully killed by the people who commissioned it. Crimes of aggression (also known as crimes against peace) are defined by the Nuremberg principles as “planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties”. They have been recognised in international law since 1945. The Rome statute, which established the international criminal court (ICC) and which was ratified by Blair’s government in 2001, provides for the court to “exercise jurisdiction over the crime of aggression”, once it has decided how the crime should be defined and prosecuted.

There are two problems. The first is that neither the government nor the opposition has any interest in pursuing these crimes, for the obvious reason that in doing so they would expose themselves to prosecution. The second is that the required legal mechanisms don’t yet exist. The governments that ratified the Rome statute have been filibustering furiously to delay the point at which the crime can be prosecuted by the ICC: after eight years of discussions, the necessary provision still has not been adopted.

Some countries, mostly in eastern Europe and central Asia, have incorporated the crime of aggression into their own laws, though it is not yet clear which of them would be willing to try a foreign national for acts committed abroad. In the UK, where it remains ­illegal to wear an offensive T-shirt, you cannot yet be prosecuted for mass ­murder commissioned overseas.

All those who believe in justice should campaign for their governments to stop messing about and allow the international criminal court to start prosecuting the crime of aggression. We should also press for its adoption into national law. But I believe that the people of this nation, who re-elected a government that had launched an illegal war, have a duty to do more than that. We must show that we have not, as Blair requested, “moved on” from Iraq, that we are not prepared to allow his crime to remain unpunished, or to allow future leaders to believe that they can safely repeat it.

But how? As I found when I tried to apprehend John Bolton, one of the architects of the war in George Bush’s government, at the Hay festival in 2008, and as Peter Tatchell found when he tried to detain Robert Mugabe, nothing focuses attention on these issues more than an attempted citizen’s arrest. In October I mooted the idea of a bounty to which the public could contribute, ­payable to anyone who tried to arrest Tony Blair if he became president of the European Union. He didn’t of course, but I asked those who had pledged money whether we should go ahead anyway. The response was overwhelmingly positive.

So today I am launching a website – www.arrestblair.org – whose purpose is to raise money as a reward for people attempting a peaceful citizen’s arrest  of the former prime minister. I have put up the first £100, and I encourage you to match it. Anyone meeting the rules I’ve laid down will be entitled to one quarter of the total pot: the bounties will remain available until Blair faces a court of law. The higher the ­reward, the greater the number of ­people who are likely to try.

At this stage the arrests will be largely symbolic, though they are likely to have great political resonance. But I hope that as pressure builds up and the crime of aggression is adopted by the courts, these attempts will help to press ­governments to prosecute. There must be no hiding place for those who have committed crimes against peace. No ­civilised country can allow mass ­murderers to move on.

© 2010 Guardian News and Media Limited

George Monbiot is the author of the best selling books The Age of Consent: a manifesto for a new world order and Captive State: the corporate takeover of Britain. He writes a weekly column for the Guardian newspaper. Visit his website at www.monbiot.com

International Law: The First Casualty of the U.S. Drone War in Pakistan

December 15, 2009

A comprehensive legal analysis of U.S. drone strikes in Pakistan

Uruknet.com, Dec 14, 2009

By Max Kantar

ABSTRACT. This report utilizes well-established principles of both treaty and customary international law as a measuring stick for attempting to determine the legal and moral legitimacy of the covert U.S. policy of using drones to attack targets in Pakistan. This analysis is unique in that it uses both broad assessments as well as pertinent individual case studies with the purpose of chronicling the details of several drone attacks over a period of 45 months in the interest of legal evaluation. Drawing from a vast collection of reliable press reports, independent human rights testimonies, and the most prominent, mainstream studies, this report is quite possibly the most comprehensive analysis on the topic to date and likely the first of its kind to appear in the wake of the US-Pakistan drone controversy.

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Wall on Gaza Violates International Law

December 13, 2009

by César Chelala, CommonDreams.org, Dec 14, 2009

The collusion between Egypt and the U.S. to build a wall separating Egypt from Gaza not only threatens Gazans’ health and quality of life, already severely deteriorated by the de facto Israeli blockade, it is a serious violation of international law.

According to the Israeli daily Haaretz, Egypt is installing an underground metal wall 70-100 feet deep along the border strip where Palestinians have dug a maze-like set of tunnels to break the Israeli blockade of Gaza. The construction of the wall, carried out with the collaboration of the United States Army Corps of Engineers, has been denied by the Egyptian government.

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Judith Laitman and Tsela Barr: We must demand a just peace for Palestinians

January 20, 2009

Judith Laitman and Tsela Barr | The Capital Times, Jan 19, 2009

As American Jews, we grew up learning to revere Israel, the “Jewish state” — the refuge of the persecuted. We had come to expect that Israel would have a highly developed moral consciousness and a collective awareness of what it means to have another group want to annihilate you. So it is shocking for those of us who grew up with these romantic myths to witness the state of Israel assuming the role of oppressor, of murderer of innocents, of desensitized military annihilator.

And it is even more grotesque for Israel and its defenders to continue to pretend that it is the Israelis who are the victims and that its recent savage assault on Gaza was just a defensive act. Worse yet, if people of conscience even express sympathy for the Palestinian victims, they are accused of anti-Semitism. These tactics purposely obscure the real obstacle to peace in the Middle East — Israel’s rapacious 40-year military occupation of Palestinian lands, and its brutal blockade of Gaza and its 1.5 million inhabitants.

So let us look at the record:

It was Israel that broke the six-month cease-fire with an incursion into Gaza on Nov. 4 in which they killed six Palestinians.

Israel dismantled its settlements in Gaza in 2005. But it retained complete control of Gaza’s land borders, airspace, and maritime access, maintaining a blockade that by itself is an act of war. This blockade resulted in a severe humanitarian crisis, even before the recent assault.

The Israeli attacks on Gaza were a violation of international law and the Geneva Conventions, which require an occupying power to protect an occupied population.

In the West Bank, which has committed no aggression toward Israel, Israel continues to expand its settlements, continues to build an illegal wall that divides Palestinian land, continues to destroy the homes of innocent Palestinians on their own land, builds roads that are Jews-only, and subjects Palestinians to daily humiliations and disruptions at hundreds of Israeli military checkpoints.

The Palestinians and the Arab League have made offers of peace that would ensure Israel’s security if it returned to the 1967 borders. This represents major concessions on the part of Palestinians, who in 1948 were mandated 45 percent of Palestine. The 1967 borders give the Palestinians less than half of that. Israel has rejected these offers.

Israel receives $3 billion a year from U.S. taxpayers. Gazans were assaulted by U.S. F-16s and Apache attack helicopters.

One-third of the more than 1,100 people killed in the recent assault on Gaza were children.

Now Israel has called a cease-fire and claimed its “objectives” have been met. Some scholars say these “objectives” relate to an Israeli policy known as “the Iron Wall.” This is a strategy of inflicting such massive pain on the Palestinians that they will either leave or accept their subjugation so that Israel can achieve its goals of a “Greater Israel.” According to Israeli historian Avi Shlaim: “Israel is practicing state terror using violence on a massive scale against Palestinian civilians for political purposes.”

The bombs may be quiet for now, but this is no time for us to be silent. Let us speak out at every opportunity against the oppression — and the terrorism — that continues to go on against the Palestinian people. Life will not return to normal for the victims in Gaza, and it shouldn’t for us either. We must demand a just peace for the Palestinians and an end to the colonial project that is destroying Israel’s soul.

Judith Laitman and Tsela Barr are members of the Madison chapter of American Jews for a Just Peace, ajjpmadison.org.

Lord Bingham: US and UK acted as ‘vigilantes’ in Iraq invasion

November 18, 2008

Former senior law lord condemns ‘serious violation of international law’

A British soldier patrols the northern suburbs of the southern Iraqi city of Basra

A British soldier patrols the northern suburbs of the southern Iraqi city of Basra. Photograph: Dave Clark/AFP/Getty images

One of Britain’s most authoritative judicial figures last night delivered a blistering attack on the invasion of Iraq, describing it as a serious violation of international law, and accusing Britain and the US of acting like a “world vigilante”.

Lord Bingham, in his first major speech since retiring as the senior law lord, rejected the then attorney general’s defence of the 2003 invasion as fundamentally flawed.

Contradicting head-on Lord Goldsmith’s advice that the invasion was lawful, Bingham stated: “It was not plain that Iraq had failed to comply in a manner justifying resort to force and there were no strong factual grounds or hard evidence to show that it had.” Adding his weight to the body of international legal opinion opposed to the invasion, Bingham said that to argue, as the British government had done, that Britain and the US could unilaterally decide that Iraq had broken UN resolutions “passes belief”.

Governments were bound by international law as much as by their domestic laws, he said. “The current ministerial code,” he added “binding on British ministers, requires them as an overarching duty to ‘comply with the law, including international law and treaty obligations’.”

The Conservatives and Liberal Democrats continue to press for an independent inquiry into the circumstances around the invasion. The government says an inquiry would be harmful while British troops are in Iraq. Ministers say most of the remaining 4,000 will leave by mid-2009.

Addressing the British Institute of International and Comparative Law last night, Bingham said: “If I am right that the invasion of Iraq by the US, the UK, and some other states was unauthorised by the security council there was, of course, a serious violation of international law and the rule of law.

“For the effect of acting unilaterally was to undermine the foundation on which the post-1945 consensus had been constructed: the prohibition of force (save in self-defence, or perhaps, to avert an impending humanitarian catastrophe) unless formally authorised by the nations of the world empowered to make collective decisions in the security council …”

The moment a state treated the rules of international law as binding on others but not on itself, the compact on which the law rested was broken, Bingham argued. Quoting a comment made by a leading academic lawyer, he added: “It is, as has been said, ‘the difference between the role of world policeman and world vigilante’.”

Bingham said he had very recently provided an advance copy of his speech to Goldsmith and to Jack Straw, foreign secretary at the time of the invasion of Iraq. He told his audience he should make it plain they challenged his conclusions.

Both men emphasised that point last night by intervening to defend their views as consistent with those held at the time of the invasion. Goldsmith said in a statement: “I stand by my advice of March 2003 that it was legal for Britain to take military action in Iraq. I would not have given that advice if it were not genuinely my view. Lord Bingham is entitled to his own legal perspective five years after the event.” Goldsmith defended what is known as the “revival argument” – namely that Saddam Hussein had failed to comply with previous UN resolutions which could now take effect. Goldsmith added that Tony Blair had told him it was his “unequivocal view” that Iraq was in breach of its UN obligations to give up weapons of mass destruction.

Straw said last night that he shared Goldsmith’s view. He continued: “However controversial the view that military action was justified in international law it was our attorney general’s view that it was lawful and that view was widely shared across the world.”

Bingham also criticised the post-invasion record of Britain as “an occupying power in Iraq”. It is “sullied by a number of incidents, most notably the shameful beating to death of Mr Baha Mousa [a hotel receptionist] in Basra [in 2003]“, he said.

Such breaches of the law, however, were not the result of deliberate government policy and the rights of victims had been recognised, Bingham observed.

He contrasted that with the “unilateral decisions of the US government” on issues such as the detention conditions in Guantánamo Bay, Cuba.

After referring to mistreatment of Iraqi detainees in Abu Ghraib, Bingham added: “Particularly disturbing to proponents of the rule of law is the cynical lack of concern for international legality among some top officials in the Bush administration.”

End of the two-state solution

July 29, 2008

A multicultural state can offer Jewish Israelis and Muslim and Christian Palestinians a future free of discrimination, occupation, fear and violence

By Saree Makdisi | guardian.co.uk, Monday July 28 2008

In order to try to create an exclusively Jewish state in what had been the culturally diverse land of Palestine, Israel’s founders expelled or drove into flight half of Palestine’s Muslim and Christian population and seized their land, their houses, and their property (furniture, clothing, books, personal effects, family heirlooms), in what Palestinians call the nakba, or catastrophe, of 1948.

Even while demanding – rightly – that no one should forget the Jewish people’s history of suffering, and above all the Holocaust, Israel has insisted ever since 1948 not merely that the Palestinians must forget their own history, but that what it calls peace must be premised on that forgetting, and hence on the Palestinians’ renunciation of their rights. As Israel’s foreign minister has said, if the Palestinians want peace, they must learn to strike the word “nakba” from their lexicon.

Some must never forget, while others, clearly, must not be allowed to remember. Far from mere hypocrisy, this attitude perfectly expresses the Israeli people’s mistaken belief that they can find the security they need at the expense of the Palestinians, or that one people’s right can be secured at the cost of another’s.

Little wonder such an approach has not delivered peace. The only way to end the Israeli-Palestinian conflict is to end the denial of rights that fuels it, and to ensure that both peoples’ rights are equally protected.

For some years it was thought that peace could be obtained by sidestepping the central fact of the nakba, and creating a Palestinian statelet in what remained of Palestine after 1948, namely, the West Bank, Gaza and East Jerusalem, which Israel occupied in 1967.

But such a two-state solution is no longer possible. The inescapable fact is that one state controls all of the land, and it has done so for over 40 years, affirming one people’s right to live, marry, work and settle by negating another people’s right to do the same, on land that two peoples – not just one – call home.

The only question now is how much longer this negation can go on, and how long it will be before a state premised on it is superseded by its opposite, an affirmative, genuinely democratic, secular and multi-cultural state, the only kind that can offer Jewish Israelis and Muslim and Christian Palestinians alike a future free of discrimination, occupation, fear and violence.

The question, in other words, is not whether there will be a one-state solution, but when; and how much needless suffering there will be in the meantime, until those who are committed to the project of creating and maintaining a religiously exclusivist state in what was historically a culturally and religiously heterogeneous land finally relent and accept the inevitable: that they have failed.

This last point is especially important, because the conflict between Zionism and the Palestinians is – and has always been –– driven by the notion that hundreds of years of cultural heterogeneity and plurality could be negated overnight by the creation of a state with a single cultural and religious identity.

It hardly matters that that identity was never as homogeneous as Zionists like to claim: witness Israel’s methodical de-Arabisation of its Mizrahi (Arab-Jewish) population in the 1950s and 1960s, or the perennial debate over “who is a Jew” – an unseemly question that in Israel is not merely a matter of arcane theological exegesis but tied directly to matters of citizenship, nationality, and law.

Israel’s claim to an exclusive Jewish identity – as symbolised by its flag – has been sustained ever since 1948 by denying the moral and legal right of return of those Palestinians expelled during the nakba, by forms of legalised discrimination inside the state, and by the maintenance of a much more violent system of apartheid in the territories Israel has militarily occupied since 1967.

Palestinian citizens of Israel – officially referred to by the state as deracinated “Arabs” because it cannot bring itself to acknowledge the fact that they are Palestinian – face institutionalised forms of discrimination far worse than those once encountered by African Americans. For example, while Jewish Israelis who marry non-citizens (or residents of Jewish settlements in the occupied territories) are entitled to have their spouses come live with them, Israeli law explicitly denies that right to Palestinian citizens who marry Palestinians from the occupied territories. Palestinian citizens are also denied various other privileges, including access to state lands, reserved exclusively for Jews.

Meanwhile, Israel maintains two separate infrastructures in the occupied territories, and it subjects the two populations there to two distinct legal and administrative systems. Indigenous Palestinians are subject to a harsh form of military rule, whereas Jewish settlers enjoy the protections of Israeli civil law, even though they have been transplanted -– in violation of international law – beyond the borders of their state.

Indeed, Israel’s intensive settlement of the occupied territories is the primary reason for the demise of the two-state solution. Not only is the settler population increasing at a rate three times greater than that of Israel itself, but, according to a UN report published last summer, almost 40% of the West Bank is now taken up with Israeli infrastructure to which Palestinians are denied access. The remainder of the territory has been broken up into an archipelago, each little “island” of territory in effect a small-scale Gaza, cut off from the outside and completely vulnerable to Israel’s whims. Under such circumstances, an independent Palestinian state is inconceivable.

Even if it were conceivable, the creation of a Palestinian statelet in the occupied territories would do nothing to safeguard the rights of the 20% of Israel’s citizens who are Palestinian; on the contrary, its existence would further empower the likes of former deputy prime minister Avigdor Lieberman, who wants all Palestinians removed to make room for Jewish immigrants (like himself). Nor would it address the right of return of the Palestinians who were deliberately expelled to make room for a Jewish state in 1948, who have been kept out and living in limbo – or in the prison that is Gaza – solely in order to preserve Israel’s tenuous claim to Jewishness.

Negation, denial and imprisonment have run their course. The future should be built on affirmation, cooperation, and the constitution of a democratic and secular state that guarantees the rights of Israelis and Palestinians, of Jews, Muslims, and Christians alike.

• Saree Makdisi is Professor of English Literature at the University of California, and the author of Palestine Inside Out: An Everyday Occupation, published by WW Norton.


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