Thursday, December 09, 2010

  • Thursday, December 09, 2010
  • Elder of Ziyon
The director of Amnesty International UK, Kate Allen, wrote a piece in Foreign Policy calling Israel's easing of the Gaza closure a sham:

As a recent report from 26 humanitarian and human rights organizations shows, six months of a less-oppressive blockade regime has made only a minimal difference to the lives of Gaza's 1.5 million inhabitants.
Isn't it interesting that the major player behind that report was Amnesty International UK? The wording here implies that she is merely quoting a study to support her thesis - but she is the main force behind the study to begin with, hosted on Amnesty's UK site!

We've already looked at that study and exposed how one-sided it was. It plays with numbers, minimizes Israel's almost superhuman and certainly unprecedented allowance of aid to a hostile territory - even in the midst of a war! - and it does everything possible to pretend that Gaza's residents' lives have not improved at all since the summer, when in fact many correspondents have reported the opposite. Far worse is the fact that if Amnesty's recommendations would be implemented, it would give Hamas unlimited access to weapons. Placing hundreds of thousands of Israelis in danger is a consequence of Amnesty's demands that Amnesty considers inconsequential.

So right up front, we see that Kate Allen is being somewhat deceptive in her characterization of the study to support her thesis. There's more, however.

For example, she refers to the flotilla incident - and links it to a FP article about it, written as it was happening, by anti-Israel writer Marc Lynch. Of the avalanche of articles about the flotilla and the IHH attack on IDF soldiers as they legally attempted to board it, it is telling that this is the one she chooses - one that refers to the incident as an "outrageously disproportionate military response."

Worst of all, however, is Allen's repetition of one of the biggest lies around about the closure of Gaza - one that Goldstone, HRW, Amnesty and the UN repeat ad nauseum yet one that has no basis in fact:

The blockade is a violation of international humanitarian law (Article 33 of the Fourth Geneva Convention) in its collective punishment of an entire civilian population under military occupation and control.
First of all, as we have shown many times, Gaza is not under "occupation" by any definition of the term. Military occupation means the physical presence of an army on the territory, and the only definition is the one given in the Hague Conventions. Not only that, but Amnesty's own definition of "occupation"  proves that Israel is not occupying Gaza.

Beyond that, the idea that a blockade is "collective punishment" is also a lie. The framers of Geneva, when they wrote Article 33, specifically were thinking about purely punitive measures against an innocent population - wanton punishment for no possible military purpose. Wikipedia accurately gives the background:

By collective punishment, the drafters of the Geneva Conventions had in mind the reprisal killings of World Wars I and World War II. In the First World War, Germans executed Belgian villagers in mass retribution for resistance activity. In World War II, Nazis carried out a form of collective punishment to suppress resistance. Entire villages or towns or districts were held responsible for any resistance activity that took place there. Additional concern also addressed the United States' atomic bombings of Hiroshima and Nagasaki, which, in turn, caused death and disease to millions of Japanese civilians as well as their decedents. The conventions, to counter this, reiterated the principle of individual responsibility.
These are active acts of punishment aimed directly at an innocent population.

Yet no one has starved in Gaza from this horrible "siege." Thousands of trucks of aid are sent in weekly; the Rafah crossing is open for people with legal passports to leave Gaza, thousands more have gone to Israel and elsewhere for medical treatment.

As law professor Michael Krauss has written:
The bar on collective punishment forbids the imposition of criminal or military penalties (imprisonment, death, etc) on some people for crimes committed by other individuals. But ceasing trade with a country is not inflicting a criminal or military penalty against that country's citizens, not least because those citizens have no entitlement to objects of trade that they have not yet purchased. If Canada tolerated and celebrated car-bombings of Buffalo from Fort Erie, Ontario, the United States could cease exporting cars to Canada - such cessation of trade was never contemplated as collective punishment, because it is not a military or a criminal sanction. The United States quite legally froze trade with Iran after that country committed an act of War against the USA following the 1979 Revolution.

Even prevention of access of goods coming from third parties is not collective punishment: the U.S. blockade of Cuba after they installed nuclear missiles directed at the United States was not a collective punishment of the Cuban people, it was a non-violent act of war in self-defense. In any case, Israel has made no effort to prevent Gaza from receiving electricity from Egypt; it has merely declined to furnish this assistance itself. Article 49 of the Geneva Conventions clearly does not outlaw such acts.
An article in the San Diego Law Journal from 2009 sheds more light on the distinction between collective punishment and what Israel does to Gaza:

Israel's imposition of economic sanctions on the Gaza Strip, such as partially withholding fuel supplies and electricity, does not involve the use of military force and is therefore a perfectly legal means of responding to Palestinian attacks, despite the effects on innocent Palestinian civilians. The use of economic and other non-military sanctions as a means of disciplining other international actors for their misbehavior is a practice known as "retorsion.” [FN82] It is generally acknowledged that any country may engage in retorsion. [FN83] Indeed, it is acknowledged that states may even go beyond retorsion to carry out non-belligerent reprisals--non-military acts that would otherwise be illegal (such as suspending flight agreements) as counter-measures. [FN84] Since Israel is under no legal obligation to engage in trade of fuel (or anything else with the Gaza Strip) or to maintain open borders with the Gaza Strip, it may withhold commercial items and seal its borders at its discretion, even if intended as “punishment” for Palestinian terrorism.

While international law bars “collective punishment,” [FN85] none of Israel's combat actions and retorsions may be considered collective punishment. The bar on collective punishment forbids the imposition of criminal-type penalties on individuals or groups on the basis of another's guilt, or the commission of acts that would otherwise violate the rules of distinction and proportionality, or both. [FN86] None of Israel's actions involve the imposition of criminal type penalties or the violation of the rules of distinction and proportionality. It is striking that there has never been a prosecution for the war crime of collective punishment on the basis of economic sanctions. Indeed, many of the critics calling Israel's withdrawal of economic aid “ collective punishment” call, or have called, for the imposition of economic sanctions or the withdrawal of economic aid against Israel and other countries [FN87] or, at least, claim to have “no position on [the legality of] punitive economic sanctions and boycotts.” [FN88]

Examples of retorsions are legion in international affairs. The U.S., for example, froze trade with Iran after the 1979 Revolution [FN89] and with Uganda in 1978 following accusations of genocide. [FN90] In 2000, fourteen European states suspended various diplomatic relations with Austria in protest of the participation of Jorg Haider--believed to be a racist--in the government. [FN91] Numerous states suspended trade and diplomatic relations with South Africa as punishment for apartheid practices. [FN92] In none of these cases was the charge of “ collective punishment ” raised. “Punishing” a country with restrictions on international trade is not identical to carrying out “collective punishment” in the legal sense.

I found this description of retorsion in International Law in Theory and Practice by Oscar Shachter:

It might be worthwhile to go through Amnesty's archives to see if it is consistent in its definition of closures and blockades as "collective punishment," but NGO Monitor once did the same for Human Rights Watch and found that they were remarkably inconsistent - and only a single nation that deprives a territory of certain supplies was considered in violation of Geneva's Article 33.

Using a Google search on HRW's site as a heuristic, 55 percent of HRW’s content referring to blockades and collective punishment is related to Israel.15 (Note that this is 55% of all HRW material and not limited to the Middle East and North Africa section). However, Israel is the only case where HRW uses "collective punishment" to refer to a blockade and the potential impact on civilian life. In other cases, this term is used to describe beatings, murder and destruction of property as indiscriminant retaliation against a group of people for the acts of members of that group.
Other cases of blockades that are not termed "collective punishment," include Azerbaijan's blockade of Nagorno Karabakh and Armenia described in Human Rights Watch 1994 World Report:
“Electricity, gas, oil and grain-necessary for the basic human needs of civilians in Armenia-were in extremely short supply… … The lack of gas and electricity deprived Armenians of heat in the freezing winter… a rise in deaths among the newborn and the elderly was accompanied by a higher suicide rate and growing incidence of mental illness. The blockade had ruined Armenia's industry…”
The report does not refer to this “blockade” as “collective punishment,”, and indeed recommends that “all but humanitarian aid should be withheld from Armenia because of Armenia's financing of the war”. It is not clear why HRW promotes a policy of economic isolation for Armenia, but when Israel must respond to daily rocket attacks on civilian population centers, HRW condemns a similar policy as "collective punishment."
Similarly, in a 1999 press release on Chechnya, “Russian Ultimatum to Grozny Condemned” (8 Dec, 1999) HRW described the humanitarian situation as
“rapidly deteriorating, with no functioning hospitals, electricity, running water, gas, or heating since the beginning of November, and dwindling food supplies”.
This is clearly a more urgt humanitarian situation than Gaza in 2007 (where humanitarian aid enters daily16), but HRW did not classify it as “collective punishment.” en
In 2007, the term “collective punishment” was used by HRW in 13 items not referring to Israel (see Table 1). These cases generally provide evidence of punitive intent against third parties either at the family or community level.
Table 1 Collective punishment in 2007 HRW publications

The items in Table 1 show HRW’s use of “collective punishment” in highlighting reprisal actions against third parties. For example, in 2007, testimony to a US House Committee on Foreign Affairs, Subcommittee on Africa and Global Health, Sam Zarifi (HRW's "Washington Advocate")17 stated,
“in the Ogaden, we have documented massive crimes by the Ethiopian army, including… villages burned to the ground as part of a campaign of collective punishment”.
Another example is found in an August 2007 Guardian article, “Ethiopia's dirty war” authored by HRW's London Director, Tom Porteous18. He asserts that
“dozens of civilians have been killed in what appears to be a deliberate effort to mete out collective punishment against a civilian population suspected of sympathising with the rebels.”
These results show that HRW’s application of "collective punishment" is inconsistent and arbitrary. No other "blockade" is described in these terms, and other cases of "collective punishment" involve beatings, murder and destruction of property as indiscriminate retaliation against a group of people for the acts of members of that group.

Almost certainly, Amnesty is equally guilty of applying this standard to Israel, and Israel alone. (The quick search I did of their site indicates this, but I did not do an exhaustive search.)

Certainly Amnesty UK is less than objective when it comes to Israel.

(h/t Zach for original article and San Diego Law Journal text.)

UPDATE: Zvi mentions that Allen was formerly the long-time lover of former mayor of London and anti-Israel extremist Ken Livingstone, and that she fired a member of Amnesty for questioning Amnesty's political backing for a Taliban supporter.


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