The Dialectics of Brutality in Dallas

Yesterday President Obama, flanked by former president George W. Bush, spoke at a ceremony commemorating the lives of police officers killed in Dallas last weekend. Cutting through the sanctimonious and pious eulogies and calls for unity is a demand to understand. Yet, understanding the shooting of officers in Dallas is difficult. It’s easy to fall into traps and blind yourself to uneasy truths that, by ignoring them, disguise reality. That reality is the police brutality that has been a part a constant feature of this nation’s history. That brutality has known many forms, from chattel slavery to share cropping, through lynchings and Jim Crow, and now with gentrification and police shootings. The form may be different, but the fact that there is a single group which has borne the brunt of this brutality has remained the same.

While useful for understanding how history itself moves, a dialectical approach can also be helpful in situations such as the present tension between the police and Black Lives Matter movement. When violence is met with violence there comes a loud chorus of voices asking why, calling it terror, or other moralistic phrases. While the sentiment is understandable, it belies the reality. As Newton discovered in the physical world, so too does every social action have an equal and opposite reaction. It is this interaction, between the thing (the thesis) and its naturally created opposite (the antithesis), which comes from the inherent contractions of the thesis, that a synthesis (a new thesis) is created. In this case, police brutality is the thesis, and armed opposition to police power is the antithesis.

Both sides carry contradictions. The abuse of police power only produces a demand for justice, even if that be vigilante, and sows the seeds of discontent, thereby necessitating an increase in force. The antithesis of police abuses of power is the resistance, whether that be Black Lives Matter in general, narrowed down to reciprocal opposition to police power with their weapons of choice, semi-automatic rifles. The antithesis, more easily seen in violent revenge against police, has the effect of demoralizing the larger resistance movement. As one author put it “individual terror is inadmissible precisely because it belittles the role of the masses in their own consciousness, reconciles them to their powerlessness, and turns their eyes and hopes towards a great avenger and liberator who some day will come and accomplish his mission.” It hurts the movement much more than acts of violence on the thesis side could.

The interaction of these groups therefore, produces a synthesis, but that synthesis is not necessarily progressive. Indeed, the contradictions of both may, in fact, be contained in the new synthesis, thereby producing one which carries not just one set of contradictions, but both. In the present time, terror responses to police terror can only produce more of the contradiction. The only hope then would be a new anti-thesis based on non-violent solidarity aimed at the real basis for police oppression, state capitalist power.

But the current response to police brutality in the form of BLM, for all the great consciousness raising they have performed, also has a fatal flaw. Its acceptance of human division based on race, the tactic of their class enemies (the ruling class), forces them to do all of their activity within limited boundaries, where, as much as they would like, the ability for intersectionality to direct the movement towards targeting the apparatuses of control (news, government, major centers of production) is itself hindered. This is not an indictment of BLM, for its value may lie in its message that, like the 99% notion propounded by Occupy, was already a part of the Zetigiest, but was only missing its messengers. For both of these issues, the messengers have appeared, but the means of state control, police violence and a lack of organizational unity has prevented these groups from being able to organize forms of mass resistance. Indeed, even if they were able to create such a movement, that movement so organized would be unable to effectuate lasting change, because it fails to understand the real culprit behind police oppression. Though its form is racial, is cause is economic – it is capitalism.

Therefore, all those who have been energized or radicalized by BLM are new and important members to the large community of activists and revolutionaries. However, only until myriad activists are able to unite their disparate causes under a single banner, against their common class enemies, can these new activists maintain their desire for political change. American history is rife with examples of flare ups in resistance, only to be squashed by the state because there was no unity by which the resistance could be sustained. If we do not learn the lessons from our historic struggles, we are doomed to repeat them, as we are each day.

A single act of individual terrorism only hurts this causes, and pulls more people from the unity that is needed. Therefore, all those who believe in the resistance currently waged, and who want to see it be fully successful, must condemn the attacks against police officers, as we do attacks against unarmed civilians, not because we misunderstand the desire for revenge, but because we know what it produces. All those contemplating a similar form of opposition, individual terrorism, ought to take that energy and commitment and use it for the cause for which those acts could only harm.

The only route for success is to abandon such radicalism in the form of movement building against the ruling class. As the holder of the keys to the mass prison cell of capitalism, to which the police must merely provide the role of street sweeper, failure to direct opposition at that group with produce and inevitable failure of systemic change. While calls for education and reform are understandable and may produce piecemeal results, the very nature of the growing numbers of problems in the United States demands more than reform, it demands a revolution. What form that revolution will take, and against whom, depends on understanding the dialectics of brutality in Dallas, Detroit, Davenport, and D.C.

 

The Status of Voluntary Human Shields in IHL: Lessons from Gaza

INTRODUCTION

Operation Protective Edge, Israel’s 2014 military operation in Gaza, involved many of the consequences of desperate and destructive urban and asymmetrical warfare that characterizes each hot flare up of the Israeli/Palestinian conflict. One of the charges often levied during the 2014 round of hostilities is the use of human shields, voluntary and involuntary, by both sides. Though the narrative of Palestinian use of human shields holds sway in most forms of media and analysis of the conflict, these allegations provide useful ground to discuss the role of human shields in International Humanitarian Law (“IHL”) generally. Reviewing the available information, the claims of use of human shields in Palestine focus on civilian volunteers who may occupy a space or building in order to disrupt Israel military decision making. These voluntary human shields demand to be properly categorized in IHL to combat any unfounded and unhelpful allegations of violations of the laws of war.

To do so, Part II of this paper reviews the background of the conflict and the claims of the use of human shields on both sides. Part III then reviews the claims made about the use of human shields and after determining that the claims of Hamas’ use of human shields was more tangential than those made against Israel and of those who acted as human shields many appear to have done so voluntarily. To understand the voluntary human shield (“VHS”) this paper then analyzes the applicable IHL provisions that apply to voluntary human shields specifically focusing on the status of civilians and combatants under Additional Protocol I (API) and the International Committee of the Red Cross’ (“ICRC”) Direct Participation in Hostilities (“DPH”) study. This analysis concludes that voluntary human shields are civilians not directly taking part in hostilities and therefore do not use their immunity from attack, nor is it a violation to call for volunteers so long as no one is compelled by force to do so. This has important impacts for the dynamic of the conflict in Gaza, so Part VI recommends that IHL commentators and experts who assist in defining the scope of the laws of war take into account the interplay between humanitarian concerns and military advantage regarding the obligations that parties have to VHS and how such actions, especially in the conditions of the Israeli/Palestinian conflict, may assist in balancing asymmetrical warfare while still minimizing causalities and destruction.

BACKGROUND

Operation Protective Edge

In 2014 Israel launched its most recent engagement in Gaza known as Operation Protective Edge.[1] Launched on the 8th of July after the end of Operation Brother’s Keeper, a previous Israeli Defense Forces (“IDF”) operation in Gaza rhetorically based on the kidnapping of Israeli teenagers by Palestinian groups,[2] the incursion into Gaza caused Hamas to turn to unguided rocket attacks which then prompted seven weeks of Israeli military operations.[3] Over the course of those seven weeks serious damage was done to Gazan infrastructure and homes.[4] The combination of urban ground fighting and heavy airstrikes also resulted in the deaths of thousands of people, the majority of which were Gazan civilians.[5]

The precise reason for the conflict remains a mystery. Ostensibly Israel wanted to stop continued rocket fire from Gaza received in response to Brother’s Keeper.[6] Conversely, Hamas’ goal was to bring international pressure to bear to lift Israel’s blockade of the Gaza Strip, end Israel’s offensive, obtain a third party to monitor and guarantee compliance with a ceasefire,[7] release Palestinian prisoners, and overcome its political isolation.[8] Whether Israel was the first to break the ceasefire agreement that had been in place since November 2012[9] or Gazan rocket fire[10] is to blame is still in dispute.

There is truth to both sides. On July 7th, Hamas admitted it fired several dozen rockets into Israel after, depending on the source, either an Israeli airstrike killed seven fighters in a tunnel in Khan Yunis[11] or an accidental explosion of munitions.[12] The operation officially began the following day and by July 17th expanded from an air campaign into a ground invasion of Gaza with the stated aim of destroying Gaza’s tunnel system.[13] Apparently completing that goal, Israeli ground forces withdrew on August 5th.[14] On August 26th, 2014 both sides agreed to an open-ended ceasefire. By that date, the IDF reported over 4,500 rockets and mortars had been fired from Gaza into Israel.[15] During the seven weeks of the operation the IDF attacked over 5,000 targets in Gaza including over 30 tunnels and a majority of Hamas’ rocket arsenal was left unavailable for use.[16] One claim that came through the fog of war was that Hamas had used human shields and civilian buildings in violation of IHL.

Background on the claims of use of human shields during the 2014 Gaza War

Both sides of the conflict have been accused of using human shields. However, the accusations differ as to how and why the shields are used. While claims of Hamas’ use remain burned into public memory, less well-reported claims of IDF use of Palestinian human shields has also been reported. What characterizes these differences is the purpose for the human shield and the intent of each person who becomes a shield. On the Palestinian side, claims of involuntary human shielding comes in the form of the use of civilian objects of military purposes which civilians may either be unaware of, or are somehow compelled to ignore that use. However, other claims of the use of human shields come about after civilian volunteers occupy spaces to change Israeli military calculations under the principles of distinction and proportionality. The IDF, on the contrary, had on occasion compelled Palestinian civilians in the proximity to a suspected target to move with IDF forces acting as interpreters or to encourage others to refrain from firing to avoid killing fellow Palestinians. Other reports have acknowledged even more egregious examples of that form of compelled cooperation with IDF operations, though much more of a rarity. Still, with both Hamas and the IDF, the use of compelled human shields is quite clearly a violation of the IHL.

Claims of Palestinian Use of Human Shields

Claims of Palestinian use of civilian persons and objects is well known. The main form of this criticism comes in two forms: use of civilian objects, and the use of or call for voluntary human shields. Some of these claims are enshrined in Congressional records. For instance, while the battle raged in Gaza in July 2014, the US House of Representatives passed a resolution condemning Hamas for using civilians as human shields.[17] It further lays blame for the conflict and the civilian deaths on Hamas and praising Israel for warning residents to flee before conducting airstrikes in civilian neighborhoods.[18] The European Union followed suit and condemned Hamas’ “calls on the civilian population of Gaza to provide themselves as human shields.”[19] These claims usually take a form such as that reported by Janis Frayer of Canada’s CTV who claims to have witnessed Hamas gunman dressed in a woman’s headscarf with a “tip of a gun poked out from under cloak.”[20]

Likely the most infamous incident of VHS occurred when on July 8th, 2014, Hamas spokesman Sami Abu Zuhri called upon Gaza civilians on Hamas-owned Al-Aqsa Television to stay put in areas under fire by Israel.[21] Though this has been cited as an example of the use of human shields, Amnesty International stated that the call to remain in place may have been “motivated by a desire to avoid further panic” among civilians after others who heeded IDF’s warnings had become casualties of Israeli air strikes and ground attacks.[22] In another event, human shields amassed to protect a home targeted by Israel.[23] According to Zuhri, witnesses reported a large gathering of people going to the Kawari family house.[24] After an Israeli drone fired a flare at the roof of the three-story home as more neighbors came to act as voluntary human shields, some even going to the roof to try to prevent a bombing.[25] Still, even with the presence of these VHS, the house was bombed not long after the flare was fired.[26] According to reports from the Palestinian Health Ministry in Gaza, seven civilians were killed in the bombing, as well as 25 others wounded, many severely.[27] Zuhri, though making no claims that those VHS were called to occupy the space, claimed that “the policy of people confronting the Israeli warplanes with their bare chests in order to protect their homes has proven effective against the occupation,” and stated it matter-of-factly: “We in Hamas call upon our people to adopt this policy.”[28]

To further bolster their claims of this practice, the IDF reported on its blog that IDF soldiers had found a manual for human shielding while fighting in Gaza.[29] In a portion entitled “Limiting the Use of Weapons,” the manual explains correctly that the soldiers and commanders of the IDF have a duty to limit their use of weapons and tactics that may lead to unnecessary loss of life and destruction of civilian facilities.[30] The manual goes on to explain that “the presence of civilians creates many pockets of resistance against advancing [IDF] troops, and this causes difficulties, such as: (1) Problems opening fire, (2) Problems controlling the civilian population during operations and afterward, (3) Providing assistance and first aid to civilians.”[31] Lastly, the manual discusses the benefits for Hamas in the section titled “The Destruction of Civilian Homes” which states such home destruction has, perhaps ironically, a positive effect as it “increases the hatred of the citizens towards the attackers and increases their gathering around the city defenders (resistance forces).” Though this narrative gained much currency in international news, another set of allegations has been levied against Israel.

Claims of Israeli use of human shields

There have been several claims of use of human shields by IDF forces in 2014. These claims usually involve a house sweep or similar operations in which the risk of surprise attack is high. Believing that the proximity of a civilian will deter a quick attack, IDF soldiers use these civilian shields less to simply stop bullets, though they certainly have been subject to such a use, but that they may also be able to either convince someone against an attack or provide real time intel in terms of what the shield may or may not tell the target of the raid. For instance, video testimony released by the Euro-Mid Observer for Human Rights, Palestinian civilian Ramadan Muhammad Qdeih recounted how on July 25th, 2014, IDF soldiers stormed his home in Khuzaa, where around sixty members of his extended family were sheltered in the basement.[32] According to Odeih, the soldiers forcibly positioned members of his family, including children, at the windows of his home and proceeded to fire from behind them.[33] In another incident, on July 23rd, 17-year-old Ahmad Jamal Abu Reeda claimed to have been restrained by Israeli troops who for five days threatened to kill him.[34] The troops ordered Abu Reeda to walk in front of them at gunpoint as they searched houses and other buildings, sometimes ordering him to dig in near areas of suspected tunnels.[35]

This practice was formerly IDF policy.[36] UN Committee on the Rights of the child released a report a year before the conflict accusing Israeli forces of using Palestinian children as human shields, and alleging that detained children in some cases face torture, solitary confinement, and threats of sexual assault.[37] This activity was specifically addressed in Adalah et al. v. GOC Central Command, IDF Judgment by the Israeli High Court which found that the IDF practice of picking a civilian at random, forcing them to protect soldiers with their body and do dangerous tasks for soldiers was a violation of its international obligations under IHL.[38] Examples of this practice include soldiers ordering Palestinians to enter buildings to check if they are booby-trapped or to remove the occupants, to remove suspicious objects from roads, stand inside houses where soldiers set up military positions, walk in front of soldiers to shield them from gunfire or to allow soldiers to fire over their shoulders.[39] Surprisingly, the soldiers in the field often did not initiate this practice ad hoc but received orders to use civilians as a means of protection from senior army officials.[40] According to defense officials, the IDF made use of the ‘human shield’ procedure on 1,200 occasions the last five years it was in use.[41]

Indeed, in 2009 Wikileaks published an Israeli government memo stating:

Individual Palestinians also testified to IDF abuses such as looting, beatings, vandalism of property and the use of the local population as human shields. But by far the strongest reverberation in Israel was that created by the Israeli organization “Breaking the Silence,” which collected testimony from 26 unnamed IDF soldiers. All of the soldiers had been involved in Operation Cast Lead in the Gaza Strip, and testified to instances where Gazans were used as human shields, incendiary phosphorous shells were fired over civilian population areas, and other examples of excessive firepower that caused unnecessary fatalities and destruction of property.[42]

The ultimate result of the review of the claims made by both sides is that Israel has a history and a former policy of using local civilians as human shields in raids and other dangerous operations. While Hamas may indeed by storing weapons in or around civilian objects, the tight, urban nature of Gaza makes such actions nearly impossible to completely avoid. Therefore, claims of compelling or forcing civilians to shield military targets must be evaluated with the available objective evidence. In doing so, one finds that these claims tend to lack much in verifiable evidence or corroboration on either side. Still, if the claims of civilian voluntary human shields were found to be justified by the evidence, their status under IHL must still be defined and compared against other concerns, both military and legal, that each side must weigh when conducting military operations such as Protective Edge.

ANALYSIS

To learn the necessary lessons from Gaza, one must first test whether the claims that raise the issue are valid. Doing so in an area as fraught with ideology, politics, disinformation, and rhetoric as the Israeli/Palestinian conflict is particularly difficult. Therefore, though some claims of the use of human shields appear to be verified, many remain seemingly unverifiable. However, assuming that the only ambiguous form of humans shielding under IHL is the voluntary human shield, understanding the difference between voluntary and involuntary human shields brings one to the borders of IHL. This is effective at determining not only where such limits are, but also how much farther they should stretch.

Veracity of the Claims of the Use of Human Shields

The New York Times conceded that despite all the rhetorical claims, “there is no evidence that Hamas and other militants force civilians to stay in areas that are under attack.”[43] The BBC’s Middle East editor at the time, Jeremy Bowen, similarly declared, “I saw no evidence during my week in Gaza of Israel’s accusation that Hamas uses Palestinians as human shields.”[44] In a 2014 interview, senior Hamas official Khaled Meshaal told CNN that the group did not use its people as human shields.[45] In interviews with Gazan refugees, reporters for The Independent and The Guardian concluded claims that Hamas forced civilians to stay in areas under attack against their misconstrue the situation.[46] Many refugees told them they refused to heed the IDF’s warnings because even areas Israel had declared safe for refugees had been shelled.[47] The Guardian reported that “dispatches from the ground have presented complex reasons why some residents did not evacuate from Shujai’iya and other areas targeted by the IDF. Many said nowhere in Gaza was safe, so they saw little point in abandoning their homes.”[48] Rather than evidence of coercion, sources reported tens of thousands of people heeding the warnings and fleeing their homes.[49] UNRWA reported that more than 140,000 people sought shelter in its properties and that these civilians feared for their lives from Israeli bombing and shelling rather than threats from Hamas.[50]

Amnesty International investigated IDF claims of human shielding conducted by Hamas and other Palestinian groups and found that no evidence showed that Palestinian civilians had been intentionally used by Hamas or Palestinian armed groups during the current hostilities to “shield” specific locations or military personnel or equipment from Israeli attacks.[51]  They did note the reports of Hamas urging residents to ignore Israeli warnings to evacuate.[52] “However, these calls may have been motivated by a desire to minimize panic and displacement, in any case, such statements are not the same as directing specific civilians to remain in their homes as ‘human shields’ for fighters, munitions, or military equipment.”[53] AI then rightly notes that even if human shields are being used, the obligations to protect those civilians under IHL would still apply as they have not lost their protection from attack.[54] This is repeated by in the UNHRC report on the conflict.[55]

Claims of Israeli use of civilians is also difficult to verify. However, unlike claims made by the IDF and Israeli government regarding Palestinian use of humans shields which come from scant evidence and no verifiable eyewitness accounts, those levied against Israel come with testimonies by the victims and witnesses which bear close similarity to one another.[56] Given the previous policy of the IDF regarding the use of civilians and the continued allowance under IDF military guidelines to employ the use of civilian “volunteers” combine to make the claims of Israeli use of involuntary human shields more believable that those levied against Palestinian groups.[57]

The Use of Involuntary Human Shields is a Violation of IHL

The human shield, though a sickening thought when assumed to be at gunpoint, has an interesting role to play in modern warfare. The reasoning behind either being or using human shields is clear: if there is sufficient civilian presence on a target subject to attack such presence would cause incidental loss of civilian life if the object was indeed attacked. Assuming such an attack was not on a purely military objective, the deaths of several civilians would be more easily be considered excessive when matched against the concrete and direct military advantage.[58]

Article 51 of Additional Protocol I states the prohibition of the use of human shields rather straightforwardly.[59] It prohibits the direction of civilians to be present at a target to prevent an attack against that target.[60] Article 51(7) echoes to the general rule of distinction between enemy combatants and military objectives with civilians and civilian objects contained in Article 48,[61] as well as Article 51(1), which provides that “[t]he civilian population and individuals civilians shall enjoy general protection against dangers arising from military operations.”[62] Indeed, Paragraph 8 of Article 51 notes that civilians that function as shields and are present at the site of an attack do not “release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians….”

Article 58 of Additional Protocol I imposes an affirmative obligation on Parties to “endeavor to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives,” which appears to complement the prohibition on using civilian shields. However, both Article 51 and 58 are qualified by the caveat “to the maximum extent feasible,” which forces an evaluation of the particular conditions of the conflict. Therefore there are two coordinated obligations regarding civilian shields: 1) to refrain from directing civilians to act as shields, and; 2) to prevent civilians from occupying military objectives by removal to the maximum extent possible.

As codified in Additional Protocol I, which only apply in International Armed Conflicts (“IACs”), these provisions cannot specifically prohibit human shielding in non-international armed conflicts (“NIACs”).[63] However, as Rule 97 of the International Committee of the Red Cross’ International Customary International Humanitarian Law study provides, “[t]he use of human shields is prohibited,” and contends the norm applies in both IAC and NIAC.[64] It further asserts that, “each party to the conflict must, to the extent feasible, avoid locating military objectives within or near densely populated areas,” and “to the extent feasible, remove civilian persons and objects under its control from the vicinity of military objectives.”[65] In NIACs, the rules are “arguably” customary.[66]

Case law regarding human shields focuses on the involuntary and clearly provides that it is a violation of both treaty-based and customary IHL. For instance, in ICTY’s most recent and well-known judgment against Radovan Karadzic found the former President of the Bosnian-Serb area of Bosnia guilty of persecution for holding UN peacekeepers against their will at potential NATO air targets[67] in order to render those locations immune from NATO airstrikes in 1995.[68] It is this and the more traditional notion of shields, such as those during Operation Iraqi Freedom where members of irregular Iraqi forces often engaged Coalition forces from behind women and children many of whom were forcibly seized, which is specifically prohibited by the Articles 51 and 58.[69] These are relatively straightforward violations of IHL. What remains more difficult to categorize is the civilian volunteer who, rather than being directed, takes action on their own or answers a non-military call for volunteers to protect some object that is subject to potential attack.

The Use of Voluntary Human Shields not a violation of IHL

In order to understand the legal position of a VHS one must first review the difference between a civilian and a combatant and when a civilian loses their immunity from attack. The importance of this difference is why the ICRCs first customary rule of IHL is the principle of distinction: “The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.”[70] This correlates with a related principle, proportionality, which prohibits launching an attack that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination of those, “which would be excessive in relation to the concrete and direct military advantage anticipated.”[71]

Therefore, when discussing VHS one must first categorize the person into one of three categories: a civilian, a non-combatant, or a direct participant in hostilities. Placing the VHS in the correct class will thereby define the obligations and protections owed to the VHS. Understanding the obligation to refrain from attacking civilians and to refrain from attacks calculated to cause more civilian death and destruction than military advantage makes this categorization paramount. If the VHS never loses their immunity from direct attack, then attacking a military target protected by VHS would be a violation of the principle of distinction, but under the principle of proportionality the obligation to refrain from indirectly attacking civilians must be weighed against the military advantage gained and therefore may, under extreme circumstances, allows a serious attack which leaves untold numbers of civilian VHS dead so long as the objective is of overriding military necessity.

Civilians Defined

Rule 5 of the ICRC’s Customary IHL Study follows Article 50 of API and defines civilians negatively: a civilian is any person who is not members of the armed forces.[72] The immunity of civilians from direct attack is a general principle going back to the sharp rise in civilian deaths following the American Civil War and the Two World Wars.[73] Article 51(3) of Additional Protocol I states that civilians are absolutely immune from attack, “unless and for such time as they take a direct part in hostilities.”[74] Any member of the military, a combatant, by default cannot be considered a VHS as their status as a combatant provides neither them, nor any object used for military purposes, with immunity from attack. Therefore, one must assume that any VHS is, a priori, a civilian. But other suggestions may be made for the status of a VHS such as a non-combatant or as a DPH when they conduct VHS operations under the notion that doing so meets the required elements to lose immunity.

Non-Combatant Status

Customary Rule 3, following the general thrust of the Geneva Conventions and specifically enumerated in Article 43(2) of Additional Protocol I, defines a combatant as “all members of the armed forces of a party to the conflict …except medical and religious personnel.”[75] Medical and religious personnel are considered non-combatants. According to the First Geneva Convention, temporary medical personnel have to be respected and protected as non-combatants only as long as the medical assignment lasts.[76]  Some military manuals (such as Germany’s Military Manual) state that using a weapons system or platform is the defining characteristic of a combatant, therefore, “persons who are members of the armed forces but do not have any combat mission, such as judges, government officials and blue-collar workers, are non-combatants.”[77]  Therefore, the VHS that uses their presence and their status as a civilian, rather than any weapons system, is not a combatant under this definition. And though not usually a uniformed member of the armed forces, one may argue that the VHS is essentially “recruited” for the VHS operation and ought to be considered a member of the military forces when they answer a call.

Giving the voluntary human shield status equivalent to a non-combatant member of the opposing armed force does capture some of the nature of the contribution made by VHS, but other features are simply incoherent. While their activities have military objectives, they are not assumed to be directly involved in front-line conduct of hostilities as would a regular member of the armed forces, nor do they carry weapons. Considering VHS as non-combatants would give them the status of a member of an armed force and therefore a legitimate military target for attack, but on what basis is this claim made given the lack of weapons used by VHS?[78] While one can argue medical personnel (and to a lesser degree chaplains) are necessary for the war effort, the VHS is certainly not a requirement for the parties to the conflict, though it may provide some advantage in limited circumstances. Rather than a necessity, like doctors and medics, VHS are not consistent members of armed forces, under the control of a military apparatus or hierarchy, or specifically trained groups connected to a military structure. Considering VHSs members of the armed forces though they lack even the most basic characteristics of traditional members of armed forces is merely an attempt to bootstrap the concept of a non-combatant (with its own clear limits) specifically and only to allow attacks on what would otherwise be a civilian VHS. This simply has no basis in logic, custom, or law. Therefore, the only way to argue that VHS loses immunity from attack is to argue that the VHS is directly taking part in hostilities.

Voluntary Shields as Direct Participants in Hostilities

In 2009 the ICRC published its Interpretive Guidance on the Notion of Direct Participation in Hostilities which was the culmination of almost a decade of meetings between legal experts and military officials aimed at defining the contours of this often-confusing notion in IHL.[79] Recall that a civilian is at all times immune from direct attack, but loses this protection if they either become part of the armed forces of a party to the conflict or directly take part in hostilities.[80] Therefore, it is crucial to understand exactly what actions qualify as DPHing and thereby provide the threshold for loss of civilian immunity that involve human shielding. The DPH study outlines two main constitutive elements of DPHing: 1) a threshold regarding the harm likely to result from the act, 2) a relationship of direct causation between the act and the expected harm.[81] For the purposes of VHS the first element is most important. The ICRC guidance provides two forms of harm necessary for DPH: 1) causing harm of a specifically military nature, or; 2) by inflicting death, injury, or destruction on persons or objects protected against direct attack.[82] The second of these two is rather straightforward. The most common notion of DPHing is the civilian who picks up a rifle and fires at another party to the conflict, thus aiming at inflicting death, injury or destruction.[83] The first, in contrast, is something entirely different.

Purely military harm, rather than inflicting death and destruction, appears to be precisely calculated to combat what has become known as “lawfare.” The guidance defines military harm as “essentially any consequence adversely affecting the military operations or military capacity of a party to the conflict.”[84] The footnote explains this by way of citing wide agreement at the expert meetings in 2005 that this military harm did not necessitate the use of armed force or the causation of death, injury or destruction.[85] Indeed, instead of a limited form (which would still cover human shields) the scope of this form of harm is wide.[86] The guidance oddly focuses on issues that appear much more straightforward (“sabotage and other armed or unarmed activities restricting or disturbing deployments, logistics and communications”)[87] but fails to mention if this scope covers the VHS.

The Guidance does mention VHS in discussing the directness of harm.[88] It states it unequivocally that when “civilians voluntarily and deliberately position themselves to create a physical obstacle to military operations of a party to the conflict, they could directly cause the threshold of harm required for a qualification as direct participation in hostilities.[89] However, the Guidance then qualifies the seemingly large scope of military harm “in operations involving more powerful weaponry, such as artillery or air attacks.”[90] At least in the context of asymmetrical warfare, the ICRC states that the mere presence of VHS does not inflict the requisite military harm because it “often has no adverse impact on the capacity of the attacker to identify and destroy the shielded military objective.” Therefore military harm is defined only that which actually inhibits the ability of the adverse party to conduct its operations, not the parameters of the proportionality assessment that must be made, even if it has an adverse effect.[91] The presence of VHS inhibits the will of attacker, not the fighting ability.[92] Rather than sabotage or deliberate interference with logistical operations, VHSing merely adjusts the parameters of decision making by increasing the probability of expected incidental harm which, if excessive in relation to the anticipated military advantage, is a violation of IHL.[93] Since there is no actual inhibition of the ability of the attacker, the relationship between the presence of VHS and the resulting harm is indirect, even if their presences leads to the cancellation or suspension of an operation by the attacker.[94] As mentioned above, the VHS must recall that the nature of the objective targeted is paramount. Voluntary presence near legitimate military objectives leaves VHSs particularly exposed to the dangers of military operations and decreases the value of their presence as it may not serve to widely adjust the proportionality assessment of the attackers.[95]

Some have been critical of the ICRC’s analysis and expressed reservations at the expert meetings.[96] These critiques suggest that the guidance fails to balance military necessity with humanitarian concern.[97] However, characterizing this as a “failure to balance” suggests that the ICRC is weighting humanitarian concerns too heavily.[98] Schmitt asks why IHL would distinguish between those who physically protect a military objective (such as guards) from those who intentionally misuse the law’s protective provisions to prevent an otherwise lawful attack.[99] Perhaps it is he who misbalances the concerns of IHL. The primary motivation of IHL is teleological, to protect life and property from senseless attack, not merely existential. IHL does not exist merely to weigh the ability for one party to use force against the tactics of another, but to ensure that no one is unnecessarily killed or no building destroyed without cause. Focusing only on the military harm to the attacker compared to the relative direct physical harm to the victims of an attack is precisely what IHL attempts to avoid. Indeed Schmitt misunderstands how that principle applies to this analysis and attempts to suggest that that voluntary human shields should be treated as direct participants not because the attacker desires for the VHSs to be subject to attack, “but rather because it will preclude the inclusion of their death or injury in the proportionality calculation.”[100]

Doing so confuses the calculation as a matter of fact. Precluding VHSs from the proportionality calculation makes the necessity for such a calculation moot. Already decisions are being made that show the willingness to cause significant civilian damage, whether or not the attacker desires to attack the civilians, if the target is determined to be of such high value that the loss of civilian life is considered proportional.[101] The military necessity/humanitarian considerations balance that is so crucial to Schmitt will be, if the analysis of the guidance is ignored, wholly unbalance in favor of military necessity and will therefore result in an increased in ultimately unnecessary deaths. Even if not considered DPHing, if the military advantage of any object protected by VHS is so valuable, the presence of VHS would still not preclude the attack under the principles of proportionality and necessity and therefore provides no valid reason to re-categorizes a civilian VHS as anything other than that: a civilian.

RECOMMENDATIONS

Voluntary Human Shields are not necessarily a new phenomenon, but one that has every potential of being a factor in almost every new conflict that emerges. Partially because of the urban environment that is the scene of, or guerrilla tactics used in NIACs, the potential ease of use and value that is provided by human shields makes for there to be every incentive to use them when faced with an asymmetrical threat or in the course of some ideological or historical struggle. While one must understand the nature, role, and legality of VHS by recalling the main thrust of IHL and its main principles, the VHS presents a difficult challenge as it demands that these principles be weighed against one another and where one comes out tends to show their allegiance to one or the other principle.

While one ought not to ignore the calculus of the military planner, and the need for forces to be able to operate in their most effective capacities and in the most import locations, there should be serious doubt about the continued veracity of IHL if the humanitarian component is left subservient to the more powerful party’s military wishes. While there is a serious advantage to highly developed weapons and delivery systems, the iron will of a population may be one of the only effective counter measures. Denying this possibility wholesale limits the ability of the weaker party to, as it were, fight fire with water.

Indeed, conflicts such as those in Gaza are exactly the situations in which human shields become most effective. The serious asymmetry of the forces, the crowded urban centers which make up much of Gaza, the danger poised to the civilian population as a matter of course, and the desperation that such a conflict brings to the situation all combine to provide every incentive for the weaker side, Palestine, to use its most effective means of combating advanced Israeli weapon systems: the laws of war. However understandable and incentivized this activity may be, it does not allow military commanders or personnel to take advantage of the resolve of their people by resort to force or coercion. Nor does it allow any sort of militarily-organized brigade who receives training on techniques for human shielding. A party to conflict cannot direct civilians (either by force or coercion or incentives) to become VHS such as cash payments or at the barrel of a gun.

However, once on the scene, the armed forces of a party to the conflict have the responsibility, as much as they are able, to remove civilians from danger. This brings up a conundrum and tests the limits of IHL. If the armed forces of a party notify civilians that a certain object is to be the subject of an attack, it mandates that the other party, no doubt also notified, remove civilians from the area, but if the presence of civilians provides a military advantage through lawfare, there is little incentive to remove the civilians. Given this situation, how much force is necessary to remove the civilians? Does the qualification of the obligation only to the “greatest extent possible” presuppose that during the course of a military operation the armed forces of a state must remove VHS even if doing so presents real and present danger either by the possibility of attack from ground or air forces?

These questions are precisely why VHS must be better defined in IHL. The attempts to classify VHS in the paradigms of IHL currently simply fail to recognize the role, costs, and status of VHS in modern conflicts. Though the general principles and thrust of IHL need not be amended greatly, the scope of some of its important typological questions must be expanded or contracted given the consequences posed by so doing. Knowing the full scope of the obligations a party has to either removing or preventing VHSing would give guidance to forces engaged in such activity, rather than leaving the question open for rancorous, rhetorical redefinitions. When VHSs are involved, the need to scrupulously apply principles of proportionality and distinction by limiting the use of voluntary human shields is paramount, but may be unavoidable.

To that end, it should be clear that VHS are civilians who are neither non-combatants nor DPHing. As such they retain their immunity from attack and must be calculated for in the proportionality and distinction tests of any force planning an attack. Therefore, if a planned target is protected by VHS, they must be taken into account when determining the relative advantage of conducting the attack to military campaign and the resulting civilian deaths. Given this paradigm, there may be instances where the presence of VHS does not disallow an attack, but are considered proportional collateral damage. This must be understood in concert with the obligation to protect civilians for which VHS provide assistance. That means that a VHS must be removed from the field as soon as possible so long as doing so is militarily feasible. This qualification allows the forces to allow VHSs to perform their function only and until there is the possibility of removing them when one takes into account all circumstances ruling at the time, including humanitarian and military considerations. However, because it is the presence of VHS and the humanitarian risks of an attack that connotes a military advantage, in an urban environment like Gaza, keeping the VHS in place may be the more prudent move both militarily and humanitarianly given the dangers posed to civilians generally both by the environment of the conflict and the conduct of the both parties.

CONCLUSION

Operation Protective Edge is merely the latest round of hostilities in the Israeli/Palestinian conflict, but each time there is a flare up and kinetic force is used, allegations of violations of IHL understandably follow. In 2014 a major theme in the conflict was the use of human shields and the use of civilian objects by Hamas which, according to some, accounts for the serious loss of Gazan life during the seven weeks of fighting. All concerns about blaming the victim aside, the claims that Hamas uses human shields consistently is, though well repeated, a misnomer at best and a lie at worst. The way the issue has been reported suggests that Hamas stands behind civilians or fires rockets and other munitions from commandeered bedrooms which normally house children or the elderly. While some weapons were placed in proximity to civilian objects, rather than merely taking advantage of their protected status, these actions appear to be more out of necessity than malice aforethought. Even so, the claims of physically enforced human shielding appears to be more corroborated on the Israeli, rather than Palestinian side, as little to no evidence can be given for those claims of such involuntary shields by Hamas. What has been confirmed is the call for civilian volunteers to act as human shields for targets subject to Israeli attacks by seemingly civilian organs, and those calls being answered, thereby demanding clear categorization of those VHS and to the role and scope of VHS in IHL.

As explained above, VHS are civilians who have not lost their immunity from attack and must be considered in the proportionality calculation. As non-members of armed forces, not non-combatants such as clergy or medical personnel, or are they DPHing and thereby lose their immunity from attack by doing so. Unarmed DPHing demands a physical impediment to attack such as burning tires to block visual imaging, sabotaging rail lines, or cutting brake lines on convoy vehicles. While not inflicting death or destruction, these are directly physical impediments to the ability of a party to conduct military operations. Instead, VHS simply change the legal decision making under the principle of proportionality, and as such do not provide a physical barrier, but a test of will to the other side. However, the presence of VHS does not, on its own, prevent objects from being attacked, but rather demands that if such an attack is conducted, the military advantage gained by doing so must be overwhelming thereby making those civilians killed in such an attack proportional collateral damage.

The VHS also tests the limits of the qualification that each party to the conflict must, to the extent feasible, minimize risk to civilians. This limit demands that each side do what it can, given the humanitarian and military concerns especially when they conflict with one another, to reduce unnecessary damage and death. If the VHS is truly voluntary, and the objects which are subject to attack are assumedly not sufficiently valuable to risk the civilian casualties, then the obligation to remove the civilians, especially in urban areas, is low as their presence in sum may provide more protection than they would have generally. If the risk of attack, even with VHS present, is unknown, the party supported by VHS must do everything they can to minimize the threat of civilian casualties, including, if possible, removing them from the site. However, if this action would put both civilian and armed forces at unnecessary or disproportionate risk than if the civilian remains, then the obligation to remove the civilian bears less weight on the responsibility of the supported armed forces as it may be safer for civilians to remain as VHS. Again, this entire calculation is based on the particulars of the situation on the ground and the reasonable analysis of those fighting. While one cannot discount the role of the fog of war in allowing soldiers and commanders to make ultimately poor decisions, doing so does not absolve anyone from responsibility for actions they knew or should have known would violate IHL and mandates that those who do so be judged appropriately for their actions and decisions. Nowhere is this principle more important or more needed than in armed conflict.

[1] See e.g. UNHCR, Report of the Independent Commission of Inquiry on the 2014 Gaza Conflict, A/HRC/29/52, June 24 2015, http://www.ohchr.org/Documents/HRBodies/HRCouncil/CoIGaza/A-HRC-29-52_en.doc; Israeli Ministry of Foreign Affairs, 2014 Gaza Conflict (2014), http://mfa.gov.il/ProtectiveEdge/Documents/2014GazaConflictFullReport.pdf; and Israeli Defense Forces, Operation Protective Edge, IDFBlog, https://www.idfblog.com/operationgaza2014/; Michael Thomas, Operation Protective Edge The War Crimes Case Against Israel’s Leaders, Middle East Research and Information Project, Oct. 26, 2015, http://www.meriatorg/mero/mero102615; Institute for Middle East Understanding, 50 Days of Death & Destruction: Israel’s “Operation Protective Edge,” Sept. 10, 2014, http://imeu.org/article/50-days-of-death-destruction-israels-operation-protective-edge; and also Eitan Shamir, Rethinking Operation Protective Edge, The 2014 Gaza War, Middle East Quarterly, Spring 2015, http://www.meforum.org/5084/rethinking-operation-protective-edge.

[2] IDF, Operation Brother’s Keeper, IDFBlog, https://www.idfblog.com/blog/tag/operation-brothers-keeper/

[3] See IDFBlog, Operation Protective Edge at Note 1.

[4] See UNHCR Report at Note 1.

[5] Office for the Coordination of Humanitarian Affairs, Occupied Palestinian Territory: Gaza Emergency Situation Report, September 4 2014, https://www.ochaopt.org/documents/ocha_opt_sitrep_04_09_2014.pdf

[6] See IDFBlog, Operation Protective Edge at Note 1.

[7] Ehab Zahriyeh, Citing past failures, Hamas demands an enforceable cease-fire, Al-Jazeera, Jul. 16, 2014.

[8] Ed. Bd, Hamas and Israel cling to their war aims, Deutsche Welle, Jul. 23 2014

[9] James Marc Leas, Attack First, Kill First and Claim Self-Defense: Palestine Subcommittee Submission to UN Independent Commission of Inquiry on the 2014 Gaza Conflict, Council for the National Interest, Jan. 21, 2015.

[10] Ed. Bd., Hamas ‘ready for Gaza ceasefire’ if Israeli raids stop, BBC News, Jul. 4, 2014.

[11] Yoav Zitun, IDF: We uncovered Gaza terror tunnel leading to Israel, Ynet, Jul. 7, 2014.

[12] IDFBlog, Operation Protective Edge at Note 1.

[13] See Ed. Bd., Gaza conflict: Israel and Palestinians agree long-term truce, BBC News, Aug. 27, 2014; and IDFBlog, Operation Protective Edge at Note 1.

[14] See Israeli Ministry of Foreign Affairs Report at Note 1.

[15] IDF, Hamas Launches Rockets on Civilians in Gaza, IDFBlog, https://web.archive.org/web/20140822025714/http://www.idfblog.com/blog/2014/07/31/hamas-launches-rockets-civilians-gaza/

[16] Ed. Bd., Operation Protective Edge in numbers, Ynet, Aug. 27th, 2014, http://www.ynetnews.com/articles/0,7340,L-4564678,00.html

[17] Denouncing the Use of Civilians As Human Shields By Hamas and Other Terrorist Organizations in Violation of International Humanitarian Law., H.R. Res. 107, 113th Cong. (2014) (enacted) (“Whereas  Hamas  has  urged  the  residents  of  Gaza  to  ignore the  Israeli  warnings  and  to  remain  in  their  houses  and has  encouraged  Palestinians  to  gather  on  the  roofs  of their homes to act as human shields”).

[18] Id.

[19] Council of the European Union Press Release, 3330th Council meeting of EU Foreign Affairs, 12091/14, Jul. 22, 2014.

[20] Ed. Bd., Hamas Intimidates Press in Gaza Strip, Times of Israel, Jul. 29, 2014, http://blog.camera.org/archives/2014/07/hamas_intimidates_press_in_gaz_1.html

[21] Ed. Bd., Hamas spokesman calls on Palestinians to create human shields, Palestinian Media Watch, 14 Jul. 2014, https://www.youtube.com/watch?v=jbKcw6BkKEo

[22] Amnesty International, Israel And The Occupied Palestinian Territories: Israel/Gaza Conflict, July 2014 (Report), Jul. 17, 2014.

[23] Daniel Greenfield, Hamas Spokesman Urges Gazans to Act as Human Shields for Hamas Leaders, Front Page Mag, Jul. 9, 2014, http://www.frontpagemag.com/point/235946/hamas-spokesman-urges-gazans-act-human-shields-daniel-greenfield.

[24] Id.

[25] Id.

[26] Id.

[27] Steven Erlanger and Fares Akram, Israel Warns Gaza Targets by Phone and Leaflet, New York Times, Jul. 8, 2014, http://www.nytimes.com/2014/07/09/world/middleeast/by-phone-and-leaflet-israeli-attackers-warn-gazans.html?_r=0

[28] See Greenfield at Note 23.

[29] Captured Hamas Combat Manual Explains Benefits of Human Shields, IDFblog, Aug. 4, 2014, https://www.idfblog.com/blog/2014/08/04/captured-hamas-combat-manual-explains-benefits-human-shields/

[30] Id.

[31] Id.

[32] Ed. Bd., Euro-Med Documents Israel’s Use of Human Shields in Gaza, Euro-Mediterranean Human Rights Monitor, Aug. 10, 2014; Rania Khalek, Israeli army uses Gaza children as human shields, Electronic Intifada,  Aug. 11, 2014, https://electronicintifada.net/blogs/rania-khalek/israeli-army-uses-gaza-children-human-shields

[33] Id.

[34] Ed. Bd., Euro-Med Documents Israel’s Use of Human Shields in Gaza, Euro-Mediterranean Human Rights Monitor, Aug. 10, 2014.

[35] Id.

[36] See Adalah et al. v. GOC Central Command, IDF Judgment, HCJ 3799/02, High Court of Israel (Israeli defense leaders put a halt to the policy after a petition was filed to the High Court of Justice by several civil society and human rights groups demanding a judgment on the legality of the policy).

[37] UN Committee on the Rights of the Child, Concluding Observations On The Second To Fourth Periodic Reports Of Israel, Adopted By The Committee At Its Sixty-Third Session (27 May –14 June 2013), CRC/C/ISR/CO/2-4, Jul. 4, 2013 (“The State party’s soldiers have used Palestinian children to enter potentially dangerous buildings ahead of them and to stand in front of military vehicles in order to stop the throwing of stones against those vehicles as observed by the Special Rapporteur on the Promotion  and  Protection  of  Human  Rights  and  Fundamental  Freedoms  while  Countering Terrorism (citing A/HRC/6/17/Add.4, para.48); (b)Almost  all  those  using  children  as  human  shields and  informants  have remained unpunished and that the  soldiers convicted for having forced at  gunpoint a  nine-year old child to search bags suspected of containing explosives only received a suspended sentence of three months and were demoted”).

[38] Adalah et al. v. GOC Central Command, HCJ 3799/02 (ruling that the military’s use of Palestinian residents as “human shields” is unlawful and contradicts the provisions of international law: following a petition filed by seven human rights organizations in this matter, the HCJ banned the use of civilians to conduct arrests and the army must not bring Palestinian residents into an area of belligerent activity, even if they consent. Additionally, in light of the extreme disparity between the military and that the Palestinian residents, a resident’s “consent” cannot be regarded as genuine consent.).

[39] B’Tselem, Background on Human Shields, Jan. 1st, 2011, http://www.btselem.org/human_shields.

[40] Id.

[41] Id.

[42] Israeli Secretary of State, IDF To Investigate Complaints Of Criminal Conduct By Its Forces During Operation Cast Lead, Jul. 30, 2009, https://wikileaks.org/plusd/cables/09TELAVIV1694_a.html#efmAn8Axu

[43] Anne Barnard and Jodi Rudoren, Israel Says That Hamas Uses Civilian Shields, Reviving Debate, New York Times, Jul. 23rd, 2014, http://www.nytimes.com/2014/07/24/world/middleeast/israel-says-hamas-is-using-civilians-as-shields-in-gaza.html?_r=0

[44] Jeremy Bowen, Jeremy Bowen’s Gaza notebook: I saw no evidence of Hamas using Palestinians as human shields, New Statesman, Jul. 22nd, 2014, http://www.newstatesman.com/world-affairs/2014/07/jeremy-bowens-gaza-notebook-i-saw-no-evidence-hamas-using-palestinians-human

[45] Holly Yan, Steve Almasy, and Ali Younes, Inside the mind of Hamas’ political leader, CNN, Aug. 4, 2014.

[46] Ed. Bd., Israel-Gaza conflict: The myth of Hamas’s human shields, The Independent, Jul. 29th 2014;

[47] Harriet Sherwood, In Gaza, Hamas fighters are among civilians. There is nowhere else for them to go, The Guardian, July 24, 2014.

[48] Id.

[49] Id.

[50] Id.

[51] Amnesty International, Israel/Gaza conflict: Questions and Answers, Jul. 25, 2014, https://www.amnesty.org/en/latest/news/2014/07/israelgaza-conflict-questions-and-answers/

[52] Id.

[53] Id.

[54] Id.

[55] UNHCR, Report of the Independent Commission of Inquiry on the 2014 Gaza Conflict, A/HRC/29/52, Jun. 24 2015, http://www.ohchr.org/Documents/HRBodies/HRCouncil/CoIGaza/A-HRC-29-52_en.doc (While the commission was unable to verify independently the specific incidents alleged by Israel, the frequency of reports of Palestinian armed groups carrying out military operations in the immediate vicinity of civilian objects and specially protected objects suggests that such conduct could have been avoided on a number of occasions. In those instances, Palestinian armed groups may not have complied, to the maximum extent feasible, with their legal obligations).

[56] See Euro-Med Documents Israel’s Use of Human Shields in Gaza at Note 32.

[57] See generally Adalah at Note 38.

[58] Art. 51(5)(b) Additional Protocol I (AP-I)

[59] Additional Protocol I to the Geneva Conventions of 1949, Art. 51(7) (“The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations”).

[60] Id.

[61] Art. 48, AP-I (“In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly direct their operations only against military objectives”).

[62] Art. 51(1), AP-I.

[63] Diplomatic Conference on the Reaffirmation and Develop of International Humanitarian Law Applicable in Armed Conflict 321 (1974-77), Article Adopted by Committee III, XV Official Records (A rule on human shields was proposed for inclusion in Additional Protocol II, but did not survive the Diplomatic Conference).

[64] ICRC Customary IHL, Rule 97, https://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule97

[65] Id. Rules 23 and 24.

[66] Id.

[67] Prosecutor v. Radavan Karadic, ICTY, IT-95-5/18-T, March 24, 2016, http://www.icty.org/x/cases/karadzic/tjug/en/160324_judgement.pdf (The sites included ammunition bunkers at Jahorinski Potok, the Jahorina radar site, and a nearby communications center).

[68] See Id.

[69] See Michael Schmitt, Human Shields in International Humanitarian Law, 38 Israel Yearbook on Human Rights 17, 35 (2008); See also Human Rights Watch, Off Target: The Conduct of the War and Civilian Casualties in Iraq 67 (2003) (Reporting that Iraqi soldiers were instructed to “use any means necessary” in resisting the U.S. Marines, including putting women and children in the street. Among their tactics, they regularly hid near residences in order to use the civilians therein as shields. During fighting east of Basra, British Colonel Gil Baldwin, claimed to see Iraqi forces “herd” women and children out of their homes and fire rocket-propelled grenades over their heads).

[70] ICRC, Customary Law Study, Rule 1, https://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter1_rule1

[71] See Id. Rule 14, https://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter4_rule14.

[72] See ICRC, Customary Law Study, Rule 5, https://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter1_rule5; and Art. 50, AP-I; See also Prosecutor v. Tihomir Blaskic (Trial Judgement), IT-95-14-T, International Criminal Tribunal for the former Yugoslavia (ICTY), 3 March 2000.

[73] See U.N. SCOR, 60th Sess., 5319th mtg. at 16, U.N. Doc. S/PV.5319 (Dec. 9, 2005); U.N.  SCOR, 54th Sess., 3980th mtg. at 11, U.N. Doc.  S/PV.3980 (Feb.  22, 1999); Sylvia R.  Limerick, The International Red Cross and Red Crescent Movement, 25 J. Royal Col. Physicians London 246, 251 (1991) (According to the International Committee of the Red Cross and various U.N. reports, the ratio of civilian to combatant casualties was between 5% and 10% in the First World War and then dramatically leapt to 50% during the Second World War).

[74] Art. 51(3), AP-I.

[75] Article 43, 2, AP-I.

[76] Article 25, First Geneva Convention.

[77] Germany, Military Manual (cited in ICRC, Customary International Law, Vol. II, Ch. 1, § 587).

[78] Art. 52(2) AP-I.

[79] See Generally, International Committee of the Red Cross (ICRC), Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law, May 2009 (Hereinafter ICRC DPH Study.)

[80] See Article 51(1), AP-I at Note 62.

[81] See ICRC DHP Study at 79.

[82] Id. at 46.

[83] Id.

[84] Id. 47-49.

[85]  ICRC, Summary Report of the Third Expert Meeting on the Notion of Direct Participation in Hostilities [Hereinafter 2005 DPH Report] at 14.

[86] ICRC, 2005 DPH Report at 22, 31 (“all acts that adversely affect or aim to adversely affect the enemy’s pursuance of its military objective or goal”).

[87] Id.

[88] See ICRC, Fourth Expert Meeting on the Notion of Direct Participation in Hostilities [Hereinafter 2006 DPH Report] at 44; and ICRC, Fifth Expert Meeting on the Notion of Direct Participation in Hostilities [Hereinafter 2008 DPH Report] at 70.

[89] Id. (this view was generally shared during the expert meetings).

[90] ICRC DPH Study at 57.

[91] Id.

[92] Nils Melzer, Keeping  The  Balance  Between military  Necessity  And  Humanity: A  Response  To  Four  Critiques  Of  The  ICRC’s Interpretive  Guidance  On  The  Notion  Of direct  Participation  In  Hostilities, 832 International  Law  And  Politics 42, 869-871 (2010).

[93] See e.g. Art. 51 [5] (a) AP-I; For the customary nature of this rule in international and non-international armed conflict, ICRC, Customary IHL, Vol. I, Rule 14. For the relevant discussion during the expert

meetings, see Second Expert Meeting on the Notion of Direct Participation in Hostilities [Hereinafter 2004 DPH Report] at 6; 2006 DPH Report at 44; 2008 DPH Report at 70; ICRC Guidance (“The very fact that voluntary human shields are in practice considered to pose a legal – rather than a physical – obstacle to military operations demonstrates that they are recognized as protected against direct attack or, in other words, that their conduct does not amount to direct participation in hostilities”).

[94] While there was general agreement during the expert meetings that involuntary human shields could not

be regarded as directly participating in hostilities, the experts were unable to agree on the circumstances in which acting as a voluntary human shield would, or would not, amount to direct participation in hostilities. For an overview of the various positions, see 2004 DPH Report at 6; 2006 DPH Report at 44;

2008 DPH Report at 70.

[95] See e.g. 2004 DPH Report at 7; 2008 DPH Report at 71; ICRC Guidance, (“therefore, incur an increased risk of suffering incidental death or injury during attacks against those objectives”).

[96] See e.g. DPH Project, Summary Meeting Report 44 (2006), available at http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/direct-participation-report_res/$File/2006-03-report-dph-2006-icrc.pdf; DPH Project, Summary Meeting Report 70 (2008), available at http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/direct-participationreport_res/$File/2008-05-report-dph-2008-icrc.pdf. On the issue generally, see Michael N. Schmitt, Human Shields in International Humanitarian Law, 47 Colum. J. Int’l. L. 292 (2009).  For a review of commentary on the subject, see also Rewi Lyall, Voluntary Human Shields, Direct Participation in Hostilities and the International Humanitarian Law Obligations of States, 9 Melb. J. Int’l L. 313 (2008).

[97] Michael Schmitt, The Interpretive Guidance: A Critical Analysis, (2010).

[98] Id. (“From an attacker’s perspective (the military necessity prong), it does not matter why an attack cannot be mounted. Whether the obstacle is physical or legal, any military advantage that might have accrued from the attack is forfeited. Indeed, the legal obstacle is often the more effective one”).

[99] Id.

[100] Id. at 33.

[101] See Greenfield at Note 23.

When Laissez-Faire Is Left To Work – A Critical Analysis Of Article 7(A)

I. INTRODUCTION

Arguably the most important rights contained in the International Covenant on Social Economic and Cultural Rights (“ICSECR”) are those concerning availability, security and conditions of work. One does not need to travel far to see how necessary these rights have become in the modern world of globalized, technology-based, monopolized, finance capitalism. From Bangladesh to Detroit, Shenzhen to Athens, modern economic pressures squeeze working people all over the world and may result in economic insecurity or destitution at best, to death or serious injury at worst. Therefore, perhaps more than ever,  a reproachment with the history of labor rights and its lessons can yield important truths in dealing with modern forms of employment and working condition amelioration because when put into focus and understood correctly, this history can help us advance these rights beyond where they have developed. An efficient way to do so is to review the Committee on Economic and Social Rights (“the Committee”) draft general comment (“DGC”) on Article 7(a) of the ICSECR and how the Committee, as well as those who submitted comments to the draft, understand the form, nature, obligations, and reach of the right to fair remuneration for work.

Part II of this paper provides a brief background on the history of labor laws and rights and why there was a need for them in the first place. It will also review basic principles of the ICSECR including non-discrimination, minimum core obligations and progressive realization of rights. Finally, this section reviews Article 7 and discusses its contents as written in the Covenant. Part III analyzes the content of the DGC and reviews the written submissions of third party NGOs and states that specifically discuss fair remuneration. The limited breadth, depth, and tendency to veer away from the main objective of the right (seemingly to avoid international consternation) represents the decreased influence and power of the labor movement as a challenge to the now universal capitalist mode of production and the powerful interests it produces. Therefore in Part III this paper argues that the scope of understanding and reach of the right to fair remuneration must be greatly expanded, even at the peril of the aforementioned trepidation in the face of powerful forces who wish to continue to limit the effect of not just Article 7(a), but all forms of labor rights. It recommends that the Committee take a firm stance and increase, not limit, the protections by openly confronting free-market, laissez-faire capitalism with labor rights.  Finally, the paper concludes by suggesting that until all those interested in labor rights understand the inherent contradiction between such rights and capitalism, given the sheer power of profit-driven, capitalist forces, ones that can only be confronted by an institution of the UN like the Committee, the prospects for enforceable and ever widening human rights protection on the job will surely fail.

II. BACKGROUND

A.    Positive vs. Negative Rights

Human rights have traditionally been understood to fall within two forms: negative (such as those contained in the ICCPR) and positive rights (such as those contained in the ICESCR). Negative rights, sometimes referred to as first generation rights, are the traditional liberal rights that arise out of the enlightenment and the emergence of capitalism and republican forms of governance in opposition to mercantile and monarchial forms of state and economic organization. Aimed primarily at curbing the historical practice of state intervention in the private lives of citizens, negative rights aim to provide strict restrictions on such state actions and policies. Therefore the rights enshrined in the American Bill of Rights and the French Declaration of the Rights of Man and of the Citizen typify negative rights by enjoining the state from taking actions which are determined to be attacks on personal sovereignty of the individual.[1] These rights take the form of “freedom from” such as freedom from unreasonable restrictions of speech, life, and private property, violent crime, state enforced religion, arbitrary detention (habeas corpus and fair trial rights), and enforced labor (otherwise known as slavery).[2] Underlying these rights is the notion that the state is inherently ill-liberal and therefore must be constrained from interfering in the private lives and affairs of its citizens unless absolutely necessary for its continued existence, as such restrictions are antithetical to human flourishing under a mode of production based primarily on the freedom to contract and free choices in the marketplace.[3]

Conversely, positive rights, or second generation rights, come from a different notion of liberty.[4] Whereas negative rights take the form of “liberty from” some form of government action, positive rights take the form of “liberty to” realize ones full potential free from either government or private actions preventing such, or from state failure to provide a system which grants each person the ability to realize their full potential.[5] The ESCR Covenant outlines several of these rights including the right to food, housing, public education, employment, national security, military, health care, social security, internet access, and a minimum standard of living.[6] The nature of these rights means that the state has dual obligations: to refrain from taking action restricting access to or realization of these rights or, in the alternative, to take all necessary steps to ensure that these rights are open to all.[7] This represents a shift in the teleological notion of the role of the state from a force to be constrained from its inherently tyrannical nature to one that has both the ability and mandate to ensure that it provides the best possible situation for the fulfillment of the basic needs of human life and flourishing.

Positive rights are found in the Universal Declaration of Human Rights (UDHR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR), as well as through other key human rights treaties and regional mechanisms. To date, more than 160 states have ratified the ICESCR, with the notable exception of the United States.[8] Additionally, many states, notably African and Latin American nations, have articulated their commitment to ESCR through national constitutions and domestic law.[9] Under the ICESCR, a state must take steps “to the maximum of its available resources” to progressively realize ESCRs.[10] In particular, a state (including its subnational levels) has the three fold obligations: 1) to respect ESCR (refrain from any violation of ESCR); 2) to protect ESCR (prevent third parties from violating ESCR); and, 3) to fulfill ESCR (take necessary measures to realize ESCR, including through legislative, administrative, budgetary, and other processes).[11] Additionally, states must seek and provide international assistance and cooperation in the realization of ESCRs.

One of, if not the most important, rights contained in the ICESCR are the economic rights regarding employment.[12] The historical and philosophical origins of this right trace back to 19th century France where the rising costs, inequality, and exploitation of French capitalism had reached a boiling point.[13] In response to a financial crisis in 1846, French socialists mobilized for the establishment of minimum labor laws, including a mandated twelve hour day.[14] The ultimate failure of the socialists to seize state power fortunately did not result in the repeal of those labor laws, but instead spurred a new movement for the enactment of similar laws in other capitalist countries.[15] This tangible goal, compared to the loftier goal of state power, would orient and invigorate the socialist movement until one communist party actually seized power in Russia in 1917.

Still, socialists, labor movements, and left-wing groups around the world continued to push for new laws restricting working hours, ending child labor, adding protections for workers on the job and from being arbitrarily dismissed, usually by means of organizing into labor unions to collectively bargain for fair remuneration against the labor exploitation which is a fundamental characteristic of capitalist production.[16] Though given rhetorical weight by the Soviet Union and other Communist nations, which likely led to the adoption of the ICESCR, the USSR was hardly the workers’ paradise it claimed to be moving towards, nor was it a harbinger of effective labor laws as it in many ways operated on the same basic economic principles of other states.[17] Partly to challenge the influence of Communist ideology, as well as the understandable concern that labor rights are antithetical to a market economy based on freedom to contract, the United States has refused to acknowledge that the labor rights contained in the ICESCR are on par with the negative rights contained in its constitution.[18] Though it has much law on the books representing its shared history with other capitalist nations of working class demands for fairness on the job, the United States remains well behind its European, African and Latin American counterparts in this regard.[19]

B.     Non Discrimination Principle

In General Comment Number 20, the Committee reiterates states’ obligation to guarantee ESCRs without discrimination on the basis of grounds specified in the ICESCR, including race, color, sex, language, religion, political or other opinion, national or social origin, property, and birth.[20] Along with these commonly enumerated identifiers, the committee also recognized that discrimination based disability, age, nationality, marital and family status, sexual orientation and gender identity, health status, place of residence, and economic and social situation are similarly prohibited.[21] While the ICESCR is based on the notion of progressive realization of the rights contained therein (to the degree at which a state is able owing to its economic and political power) the elimination of discrimination, along with minimum core obligations for each Article of the covenant, are not subject to progressive realization but are instead immediate obligations.[22]

C.    Progressive Realization of Rights

Progressive realization of rights is a core notion of ESCRs and contained in Article 2 (1) which states that each party to the covenant “undertakes to take steps … to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means….”[23] The reference to “resource availability” reflects a recognition that the realization of these rights can be hampered by a lack of resources and can therefore only hope to be achieved over a period of time.[24] Equally, it means that a State’s compliance with its obligation to take appropriate measures is assessed in the light of the resources—financial and others—available to it.[25] However, a state must do so after first and irrespective of the resources available to it, seek to ensure that everyone has access to a minimum levels of rights and target programs to protect the poor, marginalized, and disadvantaged groups in society as a matter of priority.

D.    Minimum Core Obligations

Understanding that notion of progressive realization is not absolute and that some rights are immediate is crucial to understanding the normative nature of ESCRs.[26] Governments, no matter what level of resources are at their disposal, are obligated to make sure that people living under their jurisdiction enjoy at least essential levels of protection of each of their economic, social, and cultural rights.[27] While the ICESCR recognizes the principle of progressive realization of ESCR, this does not mean that states are free to postpone undertaking their duties vis-à-vis ESCR until a later, undefined, date.[28] Protection from starvation, primary education, emergency healthcare, and basic housing are among the minimum requirements to live a dignified life and it is the duty of governments to ensure these at all times.[29] Even in cases of economic downturn or other emergency, these core requirements must be guaranteed to everyone.[30] States should use all the available resources, including international assistance, to make sure that every individual in their territory enjoys a bare minimum of ESCR.

E.     Just and Favorable Conditions of Work in the ICESCR

The right to fair remuneration is part of the right to just and favorable conditions of work. Article 7 of the Covenant states it succinctly:

“The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favorable conditions of work which ensure, in particular:

(a) Remuneration which provides all workers, as a minimum, with:

(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;[31]

The Committee has attempted to enumerate several aspects of the normative content of the right to enjoyment of just and favorable conditions of work including what constitutes fair remuneration, safe conditions, and application of the principle of non-discrimination, working hours and rest. The Draft of the General Comment on Article 7 also outlines specific and general obligations under the ESCR to fulfill this right.  

In its General Comment 18, the Committee provided detailed guidance to States regarding their obligations to respect, protect and fulfil the right to work.[32] The Committee also noted that the right includes the following interrelated and essential features:

  • Availability. States must ensure the existence of tailored services to help people to identify employment opportunities and find work.
  • Accessibility. Access to work involves three key elements: non-discrimination, physical accessibility, and information accessibility. Discrimination in access to and continuation of employment is prohibited. States must ensure that reasonable accommodation is made so that work places are physically accessible, particularly for persons with physical disabilities. Everyone has the right to seek, obtain and impart information on employment opportunities.
  • Acceptability and quality. The right to work comprises several interrelated components, including the right to choose and accept work freely, just and favorable conditions of work, safe working conditions, and the right to form trade unions.[33]

It is important to note that the right to work and related rights are further enabled and informed by the numerous international standards of the International Labor Organization (ILO).[34]

III.ANALYSIS

A.    Discussion of Draft Comment on Article 7(a)

1. Remuneration defined

Following the ILO convention the DGC defines fair remuneration broadly to encompass more than “the more restricted notion of ‘wage’ or ‘salary’ to include additional direct or indirect allowances in cash or in kind that should be of a fair and reasonable amount paid by the employer to the employee, such as grants, contributions to health insurance, housing and food allowances, and on-site affordable childcare facilities.”[35] Then the comment goes on to discuss what would constitute fair and minimum wages.

2. Defining a Fair Wage

The DGC claims that a definition of a “fair wage” is not simple but is, in general, “not static since it depends on a range of non-exhaustive objective criteria” which is based on an extensive list of factors including the output of the worker, his/her responsibilities, the level of skill and education required for the work, the potential impacts on health and safety, and any specific hardships related to the work and what impact all of these may have on the worker’s personal and family life.[36] While laudable in its intended scope, rather than continue to explain how these factors should be evaluated, the comment quickly diverts to issues of female workers being of central importance to the fair wage calculations, as any arbitrary decrease in women’s wages is an immediate sign of discrimination and unfair wages.[37] However, we have yet to be given a usable definition of fair wages for which to judge if both women and mens’ pay is adequate at the beginning. The comment further goes on to suggest that there must be an objective measure of fairness that is independent of, though highly informed by, discriminatory arbitrary distinctions in pay.[38] To that end, the value of the work is essentially evaluated by means of “comparison of rates of remuneration across organizations, enterprises and professions” as well as between workers.[39] The assumption of labor competition as a means of judging fairness appears to ignore the intent behind the extensive list firstly used and there is an understandable reason for this diversion.

The committee recognizes the conflict that this right has with traditional laissez-faire capitalist principles of non-state intervention in private economic matters. It states that”

“equal remuneration for work of equal value applies across all sectors although States parties have differing responsibilities regarding the public and private sectors. Where the State has direct influence over rates of remuneration, equality should be achieved in the public sector as rapidly as possible ensuring equal remuneration for work of equal value in the civil service at central, provincial or local levels as well as for work under public contract or in enterprises either fully or partially owned by the State.”[40]

Regarding union based contracted wages such wages “should seek equality for work of equal value.”[41] The states obligation regarding the private sphere is limited to the adoption of legislation and other policies with the intent “to promote progressive realization of equal remuneration for work of equal value including in the private sphere…” [Emphasis added][42] However, one of the examples of such legislation again focuses on comparisons of men and women suggesting that states must encourage classification of jobs “without regard to sex; fixing time bound targets to achieve equality and reporting requirements to assess whether targets have been met; and requiring progressive decreases in the differentials between rates of remuneration for men and women for work of equal value.”[43]

However, the DGC does step out of its self-limiting scope when it states it clearly that “remuneration must also provide a ‘decent living’ for workers and their families.”[44] This is, however, immediately qualified when it states, “[f]air wages and equal remuneration are determined by reference to the work performed by an individual worker as well as in comparison to other workers.”[45] Yet the Committee then maintains that the notion of fairness as comparison does not discount some absolute measurements. For instance, to be considered fair “remuneration [must] provide a decent living [and] must be determined by reference to outside factors such as the cost of living and other prevailing economic and social conditions.”[46] This is the first time the DGC creates a list not primarily dependent on gender differences or comparative evaluations, but determines some objective measure of what must be afforded by wages workers receive. So to be “fair,” remuneration must be enough not just in comparison to other workers, but enough to enable the worker (and importantly his or her family) to enjoy other rights in the Covenant, including social security, health care, education, and an adequate standard of living, including access to adequate food, water and sanitation, housing and clothing.

3.     Fair Wages contra Minimum Wages

After attempting to describe fair wages, paragraphs 22-24 of the DGC discuss the role and potential of minimum wages.[47] The Committee first states that a minimum wage can provide the means of ensuring decent remuneration, but also admits it may fall short.[48] To avoid this potential the committee recommends that “states parties should prioritize the adoption of a periodically reviewed minimum wage, indexed to the cost of living, and maintain a mechanism to do this”[49] and that all stakeholders (including workers, employers and their representative organizations) should participate directly in the operation of that review mechanism.[50] This is important to maintain the purchase power of minimum wage laws when encountering periods of inflation. For instance, the US minimum wage was $0.25 when enacted in 1938 and calculating inflation and keeping the purchase power parity of that income in 2015 dollars the wage would be ~$21.72 instead of the current $7.25 level and still higher than the ongoing campaign for a $15 minimum wage.[51] Such an example is why the committee recognized that the minimum wage is often not equal to a fair wage and that only a minimum wage system that is recognized in legislation, fixed with reference to the requirements of a decent living, and applied consistently can be deemed to be sufficiently sound to achieve the rights in Article 7(a). Unless such a minimum wage takes into account, “general level of wages in the country, the cost of living, social security contributions and benefits and relative living standards”[52] it is merely ink on paper. Indeed, “the minimum wage should be above the poverty line”[53] and where it is not, it is not a sufficient system to ensure this important right.

B.     Review of Submissions

1.      AGE Platform Europe Advocates

AGE Platform Europe Advocates is a European network of more than 150 organizations that represents over 40 million older people in Europe directly.[54] Given this position, AGE advocated for adding a life-cycle approach that specifically includes old age and unemployment considerations.[55] To do so they recommended adding to paragraph 20 the following language, “the notion of remuneration that provides all workers with a decent living should take a life-cycle approach, including sufficient statutory or voluntary contributions to social security or private-sector equivalents that cover risks such as sickness, longevity, unemployment and long-term care needs.”[56] Given the community AGEPE represents, the life-cycle approach attempts to reconcile the effect of aging on securing employment and the benefits thereof.

Making it clear that AGE believes that remuneration is the main income of households across the life cycle such an approach insures that remuneration not only provides a decent standard of living at the time of the work contract, but that it should be sufficient to cover inherent risks throughout the life-cycle, such as disease, times for maternity and breastfeeding, and life beyond the age of retirement.[57] It maintains that such an approach is “crucial to ensure the implementation of Article 11 ICESCR on an adequate standard of living throughout the life-course.”[58] AGE understands that such old-age risks are often covered by social security contributions that are linked to wages a robust wage system ensures that workers currently employed are justly compensated, but also that social security systems are also well capitalized.[59] Having such a strong and stable social security system in line with article 11 of the Covenant and the UN Principles on older persons, in particular the principle of ‘independence,’ which according to the Committee’s General Comment No. 6, “includes access to adequate food, water, shelter, clothing and health care. To these basic rights are added the opportunity for remunerated work and access to education and training.” [60]

AGE rightfully points out that in General Comment 19 on the right to social protection the Committee made clear that benefits received as part of social security should be adequate in both amount and duration and accessible to all without discrimination.[61] To ensure this, AGE looks to the ILO and a number of other UN Organizations who have developed a framework for policy design known as the “social protection floor,” anchored in the rights of everyone to social security and such a right necessarily carries with it the right to a standard of living adequate for the health and well-being of themselves and their families.[62] To show an example of a system failing to do so, the US social security system though technically accounting for cost of living adjustments (COLA) provides, on average, $16,000 a year, just $4,300 over the official poverty line, a line that itself has been convincingly critiqued as too low.[63]

2.      Asian Pacific Women, Law, Development

The APWLD understandably criticizes the DGC for discussing a minimum, rather than a living wage. While first noting that “without a fixed minimum wage, workers cannot be guaranteed a decent living” the submission by APWLD criticizes a minimum wage determined by flexible elements “leaves too much scope for wages to be decreased in the context of neo-liberal economic pressures.”[64] APWLD contends that without a clear bottom for wages, workers cannot enjoy economic rights as it “leaves them vulnerable to governments who, for example, consider low wages as a source of competitive advantage in international trade or investment flows.”[65] Like AGE, APWLD criticizes the practice of minimum wages like the US’ as usually “insufficient to support a family, especially with the privatization of social services.”[66] Taking into account how, by ignoring inflationary and other pressures which decrease purchase power parity, minimum wages enshrined in law at specific points, may actually lead to a decrease in the PPP of the wage and therefore should be considered regression from its starting point. Regarding the potential for sanctions on non-state actors for violating this right, APWLD wanted clarification on this process and how it must be enacted and determined to be effective.[67]

Regarding the obligation of states APWLD noted that “while the General Comment acknowledges that retrogression can never be justified in the name of attracting investment, there is a fine line between that and what governments may claim to be ‘necessary’ given the power and mobility of international capital.”[68] This highlights the cleavage between the incentives provided by modern global capitalism in which economic advantages that may come from increased capital flows and investments come largely at the expense of labor protections, but put particular and concerted downward pressure on wages.

3.      Australia

Australia was one of only three states to prepare a written submission for the Committee.[69] In its submission Australia follows the Committee’s lead and focuses primarily on the principle of non-discrimination as it specifically applies to gender divisions in the labor force.[70] Furthermore it suggests that paragraph 12 of the DGC be clarified, by removing references to ‘equality’ and referring specifically to the concept of “equal remuneration for work of equal value” between all workers yet again doing so by highlighting the division between men and women.[71] Interestingly, Australia understands that States Parties may not discriminate against workers on the basis of race, color, sex, language, religion political or other opinion, national or social origin, property, birth or other status, they may however, in certain circumstances, make distinctions on the basis of such grounds without such distinctions so long as they are “aimed at a legitimate purpose, are based on reasonable and objective criteria and are proportionate.”[72] No further discussion is made of what such legitimate purposes or proportionality may be invoked to make such distinctions.

Regarding enforcement of the right for non-state actors, Australia asserts that, “while States Parties’ obligations extend to taking steps to prevent, investigate, punish and redress abuse by third parties through effective regulation, the Covenant does not place obligations on non-state actors” and simply puts obligations only on States Parties to the Covenant.[73] Echoing the submission of the APWDL, Australia suggests that, “the right to work, while including the right to the opportunity to gain a living by work which is freely chosen and accepted, is broader in scope and also includes other aspects, such as the right to vocational education and training.”[74] Though Australia made some important observations, its overall submission appears to be intended to qualify rather than expand the protections enunciated in the DGC. Human Rights Watch took the opposite approach.

4.       Human Rights Watch

Human Rights Watch’s (“HRW”) written submission to the committee attempts to clarify several vague or ambiguous provisions in both the treaty and the DGC.[75] Included in this is the need for additional factors that should be elaborated as critical components of “fair” wages.[76] Noting that “one of the most common complaints of workers across sectors in our labor rights investigations has been the delayed and partial payment of wages.”[77] Therefore, as part of fair remuneration it must be understand and specifically stated that wages should be paid in a regular, timely fashion and in full.[78]

Likewise, HRW suggest that the Committee elaborate on methods to prevent wage theft, including instituting electronic wage payment systems, penalizing employers with proven violations, and raising awareness among workers about their rights, channels for redress, and what safeguards governments can provide against exploitative practices.[79] Indeed, an important component to the “fairness” of wages is there should be no arbitrary deductions and a clearly defined legal basis for any salary cuts due to “mistakes” or disciplinary issues. Citing The ILO’s Committee of Experts interpretation of the ILO Protection of Wages Convention, HRW enunciated three main principles of which states should be mindful on the issue of fairness in wages: “1) deductions of any type need an appropriate legal basis; 2) authorized deductions be limited so received wages are sufficient to ensure a decent living income for workers and their families, and; 3) information on the grounds for wage deductions must be communicated to workers in advance.”[80] Additionally HRW notes that “provision of written contracts with the terms and conditions of employment clearly articulated—in a language the worker can understand— is a good practice for promoting just and favorable conditions of work.” [81]

5.    International Organization of Employers

The International Organization of Employers (“IOE”) represents the best example of the concerns and viewpoints of pro-business groups regarding the obligations and protections of Article 7.[82] In short, the IOE, in contrast to AGE and HRW, is concerned about the reach of the DGC’s guidance. The IOE claims that the DGC, as well as the covenant itself, contains vague or ambiguous language on, inter alia, fair wages and reasonable hours.[83] Fairness, for example, must be considered within the context; a fair wage also has to be based on productivity, the cost of living, the average wage in the sector, the capacity of the employers to pay, the desirability of attaining and maintaining a high level of employment.[84] IEO further contests that the draft confuses “remuneration” and “income” and “shift[s] the responsibility of public institutions on employers.”[85] It further takes issue with the equation between three concepts: fair wage, living wage, and minimum wage. The IEO attacks the notion of fair wage used in the DGC has not been defined by the ILO it lacks “legitimacy and certainty” and therefore should be rejected.[86]

The IEO contests the kind of minimum living wage referred to by the ITUC in its comment is not in line with ILO.[87] The IEO posits that “there is no consensus among ILO Constituents nor a discussion on what exactly constitutes a living wage.”[88] At the end of their critique, the IEO contends that “minimum wage [systems] has been referred as the solution to social problems of inequality (both in the case of income inequality and gender inequality).”[89] The IEO dismisses the focus on minimum wages to address inequality as misguided because minimum wages are designed to assure that specific workers are simply not below a socially acceptable level, but is not a system “to efficiently resolve an entire societal challenge of income inequalities, which have other more complex components.”[90] Those components are left to the reader to deduce.

6.      The International Trade Union Confederation

The International Trade Union Confederation (ITUC) represents the interests of labor unions which are usually considered to represent the interest of the workers who make up said union.[91] However, what becomes clear in the course of the ITUC submission is that rather than the workers themselves, the ITUC is primarily representing the interests of the unions themselves, and the workers take a second seat.[92] The ITUC statements on the minimum wage issue echoes the IEO but from the opposite side. Noting ILO Convention 131 and Recommendation 135 require a system of minimum wages that does not only meet procedural requirements, but also provides a minimum wage at a sufficient level to be considered a living wage, the ICTU states unequivocally that even a living wage “is not sufficient to fulfil Article 7 of the ICESR.”[93] Mirroring the AWLPD, the ITUC also takes issue with the use of “realistic” to refer to the minimum wage rates in paragraph 23 of the DGC as the term could be used to justify downward pressure on what is necessary to constitute a living wage. [94]

Interestingly the ICTU also makes a point that while the articles discuss “informal sectors” of the economy, may be better termed an “informal economy,” and asks the committee to take note that the ILO is in the process of elaborating a recommendation on the informal economy which should be adopted at the 2015 International Labour Conference.[95] It would be important for this Draft to reflect the approach of that Recommendation on each of the issues relevant to Article 7 of the ICESCR and to refer to it directly.[96]

7.    International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF)

The IUF written submission focused first on the importance of the Article 8 freedom of association and that it needs “greater emphasis, as collective bargaining has been the primary vehicle by which, historically, workers have been able to achieve progress towards just and favourable conditions of work.”[97] The IUF is particularly concerned about many governments’ use of austerity programs to undermine attacks on collective bargaining and thereby limiting the enjoyment of favorable conditions of work.[98] It expressed regret that collective bargaining, however, tends to drop out of specific recommendations as the Comment advances. Likewise IUF wishes to see more emphasis given to the “erosion of permanent, direct employment in undermining just and favourable conditions of work.”[99] It applauds the discussion in Paragraph 4 of the DGC on the “increasing complexity of work contracts”[100] as one of the factors resulting in insufficient protection of just and favorable conditions of work, but makes firm that there is nothing particularly complex about what the ILO terms ‘non-standard forms of employment’ including temporary contracts, agency work, and the disguising of an employment relationship as self-employment.[101] The IUF contends that various references to equality and freedom from distinctions of any kind in 7(a) (i) and 7(c) need to fully take into account the global erosion of direct, permanent employment and integrate it into the recommendations.[102] On that issue, the IUF suggested adding to the list of discriminatory characteristics (race, ethnicity, nationality, migrant, or health status) that may be used to disallow labor security specifically the nature of the employment relationship (or contractual status).[103]

C.    The View of the Committee and most Commentators Suggests this Right is Primarily a Version of Non-Discrimination in Article 2(2) Applied to the Field of Employment.

The DGC does a great deal to further elaborate the right to work and define fair remuneration. While it understandably attempts to navigate a politically sensitive issue, the end result is that the teeth in the DGC comes in the form of recommendations to combat discrimination, particularly against women. Needless to say this is understandable given the state of women and discrimination in the workplace around the world. However, as the DGC repeatedly refers, the principle of non-discrimination pervades the ICESCR and has been roundly accepted by previous General Comments. Therefore, the rather continuous repetition of the principle of non-discrimination contained in the DGC serves to siphon attention from the real crux of the principles that make up the right to enjoy favorable conditions including (and most importantly) fair remuneration. Indeed, under the Article 7(a) explanatory section of the DGC there are nineteen paragraphs, seven of which specifically mention or operatively mention non-discrimination principles. Granted, the principle of non-discrimination is crucial when discussing fair wages between the sexes, but having been discussed and established by General Comment 20, the notion demands but a reference to those obligations to avoid distracting from the larger, more universal goals to which the right is said to aspire.

After the DGC attempts, but ultimately fails, to provide a usable definition of a fair wage, it again diverts the attention of the reader to by suggesting that “[a]ny assessment of fairness should also take into account the position of women workers, particularly where their work and pay has traditionally been undervalued.”[104] While there is no doubt that traditional female occupations are usually undervalued, using a comparison of men to women only helps drive down the wage that may be considered fair. Instead if the DGC had made the assertion that any discrimination used to create an arbitrary distinction between workers’ pay violates the right to fair remuneration it wouldn’t need to use the comparative notion of fairness. This would serve to rise all boats rather than lower the sea to meet in the middle.

In the specific obligations section, the first obligation listed deals primarily (perhaps only) with state enterprises creating discriminatory pay scales for women workers, or that maintain a promotion system in the public sector “that favors, directly or indirectly, the over-represented gender at higher levels.”[105] Again rather than create a unified pay scale, despite the trait in question as determined by General Comment Number 3, the attention is diverted from workers in general to the division between men and women. While not suggesting that there does not exists pay scales between these groups, it is not the only one of its kind. Therefore eliminating all forms of discrimination, rather and focusing on one form, serves the whole working class community, rather than highlighting only one method of doing so which is already outlined in previous General Comments and serves only to distract from the force by which an objective measure could provide to all workers regardless of their immutable qualities.

D.    The Commentaries and Written Submissions Do Not Sufficiently Incorporate Worker Organizations and Workers Perspectives Partially Because None Exist.

Only two of the over twenty written submissions to the Committee were from international labor unions or organizations who ostensibly represent the workers of the world whom this right directly effects. Though the contribution of both groups is important and provide the best suggestions available for workers, there is a serious lack of worker representation in both the Committee and the suggestions. There are understandable reasons for this absence, namely that since the end of the Cold War and the decrease of (at minimum) the propaganda of “Communist” states, the power, prestige, and influence of workers, or the working class generally, has decreased. Continued campaigns by employers and states to limit the growth of labor unions has led to an ultimate decline in worker pay, while productivity continues to rise, making inequality even deeper and further limiting workers ability to organize.

The written submission of both the UIF and ITUC represent the most worker proactive submissions as they do not attempt to bridge gaps as does Australia (owing to its need to balance worker/employer interests) or outright call into question several basic notions such as the IOE. Yet still, there remains no organization who represents the interest of all workers, whether unionized or not. Though not perfect, the Marxism promoted primarily by the Soviet Union and China provided an ideology that mandated other international actors to do all they can to promote, establish, and enforce worker’s rights. In many respects that notion, in the value of human labor and the laborer, underpins the entire ICESCR and gives it its normative background. The absence of a movement generated by that same ideology has meant that the burden has been left to international organizations that, though perhaps not motivated by Marxist philosophy, are still seeking to continue the work of labor rights establishment and enforcement in the post-Soviet era.

The absence of the loudest (though most hypocritical) member of the international community on worker’s rights (the USSR) and the comparative lack of power, influence, and gusto of the UIF and ICTU has the cumulative effect of limiting the push that workers could give to the Committee to determine (while maintaining understandable notions of non-discrimination) the largest possible scope for the right to favorable conditions of work by establishing objective measurements. An organization that came into force at the turn of the 20th century gives some background on what such an organization that could provide to this efforts. That organization is the International Workers of the World, also known as the Wobblies.[106] The IWW was intended to be a massive, worldwide, non-trade-specific, labor union which individual workers could join and therefore be represented by the large union in negotiations with employers.[107] The idea of “One Big Union” was itself motivated by the Marxist ideology, but rather than focusing on state mechanisms for worker control of their work lives, it would instead represent workers in negotiations, strikes, and other collective actions. At its peak the IWW contained 150,000 Wobblies, but had the wind taken out of its sails but the Russian revolution in 1917, the subsequent red scare in the United States, and then conflict both within its ranks and with the American Federation of Labor regarding labor unionist tactics.[108]

It is the absence of an organization like the IWW that undercuts the full breadth of the protections that could be found in Article 7(a). The committee’s draft articles and much of the written response is simply conservative in approach, diverting in nature, and is, unfortunately, not as robust as it could be. Since the economic rights in the ESCR are arguably the most important of the entire covenant (without which most other rights would impossible to attain) it is left to the committee to make up this disparity in power and influence between workers and employers.

E.     The Critique of Vague or Ambiguous Language Regarding “Fair” and “Minimum” Wages As a Key Component of Remuneration.

The need for the Wobblies is no more apparent than in the language used when discussing “fair” and “minimum” wages in the DGC and submissions. For instance, under the fair wages section of the DGC, a fair wage is determined by a “non-exhaustive objective criteria” which includes the straightforward, “output of the work” but then adds such esoteric notions as the “responsibilities of the worker, the level of skill and education required to perform the work, the impact of the work on health and safety of the worker, specific hardships related to the work and impact on the worker’s personal and family life.”[109] The DGC then goes on to make clear how important providing pay is during periods of difficulty (including bankruptcy), but remains silent on any kind of further elaboration of what constitutes a fair wage until the last sentence of the single paragraph regarding the normative content of fair wage as defined in the covenant.[110]  The claim that the minimum wage might represent a fair wage for some workers; but for a majority of workers, fair wages are above the minimum wage is a rather conclusory statement, yet no more is provided by means of justifying what exactly would be a fair wage, and why should there be a difference in the minimum wage and a fair wage. Failing to do so takes all the bite out of the recommendations contained in the DGC.

F.     The Inherent Conflict between Capitalism and Fair Wages.

The final blow to the effectiveness of the DGC and committee’s position on the nature and obligations that flow from Article 7(a) comes in the “Obligations” section. After reiterating the core obligations of every state regarding each right contained in the Covenant[111] the DGC mentions the role of non-state actors (meaning private employers (the majority) and worker organizations) and the role of the state in creating favorable conditions for such organizations.[112] However, as evidenced by a relatively constant struggle between employers and trade unions, creating a situation favorable to one of these groups usually comes at the expense of the other. No guidance is given regarding how to effectively support both without tipping the scales to one or the other.

Indeed, rather than make a clear cut stance against regressive economic measures, the DGC actually anticipates such measures and give a green light to them so long as the state gives “careful consideration and justification.”[113] This is a particularly weak standard given that all that is needed is a plausible assurance that the measures are “temporary, necessary, non-discriminatory and that they respect at least the core obligations.”[114] However, as the example of Greece provides, regressive measures instituted during periods of economic crises tend to exacerbate the crisis, thereby inevitably infringing on the assurance that, at minimum, the regressive measures were temporary and instead may be all but permanent. That inevitably calls into question when, if ever, a regressive measure in times of economic crisis could be deemed “necessary.”  Greece also gives the example of the potential dangers of the obligation to “seek international cooperation and assistance.” This assistance largely comes in the form of central bank or international banking organizations. These organizations have had a history of creating favorable conditions for some at the expense of others.[115] The DGC fails to provide guidance on when fulfilling the obligation to seek assistance may conflict with the obligation to justify regressive measures while still not running afoul of the general obligation to create favorable conditions.

In the specific obligations the DGC comment does effectively state the different ways that states can enforce and implement this right. It provides that the states are obligated to ensure private enterprises comply with the right through a number of enforcement measures, including a national minimum wage. The obligations of non-state actors including “[b]usiness enterprises, irrespective of size, sector, ownership and structure”[116] are to comply with the laws and avoid infringing on the right. The DGC is again acknowledging the inherent disparity between favorable conditions of work and the tendency of business enterprises to violate these obligations. Though it demands the state enforces the obligation, it implies that the most likely perpetrator of violations of this right are private business enterprises. This is an unfortunate economic fact in a capitalist mode of production.

IV. RECOMMENDATIONS

The conflict between capitalism and fair wages demands a resolution of the weight of the labor rights contained in the ICESCR. Unfortunately, given the inevitable and unending conflict between capitalism and workers’ rights, a decision favoring one side must simply be taken. These options are 1) to capitulate on the normative content behind the rights or 2) to advocate that state curtail or minimize the free working of laissez-faire capitalism if not moving towards its abolition. Though difficult, these options are the only way for the Committee to make recommendations that can be effective at fulfilling them, or limit them to allow for the functioning of capitalist production and distribution. It appears from the DGC that the Committee has chosen option number one.

If the Committee took the second option, it would be moving in the direction of creating the conditions for states to be sufficiently able to fully realize the right. Failing to do so will consistently leave the entire working class behind. Granted the ICESCR only provides obligations to states and is very limited, if not inapplicable to, even the largest multi-national private enterprise who may yield power akin to government, states remain the sole entities that can adjust their internal legal structures to reign in the excess of these non-state actors. If states, normally under great influence be these enterprises, are unwilling to take concerted action, the labor rights in the ICESCR will simply never be able to compete with the power of the most successful capitalist enterprises.

The concerns of those organizations so clearly represented by the IOE are simply invalid and must be rejected as overly technical and not rooted in either fact or law. Employers have the tendency to find such loopholes when faced with failure to support their workers and have the resources to allocate to legal and political professionals who can seek out, or indeed create, such loopholes and making cracks in the pavement where no such crack would appear without such activity. State action to curb these activities if not remove them from list of possibilities for non-state actors, while understandably difficult, is the only way to ensure that labor rights are actually protected and strengthened.

V.CONCLUSION

In its Draft General Comment on Article 7(a) the ESCR Committee represents just how difficult the enforcement of labor rights is under current conditions of international law, politics and economics. In both the comment, and submissions themselves, the void of an organization or ideology that has working people or the working class as the center as opposed to accepting a more or less laissez-faire capitalism is rather apparent. The timidity at which the DGC approaches fair remuneration represents is apprehension to make any claims or recommendations that may upset the current status quo, even if, as the DGC does, there is an obvious conflict between the capitalist mode of production and worker’s rights. Therefore, the Committee has accepted that the brunt of rights regarding work, particularly fair wages and pay, simply must take a back seat to a necessary challenge to the system writ large. Doing so takes away from the Committee’s great work on the ESCRs in the past, because it shows it impotence when it is forced to confront an inherent contradiction of the current historical epoch and capitulates on the right thereby favoring capitalist power over worker’s rights.

[1] U.S. Const. amend. 1-10; France: Declaration of the Right of Man and the Citizen, August 26, 1789.

[2] Id.

[3] See generally Jean-Jacques Rousseau, The Social Contract 59 (1762) (“First, when the prince ceases to administer the State in accordance with the laws, and usurps the Sovereign power. A remarkable change then occurs: not the government, but the State, undergoes contraction; I mean that the great State is dissolved, and another is formed within it, composed solely of the members of the government, which becomes for the rest of the people merely master and tyrant. So that the moment the government usurps the Sovereignty, the social compact is broken, and all private citizens recover by right their natural liberty, and are forced, but not bound, to obey”).

[4] UN Chronicle, International Human Rights Law: A Short History, 2009, available at: http://unchronicle.un.org/article/international-human-rights-law-short-history/

[5] Id. (“The traditional categorization of three generations of human rights, used in both national and international human rights discourse, traces the chronological evolution of human rights as an echo to the cry of the French revolution: Liberté (freedoms, “civil and political” or “first generation” rights), Egalité (equality, “socio-economic” or “second generation” rights), and Fraternité (solidarity, “collective” or “third generation” rights). In the eighteenth and nineteenth centuries, the struggle for rights focused on the liberation from authoritarian oppression and the corresponding rights of free speech, association and religion and the right to vote. With the changed view of the State role in an industrializing world, and against the background of growing inequalities, the importance of socio-economic rights became more clearly articulated.”)

[6] UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3 (hereinafter ICESCR).

[7] Id.

[8] See ICESCR Signatories available at: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en

[9] See Constitution of the Republic of South Africa,  10 December 1996, available at: http://www.refworld.org/docid/3ae6b5de4.html [accessed 29 April 2016]

[10] See UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant), 14 December 1990, E/1991/23.

[11] Id.

[12] Art. 6-7, ICESCR.

[13] See Stéphane Sirot, Michel Cordillot, René Lemarquis & Claude Pennetier, Chronology of the French Workers’ Movement, available at: https://www.marxists.org/history/france/1839-1850.htm.

[14] Id.

[15] See Howard Zinn, A People’s History of the United States, Chapter 13, (1980).

[16] Horace L. Fairlamb, Adam Smith’s Other Hand: A Capitalist Theory of Exploitation, 22 Social Theory and Practice 2 193-223 (1996) (outlining the agreement of classical economists, including Adam Smith and David Riccardo as well as Karl Marx, all agreed on the basic principle of profit by means of labor exploitation in capitalist production).

[17] Katerina P. Lewinbuk, Russia’s Labor Pains: The Slow Creation of a Culture of Enforcement, 32 Fordham International Law Journal 3 (2008).

[18] See generally, Daniel J. Whelan, The United States and economic and social rights: past, present…and future?, Presented at the 2005 International Studies Association Convention (2005).

[19] Id.

[20] Committee On Economic, Social And Cultural Rights, General comment No. 20: Non-discrimination in economic, social and cultural rights (art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights), E/C.12/GC/20 (2009).

[21] Id.

[22] Id.

[23] ICESCR.

[24] See General Comment No. 3 at Note 10.

[25] Id.

[26] See generally, Katharine G. Young, The Minimum Core of Economic and Social Rights: A Concept in Search of Content, 33 The Yale Journal Of International Law 113 (2008).

[27] See General Comment No. 3 at Note 10.

[28] Id.

[29] Id.

[30] Id.

[31] ICESCR.

[32] UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 18: The Right to Work (Art. 6 of the Covenant), 6 February 2006, E/C.12/GC/18.

[33]

[34] See ILO, Rules of the Game: a brief introduction to International Labour Standards (Revised edition 2014), November 6, 2014.

[35] DGC at ¶ 8.

[36] DGC at ¶ 11

[37] DGC at ¶ 12-19.

[38] DGC at ¶ 12.

[39] DGC at ¶ 13.

[40] DGC at ¶15.

[41] DGC at ¶16.

[42] Id.

[43] Id.

[44] DGC at ¶20.

[45] DGC at ¶20.

[46] Id.

[47] DGC at ¶22-24.

[48] Id.

[49] Id. At ¶22.

[50] Id.

[51] Caroline Fairchild, Minimum Wage Would Be $21.72 If It Kept Pace With Increases In Productivity: Study, Huffington Post,  Feb. 13 2013, http://www.huffingtonpost.com/2013/02/13/minimum-wage-productivity_n_2680639.html

[52] DGC at ¶23.

[53] Id. at ¶ 24.

[54] About AGE, Age-Platform.eu, available at: http://www.age-platform.eu/about-age

[55] Written Submissions on the Draft General Comment on Article 7, AGE Platform Europe, http://www.ohchr.org/Documents/HRBodies/CESCR/Discussions/2015/AGEPlatformEurope.pdf (AGE submission).

[56] See Id. at 1.

[57] (AGE submission).

[58] Id. at 2.

[59] Id.

[60] UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 6: The Economic, Social and Cultural Rights of Older Persons, 8 December 1995, E/1996/22.

[61] UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 19: The right to social security (Art. 9 of the Covenant), 4 February 2008, E/C.12/GC/19.

[62] AGE Submission.

[63] John Light, Why is the Federal Poverty Line So Far Off?, Moyers and Company, September 18, 2013, http://billmoyers.com/2013/09/18/why-is-the-federal-poverty-line-so-low/

[64] Written Submissions, Asia Pacific Forums on Women, Law and Development, available at:http://www.ohchr.org/Documents/HRBodies/CESCR/Discussions/2015/APWLD.docx (APWLD Submission); see also UN Women Report of the Expert Group Meeting on Structural and Policy Constraints in Achieving the MDGs for Women and Girls, p 17 http://www.unwomen.org/~/media/headquarters/attachments/sections/csw/58/csw58-2013-egm-report-en.pdf.

[65] APWLD Submission at Id.

[66] APWLD Submission.

[67] Id.

[68] Id.

[69] Written Submissions, Australia, available at:http://www.ohchr.org/Documents/HRBodies/CESCR/Discussions/2015/Australia.docx (Hereinafter “Australia Submission”).

[70] Id.

[71] Australia Submission.

[72] Id.

[73] Id.

[74] Id.

[75] Written Submissions, Human Rights Watch, available at:http://www.ohchr.org/Documents/HRBodies/CESCR/Discussions/2015/HRW.pdf (Hereinafter “HRW Submission”).

[76] Id.

[77] Id.

[78] Id.

[79] Id.

[80] HRW Submission.

[81] Id. (citing ILO Convention No. 189 concerning Decent Work for Domestic Workers, article 7 “This includes information on the amount and type of remuneration, including the frequency and mode of payment and the parameters for any legally permissible salary deductions. When workers cannot read, governments should take measures to ensure workers are informed of their terms and conditions of employment in an appropriate, verifiable and easily understandable manner.”

[82] Written Submissions, International Organization of Employers (IOE), available at:http://www.ohchr.org/Documents/HRBodies/CESCR/Discussions/2015/IOESpecificComments.pdf (hereinafter IOE submission).

[83] Id. (“The terms of the Covenant such as “just and fair”, “fair wage”, “reasonable hours”, remain ambiguous in this draft. These concepts contain important subjective components which tend to confuse rather than provide more clarity. Given that the draft seeks to be practical in recommending ways in which “just and fair” working conditions can be achieved, it is important to refer to existing minimum wages or existing working time regulations and to provide better clarity on these concepts with a realistic and pragmatic approach”).

[84] ILO, Convention concerning Minimum Wage Fixing, with Special Reference to Developing Countries, Geneva, 54th ILC session, 22 June 22, 1970.

[85] IEO Submission.

[86] Id. (“is based on a Committee of Experts General Survey on “Minimum Wage Systems” (2014), which in itself, quotes from another study by Vaughan-Whitehead (2010; Paragraph 58). None of these studies have been discussed in the only tripartite agency of the United Nations, the International Labour Organisation, which would have provided them with the necessary legitimacy and certainty”

[87] ILO, Convention 131.

[88] IEO Submission at ¶ 25.

[89] Id..

[90] Id.

[91] See ITUC, “About Us,” http://www.ituc-csi.org/about-us.

[92] Written Submissions, International Trade Union Confederation, available at:http://www.ohchr.org/Documents/HRBodies/CESCR/Discussions/2015/ITUC.doc (hereinafter “ITUC Submission”)

[93] Id.

[94] Id.(“Indeed, governments around the world often invoke “realism” to tamp down minimum wage demands, even when evidence demonstrates that current wage rates do not provide workers an income above the poverty line. Instead, reference should be made to an appropriate wage, being one which is set in reference to ILO conventions and recommendations”).

[95] See ILO, Recommendation No. 204 concerning the Transition from the Informal to the Formal Economy, June 12, 2015, http://www.ilo.org/ilc/ILCSessions/104/texts-adopted/WCMS_377774/lang–en/index.htm (containing a number of recommendations to escape the informal economy).

[96] ILO, Recommendation No. 204 concerning the Transition from the Informal to the Formal Economy, Text of the Recommendation adopted by the Conference at its 104th Session in Geneva, June 12, 2015 available at: http://www.ilo.org/wcmsp5/groups/public/—ed_norm/—relconf/documents/meetingdocument/wcms_377774.pdf (stating that the term “informal economy” refers to (a) refers to all economic activities by workers and economic units that are – in law or in practice – not covered or insufficiently covered by formal arrangements; and (b) does not cover illicit activities, in particular the provision of services or the production, sale, possession or use of goods forbidden by law, including the illicit production and trafficking of drugs, the illicit manufacturing of and trafficking in firearms, trafficking in persons, and money laundering, as defined in the relevant international treaties.

[97] Written Submissions, International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF), available at:http://www.ohchr.org/Documents/HRBodies/CESCR/Discussions/2015/IUF.pdf (hereinafter IUF submission).

[98] Id.

[99] Id.

[100] Id.

[101] (Stating that “for the past several decades at least, employers, with the encouragement or acquiescence of governments, have been substituting indirect, non-permanent contractual arrangements for direct permanent employment, and this has been an important contributing factor to the undermining of the rights set out in the Covenant. The ILO, in its World Employment and Social Outlook published in 2015, links this transformation in employment relations to the rising incidence of global poverty, insecurity, exclusion and inequality. The enormous rise in precarious work bears directly on the rights discussed in the Draft General Comment and deserves greater emphasis in the recommendations to States.)

[102] IUF Submission.

[103] “Since inequality of treatment is, as the ILO report again points out, increasingly the norm, we feel that de facto inequality of treatment based on contractual grounds must be brought into the observations and recommendations on remuneration, job evaluation (paragraph 14 currently emphasizes gender discrimination only), workplace safety (precarious workers have been documented to suffer from higher rates of death and injury and unequal access to training) and equal opportunity for promotion.”

[104] DGC at ¶11.

[105] Id. at ¶57.

[106] See Zinn at Note 15.

[107] Id.

[108] Staughton Lynd, Wobblies Past and Present, Jacobin, December 2014.

[109] GDC.

[110] (“The minimum wage might represent a fair wage for some workers; however, for the clear majority of workers, fair wages are above the minimum wage”).

[111] CESCR General Comment No.3 (“must comply with their core obligations and take deliberate, concrete and targeted steps towards the progressive realization of the right to just and favourable conditions of work;” and “must move as expeditiously and effectively as possible towards the full implementation of the right with a level of flexibility to choose the appropriate means”)

[112] GDC at __.

[113] GDC.

[114] Id.

[115] French and German banks over Greece.

[116] Guiding Principles on Business and Human Rights, principle 14.

Bridging the Gap: Israel, Palestine and the International Criminal Court

TABLE OF CONTENTS

EXECUTIVE SUMMARY

INTRODUCTION

I. BACKGROUND

A) The Question of Palestinian Statehood (1947-Present)

B) Israeli Opposition, Acceptance and Recognition in 1993

C) Palestine’s Change of Status from “Observer” to “Non-Member State” by the United Nations General Assembly

III.ANALYSIS.

A) The Principles and the Mandates for the ICC

B) ICC and Palestine

C) Israeli Opposition to the ICC

D) Overlapping Interests

IV. RECOMMENDATIONS

A) Israel Should Not Fight the ICC Investigation

B) Palestine Cannot Try Individuals So They Need the ICC

V. CONCLUSION

 

 

EXECUTIVE SUMMARY

In January of 2015 the Prosecutor of the International Criminal Court opened a preliminary investigation into the situation in Israel and Palestine to determine if it may have jurisdiction to prosecute individuals on both sides of the Israeli-Palestinian conflict. Palestine’s diplomatic moves to receive ICC acceptance have changed the relationship between the parties and forced each side to evaluate this move and consider the consequences. Ultimately, despite some legitimate Israeli concerns, the ICC provides a useful mechanism for advancing the two countries closer to a situation where there can be the two elements necessary for peace, security and normalization: an end to impunity, and institution-building.

History:

On 22 January 2009, Ali Khashan acting as Minister of Justice of the Government of Palestine lodged a declaration pursuant to article 12(3) of the Rome Statute that accepted the exercise of jurisdiction by the ICC for “acts committed on the territory of Palestine since 1 July 2002.” Under Article 15 of the Rome Statute, the Office of the Prosecutor began a preliminary examination to determine if there is “a reasonable basis” to proceed with an investigation. The first step was to determine whether Palestine met the preconditions to the exercise of jurisdiction under article 12 of the Rome Statute, namely whether Palestine constituted a state. The OTP determined that “in instances where it is controversial or unclear whether an applicant constitutes a ‘State’, it is the practice of the Secretary‐General to follow or seek the General Assembly’s directives on the matter.” While the UN Charter contemplates full member status via the UN Security Council the ultimate competence for determining the term “State” within the meaning of article 12 rests, in the first instance, with the United Nations Secretary General who, in case of doubt, will defer to the guidance of General Assembly.

While the OTP acknowledged that Palestine had been recognized as a State in bilateral relations by more than 130 governments and by certain international organizations, including United Nations bodies, the status granted to Palestine by the United Nations General Assembly was that of “observer”, not a “non‐member State”. This was determinative for the purposes of article 12 and the OTP determined Palestine was not a State given its status at the UN.

In 2015, after the UN Security Council, facing a U.S. veto, was unable to resolve the matter of submitting Palestine to the GA for consideration of full member status, Palestine end-routed the UNSC by going directly to the General Assembly and asking for a change in status from, as the OTP indicated was determinative, “observer” to a “non‐member State.” With that change in status, Palestine again attempted to accede. The document was accepted by the UNSG and Palestine became the most recent state party to the Rome Statutes.

Analysis:

While a legalistic argument can be made that the OTP made an incorrect decision given the failure of Palestine to meet the conditions of the Montevideo Convention, Palestine contends that its inability to do so is based on (arguably illegal) Israeli action. Regardless, the determinative element not met by Palestine in 2009 was but one component of the Montevideo Convention: recognition. Having that status changed, the OTP has the discretion of determining if the conditions for statehood have been met under the Rome Statutes. This has been confirmed by the Court and therefore the discussions on Palestinian statehood, minimally as they relate to the ICC, are moot.

What is left to discover is how the move by Palestine serves the interests of both states. Since the OTP accepted Palestine and began an investigation, Israel has begun a media and political campaign within Israel against the Court. It has limited its work with the Court, doing so only to continue to mount its defense against the original acceptance of Palestine by the Court. However, beyond what may be over-reactions due to sensitivity over the potential consequences of such an investigation, legitimate or not, the move by Palestine actually serves the interest of Israel and Palestine alike for two main reasons: 1) each state has international obligations under human rights and other international conventions with which neither state is able or willing to comply and; 2) that the ICC, through its principle of complementarity, would only be able to hear cases that either party was unwilling or unable to prosecute thereby forcing each state to build or strengthen its local institutions to again regain a society based on rule of law, rather than rule by it.

The entrance of the ICC into the fray does not, contrary to Israeli and American objections, hinder the peace process, it actually reinforces it. First, it provides an additional argument for Palestine to assert itself as a recognized state, with the rights and obligations that go with such a determination. It allows for Palestine to meet Israel as an equal and gives it additional international support for its continued diplomatic efforts with Israel. The ICC also reinforces the peace process by establishing an independent mechanism to adjudicate cases which have thus far spurred the impunity with which decisions are made and prohibit justice for such crimes to ever be achieved by either side. This impunity infects the situation and paralyzes it. The ICC mandate of fighting impunity is the exact prescription for this disease and provides the best means of ending the system of impunity.

Furthermore, the ICC’s principle of complementarity should ease the minds of Israeli officials concerned with impositions on sovereignty. The complementarity principle rests on the notion that it is states who have the first obligation to prosecute alleged criminals, and only when that is unavailable, will the Court intercede. Article 17 states that as a prerequisite for jurisdiction over a case, the ICC must determine that a state is either unwilling or unable to prosecute alleged perpetrators. This foresees two situations which are both represented in the Israeli/Palestinian context. First, Palestine’s judicial system is not capable of prosecuting its alleged criminals as the state institutions are weak, and much of the Palestinian Authority’s efforts are expended to mitigate the damage. In addition, they work in an extremely hostile environment to be able to establish even basic institutions. Israel, on the other hand, as the more powerful party, has a strong legal system in place, but it has shown that it is unwilling to prosecute alleged perpetrators. This may be a result of its lack of codification of the rules of war into its civilian and military legal system, lack of internationally legitimate prosecutions of alleged perpetrators, the often reduced sentences received by those who are convicted, and/or the total lack of will of prosecuting high level officials because of a dearth of judicial will or illegitimate legal protections within Israel.

Ultimately both sides have serious issues that the ICC can step in to correct and can, through its Trust Fund of Victims, provide additional assistance to help both sides establish or strengthen their legal institutions. This would go a long way to ending impunity by reinvigorating the rule of law, but also to ensure that each state (now that both are considered such) fulfill its international obligations under human rights and international humanitarian law to prosecute or extradite offenders of international law.

Recommendations

Obviously Palestine has accepted that it may be subject itself, as it wishes to subject Israel, to investigations and prosecutions by the ICC. This overture is a recognition of its obligations as a member of the international community of nations, but also that its institutions are not sufficient to achieve these goals. Palestine ought to recognize, as it appears is the case that the international community can provide it with necessary support. Israel too has obligations that it has agreed to be subject to but also preserves a desire to retain the rights of a sovereign nation that must be protected. However, since it appears to be using the latter to avoid the former, allowing an independent institution to assist it in finding the right balance between these competing goals is in Israel’s interest if it wishes to step out of the spotlight put on the area by the continuing conflict and end what it sees as an international campaign against it. As someone who suggests they have been slandered, the only means by proving such, is to establish the falsity of the claims, and Israel can do so at the ICC. All in all, for both parties, the ICC provides the most direct, sufficient and continuing means for both states to begin a new process of peace by law, rather than war.

I.INTRODUCTION

On January 22, 2009 the Minister of Justice of the Palestinian National Authority (“PNA”) Dr. Ali Khashan visited the ICC and met with then-prosecutor Luis Moreno-Ocampo. In addition to the meeting Dr. Khashan also lodged a declaration pursuant to Article 12(3) of the Rome Statutes with the Registrar of the Court[1] accepting jurisdiction back to 2002 when the ICC temporal jurisdiction began and the statutes came into force.[2] Prior to that meeting, the Office of the Prosecutor (“OTP”) received 213 Article 15 communications regarding the situation in Israel-Palestine.[3] The prosecutor promised that it would examine the issue of whether said declaration would meet the statutory requirements of jurisdiction.[4] This action began a new chapter in the sorted history between Palestine and Israel. Ultimately, the ICC accepted Palestine as a State Party to the Rome Statutes in 2013 and the new prosecutor, Fatou Bensouda, opened a preliminary examination.[5] This action by Palestine raises legal questions surrounding the Court’s analysis of the sufficiency of Palestinian statehood (a precondition for signature and accession to international treaties) claims, the divergent interest of Palestine and Israel regarding the legality of their actions during conflicts, the legitimacy of the court, and ultimately the wisdom of such a move in such a volatile situation.

Part II of this paper reviews the relevant background behind the engagement of the Palestinian authorities with the ICC, beginning with the declaration deposited by Dr. Khashan. It also reviews Israeli opposition to the court in general, and specifically its objections to the acts of Palestine in accession to the Rome Statutes. Finally, with those divergent views in mind, the section concludes with an appraisal of the decision by Prosecutor Bensouda to ultimately admit the state of Palestine as a State Party to the Rome Statutes. Part III analyzes the position of Palestine and Israel regarding the court, discusses the interests of each in relation to it, and also whether or not those positions are legally and/or politically justifiable. Part IV recommends that Palestinian accession to the ICC, given its statutory system and the notion of complementarity, actually serves the genuine interests of each party, specifically the need to end impunity of those alleged to have committed crimes under the Statute by mandating prosecutions of alleged criminals on both sides. Furthermore, it helps facilitate future dialogue between the parties by helping to add to the growing number of international bodies who have legally determined that Palestine is a state which sets the relationship between parties on a new international footing for future negotiations and therefore should not be opposed by either side. This paper concludes that the ICC is a proper venue for the situation in Israel/Palestine because of its complex nature and long duration, working with the Court serves the interests of each side by ending impunity and facilitating prosecutions at the domestic level, and should therefore not be opposed by either side and may in fact lead to a new footing for international negotiations.

II.BACKGROUND

A.    The Question of Palestinian Statehood (1947-Present)

United Nation Security Council (“UNSC”) Resolution 242, also known as the “Land for Peace” deal called for the creation of two states in the former British Palestinian Mandate which had been split in to by the 1947 declaration of the state of Israel and subsequent wars in 1949 and 1967.[6] The Palestinian Liberation Order was granted the precedent, rather than charter, based “observer status” in 1974.[7] As an observer, the PLO was invited to participate in General Assembly sessions and conferences of other UN bodies.[8] In 1988, the designation of “Palestine” officially replaced the “Palestinian Liberation Order” within the UN system.[9] In 1998, the General Assembly extended Palestine privileges that had previously been exclusive to member states, including the right to participate in the general debate at the beginning of each General Assembly, and the right to cosponsor resolutions.[10] According to the UN, the decision “upgraded Palestine’s representation at the UN to a unique and unprecedented level, somewhere in between the other observers, on the one hand, and Member States on the other.”[11]

Since 1967 areas of Palestine have been occupied, controlled or administered by Israeli military and civilian leadership.[12] Though Israel received nearly instant recognition by several powerful states and the U.N., Palestine has not been so lucky to have such robust support for its own status.[13] Surely, the creation of an independent Palestine is rhetorically supported internationally, and according to polling data, even enjoys significant support among the Israeli population. Still, Palestine failed to achieve full UN membership in 2011. Instead, Palestinian Authority (PA) President Mahmoud Abbas was able to secure formal recognition in the form of a “non-member state” at the General Assembly on November 29, 2012.[14] Only Palestine and the Vatican currently hold this status.

In September 2011, Abbas gave a speech in which he claimed that given the lack of progress in peace talks and continued settlement building in the West Bank and East Jerusalem, achieving international statehood recognition would bolster the Palestinian position, make it a member of the international community alongside Israel and provide a path forward on a level playing field.  The compromise in concession to non-member status came after Palestine attempted to gain support for a vote in the UNSC referring to the General Assembly (“GA”) a vote on full Palestinian membership into the U.N. but failed to get the necessary support on a resolution to do so. Instead United Nations General Assembly Resolution 67/19, inter alia, granted Palestine non-member status.[15]   Since then Palestine has acceded to at least fifteen multi-lateral treaties only open to states[16] including the Rome Statutes of the International Criminal Court (“ICC”).

B.     Israeli Opposition, Acceptance and Recognition in 1993

Israel’s opposition to a Palestinian state began during the Palestinian mandate system. With the nod of approval from the mandate holder, Britain, via its famous Balfour Declaration, Zionist Jews from around the world began preparations for the creation of a Jewish state in Palestine.[17] Doing so invariably put two peoples, with their historic rivalry, on a collision course. The declaration of the State of Israel in 1948 did not alone preclude a Palestinian state, but the consequence of the Arab invasion and Israeli victory set Israelis and Palestinians down the road that they have travelled for more than half a century.

In reality the notion of two-states in Judea began after the 1967 war which, unlike 1949, established Israeli permanence and reoriented many states understanding of the role Israel would continue to play.[18] Nations that had sworn themselves to the principal of Israeli destruction pivoted to acceptance of its right to exist and its power within the region.[19] However, Israeli land gains made during the 1967 war would be one of the main flashpoints of disagreement between Palestinians and Israelis from then out.[20] The 1967 borders remain a mainstay of Palestinian proposals regarding territorial solidification.[21] Despite President Obama confirming the 1967 borders standard,[22] Israel does not appear likely to consider a simple pre-67 border resolution as a resolution at all.[23] One of the main consequences of the ’67 war was the splitting of the territory of Palestine into two, non-contiguous geographic areas: the West Bank and Gaza Strip.[24]

That split in geographic area further emboldens Israeli claims of a lack of prerequisites for statehood under international law. In 2008 when Hamas was elected in Gaza, while Fatah remained in control of the West Bank, the attempt at creating a unity government failed and there was a conflict between Fatah and Hamas in Gaza, ultimately leading to Hamas’ consolidation of power in the Strip.[25] With that, a formerly united Palestinian authority was divided, the two parts of the Palestinian territory left in control of two different governmental groups. This division only adds to the Israel claim that Palestine does not retain the basic criteria for state sovereignty. Yet, despite this situation in Palestine, the United Nations has made a different determination.

C.     Palestine’s Change of Status from “Observer” to “Non-Member State” by the United Nations General Assembly

Palestine’s bid for international recognition was a much more difficult task than Israel’s beginning in 1974 when, along with its admission the UNGA as an observer state, Palestine was admitted to UNESCO as an “observer state.”[26] The issue of becoming a fully-fledged member of UNESCO began in 1989 but was tabled until 2011 when it was finally admitted as a full member of the heritage organization. This action was no doubt bolstered by PA attempts to get full UN member status at the same time.[27] However, in order to get full membership into the UN, Article 4 mandates that the UNSC must approve the application of a state seeking membership and make a recommendation to the GA.[28] Before the decision was taken up by the UNSC the U.S. Senate passed S.Res. 185 calling on President Obama to veto the motion and threatening a withdrawal of aid to the West Bank if the Palestinians followed through on their plans.[29] This, along with a statement from then UN ambassador Susan Rice, shifted the Palestinian position from seeking full member status to striving for “non-member” state status thereby bypassing the UNSC and going to the full GA.[30]

On Thursday, November 29, 2012, in a 138-9 vote (with 41 abstentions and 5 absences),[31]  General Assembly resolution 67/19 was adopted, upgrading Palestine to “non-member observer state” status in the United Nations.[32] The change in status was described by The Independent as “de facto recognition of the sovereign state of Palestine.”[33] Indeed, on January 3, 2013, Abbas signed a presidential decree 1/2013 officially changing the name of the ‘Palestinian Authority’ to the ‘State of Palestine.’[34]

III.ANALYSIS

In order to understand the move by Palestine to begin its diplomatic maneuvers, culminating in its accession to the Rome Statutes, one must understand the role of the ICC in international law and relations and how that role could be of particular service to the conflict between Israel and Palestine. With that understanding one can review the interests of both parties in relation to the ICC and analyze the validity of the claims made by each party. Doing so will bring to light a single conclusion: the admittance of Palestine to the ICC would be in the legitimate interests and serve the obligations of both sides. To square this circle one must understand both the stated policies of the two states, but also what and how each side can live up to their international obligations and how the ICC can assist each side to fulfill these mandates and ultimately end the conflict.

A.    The Principles and the Mandates for the ICC

The ICC is, in some ways, the final act of a play which began in the wake of World War II. After the mind-boggling carnage that war brought to the world stage, the victors sought to firmly establish a new principle in international law: individual criminal responsibility for acts committed as a state agent which were formerly understood to be state-based crimes.[35] At Nuremburg and Tokyo, the top criminals of the Axis forces were set before the first international criminal tribunal.[36] There, the court set out a new understanding of personal culpability for decisions taken as a member of government during war or periods of political turmoil.[37] Its convictions served as the plaster that time would set and future events would demand be made more robust.

During the frigid decades of the Cold War, little work was undertaken by states or the UN, though the possibility for such tribunals was no less logically valid given the crimes committed during that period of human history.[38] Still, when cracks became holes and the edifice of the Cold War, represented most blatantly by the graffitied Berlin Wall, was finally demolished down with it came another wall that prevented the establishment of international tribunals such as Nuremburg since 1945. The war in Yugoslavia in the mid-1990s provided an opportunity to those interested in advancing international criminal law to finally advocate for a new version of the Nuremburg trials. While the conflict raged, the UNSC created the International Criminal Tribunal for the Former Yugoslavia to try the leaders of the parties to the conflict.[39] It followed the same model when it created a tribunal for the genocide in Rwanda.[40]

However, investigator of Nazi war crimes and Chief Prosecutor for the United States Army at the Einsatzgruppen Trial, Benjamin B. Ferencz’s call for a permanent international criminal tribunal[41] was only picked up by Prime Minister of Trinidad and Tobago A. N. R. Robinson in June 1989 to tackle the international nature and effect of the international drug trade.[42] In 1994 the ILC published its draft statutes for the ICC and after two initial conferences a final conference was held in Rome, Italy in 1998.[43] The conference was ultimately a success, and on July 17, 1998, the Rome Statute of the International Criminal Court was adopted by a vote of 120 to 7, with 21 countries abstaining. The US and Israel were among the seven countries that voted against the treaty along with China, Iraq, Libya, Qatar, and Yemen.[44] Following 60 ratifications, the Rome Statute entered into force on July 1, 2002.[45]

For the purposes of the Israeli/Palestinian conflict two mandates and principles of the ICC are of prime importance. Those are the principles of ridding impunity for international crimes and complementarity. These principles allow each party to fulfill its international responsibilities to prosecute or extradite criminals but also retain independence and sovereignty. Indeed, while both states are keen to maintain their sovereign control over their territories and citizens, they have a competing obligation to prosecute violators of international law. Where these two competing interests clash, the ICC is perfectly capable of stepping into the fray as an impartial third party in which each side can turn to resolve a certain number of unresolved issues.

  1. Ending Impunity

The preamble of the Rome Statutes puts forward the principle of ending impunity straight away: “Determined to put an end to impunity for the perpetrators of the most serious crimes of concern to the International Community as a whole and thus contribute to the prevention of such crimes.”[46] The ICC fights impunity by ensuring that the most severe crimes do not go unpunished, and assists in the establishment of the rule of law by promoting respect for the obligations under international law.[47] Therefore the crimes within the jurisdiction of the Court are major international crimes (genocide, crimes against humanity and war crimes)[48] and the ICC remains a court of last resort with the mandate to prosecute individuals only when national jurisdictions are unable or unwilling to do so.[49] As stated by the then United Nations Secretary-General Kofi Annan in 2004, the ICC makes this impact by “putting would-be violators on notice that impunity is not assured.”[50] If the ICC were to be a powerful risk to policymakers, a public announcement that the ICC is following a situation provides a strong signal to potential perpetrators that they cannot escape liability for their actions by traditional principles or modus operandi protecting officials.[51] Additionally, such a public announcement not only puts potential perpetrators on notice, but also draw local as well as international attention to the situation which may step in and persuade relevant national organizations or other stakeholders to take necessary action to defuse the crisis.[52] Evidencing this affect, a minister from one of the States Parties to the Rome Statute told the UN Chronicle that the possibility of an ICC intervention was a major factor that helped prevent large-scale violence after a disputed election.[53]

  1. Complementarity

Article 17 of the Rome Statutes puts forth the principle of complementarity.[54] Indeed, “complementarity is one of the foundational principles of the Rome Statute system. What was envisioned by the drafters of the Rome Statute was not simply a self-standing Court, but rather a comprehensive system of international justice, where the duty on States Parties to investigate and prosecute international crimes is clearly reinforced.”[55] In order to fulfill this role, the ICC was made a court of “last resort” that can step in where national jurisdictions have failed to address international crimes.[56] The Bureau of the ASP’s report on complementarity made clear the need to enhance the preparedness of national jurisdictions through positive complementarity[57] and to remain steadfast that it is the primary responsibility of States to investigate and prosecute serious international crimes.[58] Furthermore the report made clear that it is the obligation of States Parties to the Rome Statute to, with assistance from the ASP Secretariat, strengthen national jurisdictions by facilitating the exchange of information.[59]

These issues were framed in a panel discussion with eminent panelists from national jurisdictions, international and regional organizations and the International Criminal Tribunal for the Former Yugoslavia. The Bureau’s report made several recommendations, including:

i) that States Parties reaffirm that national jurisdictions have the primary responsibility;
ii) that States, the Court and other actors strengthen the principle of complementarity by encouraging national proceedings where relevant as a means to bridge the impunity gap;
iii) that States Parties should consider the need for further measures at the national level in combating impunity and as appropriate and in cooperation with the Court examine ways in which domestic jurisdictions can be further enabled to deal with the most serious crimes;
iv) that the Assembly should establish a designated function within the Secretariat of the Assembly of States Parties, tasked with facilitating the exchange of information aimed at strengthening domestic jurisdictions.”[60]

 

B.     ICC and Palestine

When it received a 12(3) declaration (referencing the Rome Statutes accession article)  lodged by the Palestinian National Authority in January of 2009, the Prosecutors Office opened a preliminary examination of the Palestinian situation.[61] Prosecutor Ocampo concluded in April 2012 that, after thorough analysis and public consultations, Palestine’s status at the United Nations (UN) as an “observer entity” was determinative since entry into the Rome Statute system is through the UN Secretary-General (UNSG) who acts as treaty depositary.[62] The Palestinian Authority’s “observer entity,” as opposed to “non-member State” status at the UN, at the time meant that it could not sign or ratify the Statute and therefore, the ICC had no jurisdiction as Palestine did not possess the necessary standing.[63] This situation changed in November 2012 when the UN General Assembly (UNGA) adopted Resolution 67/19 granting Palestine “non-member observer State” status in the UN.[64] After this change, the Prosecutor reviewed the legal implications of this development and concluded that, while the change in status did not retroactively validate the previously invalid 2009 declaration, pursuant to articles 12 and 125 of the Rome Statute Palestine would be able to accept the jurisdiction of the Court from November 29, 2012 onward.[65]

On January 2, 2015, Palestine deposited its instrument of accession to the Rome Statute with the UNSG.[66] As outlined in the Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, “the Secretary-General, in discharging his functions as a depositary of a convention with an ‘all States’ clause, will follow the practice of the [General] Assembly in implementing such a clause ….”[67] The practice of the UNGA “is to be found in unequivocal indications from the Assembly that it considers a particular entity to be a State.”[68] It was armed with this background that the UNSG, acting in his capacity as depositary, accepted Palestine’s accession to the Rome Statute, and Palestine became the 123rd State Party to the ICC and that Palestine’s declaration had been transmitted to the Prosecutor for her consideration.[69]

Since the focus of the prosecutors inquiry into Palestine’s ability to accede to the Rome Statute has consistently been the question of Palestine’s status in the UN, given the UNSG’s role as treaty depositary of the Statute, the UNGA Resolution 67/19 is therefore determinative of Palestine’s ability to accede to the Statute pursuant to Article 125, and equally, its ability to lodge an article 12(3) declaration. The Prosecutor determined that the change of status was sufficient for accession and opened an investigation based on those findings.[70]

C.     Israeli Opposition to the ICC

It has already been noted that Israel was one of seven states to vote against the Rome Statutes itself.[71] In doing so it first lodged its concerns regarding the potential political nature of or use by the court.[72] However, at the same time, Israel has remained a supporter of the court rhetorically.[73] But rhetoric only goes so far. Israeli action, as opposed to rhetoric, evidences its long suspicious relationship with the court, culminating in its ultimate rejection.[74] The Israeli foreign ministry has repeated and increased, especially after the accession of Palestine, its less supportive rhetoric regarding the ICC.[75] Reviewing these position shows an unfortunate truth for Israel that its position is neither logically justified but also runs counter to its international obligations.

First, Israeli statements and policy decisions regarding the ICC have been, at least since the mid-1990s, all over the map. Though Israel was a participant in the negotiations that created the Rome Statutes, it ultimately voted against it.[76] Explaining Israel’s negative vote, the head of Israel’s delegation, Judge Eli Nathan, pointed to the inclusion of the crime of indirect transfer of population to occupied territories as an example of politicization targeting Israel that it could not accept.[77] Following the lead of the U.S., Israel submitted a signature to the treaty showing the intent to ratify early after Rome, only to “unsign” it in 2002.[78] That decision came with an explanation by the Israeli Foreign Ministry which outlined their concerns especially, inter alia, the fear of the politicization of the Court, disagreement about the nature of and form of international law applied at the court and the potential for expansion of scope and scale, the addition of the crime of “the transfer, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies” which is seen as being directly oriented towards Israeli settlements in the West Bank, a list of crimes that does not contain terrorism or drug trafficking,[79] concerns about the seeming inability of an Israeli judge to be appointed by the court, worries that the power of the prosecutor is too great and may easily lead to further politicization.[80]

It is important to recall that Israel has suspicions and is weary of many international institutions as it feels it is unfairly treated by regional and international institutions including the U.N.[81] To make this claim, Israel suggests that the overwhelming number of General Assembly resolutions, attempted and successful Security Council resolutions, UNHRC admonishments, negative international NGO reports and an unfavorable international media system, outside the United States, all combine to form a web of deformations, misapplications and illogical decisions from various actors with nakedly political positions against the actions, if not the existence, of Israel itself.[82] However, regarding the ICC, Israel makes the claim that when it signed the treaty in 2000, it was an “indication of its hope that the court would remain true to the goals of its founders.”[83] Apparently between 2000 and 2002, when the Statutes actually went into force, Israel received no guarantees regarding its concerns and decided the month before it entered into force, to signal it would not be legally bound by it.[84] While it retains the sovereign right to object to an international treaty, Israel’s objection to the Court, however valid a priori, cannot be justified given the time period for which they would have been able to verify if those claims were legitimate.[85] Israel may maintain the same general concerns regarding the court now that it has been functioning for more than a decade, but such claims would have to contend with the actual work of the court.

When the ICC accepted the Palestinian document of accession and opened a preliminary examination into the Israeli/Palestinian conflict, Israeli rhetoric and policy against the court rose. Observers noted that this positions come from a combination of two sources: “the government knows that the Israel Defense Forces committed atrocity crimes in Gaza (and perhaps in the construction of Israeli settlements in occupied territories) and … the government believes that institutions like the ICC are so biased against Israel that they will inevitably be unfairly targeted.”[86] For instance in January 2015, Israeli Foreign Minister Avigdor Lieberman declared that any decision by the ICC to investigate the alleged crimes was “solely motivated by political anti-Israel considerations” and that Israel would seek to “dismantle this court, a body that represents hypocrisy and gives terror a tailwind.”[87] Lieberman went so far as to state that the ICC should be out of business altogether.[88] Around that time Prime Minister Netanyahu launched a media campaign against the court.[89] The government is not totally united in this campaign against the court, fearing that it will, like U.S. attempts to hinder the court, ultimately fail and lead not to a diminishing of the court but of isolating Israel further.[90] Indeed, “Israel’s fury,” rather than its cool acceptance of its obligations vis-à-vis the court, “gives credence to the view that the court is both a deeply relevant institution in international politics and that it is not simply a tool of Western powers.”[91]

Ultimately, in July of 2015, Israel did begin to make contacts with the court, but for a limited purpose: to make its position clear – the ICC does not have any authority to hear Palestinian complaints on the matter.[92] Israeli officials made it clear that Israel was still refusing to cooperate with the ICC’s preliminary investigation.[93] The position of Israel, like any other nation who does not support the ICC, runs afoul of its international obligations to prosecute international criminals.[94] Israeli prosecutions of IDF soldiers for violations of the laws of war is rather impotent.[95] While Israel has enacted clear laws to prohibit and punish the crime of genocide, the Israeli legal system does not contain legislation forbidding war crimes and setting corresponding punishments.[96] This violates Article 146 of the Fourth Geneva Convention, to which Israel became a party upon becoming a state itself, which establishes the duty to enact suitable legislation to allow the investigation, prosecution, and penalization of anyone responsible for such grave breaches of humanitarian law.[97] Additionally, Israeli Military Court’s Martials do not use or prosecute soldiers for internationally legally recognized obligations, in fact they are silent on such obligations.[98] Additionally, the sentences given to those found guilty of what would be war crimes are often mitigated by explanatory circumstances and, since the charges are silent regarding the status of victims under international humanitarian law (whether they are “protected” persons under the Fourth Geneva Convention) which goes against the obligations of Israeli to effectively prosecute its own soldiers.[99] In 2009, after the 2008 conflict in Gaza, former Prime Minister Olmert stated, “commanders and soldiers that were sent on the task in Gaza should know that they are safe from any tribunal and that the State of Israel will assist them in this issue and protect them as they protected us with their bodies during the military operation in Gaza,” effectively stating that no prosecutions would be undertaken against IDF soldiers.[100] However, the Military Advocate General investigated over 150 wartime incidents and launched 47 criminal investigations into the conduct of IDF personnel, but very few of them were indicted and the sentences for the crimes indicted fall well below international standards.[101]

D.    Overlapping Interests

The Palestinian bid for ICC jurisdiction, though perhaps an initial shock, would serve the interests of both sides as it takes into account both the objectives and intentions of each party and hoists it into compliance with each party’s international obligations. The first of these is that each side is desirous to see those who committed crimes on the other side prosecuted. Given the disunity in governance between the West Bank and Gaza, the fragile (if not non-existent) legal system in Palestinian territories because of weak institutions partially because of the occupation by Israel, and the lack of will of leaders to bring prosecutions against known war criminals, Israel is legitimately concerned that Palestinian crimes and criminals have no forum for internationally recognized crimes to be prosecuted in Palestine thereby granting impunity to perpetrators. At the same time, Israel, while enjoying a functioning and stable judiciary, has failed to live up to its international obligations regarding the prosecution of international criminals. It continually denies the state of occupation, and refuses to conduct a transparent, internationally recognized investigation into the leadership for policy decisions regarding the conduct of military operations or continued settlement building and relocation of Israelis to said settlements erected in West Bank territory. This, like the Palestinian situation, creates impunity especially for Israeli policymakers and leading figures tasked with policy creation and implementation.

These failures on both sides are exactly the kind of institutional failure that the Rome Statutes envisioned and is tasked with rectifying. Under the Court’s complementarity principle, states retain the ultimate obligation for prosecution of serious international crimes, but if they are unable (as Palestine is) or unwilling (as Israel is) then the court may have jurisdiction as an independent body to adjudicate the matter and thereby assist each party to the conflict in assuring that the meet their obligations under international law and under internationally recognized standards and practices.[102] While Israel may be concerned about who the ICC may ultimately charge, and the Palestinians seek to make the prosecutions Israeli-centered, each side must give something to get something. For the Palestinian, getting jurisdiction over Israeli soldiers and officials at the ICC may be the only means for them to seek a form of justice and end the impunity which promotes Israeli actions and decisions, but it also means being subject to the jurisdiction themselves and leaves open the possibility of high-level indictments. Israel, while being subject to unprecedented scrutiny with criminal implications for high ranking officials, would also be able to seek investigations and prosecutions of those they believe are responsible for international crimes including acts of terrorism which, though there is no specific crime of terrorism, would be covered by several other enumerated acts that constituted the crimes under the Rome Statutes. While no doubt a bitter pill for each side to swallow, the bitterness comes not from a genuine injustice that may befall one side or the other, but because the conflict has operated in a seeming vacuum of international law in which impunity, rather than justice, reigns supreme. Given each side’s intransigence on domestic prosecutions, the ICC is the internationally recognized body which has been set up to step in under just such situations.

International prosecution of individuals on both sides of the conflict would have an effect on more than just the system of impunity each side has constructed. The walls of impunity around officials on both sides is a key component to understanding their goals, decisions, policies and actions. Breaking down those walls would itself modify decision making on both sides by adding in a new element to the process: threat of international prosecution. When policymakers on each side are under the assumption that, given the facts on the ground, they will be immune from potential negative consequences of their actions, they have no incentive to comply with the law. Therefore, decisions regarding violations of the laws of war and/or basic human rights obligations which carry with them the real potential for individual culpability, the tendency for the form of flouting of international law we now see in the Holy Land will likely decrease dramatically.

If this threat is made to remain over the heads of policymakers on both sides they will have the incentive to ensure that their decisions and actions taken pursuant to those decisions, at minimum, do not violate the law. This could provide a new opening for dialogue and reconciliation if it was able to cool the conflict by preventing the exacerbation of tensions by the commission of internationally recognized crimes on both sides. It provides Israel with the incentive to modify its legal system to comply with international legal standards and its obligations under the Geneva conventions and may provide assistance to Palestine in constructing an effective judicial system. The institution of legitimate and effective means of establishing the rule of law in both areas, at least on the issue of international crimes may allow for each side to accept the other as a good-faith actor and may assist in further negotiations as equals, rather than division over the continued impunity for bad actors.

Though such positive results from an ICC investigation and prosecutions may take years to fully cement into the civil and political societies of each side, more immediate results can be predicted. There are still unanswered questions which manifest themselves in disagreements between Israel and Palestine on key issues such as whether Palestine is a state, whether Israel is occupying the West Bank under international law, what are the rights and obligations of each actor and do the acts perpetrated by both sides amount to crimes under international law. Although there have been some international decisions answering these questions, all of them must be answered by the Court. Therefore, the Court can close the book on these outstanding disagreements by well-reasoned and legally sound decisions which set forth the protections and obligations for both actors and determine what actions are and are not prohibited in any future armed conflicts between them.

Israel has claimed that it stays true to the object and purpose of the Rome Statutes, but states that it remains unconvinced that the court is sufficiently impartial and independent. Those concerns should be mitigated by the International Bar Association’s 2011 review of the fairness of the ICC which concluded that, although faced with novel and particular challenges, the ICC retains strong standards and has a number of policies and institutional frameworks to ensure the fair trials rights of the accused.[103]  The claim of politicization of the Court is not new and has been levied by some African states, notably Kenya, in recent years, but for Israel, the notion takes on a new form and meaning. For African states, the politicization of the Court represents a global north/south divide in which the global south, namely Africa, bears the brunt of the Court’s efforts and decisions thus far, while powerful states in the global north (Russia, U.S., China) are wholly out of the reach of the Court as those states hold veto power at the UNSC, the only institution that can refer a case to the ICC of a non-state party to the treaty. Israel, in contrast, sees any ICC action against it as just the most recent example of an international campaign, namely by other Middle Eastern and North African states but also critical European states such as France, to delegitimize Israel and its campaign against terrorism.

There is no doubt that the international community has been keenly focused on the Arab/Israeli conflict. While one may be inclined to see this focus as a campaign against Israel, but that assumes that Israel is not deserving of said focus. At the same time, one may argue that this focus is precisely because the conflict engenders not only strongly held religious and political convictions, but its scale, in terms of timescale, number of conflicts, on-going problems between the parties, inability for either side to meet several attempts at reconciliation, and the costs of such factors. Israel is the more powerful actor, and retains significant support via the United States in international affairs. Palestine is the weaker force whose institutions have been handicapped by its relation with Israel and its inability to consolidate and enforce its sovereign control. These have understandably focused the attention of the international community on Israel, as the state which has the ability to make significant policy changes which would allow the Palestinians the space to erect and enforce its own methods of control. This does not, however, give Palestine a free pass for its role in the continuing and deepening of the conflict, but rather reflects the practical need for the international community to find the actor with the means and methods of taking concerted action, while maintain that it is not the obligation of the state of Israel alone, but that it must take the first steps towards cooling the heated situation.

There also international interests to take into account regarding the situation in Israel. Obviously, and as the UNGA and UNSC have reiterated, the international community has an interest in seeing the conflict end. At the same time the international community has an interest in adding international weight and legitimacy to the Court. As this conflict is one of the longest running and involves a number of principles and obligations of international law, the ICC provides a mechanism for conflict management and post-conflict reconciliation.

IV.RECOMMENDATIONS

A.    Israel Should Not Fight the ICC Investigation

What understanding one can find in the Israeli campaign against the ICC, no justification can follow. The concerns that the Foreign Ministry enunciated in 2002 have been shown to have not come to fruition and if Israel is legitimately concerned with politicization or other issues with the court, it can rework its legal system to come in line with international standards and begin a campaign of prosecutions of potential criminals so to avoid ICC action under complementarity. Israel’s continuing opposition to the court only serves to further isolate it in the world community and forces it to stand with other states who have flouted the jurisdiction of the court which is becoming a less and less justifiable the more the court shows its independence, strong rules of procedure and the protections thereof, and its ability to resist political pressure.

B.     Palestine Cannot Try Individuals So They Need the ICC

On the Palestinian side of the equation it is not merely the lack of will, though that may in fact be true, it is more an issue of capacity. Without an institutional framework to be able to try the charged, whatever will Palestinian authorities have is moot. Additionally, the ICC can provide, through its Trust Fund for Victims, institutional capacity building projects to assist the Palestinian authorities on the ground. The combination of the imposition of a legal regime where none exists and the capacity building projects that could be undertaken by the TFV could provide a bedrock for the building of new Palestinian judicial system and therefore add to the decisions making calculus, the potential for judicial action as a result. The complementarity principle allows for both sides to get what they want: Israel can retain sovereignty, so long as it is willing to prosecute those alleged to have committed crimes, but it allows for prosecutions of Palestinian actors, including Hamas.

V.CONCLUSION

Palestinian ascension to the ICC will help both sides get what they want: a means to end the conflict, seek justice, retain sovereignty and become equals in some forum. This will allow both sides to, in some ways, be fairly compared and contrasted, understand each other in a different forum and, through the course of a justice process, may open themselves up to future dialog and a resurgent peace process.

FOOTNOTES

[1] ICC, Declaration of the Palestinian National Authority accepting to the jurisdiction of the ICC, available at: https://www.icc-cpi.int/NR/rdonlyres/74EEE201-0FED-4481-95D4-C8071087102C/279777/20090122PalestinianDeclaration2.pdf.

[2] UN General Assembly, Rome Statute of the International Criminal Court, (1998) (Hereinafter Rome Statutes).

[3] The Prosecutor of the International Criminal Court, Visit of the Minister of Justice of the Palestinian National Authority, ICC-OTP-20090122, Jan. 22, 2009 available at: https://www.icc-cpi.int/NR/rdonlyres/979C2995-9D3A-4E0D-8192-105395DC6F9A/280603/ICCOTP20090122Palestinerev1.pdf

[4] Id.

[5] The Prosecutor of the International Criminal Court, Fatou Bensouda, opens a preliminary examination of the situation in Palestine, ICC-OTP-20150116-PR1083, Jan. 16, 2015 available at: https://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr1083.aspx

[6] UN Security Council, Resolution 242 (1967) of 22 November 1967, S/RES/242 (September 22, 1967).

[7] UN General Assembly, Observer status for the Palestine Liberation Organization, , A/RES/3237 (November 22, 1974).

[8] Id.

[9] UN General Assembly, Question of Palestine, A/RES/43/177 (December 15, 1988). (“Decides that, effective as of 15 December 1988, the designation “Palestine” should be used in place of the designation “Palestine Liberation Organization” in the United Nations system, without prejudice to the observer status and functions of the Palestine Liberation Organization within the United Nations system, in conformity with relevant United Nations resolutions and practice”).

[10] UN general Assembly, Participation of Palestine in the work of the United Nations, 1998 A/RES/52/250 (July 7,1998) (“Decides to confer upon Palestine, in its capacity as observer, and as contained in the annex to the  present  resolution,  additional  rights  and  privileges  of  participation  in  the  sessions  and  work  of  the General Assembly and the international conferences convened under the auspices of the Assembly or other organs of the United Nations, as well as in United Nations conferences”).

[11] Robert McMahon and Jonathan Masters, Palestinian Statehood at the UN, Council on Foreign Relations, November, 2012, http://www.cfr.org/palestine/palestinian-statehood-un/p25954

[12] The official term used by the United Nations Security Council to describe Israeli-occupied territories is “the Arab territories occupied since 1967, including Jerusalem”, which is used, for example, in Resolutions 446 (1979), 452 (1979), 465 (1980) and 484 (1980).

[13] UN Security Council, Admission of new Members to the UN: Israel, S/RES/69 (March 4, 1949), and, UN General Assembly, Admission of New Members to the UN: Israel, A/RES/273 (III) (May 11, 1949).

[14] UN General Assembly, Status of Palestine in the United Nations: resolution / adopted by the General Assembly, A/RES/67/19 (December 4, 2012).

[15] Id. (calling a withdrawal of Israel from the Palestinian territory occupied since 1967, including East Jerusalem…and the complete cessation of all Israeli settlement activities in the Occupied Palestinian Territory, including East Jerusalem, reaffirms the right of the Palestinian people to self-determination and to independence in their State of Palestine on the Palestinian territory occupied since 1967.)

[16] Heritage Foundation, Table 1. Palestinian Authority’s Planned Accession to 15 Conventions and Treaties, April 30, 2015, available at: http://www.heritage.org/~/media/infographics/2014/04/ib4209/ib4209table1600.ashx; See U.N. Secretariat General, Note to Correspondents – Accession of Palestine to Multilateral Treaties, January 7, 2015, available at: http://www.un.org/sg/offthecuff/index.asp?nid=3786 (“In  conformity with the relevant international rules and his practice as a depositary, the Secretary-General has ascertained that the instruments received were in due and proper form before accepting them for deposit, and has informed all States concerned accordingly through the circulation of depositary notifications”).

[17] Balfour Declaration (1917), http://avalon.law.yale.edu/20th_century/balfour.asp.

[18] Jeff Halper, Is The Two-State Solution Dead?, Israeli Committee Against House Demolitions, http://icahd.org/2013/04/11/is-the-two-state-solution-dead/.

[19] Israel Ministry of Foreign Affairs, Camp David Accords, September 17, 1978, http://www.mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/camp%20david%20accords.aspx

[20] See Halper Note 18.

[21] See UN Security Council Resolutions 242(1967) and 338 (1973); and See UNGA resolution A/RES/67/19 at note 14 (“Reaffirming also its resolutions 43/176 of 15 December 1988 and 66/17 of 30 November 2011 and all relevant resolutions regarding the peaceful settlement of the question of Palestine, which, inter alia, stress the need for the withdrawal of Israel from the Palestinian territory occupied since 1967, including East Jerusalem, the realization of the inalienable rights of the Palestinian people, primarily the right to self-determination and the right to their independent State, a just resolution of the problem of the Palestine refugees in conformity with resolution 194 (III) of 11 December 1948 and the complete cessation of all Israeli settlement activities in the Occupied Palestinian Territory, including East Jerusalem…”).

[22] Mark Landler and Steven Lee Myers, Obama Sees ’67 Borders as Starting Point for Peace Deal, New York Times, May 19, 2011 (Reporting that President Obama declared that the prevailing borders before the 1967 Arab-Israeli war — adjusted to some degree to account for Israeli settlements in the West Bank — should be the basis of a deal).

[23] Editorial Staff, Netanyahu: No Return to 1967 Borders, Al-Jazerra, May 21, 2011 (reporting on Prime Minister Netanyahu rejection of Obama’s claim of 1967 border starting point); and Gilad Sharon, Israel Is Under Attack, The Daily Beast, October 9, 2011 (claiming that, according to Former Prime Minister Ariel Sharon’s son, Israel can never return to the pre-1967 borders the Palestinians because it is under attack); and The Associated Press

Staff, Senior Likud Minister: Israel Won’t Accept Palestinian State Based on Pre-1967 Borders, Haaretz, June 9, 2013 (reporting that Deputy Defense Minister Danny Danon’s said in an interview broadcast Sunday that the Israeli government will not accept a Palestinian state with the borders favored by the Palestinian Authority and the international community).

[24] See Generally, James Crawford, The Creation of the State of Palestine: Too Much Too Soon?, EJIL (1990) at ¶ 307.

[25] David Rose, The Gaza Bombshell, Vanity Fair, Mar. 3, 2008.

[26] John Irish, Palestinians near UNESCO, Reuters, Oct. 5, 2011.

[27] See generally Jonathan Schanzer, The Return of ‘Palestine 194’, Foundation for Defense of Democracy, April 2, 2014 (describing the Palestine 194 diplomatic movement to get Palestinian recognition at the UN).

[28]UN Charter, Art. 4 (“1) Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations. 2) The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.”)

[29] A Resolution Reaffirming the Commitment of the United States to a Negotiated Settlement of the Israeli-Palestinian Conflict Through Direct Israeli-Palestinian Negotiations, Reaffirming Opposition to the Inclusion of Hamas in a Unity Government Unless It Is Willing to Accept Peace with Israel and Renounce Violence, and Declaring that Palestinian Efforts to Gain Recognition of a State Outside Direct Negotiations Demonstrates Absence of a Good Faith Commitment to Peace Negotiations, and Will Have Implications for Continued United States Aid., S. 185, 112th Cong. (2011).

[30] See McMahon and Masters at Note 11 (stating that Rice called the move by Palestine “unfortunate and counterproductive,” as well as placing “further obstacles in the path of peace”).

[31] U.N., GA/11317 (2012).

[32] A/67/L.28 of November 26, 2012 and A/RES/67/19 of November 29, 2012 at Note 14.

[33] Editorial Staff, Israel defies UN after vote on Palestine with plans for 3,000 new homes in the West Bank, The Independent, Dec. 1, 2012.

[34] John V. Whitbeck, The ‘State of Palestine’ exists, Al-Jazerra, Jan. 10, 2013.

[35] See United Nations, Charter of the International Military Tribunal – Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis (“London Charter”), Art. 6 & 8, (1945) (“The Tribunal established by the Agreement referred to m Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes”).

[36] See Generally Kevin Jon Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law, 1st Ed. (2011).

[37] See London Charter at Note 35.

[38] See Generally, (Unsuccessful) International  Law  Commission  (ILC)  drafts  for an international criminal code and the statute of an international criminal court, in particular ILC Draft Code of Crimes Against the Peace and Security of Mankind (1954, 1991, 1996), But c.f., Attorney-General of the Government of Israel v. Eichmann (Israel Sup. Ct. 1962), Int’l L. Rep., vol. 36, p. 277, 1968 (English translation).

[39] See Generally Richard H. Steinberg, Assessing the Legacy of the ICTY, 2011.

[40] See Generally Leila Nadya Sadat, The Legacy of the International Criminal Tribunal for Rwanda, Washington University in St. Louis, July 3, 2012, https://law.wustl.edu/harris/documents/ICTRLecture-LegacyAd%20HocTribunals9.12.12.pdf

[41] Benjamin B. Ferencz, Defining International Aggression-The Search for World Peace, 1975.

[42] United Nations, Rome Statute of the ICC: Overview, http://legal.un.org/icc/general/overview.htm

[43] For the records of the Rome Conference, See UN, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court Rome, 15 June – 17 July 1998, Available at http://legal.un.org/icc/rome/proceedings/contents.htm

[44] See Michael P. Scharf, Results of the Rome Conference for an International Criminal Court, 3 American Society of International Law Insights 10 (1998).

[45] Coalition for the International Criminal Court, Ratification of the Rome Statute, http://www.iccnow.org/?mod=romeratification

[46] Preamble, Rome Statutes.

[47] Editorial Staff, The Role of the International Criminal Court in Ending Impunity and Establishing the Rule of Law, 49 UN Chronicle 4 (2012)

[48] And Aggression when it comes into force.

[49] Art. 17, Rome Statutes.

[50] Report of the Secretary-General, S/2004/616, ¶ 49 (August 23, 2004)

[51] See UN Chronicle Supra at Note 47.

[52] Id.

[53] Id.

[54] Art. 17, Rome Statutes.

[55] Coalition for the ICC, Complementarity, http://www.iccnow.org/?mod=complementarity; and International Criminal Court, Assembly of States Parties, Report of the Bureau on stocktaking: Complementarity, ICC-ASP/8/51 (2010).

[56] See Id. at 2.

[57] William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 Harv. Int’l L. J. 53, 54 (2008) (defining the principle of positive complementarity as the role of “the ICC [to] cooperate with national governments and use political leverage to encourage states to undertake their own prosecutions of international crimes”).

[58] See ASP Complementarity Note 55 at 4.

[59] Id. at 4-8.

[60] See Id. at 2.

[61] Daniel Benoliel and Ronen Perry, Israel, Palestine, and the ICC, 32 Mich. J. of Int’l. Law 1 (2010)

[62] Office of the Prosecutor of the ICC, Situation in Palestine, March 4, 2012, Available at: https://www.icc-cpi.int/NR/rdonlyres/C6162BBF-FEB9-4FAF-AFA9-836106D2694A/284387/SituationinPalestine030412ENG.pdf (“the current status granted to Palestine by the United Nations General Assembly is that of “observer”, not as a “Non‐member State.” The Office understands that on 23 September 2011, Palestine submitted an application for admission to the United Nations as a Member State in accordance with article 4(2) of the United Nations Charter, but the Security Council has not yet made a recommendation in this regard”).

[63] Id.

[64] See Resolution 67/19 Supra at Note 14 (the final vote was 138 votes in favor, 9 votes against and 41 abstentions.)

[65] ICC Press Release, The State of Palestine accedes to the Rome Statute, ICC-ASP-20150107-PR1082, July 1, 2015, available at: https://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr1082_2.aspx

[66] ICC Press Release, Palestine declares acceptance of ICC jurisdiction since 13 June 2014, ICC-CPI-20150105-PR1080, May 1, 2015, available at: https://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr1080.aspx

[67] UN Treaty Section of the Office of Legal Affairs, Summary of Practice of The Secretary-General as Depositary of Multilateral Treaties, ¶ 82, 23 (1999) available at: https://treaties.un.org/doc/source/publications/practice/summary_english.pdf

[68] Id.

[69] See ICC Press Release on Palestinian Accession Supra at Note 65.

[70] Id.

[71] UN Press Release, UN Diplomatic Conference Concludes In Rome With Decision To Establish Permanent International Criminal Court, L/2889, July 20, 1998, available at: http://www.un.org/press/en/1998/19980720.l2889.html

[72] Id. (“Israel has reluctantly cast a negative vote. It fails to comprehend why it has been considered necessary to insert into the list of the most heinous and grievous war crimes the action of transferring population into occupied territory. The exigencies of lack of time and intense political and public pressure have obliged the Conference to by-pass very basic sovereign prerogatives to which we are entitled in drafting international conventions, in favour of finishing the work and achieving a Statute on a come-what-may basis. We continue to hope that the Court will indeed serve the lofty objectives for the attainment of which it is being established.”)

[73] Id.

[74] See Jeff Handmaker, Running out of steam: Israel’s empty objections to the International Criminal Court, The Electronic Intifada, Jan. 20, 2004, https://electronicintifada.net/content/running-out-steam-israels-empty-objections-international-criminal-court/4958 (outlining the complaints levied against the Court and providing rebuttals).

[75] See e.g. Jodi Rudoren, Israel’s Foreign Ministry Issues Report Defending Conduct in Gaza War, New York Times, June 14, 2015 (citing Nathan Thrall, an analyst with the International Crisis Group, stating the proliferation of reports by Israel was an effort to head off war-crimes charges at the International Criminal Court, which generally only pursues cases in places unwilling or unable to investigate themselves); and Israeli Foreign Ministry, Israel’s Investigation of Alleged Violations of the Law of Armed Conflict, June 14, 2015, available at: http://mfa.gov.il/ProtectiveEdge/Documents/IsraelInvestigations.pdf (Defending the actions of Israeli forces in the 2014 Protective Edge conflict); and Israeli Foreign Ministry, Palestinian Authority joins the ICC – Israel’s response, Apr. 1, 2015, available at: http://mfa.gov.il/MFA/PressRoom/2015/Pages/Palestinian-Authority-joins-the-ICC-Israel-response-1-Apr-2015.aspx (calling Palestine’s decision to join the ICC, in order to initiate proceedings against Israel, a “political, hypocritical and cynical maneuver”); and Israeli Foreign Minister Avigdor Liberman, FM Liberman On Decision Of The ICC Prosecutor, Jan. 17, 2015, http://mfa.gov.il/MFA/PressRoom/2015/Pages/FM-Liberman-on-decision-of-the-ICC-prosecutor-16-Jan-2015.aspx (determining that the decision by the International Criminal Court in The Hague is a disgraceful decision whose sole purpose is to harm Israel’s ability to defend itself against terrorism).

[76] See UN Diplomatic Conference Concludes In Rome Supra at note 71.

[77] Id. at 5.

[78] UN Treaty Collection, Rome Statute of the International Criminal Court, available at: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&lang=en#3 (Noting that Israel is a signatory but, in a communication received on 28 August 2002, the Government of Israel informed the Secretary-General of the following: “…..in connection with the Rome Statute of the International Criminal Court adopted on 17 July 1998, […] Israel does not intend to become a party to the treaty.  Accordingly, Israel has no legal obligations arising from its signature on 31 December 2000.  Israel requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary’s status lists relating to this treaty”).

[79] Office of the Legal Adviser to the Ministry of Foreign Affairs, Israel and the International Criminal Court, June 30, 2002, http://mfa.gov.il/MFA/MFA-Archive/2002/Pages/Israel%20and%20the%20International%20Criminal%20Court.aspx (“Selective lists of crimes: The list of crimes included in the court’s statute is highly selective. Offenses such as terrorism and drug-trafficking are not included, because of political disputes over their definition and scope. The paradoxical result is that a state acting against acts of terrorism may find itself under the scrutiny of the court for the way it exercises its right of self-defense, while the terrorists themselves are outside the court’s jurisdiction”).

[80] Cf Jeff Handmaker, Supra at Note 74 (countering each claim made by Israel and determining that they are not valid under international legal standards)

[81] See Foreign Ministry Press Releases Supra at Note 75.

[82] Id.

[83] Id.

[84] Id.

[85] The Court had not completed a case until March 2012; See The Prosecutor v. Thomas Lubanga Dyilo, Appeals Chamber Decision, ICC-01/04-01/06, (2012).

[86] Mark Kersten, Israel’s challenge to the International Criminal Court, The Washington Post, January 20, 2015, https://www.washingtonpost.com/blogs/monkey-cage/wp/2015/01/20/israels-challenge-to-the-international-criminal-court/

[87] See FM Liberman on decision of the ICC prosecutor, Supra at note 75.

[88] Id. (“We will demand of our friends in Canada, in Australia and in Germany simply to stop funding it. This body represents no one. It is a political body. There are a quite a few countries – I’ve already taken telephone calls about this – that also think there is no justification for this body’s existence.”)

[89] Barak Ravid, Netanyahu to Launch Media Campaign Against ICC, Haaretz, Jan. 19, 2015, http://www.haaretz.com/israel-news/.premium-1.637807

[90] See Mark Kersten supra at Note 86.

[91] Id.

[92] Barak Ravid, Exclusive: Israel Decides to Open Dialogue With ICC Over Gaza Preliminary Examination, Haaretz, Jul. 9, 2015,  http://www.haaretz.com/israel-news/.premium-1.665172

[93] Id.

[94] See International Law Commission, The Obligation To Extradite Or Prosecute, Yearbook of the International Law Commission, vol. II (2014) (reiterating all Nations have the responsibility to extradite or prosecute international criminals under international law).

[95] Lacuna Yesh Din, War Crimes In Israeli Law And Court-Martial Rulings, July 2013, available at: https://www.yesh-din.org/userfiles/file/Reports-English/Yesh%20Din%20-%20Lacuna%20Web%20-%20English.pdf (reviewing Israeli Courts Martial cases and the laws used in such tribunals and determining that they fall short of international standards; See also Human Rights Watch, Promoting Impunity: The Israeli Military’s Failure to Investigate Wrongdoing, 22 June 2005, E1707, available at: http://www.refworld.org/docid/42c3bd100.html (coming to similar conclusions as Yesh Din).

[96] Id.

[97] International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287.

[98] See Yesh Din supra at Note 95.

[99] Id.

[100] Editorial Staff, Israeli PM in war crimes pledge, BBC News, Jan. 25, 2009, http://news.bbc.co.uk/2/hi/middle_east/7850085.stm

[101] See Yesh Din and Human Rights Watch supra at Note 95.

[102] Art. 17, Rome Statutes.

[103] International Bar Association, Fairness at the International Criminal Court 8-11, August 2011; See Also Amnesty International, The International Criminal Court, Fact sheet 9, Fair trial guarantees, available at: http://www.iccnow.org/documents/FS-AI-FairTrialGuarnt.pdf

Determining and Applying International Humanitarian Law to the War in Syria

Destruction in Syria

The Civil War in Syria began in the spring of 2011 when the Ba’athist government led by Bashir Al-Assad responded violently to protests that erupted in different cities across Syria. These protests, fueled by a partial crop failure and the revolutionary winds of the Arab Spring, soon turned from non-violent opposition to armed resistance movements. Over the past four years hundreds of thousands of Syrian civilians have been killed and a lost generation of young children are living their lives in refugee camps around the region. Several cities – with value recognized as belong to the common heritage of all humanity sites – now lay in ruin. The war has helped to create the conditions that gave rise to the Islamic State which invaded neighboring Iraq and has openly and flagrantly committed all manner of international crimes. The tragedy of Syria provides fertile ground for those concerned with International Humanitarian Law (IHL) and the development of International Criminal Law to understand the applicable legal regimes and the potential modes of liability for participating states as well as the individuals personally responsible.

To ascertain the applicable legal standards regarding the war in Syria one must first ask a fundamental question. For the purposes of this comment I will assume that there is little disagreement that there is currently an armed conflict in Syria. Therefore, the first question is which of the three types of armed conflict provides the applicable IHL regime in Syira? For review, those categories are international armed conflict, non-international armed conflict, and the emerging field of internationalized armed conflict. International armed conflict is defined in Common Article 2 of the Geneva Conventions of 1949. It states in part, “all cases of declared war or of any armed conflict that may arise between two or more high contracting parties, even if the state of war is not recognized, the convention shall also apply to all cases of partial or total occupation of the territory of a high contracting party even if the said occupation meets with no armed resistance.” Therefore, an armed conflict clearly between the legal and recognized armed forces of two different states or when one state occupies another state, the law of international armed conflict applies. Examples of such cases are the Korean War between the armies of North and South Korea and the Israeli occupation of Palestine, or Moroccan occupation of Western Sahara.

Common Article 3 of the Geneva Convention defines non-international armed conflicts as, “armed conflicts that are non-international in nature occurring in one of the High contracting parties.” Frankly, this is not entirely helpful. In its simplest form non-international armed conflicts must be between a standing army on one side and a nongovernmental actor on the other that takes place within a particular state. The conflict must, however, manifest itself in the form of actual armed conflict, what most would plainly call a ‘war.’ Common Article 3 is not applicable to internal unrest such as riots or other acts of violence that are either too isolated and/or sporadic to be considered sustained conflict. Giving more guidance than the plain text of Additional Protocol II to the Geneva Conventions, the ICRC has stated that a situation is a non-international armed conflict when; 1) the hostilities have reached a certain minimum level of intensity such that the governmental response necessitates military and not just police action; and 2) non-governmental groups involved in the conflict must be considered as “parties to the conflict,” meaning that they possess organized armed forces.[1] This means, for example, that these forces have to be under a certain command structure and have the capacity to sustain military operations.

The third kind of armed conflict recognized by international humanitarian law is a newly recognized form known as ‘an internationalized armed conflict.’ An otherwise non-international armed conflict may become internationalized if: a) the state subject to an insurrection recognizes the insurgents as belligerents; b) one or more foreign States come to the aid of one of the parties with their own armed forces or; c) two foreign States intervene with their respective armed forces, each in aid of a different party.[2] The most visible example of an internationalized armed conflict was the conflict in the Democratic Republic of Congo in 1998 when the forces from Rwanda, Angola, Zimbabwe and Uganda intervened to support various groups in the DRC,[3] and arguably the war in Indochina with both the United States and the Soviet Union providing a certain amount of military personnel and equipment. This newly recognized, and sometimes critiqued, field of armed conflict in IHL presents serious problems if applied. Unlike both international and non-international armed conflict, internationalized conflicts are not clearly subject to one or the other applicable provisions and protocols of the Geneva Conventions, unless one simply applies the principles of Common Article 2 and Additional Protocol I.

When turning to Syria another question presents itself. Since several international states and non-state actors are openly involved not only in the direct fighting, but in directly supporting various forces, what level of such involvement is enough to trigger the enhanced obligations and protections of International Armed Conflict? In Nicaragua the International Court of Justice found that a foreign State is responsible for the conduct of a faction in a civil war if: a) the faction is a de facto agent of the foreign State; or b) the foreign State otherwise orders it to commit certain acts – the “effective control” test.[4] The ICTY used a different gauge when finding individual criminal culpability through superior responsibility of a leader or military commander – the “total control” test. This is a more stringent standard used in International Criminal Law to determine personal responsibility. The less stringent effective control test for states affirmed in Nicaragua was affirmed when the ICJ found that Serbia had not had total control over Bosnian Serb forces in Bosnia.[5]

Taking into account those complexities and the multiple-sided proxy war aspect of the Syrian conflict, combined with the still unclear boundaries of internationalized armed conflict, it makes sense to view the Syrian civil war as an internal armed conflict, but with a reservation that, given the high degree of international cooperation and support for various belligerents and the government, it behooves one to review closely how involved outside actors are and whether it may rise to the level of making on-the-ground actors de facto agents.[6] Still, there is at least one standing army as a party to the conflict, the Syrian military. Opposed to it are two broad umbrella groups (the FSA and Jihadis) though the reality on the ground is that there are more likely several dozen different groups, sometimes in tenuous alliances, and others in open conflict with each other along with aggression against the Syrian military. Therefore it satisfies the two criteria set forth by the ICRC for internal armed conflict. The hostilities have certainly reached level of intensity such that the governmental response is military and not just police action; in fact, it is nearing its fourth year of bloody fighting. Additionally, those various groups fighting each other and the Assad military are, to a greater or lesser degree, organized armed forces capable of sustaining armed conflict with the state military for years.

Characterizing a conflict as an internal armed struggle means that only the very basic protections of Common Article 3 and the Additional Protocol II apply (if the state is a party). Additionally the conventions only mention criminal liability for violations committed in international armed conflicts. However, the ICTR, ICTY and Rome Statutes of the ICC have changed that, finding that customary international law can be interpreted to bridge the gap and apply ICL liability to internal armed conflict. This jurisprudence compliments Common Article 3 and the Additional Protocol II for criminal liability for serious crimes in internal conflicts. Keeping this in mind, all sides, even state actors, nearly all actors are potentially liable for the war crimes that have been widely reported to have been committed during the war. In the shamefully unlikely chance that either Syria signs the Rome Statute and refers itself to ICC jurisdiction under Article 12(3) or the UNSC proposes – much less approves- the creation of an ICTY-style tribunal the ability of the international legal community to intervene in the conflict or adjudicate responsibility and/or liability is seriously inhibited.

“Operation Inherent Resolve” Airstrikes in Syria – Collective Self-Defense or Mission Creep?

Libyan Vehicle Still Burning After Bombing

Chapter VII, Article 51 of the UN charter states, “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” The US-led international response to Iraq’s call for assistance in fighting ISIL complies with the provisions of Article 51. Iraq informed the Security Council of its request for assistance in its defense against internal belligerents and it has given express consent for such actions.[7] Serious questions arise regarding the applicability of Article 51 against non-state actors. The U.S. argues that there is sufficient state practice since 9/11, their own mostly, to justify claims of self-defense against non-state actors. However, post 9/11 decisions by the ICJ in Wall[8] and Congo v. Uganda[9] suggest just the opposite. In any case, customary international law permits a state to intervene on behalf of another state by another state, including the use of force, to restore law and order within the consenting state’s borders. Therefore the Iraqi government’s express consent removes any doubt as to the legality of action within the territory of Iraq.[10]

The real question then is the legality of similar strikes against ISIL in Syria. The United States has conducted strikes on both ISIL and another “al-Qaida-affiliated” terrorist organization known as the Khorasan Group targets inside Syria.[11] It is important to note that not all of the coalition partners currently engaged in Iraq are doing the same in Syria, notably the U.K. – a staunch U.S. ally.[12] Without a specific Security Council resolution – something unreasonably difficult given the fact that China and Russia are Syrian government allies whereas the Western countries support the “FSA” opposition and it is unclear how much, if any, “official” support is given to Islamist forces in Syria – though it is not unreasonable to assume some Gulf state support is being given, unless either Syria consents to the strikes against Islamist forces or they are undertaken in the guise of collective self-defense of Iraq, the legality of such strikes is questionable.

Syria has not consented to the strikes in its territory and has gone so far as to say it will consider any such strikes as violations of international law.[13] However, what one says and what one does may be entirely different. Coalition forces conducting strikes inside Syria routinely notify the government of the impending strike and none have yet been stopped. This appears to imply some kind of implicit consent, which is not surprising given that ISIL is one of the more tenacious enemies of the regime.[14] Implicit consent is not the kind the UN Charter contemplates or that the UNSC would likely consider legitimate, a position the Russian Foreign Ministry has argued.[15]

Without consent, we must return to the issue of self-defense. The United States spelled out its position in a letter to the U.N. Secretary General that it considers strikes in Syria against ISIL as part of its collective self-defense of Iraq pursuant to its request and consent and UNSC resolutions.[16] Its attacks against the Khorasan group appear to be justified by individual self-defense as a direct threat to the United States. This later justification is fairly dubious because in order to claim individual self-defense the state claiming the right must have been the victim of an armed attack per Chapter VII. While ISIL has attacked Iraq’s military and cities specifically, it has not done so against the U.S. Likewise, the Khorasan group has not conducted any armed attacked against the U.S. itself. However, if they are “affiliated” with Al-Qaeda they are considered by the U.S. as having conducted an attack on the U.S. on September 11th, and so they are fair game under the right of self-defense. The diminished nature of Al-Qaeda’s operational capacity raises serious doubts that a clear connection between Al-Qaeda and the Khorasan can be made, certainly nothing akin to either effective or total control. The Khorasan’s do not likely have the capability to conduct an attack on the U.S. with any imminence, which is the basis of individual self-defense.[17]

The question of whether the cross broader strikes against ISIL in Syria are justified based on the collective self-defense of Iraq, which is genuinely recognized as legal, remains open. The real issue is one’s position regarding the breadth and depth of Article 51. Only a broad reading of Article 51, one that includes non-state actors and cross-border attacks on potential threats of a state that has been the victim of an armed attacked, could justify U.S. strikes in Syria. But such a reading is plainly contrary to the object and purpose of Article 51. The notions of self-help, self-defense and collective self-defense are ones of customary law, established with all the applicable notions and protections of sovereignty. Despite the claims of ISIL to have eliminated the border between Iraq and Syria,[18] Iraq cannot do so. In defending itself against ISIL, Iraq, and anyone defending it against ISIL attacks can legally do so up to the border with Syria. To go further than the border of Iraq is, at least from a textual and customary reading of Article 51, a violation of international law. It is an added irony that the attacks themselves are, in fact, supporting the Syrian government in its fight against non-ISIL forces, thereby giving it aid and allowing it to shift forces against western-backed rebels. The intricacies of international relations sometimes defy what would otherwise appear to be reasonable strategy.

Applicability of the Responsibility to Protect in Syria – “Illegal, but Legitimate”

Children Killed In Sarin Attack

The doctrine of Responsibility to Protect (R2P), as stipulated in the Outcome Document of the 2005 United Nations World Summit[19] and formulated in the Secretary-General’s 2009 Report on Implementing the Responsibility to Protect[20] is as follows:

  1. The State carries the primary responsibility for protecting populations from genocide, war crimes, crimes against humanity and ethnic cleansing, and their incitement;
  2. The international community has a responsibility to encourage and assist States in fulfilling this responsibility;
  3. The international community has a responsibility to use appropriate diplomatic, humanitarian and other means to protect populations from these crimes. If a State is manifestly failing to protect its populations, the international community must be prepared to take collective action to protect populations, in accordance with the Charter of the United Nations.

There has been ample evidence that war crimes and crimes against humanity have been committed by all sides in the Syrian conflict. ISIL is known for its brutal treatment of prisoners and its callous disregard for human life, the FSA has chopped off the fingers of “spies” and the government has used barrel bombs and other weapons against civilian centers.[21] In 2013 a Sarin gas attack in the suburbs of Damascus caused international outrage and appeared to move the international community in the direction of asserting the obligation to intervene under R2P.[22] However, that intervention, at least in the form of air and missile strikes against the regime proposed by the U.S., was rejected by Russia and China. They cited the case of Libya as an example of how the principles of R2P, though laudable, can be easily abused to give a green light to regime change. Such actions are contrary to the customary principle of non-intervention and sovereignty itself.[23]

In general, the humanitarian situation and the crimes against the people of Syria by all sides appears to invoke the principle of R2P as a classic matter. There are crimes being committed, the international community has responsibility to help protect the people of Syria, and the government has either been complicit in or unable to prevent continuing violence and possible crimes. Therefore, the argument goes, the situation demands that the international community respond. While the response will likely not be military, given the concerns of mission creep, other methods may be put in place. Some of these include but are not limited to:

  • UNSC could issue resolutions compelling all sides to a cease-fire and negotiation.
  • The UNSC could authorize a peacekeeping mission to facilitate negotiations.
  • The UNSC could establish a cadre of foreign monitors to ensure that no crimes are being committed, and if they are that they are reported to the UNSC and international legal bodies for prosecution.
  • The UNSC could establish universal arms embargoes.
  • The UNSC could establish economic sanctions on Syria and anyone who supports any of the actors fighting.

In all honesty, all of these solutions sound like positive steps in resolving the conflict, if one knows nothing of both the conflict itself but also the history and relationship of the Permanent Five Members of the UNSC. Since the Syrian conflict is essentially a proxy war between the United States, some Gulf States, and Russia (and to a lesser degree China) it is reminiscent of Cold War era conflicts. It is why there has been little action (despite the removal of chemical weapons after the Sarin attack, which is positive indeed) at the UNSC regarding Syria. As a proxy war, there is no reason to believe that any of these potentially positive suggestions are either possible or effective given the length of time the war has been allowed to continue and the resulting destruction of property, human lives and (in many ways) the moral fabric of what is left of Syrian society. That aside, if possible, the most effective program may be a simple arms embargo. Weapons and ammunition do not last forever, can be destroyed, and the fighting could literally peter out. If that happened it could open the door to an influx of humanitarian work and pave the way for other conflict resolution actions such as providing safe corridors for refugees, establishing neutral areas or even setting up formal peace negotiations. Again, given that fact that Syria is a proxy war between great powers, these proposals, though workable as reasonable solutions in the abstract, are unlikely to be seriously considered. Each side feels it has too much to lose and, frankly, it is just not bad enough, or they just do not care enough, to risk the potential fallout on the grand international game.

Still for many, military intervention may indeed be the only recourse possible to stop the war. However, one cannot ignore the very recent history of R2P and its distortion in Libya. The transition of a UNSC authorized R2P intervention to protect civilians in Benghazi turned very quickly into a robust air campaign aimed at regime change from the above. Given the position of the U.S. (“Assad Must Go”) there is every reason to believe that any invocation of R2P in Syria would likewise lead to regime change. Though that result may be understandably sought, it is not the goal of R2P. It therefore stands as a barrier to its legitimate use. Unlike Libya, the Syrian proxy war makes the prospect of mission creep to regime change even that much more serious and dangerous.

A more grim danger lies in the fact that Turkey is a NATO member and NATO has its own version of R2P. In the Report of the International Commission on Intervention and State Sovereignty on Responsibility to Protect (2001), the Commission considers the situation in which “the Security Council rejects a proposal or fails to deal with it in a reasonable time.” In that case, the Report authorizes “action within area of jurisdiction by regional or sub-regional organizations under Chapter VIII of the Charter, subject to their seeking subsequent authorization from the Security Council.” Since we can assume the UNSC will not be acting on Syria in the near future, it appears to authorize action by NATO. Since Turkey borders Syria, NATO can reasonably claim that the conflict is in its “area of jurisdiction” and bring to bear all of its assets, assets which are considerable indeed. This divergence between the UN and NATO applications of R2P leaves open the possibility of unilateral action by NATO that would likely result in a similarly odd conclusion of that the Independent Commission on Kosovo regarding the NATO air campaign: “Illegal, but legitimate.”[24]

Conclusion

An internal armed conflict rages in Syria today, one that has cost the lives of hundreds of thousands and homes of millions more and appears likely to continue for the foreseeable future. It touches every failed component of modern international relations. The UNSC, the institution tasked with ensuring international peace and security is run by those who have some of worst records of abuse, but by the nature of their victory, through war crimes gone unprosecuted, in a war that cost millions lives and the destruction of many countries, and therefore completely unable to do fulfill their obligations. The closest the UNSc has come to doing so was in Libya, but the temptation to fall back on old models of neo-imperial control rose to the fore, and ruined what opportunity was provided.

The wanton violations of all manner of international law by all actors involved, including the U.S., Gulf States, and Russia, make the possibility of any legitimacy of international action in Syria nearly hopeless. There will be no international U.N. mission in Syria if things remain as they currently are. There will be no trials of international criminals even may even make Mladic cringe, the UNSC has their self-diagnosed “tribunal fatigue,” and the ICC is left with no party referring the matter, little to no action by the prosecutor (the telling signs of unfortunate political influence – the very thing it was intended to avoid) and the local courts, if any legitimate courts remain outside Damascus, are wholly unable and certainly unwilling to do anything even if they had the power to do so. Money, arms, and fighters are flocking to the war, some for adventure and danger, and others from a feeling of a mandate by a religious or moral obligation. Those who fight in the hell of war never leave unscathed. All actors from the state to the individual are behaving contrary to a very basic moral truth: do as little harm as possible.

Despite this, not all hope is lost. One benefit of the underlying principle of sovereignty of states, means that those who control the state have a large influence in the international arena. Those who are compelled by a religious or moral obligation to fight violence and war must first change their governments. We need new representatives of the powerful states, ones who will not make excuses or put up barriers. Instead, the powerful nations, the P5 and the G8, can use their power to end the neo-colonial exploitation and fully enforce the laudable principles enshrined in nearly every Human Rights convention and document. This will not happen unless those in areas outside of hot conflicts can overcome their myopic vision of the world and recognize their ability to fundamentally alter and enhance the lives of millions, if not billions of our fellow humans.

With the right kind of decision makers at the U.N., and most importantly at the UNSC, a large coalition force could amass in the Mediterranean and on the Turkish border to threaten all sides fighting in Syria. A call for an armistice could be made, and if fulfilled, the UNSC could authorize several types and modes of missions that could facilitate peace talks and rebuilding, as well as resettlement and economic relief. If the sides refused, a large invasion (one of such size that those in Syria would know it would be impossible to repel) could be undertaken that demanded, and ensured, full compatibility with applicable law. Syria could sign and ratify the Rome Statute or the UNSC could create a tribunal for the conflict. All parties could participate and the Tribunal could be, and would need to be, well funded and staffed. There could be trials and the rebuilding of a new nation after years of war. This will not happen, though, if the status quo remains and those in the powerful nations stay complacent. In a real sense, the mechanisms exist in international law to combat and overcome these challenges, but without change at the state level in Russia, the U.S. and China, the status quo will continue in perpetuity. Those who allow that to happen are morally complicit in the crimes that happen in Syria and around the world.

[1] International Committee of the Red Cross, How is the Term “Armed Conflict” Defined in International Humanitarian Law? https://www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf, 2008

[2] Gasser, Internationalized non-International Armed Conflicts: Case studies of Afghanistan, Kampuchea, and Lebanon, 31 AM. U.L. Rev. 809 (1982)

[3] Williams, Explaining the Great War in Africa: How Conflict in the Congo Became a Continental Crisis, The Fletcher Forum of World Affairs, Vol. 37:2 Summer 2013

[4] Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. united States of America), 1986 I.C.J. 14, 27 June 1986

[5] Prosecutor v. Dusko Tadic (Appeal Judgment), IT-94-1-A, International Criminal Tribunal for the former Yugoslavia (ICTY), 15 July 1999, available at: http://www.refworld.org/docid/40277f504.html %5Baccessed 7 May 2015]

[6] BBC News, Syria Crisis: Where Key Countries Stand, http://www.bbc.com/news/world-middle-east-23849587 (Accessed May 7, 2015)

[7] Letter dated 20 September 2014 from the Permanent Representative of Iraq to the United Nations addressed to the President of the Security Council, U.N. Doc. S/2014/691, (Sept. 22, 2014).

[8] Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, International Court of Justice (ICJ), 9 July 2004, available at: http://www.refworld.org/docid/414ad9a719.html %5Baccessed 7 May 2015]

[9] Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, International Court of Justice (ICJ), 9 July 2004, available at: http://www.refworld.org/docid/414ad9a719.html %5Baccessed 7 May 2015]

[10] Arimatsu and Schmitt, Attacking “Islamic State” and the Kohorasan group: Surveying the International Law Landscape, 2 COLUM. J. Transnat’l l. Bulletin 53, 2014

[11] U.S. Department of Defense, Operation Inherent Resolve, http://www.defense.gov/home/features/2014/0814_iraq/ (Accessed May 7, 2015)

[12] Nicholas Watt and Nick Hopkins, “Cameron forced to rule out British attack on Syria after MPs reject motion” The Guardian, (29 August 2013) http://www.theguardian.com/world/2013/aug/29/cameron-british-attack-syria-mps (Accessed May 5, 2015)

[13] Ian Black & Dan Roberts, “Isis Air Strikes: Obama’s Plan Condemned by Syria, Russia and Iran”, The Guardian, (Sept. 12, 2014), http://www.theguardian.com/world/2014/sep/11/assad-moscow-tehran-condemn-obama-isis-air-strike-plan.

[14] Cheryl Pellerin, DoD Official: Successful Syrian Strikes Only the Beginning, U.S. DoD News: (Sept. 23, 2014), http://www.defense.gov/news/newsarticle.aspx?id=123241 (quoting Lieutenant General William Mayville);Rear Adm. John Kirby & Lt. Gen. William Mayville, Dep’t of Defense Press Briefing(Sept. 23, 2014), available ahttp://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=5505[hereinafter DOD Press Briefing]

[15] Gabriela Baczynska and Katya Golubkova, “Russia: airstrikes must be agreed with Syria or will fuel tension,” Reuters (Sept 23, 2014), http://www.reuters.com/article/2014/09/23/us-syria-crisis-airstrikes-russia-idUSKCN0HI0OU20140923

[16] Michelle Nichols, “Exclusive: United States defends Syria in Letter to U.N. Chief. (September 23, 2014) Reuter, http://www.reuters.com/article/2014/09/23/us-syria-crisis-un-usa-exclusive-idUSKCN0HI22120140923

[17] On the distinction between IS, al-Nusra and the Khorasan Group, see Holly Yan, What’s the Difference between ISIS, al-Nusra, and the Khorasan Group?, CNN (Sept. 24, 2014, 3:01 PM), http://edition.cnn.com/2014/09/24/world/meast/isis-al-nusra-khorasan-difference/

[18] Al-Monitor, “ISIS Erases Iraq-Syria border,” (June, 11, 2014)

[19] (A/RES/60/1, para. 138-140)

[20] (A/63/677)

[21] A review of many crimes can be found at http://syrianfight.com/

[22] UN General Assembly, Report of the United Nations Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic on the alleged use of chemical weapons in the Ghouta area of Damascus on 21 August 2013 : note / by the Secretary-General, 13 September 2013, A/67/997-S/2013/553, available at: http://www.refworld.org/docid/53abe7bf4.html %5Baccessed 7 May 2015]

[23] BBC News, “Syria Crisis: Russia and China step up warning over strike,” (August 27, 2013) http://www.bbc.com/news/world-us-canada-23845800

[24] Independent International Commission on Kosovo: The Kosovo Report: http://reliefweb.int/sites/reliefweb.int/files/resources/6D26FF88119644CFC1256989005CD392-thekosovoreport.pdf

The Unintentional Contrarian

Christopher Hitchens, The Contrarians Contrarian Who Denied The Title

I tend to find myself on the least popular side of most arguments. It is not by choice mind you. I am not the kind of person who likes to pick a fight. I am, though, not opposed to a debate. From this unenviable place I find myself in a rather precarious position in the age of identity politics. I have the least valuable inherent identifiers for commenting on a wide variety of issues that occupy the pages of print and web based media outlets. For the record, those identifiers are as follows: white, middle class, college educated male born in 1985 and raised in a mid-sized town in southern Minnesota. I grew up with a stable family, Nintendo, Jesus, public schools, and girlfriends. Pretty standard.

Those features do not appear to provide me much credit in terms of understanding what it is like to be black, poor, a woman, or any other marginalized or oppressed group. Any criticism I make about the nature and value of identity politics and the social movements it inspires can be easily dismissed as the ravings of a privileged-white-heteronormative-American-male. How can someone like that understand the animosity people of color hold for the police or a woman’s justified fear when alone at night? The sad irony is that rather than being judged by the content of my character (evidenced by chosen, not given identities) and instead by the color of my skin or where I was born, the sweeping generalizations that inevitably follow are by definition discriminatory. Since I am who I am, the argument goes, there is no way I can ever really understand the systemic nature or the experience of racism, sexism or any other form of discrimination. I would do well to just stay quiet.

But beyond those inherent identifiers are chosen identities. These gave me insight into what it is like to be a minority or to be oppressed. Because these identities fall outside the norm that my inherent features project to the rest of the world, they have allowed me to bridge the gap between my more traditionally privileged positions and those of the oppressed. The first of these is that I do not believe in God.

I remember the look on my pastor’s face when I told him. I was about thirteen and I had developed a bit of a reputation for asking annoying questions in church classes. So I finally had to come out with it. I was an atheist. Church had been a consistent component of my life growing up. Most Sundays and Wednesdays I would go do church stuff with my family, but I never really believed any of it. I went along with most of it because it was easier that way. No reason to rock the boat. By the age thirteen, pubescence and pompousness had swelled to a point that I was willing to finally tell people. Some people could not even fathom being an atheist while others did not see what the big deal was. Either way, there was a price to pay to assert a position so far from the norm. When you no longer accept religion, you have to surrender the protection that religion demands: immunity from criticism. Unfortunately that often leads to a litany of rude questions, unwarranted judgment, preconceived yet hidden assumptions and a generally negative attitude about your character. The usual outcome is social exclusion.

While that was certainly my experience, it was not mine alone. Over the course of human history the gravity well of religion has kept most human minds and actions in a close orbit around tradition. Our evolutionary impulse to listen to our parents has a reasonable grounding – one does not want to test whether they should or should not jump from a cliff edge – but it lends itself to easy abuse. The acceptance of parental authority is easily translated into other social spheres. We learn to obey authority figures and to respect status. But some of us seem incapable of doing so and therefore feel compelled, usually by good reasons and intentions, to contest the legitimacy of authority wherever we find it. When humans sought answers to questions we did not have the knowledge to truly understand, we thrust those questions up to the gods to answer. Religion is a very human impulse, but so too is the tendency to reject it. It seems inevitable that humanity would eat from the tree of knowledge of good and evil at some point.

Still, that has not gone well for those who have asserted intellectual independence, specifically in the realm of religion. The length of the list containing names of those socially excluded, banished, fined, imprisoned, beaten, tortured, and killed because they asserted a disbelief in the one, or many gods, will never fully be known. Rest assured, it is long, and more names are added every day. One needs to look no further than Saudi Arabia, Israel, Syria, or Iraq see the potential dangers of the strength of will it takes to stand by your supernatural convictions. While for me the threat of death or imprisonment was slight, the social exclusion was real. Invariably after admitting that I was an atheist I was immediately put on the defensive. The barrage of questions – so easily answered by priests, rabbis and imams – came rushing forth. The answers I gave, tough as they are to accept, were rarely granted with grace. Some people even refused to go that far, condemning me as the holder of a dangerous and potentially treasonous idea that should be avoided if not simply suppressed. To be an atheist was and still is tantamount to not being a full member of society, at least not one in good standing. Rather, we atheists should be pushed to the margins and had a close eye kept on and preferably to, again, stay quiet. For the first time in my life I felt the social weight of a minority status.

Even within the Atheist community there is disagreement and marginalization. In the hyper-specialized world of 21 century capitalism, no difference is too small to matter. Every divergent position may cause such heated vitriol that both sides can, though aligned in nearly every other issue, refuse to cooperate. Some, like me, enjoy the “New Atheist” tradition while others like the more mild, complacent and socially acceptable form. It really is a matter of whether you are willing to thrust yourself into the fray, or wait for everyone else to catch up. I have never had the ability to wait.

Holding, not to mention being open about, such a socially precarious position seems stupid to most people. Sure, we should all be authentic, be proud of who we are and whatnot, but if we are honest, no one wants to commit social suicide. Becoming an atheist, especially fifteen years ago, was just that. That was not the end for me, though. When I was fifteen I had to participate in a debate for English class that though I intended it as a test of my skills to choose a topic that was a non-starter I knew just the proposition, I would find that I would come to argue my position outside class as well. That position: “The United States should adopt a Communist form of government.”

Given what we had all learned in school up to then, it seemed like an insurmountable challenge. I remembered my history lessons. The Soviet Union was the evil empire: a place without freedom, fraught with commodity shortages and little more than an archipelago of prison camps. We had been taught that America’s great struggle with the Communists exhibited not only that the American way was better than the Soviet, but that Capitalism was superior to Communism. Communism, (or Socialism or Marxism – they are synonyms as far as most Americans are concerned) they told us, is a system contrary to human nature. One where the government takes all property, forces everyone to work for the same wages, and demands a dictatorship to control the whole terrible system.

Stalin, my teachers lessoned, was Communism incarnate: a shrewd man who, though once our ally, killed millions of his own people through starvation and concentration camps. My high school history teacher was very adamant about the subject. “Stalin,” he said, “was even worse than Hitler.” From those lessons in my mind, and the minds of my classmates around the country, Nazism=Hitler > Communism=Stalin. So I had to argue for something worse than Hitler? This decision was not likely to help my already uneasy social position given my already out atheism.

As I prepared for the debate – reading the Communist Manifesto and then several other of Marx’s famous works – I was left mostly confused. I had come to one unshakable realization. My teachers had lied to me. Either they did not know what they were talking about (which was probably the case) or they had consciously or unconsciously accepted Cold War propaganda as fact. The ideas of Marxism, Socialism and Communism, first and foremost as distinguishable and independent things, are, I learned, much more nuanced and less superficial than we had been led to believe. Really it seemed to me more like an argument for a system that tapped into the very things that I had learned and enjoyed about the moral teachings of my religious education. As I read more it seemed that Socialism or better yet Communism, rather than Capitalism, was the means to bring about a better, more moral state. Marx talked about the seizure of the government by the working class, not so it could ingratiate itself with lavish luxury like in Russia, but so it could use its power to combat poverty, inequality and discrimination of all forms. The truth was there before me. I figured I could win the debate so long as I dealt with Stalin.

My adolescent study of Marx, though quick and too shallow, when combined with a dramatic conversation with a crack addict in the downtrodden Southeast side of Washington D.C., changed my perspective. No longer did I debate the issue simply to test my oratory skills. Instead I tried to undo the damage that the propaganda about Communism and the Soviet Union had done. I gave an impassioned plea for us to let go of their preconceived notions about the subject. I explained that the infantile description of Marxism that we had been taught was bunk. That it was our economic system, Capitalism, and not Socialism, which was responsible for the greatest woes: slavery, inequality, colonialism and two world wars. Stalinism, I told them, is distinct from Marxism. Sure they share a common vocabulary, but one attempts to criticize capitalism and proscribe an antidote, albeit an amorphous one. The perverse form simply usurps those same phrases which tap into the generosity of the human spirit and uses them to facilitate the consolidation of power into the hands of a small center of power. Finally, I tried to sum up the whole thing; Communism is nothing more than true democracy.

Democracy, we all agree, is the ideal, right? Well, we do not have democracy in America. Our economic system and the places we spend most of our waking hours – our jobs – are not democratic institutions but oligarchies or mini-dictatorships. Communism merely asserts that we ought to democratize work. That iss all. How could you disagree with that? After my opponents inevitably failed to adequately combat my contentions the class voted unanimously for the resolution. I was stunned. People like me, who had not grown up in the propaganda frenzy of the Cold War were able to see past the remnants of it with which we had been indoctrinated.

From then on I thrust myself into studying Marx and had to do so mostly on my own. No one was teaching about such a dangerous and radical idea. After the local newspaper published my letter to the editor cautioning my fellow citizens about the dangers of American intervention in Iraq, I received a copy of the alien and sedition act while sitting in class one afternoon. I did not know it then, but that is the very law that the government has used to silence dissent by arresting, detaining, and/or deporting anyone promoting “seditious” activities like advocating for the system I now did. As a seventeen year old kid in 2003, I finally saw how criticizing capitalism in America, even after the fall of the Berlin Wall, was tantamount to treason. It was not at all clear to me why though. But it did not matter.

Over the course of the last hundred years the United States government, media and education have waged a full scale assault on people like me. Though we never really learned about Marx, we did learn about the Italian anarchists Sacco and Venzetti, (as dangerous revolutionaries who were executed after being convicted of murder) but nothing of the Haymarket Riot. There were the Red Scare and the Palmer Raids in 1919 and 1920. As the German revolution was being drowned in blood, the American Department of Justice decided to go after radical leftists, arresting and deporting hundreds and causing the rest to hide in fear. Rather than learn about the labor struggles that had led much of the American working class to strikes and boycotts which precipitated the raids, all we had been taught was that the DOJ went after the commies because Communism is “anti-American.”

As I said, there was nothing about the labor struggles and trials of Communists and Socialists in the 1930s taught in school, despite the history being relatively recent, interesting and full of lessons about the depression that did not focus solely on the President. It is hard for Americans to believe this, but the President does not do everything. No doubt, the brief read that most students partake of our flawed history textbooks could easily convince them otherwise. Real history shows us that it is not presidents but the people who generate real and lasting change. Like the lost history of the Communist Party in organizing black laborers in the South, which paved the way for the civil rights movement, a movement whose key organizers were committed Communists. But you would never hear that in history class.

After WWII the anti-communist activity in the US swung into full gear. The propaganda machine began rolling both by the U.S. Government but also by big media, industrial and financial business as well as academia. Hollywood radicals were blacklisted. Senator McCarthy made “The House Sub-Committee on Un-American Activities” a spectacle only rivaled by the Purge Trials in Stalin’s USSR. The FBI, under Herbert Hoover who was convinced that there was an imminent threat of Communist uprising, created and implemented the COINTEL program which infiltrated and incapacitated all of the leading labor, radical, student and Marxist organizations in the United States. At one time, there were as many FBI informants in the Communist Party than there were actual Communists. Part of this campaign involved imprisoning, murdering, deporting or other ways of taking members of the movement out of commission. Taken together, by the 1980s, America’s radical left had been all but wiped out. There were few Marxist teachers in classrooms, no popular writers on the subject, only a select few political leaders that attempt to give voice to the cause. It was not because the ideas were in and of themselves fraught with error, but that they were suppressed, managed, marginalized and taken out of public view by those with the most to lose. With it went a philosophy which sought to promote the simple idea that we should not tolerate poverty, inequality and war for the sake of profit.

Because of this history, I have too been relegated to the position of “that Godless Commie” or “that crazy guy talking about revolution.” These powerful ideas are seen by so many as nothing more than a joke or a position stemming from naivety. The United States program of destroying radicals in general has been so successful that simply as a Marxist I am a minority whose voice is or should be silenced. Sure I can write my blog or speak on the street, but there is no path to power, all pathways to information to the common person are controlled by corporate and social media companies and their government regulating friends. Besides, being a communist is tantamount to being a fascist in America. I would wager that even someone with a sufficiently deep education may still have trouble telling the difference. If you did not study history or political science at the college level, and even then, how would you know? After all, it was what we all learned in school, right?

Just in case, let me be clear then. Barack Obama is not a socialist; he is a centrist capitalist politician. Adolf Hitler was not a socialist (yes, I know it the National Socialist Workers Party – but who did Hitler destroy first? He destroyed the communists), he was an ultra-conservative corporatist. Stalin claimed to be a socialist but the Soviet Union under Stalin was about as far from a democratized workforce as you could get. China is led by the Communist Party, but it is clear that there is neither democracy at work, nor in any true sense in the political sphere. This is not Communism. There have been many iterations of Marx’s perspective which have been prompted by world events since Marx’s death. All of them are attempts to make the theory work. Unfortunately revolutions occurred in the places where it was most unlikely to succeed (the non-industrial) and in the manner that quite destructive (famines and wars). This is not Socialism or Communism: it is Capitalism. If one is looking for an example of the ideas of Marx in practice, I suggest a study of the Paris Commune.

But to make this point puts you further into the margins. Even if this analysis is right, and I assure you it is, it makes no difference if no one hears it. But it does not stop there for me. Around the time I came to understand the exploitation of workers by capitalists while still trying to deal with the profound intellectual and emotional struggle of dealing with death without God, I came to yet another revelation. Much of the food I ate growing up was pretty standard northern European, white people food. You know, the standard, meat and potatoes. For the most part I liked most of it. My mom always called me a picky eater, which I guess I was, but I never thought much about what was really going on every night. Provoked by the deaths of childhood pets, coupled with the irony of the fun times I had herding sheep at my grandfather’s farm knowing of their impending slaughter, the weight of the finality of death finally hit home. It forced me to contemplate just how many lives I had been responsible for taking every day I unconsciously ate meat. I had never really made the connection.

In the course of a week it became clear that I could no longer eat meat. There is no possible moral argument for eating meat. Where one stands on the issue lies on a spectrum between unconscious meat consumption (and the results thereof) and the strictly vegan diet. This continuum is a moral one. The farther you go towards the vegan end, the more moral your dietary habits. I cannot fathom an argument that would serve to refute this assertion. I think it will be clear that no kind of religious or speciesist (humans are the top of the food chain: the moral equivalent of “it is okay because we can”) argument will suffice.

The decision to become a vegetarian at the age of sixteen again put me in the minority. In Midwestern America, so few people violated the norm that when they did, there was not much by way of support. Sure, I suppose I could have just not rocked the boat, but then I would have to resign myself to being, at best, a hypocrite and I refused to do that. The knowledge that I was right acted as a buttress, and I was able to withstand the social pressure to conform. Although much more common in 2015, this obviously morally superior dietary decision still stands as something that can serve to marginalize those who want to bring to a light a subject that most certainly needs the consciousness of people to be raised.

So, even as someone who appears to be able to take advantage of all that white, male, hetero-normative, middle class (oh, and middle class is not a real thing, by the way) privilege can provide, I too have struggled with marginalization, social exclusion, police intimidation and incarceration. I too have felt general dismissed from the rest of society. The most complicated of these positions is when it regards an identity that conforms closer to the traditional identifiers that gain one social currency nowadays. Over the last ten years I have seen the LGBT equality movement begin to really get steam and make some significant headway. First I have seen the consciousness of our nation change after an opening and the relaxation of the formerly stringent marginalization of the community en masse. It led to the opening up of social dialogue about the place of sexual orientation in our understanding of equal and human rights. I have been very proud of the American people for this, but do not get me wrong, the struggle continues.

As a bi-sexual man I feel some affinity for the movement and consider myself a member of it. But I have not participated meaningfully in gay pride parades or become wildly (though slightly) active in the gay marriage movement. There are several reasons for my arms-length relationship. First, as a Marxist I see the marginalization and oppression of gay people as a service to the ruling class by further dividing the large working class. So while I understand their struggle, if we focused on overthrowing Capitalism, then there would be no social value in LGBT discrimination of any kind. I see the gay marriage aspect of the LGBT movement as a distraction from the larger goal of lasting social change.

Marriage is an institution with a dubious past (one of passing property – the woman – from father to husband) that I am still not sure why the LGBT community would want to promote such an institution. But this is the genius of modern capitalist society. Rather than a marginalized group gaining political power to challenge the systemic nature of discrimination and exploitation as aspects that benefit a certain class, the movement spends political capital on a program aimed at attaining inclusivity into the very societal structure that allowed it in the first place. This is what happened with gay marriage and happened to the African American civil rights movement as well. Instead of seeking to topple the system that allowed and encouraged LGBT, racial, sexual, and national discrimination, these movements are guided not to revolution but to inclusion as full members of the hegemonic system. The irony is too sad to enjoy in this case.

Another reason I do not usually openly identify with the LGBT community is not because I am afraid of the backlash, but because my letter of the four – “B” – has its own unique history within the movement. This is where even within the inherent characteristics, for which gender and sexual identities surely are, can clash with the chosen even within a traditional identity based community. One of the strengths of LGT people is their more obvious challenge to hetero-normative social roles and norms except – maybe and paradoxically – marriage. This is not the case with bi-sexual people. For my own sake I am much more taken with women than I am men, and therefore present no real visible outward contest to hetero-normativity. I would appear to any observer as straight. I am married to a woman, behave very much like a “dude” for all intents and purposes, and am not branded on the tongue as it were. In many ways I fit into neither world. It is a limbo that is, as the theme again emerges, marginalizing even within the movement.

The provincial nature of the LGBT movement has caused some tension between the LGs, the Bs and the Ts. While there is a general understanding of the larger issue of equality and justice (words whose meanings are seemingly nebulous in a capitalist economy), there is not such an understanding about the particularity of the struggle on the individual identities in the larger LGBT community. Many gay and lesbian people are obviously so, and make no attempt, nor have any good reason, to hide it. They have no reason to be, but their outward expressions of that difference are now pillars of strength on which they can lean. For transgender people the struggle is one of gender identity and societal norms regarding sex and gender in general. While I freely admit that the struggle of the trans community is the most important of the four, it does not mean that others are not so as well. For some time a current has run through the more – shall I say? – conservative gay and lesbian crowd that see bisexual people has ‘having it both ways.’ We can be gay when it is convenient or when we want, and straight otherwise. Therefore, we are not really ‘all in’ like the others. They are openly different, obviously threatening the status quo, whereas bisexual people can blend in without being noticed. It seems like the safer – err – choice? I will leave you to deal with the layers of irony there.

So even my non-chosen identity is perilous in the world of identity politics and that is the limitations of it. When the ‘politics is personal’ the politics cannot be structural, and it most clearly is. While I understand the natural desire of social beings who feel marginalized in modern society to want to strive to be included in that society, the gains are temporary at best and do nothing to prevent that kind of action against a different group. Just getting to fit in does nothing to alter the structure that allowed for, or even encouraged, the discrimination to begin with. To ignore the structural impediments to progress, we only empower and legitimize the system which previously exploited us. It is like when a worker becomes an owner, a gay couple gets to marry or when a black man gets elected President. Sure, it makes us feel good, but does nothing to change the system that benefits from such exclusions, and then again benefits from the inclusion. We get taken advantage of either way. If we continue to look inward for our political perspective we will only see the gap that we can fill in the edifice of society, rather than the crumbling and unjustifiable absurdity of the whole monstrous construction itself.

Therefore, I encourage my brothers, sisters, comrades and friends around the world to think big about our problems. Step outside the confines of your innate characteristics, the identities you did not choose but came with, and see how you relate to the political and economic systems of the 21st century. Explore the criticism of religion and decided for yourself whether it make sense to you given the information to which you have access. Think about why some people (white, black, men and women) are poorer than others, and if it is justified for 90% of the wealth to be owned by 10% of the population. Consider whether you like going to work at your mini-dictatorship every day, or if you would rather have a say in your work. Think about who died for your meal, and whether marriage is all you want to see for your LGBT friends.

I can assure everyone that if you take a sober assessment of the world around you and neither accept nor dismiss anything from the start, you may realize that – although one may not look like it – they may have experienced the kind of marginalization that you have but it is not because of their skin color, or where they were born, or who they want to have sex with, but the content of their character that put them there. That experience, I assure you, may provide a unique perspective that may be worth listening to for once. If we do that, we can start making this world better for everyone.

Chomsky and Harris – Making and Crossing the Bridge

HarrisChomskySam Harris recently published e-mail correspondence between him and Noam Chomsky which was, to say the least, unhelpful and downright useless as it stands. What is needed, it seems, is a bit of distillation. We need to understand where the difference between them is. Anyone who has read enough Harris and Chomsky (who have apparently not read much of each other’s work) may understand where that difference truly lies. Seeing nothing but banal summaries and shameless side-taking, I feel it worth it try to make some inroads. Here is how I see the difference and how to resolve it.

Harris sent to Chomsky his section in the “End of Faith” that discussed, as he saw it, Chomsky’s lackluster, if not absent, attention to intention as a motivating factor in his moral condemnation of America’s bombing of the Al-Shifa pharmaceuticals plant in Sudan. He sent to Chomsky his explanation which included the following questions and terse answers:

“What did the U.S. government think it was doing when it sent cruise missiles into Sudan? Destroying a chemical weapons site used by Al Qaeda. Did the Clinton administration intend to bring about the deaths of thousands of Sudanese children? No. Was our goal to kill as many Sudanese as we could? No. Were we trying to kill anyone at all? Not unless we thought members of Al Qaeda would be at the Al-Shifa facility in the middle of the night. Asking these questions about Osama bin Laden and the nineteen hijackers puts us in a different moral universe entirely.”

Harris asserts that the specific intent of the Clinton administration had in bombing the factory was not to cause human harm, though he concedes that was the ultimate result. Harris concludes, both in his writing and in a recent Joe Rogan podcast that he does not believe that the administration had any intent to kill anyone and ostensibly bombed the factory because they believed it was manufacturing chemical weapons in aid to terrorist groups such as Al-Qaeda.

If that was indeed the case, the moral culpability of the bombing is much less on Harris’ terms than if the Clinton administration had intentionally bombed the factory to bring about the deaths of thousands, which was, after all, the end result. Collateral damage, based ostensibly on a mistake, simply does not rise to the same level of culpability as if they had coldly intended to bring about those deaths. Harris does not consider that the possibility that the Clinton administration bombed the factory out of retaliation for the embassy bombings that happened just before the attack. Chomsky adamantly asserts in response and explains that it was, for the worse, representative of cold indifference to the results that is the most morally corrupt aspect of the bombing given the available evidence at the time. Harris does not consider that it may have been a wag the dog situation (that the 9/11 commission denied) to distract from the failures of Clinton administration policies, which has also been suggested. Harris takes the government at its word, and further bolsters that belief by saying in the Rogan conversation that he couldn’t fathom Clinton rationally behaving to the contrary. That, needless to say, gives Bill Clinton far too much credit.

This is precisely what Chomsky is annoyed about. It is part of the reason he, poorly in my view, categorized Harris and Hitchens as “religious fanatics” of the “state religion.” It seems to me that Chomsky ought to, at minimum, clarify his position and to walk back from his irresponsible turn of phrase, a kind he so uncharacteristically engaged in here. That being said, and not to defend his unnecessary callousness in his personal emails with Harris, he has legitimate concerns about the nature, truth, utility, and indeed rationality of Harris’ position regarding the bombing of the Al-Shifa factory and the presumed intentions and moral culpability of the Clinton administration.

What Chomsky failed to adequately express to Harris is Harris’ fundamental misunderstanding of American foreign policy, propaganda and the moral aspects of both. He assumed that Harris would understand this point because he assumed Harris had read him but only because he hasn’t read any Harris, which Harris assumed. That fundamental mistake helps to understand why Chomsky dismisses Harris and Hitchens arguments as “fanatics” of the “state religion.” He sees Harris like the follower of a prophet, simply buying the American exceptionalist position, as mouthed by that government. Harris, it seems, believes America (at least vis-a-vis the government) is a genuinely positive moral agent, because it is so in contrast to ISIS or some other horrific group. But when our (America’s) agency creates moral hazards, Harris sees them as an aberration of our inherent moral worthiness, whereas Chomsky sees it as indicative of the precise opposite character that America holds.

Basically Harris believes that America is good and has made mistakes; Chomsky believes those “mistakes” are in fact the intended, or allowed collateral results of our actions which show our amoral (if not immoral) nature. This is the fundamental difference. Chomsky is unwilling to believe or apologize for American actions which have, as intended or at least collaterally “tolerated” resulted in the deaths of hundreds to millions of people, as merely moral mistakes. Harris it seems to take, a priori, America as a positive moral agent and when it fails to be so, it is because something went wrong, or something was coopted by other immoral forces. Chomsky denies this, suggesting the evidence just is not there to support such a claim.

Harris suggests a way to think about his point by way of two thought experiments. The first he made in the correspondence. In the first case we are to imagine that al-Qaeda is filled with genuine humanitarians.

“Based on their research, they believe that a deadly batch of vaccine has made it into the U.S. pharmaceutical supply. They have communicated their concerns to the FDA but were rebuffed. Acting rashly, with the intention of saving millions of lives, they unleash a computer virus, targeted to impede the release of this deadly vaccine. As it turns out, they are right about the vaccine but wrong about the consequences of their meddling—and they wind up destroying half the pharmaceuticals in the U.S.

Harris says this would be “a very unfortunate event—but these are people we want on our team. I would find the FDA highly culpable for not having effectively communicated with them. These people are our friends, and we were all very unlucky.

Counterpoised to the la-Qaeda humanitarians Harris then asks us to consider that “al-Qaeda is precisely as terrible a group as it is, and it destroys our pharmaceuticals intentionally, for the purpose of harming millions of innocent people.

Then Harris would simply “imprison or kill these people at the first opportunity.”

The second thought experiment asks us to consider the results of the possession of a “perfect weapon” by different forces. The perfect weapon is one that insures against the possibility of collateral damage. Armed with this weapon how would the various agents in the world use them? Harris argues that terrorist or religious extremist forces would use them to cause wanton destruction of their apostate enemies, civilians and military forces alike, despite their ability not do so. Harris believes, and has good reasons to believe, that these forces want to destroy a world that does not conform to their religious conservatism.

Harris rejects, through silence it seems, another potential of the use of this perfect weapon for the Islamists. It is possible that they would be used to rid the Middle East or other “Muslim Lands” of infidels (Westerners) and would do so without collateral damage. It may go further, with a Muslim conquest of the whole world, yet without civilian deaths or “terrorism.” Harris has to admit this is, at least, a possibility. Those who have studied modern warfare understand that guerrilla war tactics (which may include suicide bombings, car bombs, hostage taking or other “guerrilla” activities) is the only one capable of successfully contesting something like the American military. There is at least the potential that they are related, albeit distorted through the realm of religion with all its vulnerabilities, to military and other international interventions. Harris is silent on all of this.

However, the fear that Harris presents is understandable. There is something to the fact that there are people who would act in conscious disregard for the value of human life. That is a real threat, one Chomsky too easily dismisses. After the seeming demise of the Communist opposition to capitalist imperialism, Islamic Jihad has taken its place. The difference between these ideologies is crucial to understand why Harris is right to be concerned, and Chomsky is dismissive. Whereas the Communist revolutions of the late 20th century attempted to usurp the power of capitalism with socialism, the Islamic “revolutions” are reactionary in nature. They seek to pull the world back to the 5th century, all with 20th and 21st century technology. This is not a situation to take lightly. Chomsky, unfortunately, does just that.

The odd result of this concern for Harris appears to make America, as the countervailing and therefore morally benign (or indeed superior) force without exception. Going back to his perfect weapons thought experiment America would likely use them to advance democracy and freedom or at least to minimize casualties in pursuit of its otherwise noble interests. In this sense, he has bought – hook, line and sinker – the propaganda campaign of American bourgeois forces to convince its population that it is not the imperialist juggernaut the way the majority of the rest of the world sees it. The thought experiment leads to an absurd and useless line of questions with corresponding untenable answers regarding a false analogy with Iraq from Harris book.

“Consider the recent conflict in Iraq: If the situation had been reversed, what are the chances that the Iraqi Republican Guard, attempting to execute a regime change on the Potomac, would have taken the same degree of care to minimize civilian casualties? What are the chances that Iraqi forces would have been deterred by our use of human shields? (What are the chances we would have used human shields?) What are the chances that a routed American government would have called for its citizens to volunteer to be suicide bombers? What are the chances that Iraqi soldiers would have wept upon killing a carload of American civilians at a checkpoint unnecessarily? You should have, in the ledger of your imagination, a mounting column of zeros.”

While this might sit well with a generally liberal audience, one that accepts the rhetoric and propaganda of American moral virtue, it does not conform to the realty that Chomsky has diligently spent his life carefully and methodically attempting to dismantle. It is more a representation of the success of the propaganda that Harris seems to accept without exception. Chomsky has become famous as someone consistently critical of the way America both behaves in the world, as well as how it perpetrates that myth at home. His catalog is a robust denunciation of the very myth that Harris appears to accept. Harris’ misunderstanding of Chomsky is clear from this confusion, as is Chomsky’s of Harris’ perspective. They really need to sit down and read one another’s work.

If Harris is right in his presupposition of American moral virtue, then his argument would make sense. But Chomsky has the lead here, because America and its foreign policy is not positive, or even benign, it is quite the contrary. This is not to say that America could not change this, but there is no evidence that these policies would change without mass action by the population of the US. Chomsky has shown time and time again that American military force is consistently used, in contradiction to international law and general moral principles, not as an aberration of American virtue but a representation of its malignancy.

Chomsky expressed his dissatisfaction by bluntly dismissing the thought experiments especially when the assertions of whatever reasonable intentions the administration may have had, the truth is they do not have “even the remotest relation to Clinton’s decision to bomb al-Shifa – not because they had suddenly discovered anything remotely like what you fantasize here, or for that matter any credible evidence at all, and by sheer coincidence, immediately after the Embassy bombings for which it was retaliation, as widely acknowledged.” Beside the lawyerly argumentative tone, not helpful for the kind of dialogue Harris intended to foster, the point remains the same.

Chomsky roundly rebuffed both of the thought experiments in his responses, again not in useful ways or with a respectful tone. Basically he explained to Harris that he is not in the business of hypotheticals. He wants to live in the real world where the decisions and resulting consequences are real. He used the words “ludicrous and embarrassing” to describe the thought experiments. That seems unnecessarily rude and contrary to Chomsky’s own assertions that one ought not to convince but to explain. The thought experiments help make Harris’ philosophical point, but at the expense of understanding the applicable actual material conditions that are at play. This is useful for armchair philosophy, but not for moral, political, and policy analysis. You can abstract things to make your point, but the world is not abstract. This, I believe, is the source of Chomsky’s consternation, but also representative of his ignorance of Harris intent. That is not necessarily merely as personal misunderstanding, yet the exchange certainly went there. That is what made it useless.

America was the lone superpower for a while in the last century. It maintains this hegemony in relatively 19th or 20th century fashion. It maintains control through neo-imperial policies of intervention and outright invasion, followed by business integration into the world market. A foreign policy truly based on genuine desire to raise the standards and freedom of people would not look like what American has consistently (not contrarily) engaged in. However, if America is a neo-imperial superpower, with the intention to ensure the stability and lucrative nature of the world capitalist economic system for which it’s ruling class gains the windfall, then it would behave precisely as it has.

The main difference, the ships that are passing in the night in their exchange, is that Harris does not consider the geo-political and economic components of American foreign policy and therefore its intentions, whereas Chomsky not only considers those factors, but identifies them as the mechanism by which the intention of American action arises while failing to consider the relative importance of the intentions of those who would, if able, do mass harm to much of the world. For Chomsky, intention is evidenced by prior and consistent action. For Harris it is implied by relation less moral agents. Chomsky looks through the record to see how decisions are made, and understand why in the context. Harris uses abstraction to make a larger philosophical point. There is value in both, but this fundamental difference must serve as the starting point to further communication.

To not bridge this gap is to fundamentally misunderstand the value and utility of both sides. Add to that public and seemingly disparaging comments and we the readers lose (in Chomsky’s words) the value of a public discussion in which this fundamental difference can be explored. I do think this was Harris’ intent, and Chomsky just shut it down before it really got going. Both Chomsky and Harris’ fame and public personas are based on the validity and truth of their statements. For both to feel as though the other spoke so flippantly about the other shows that fundamental misunderstanding and then immediately stalls it. Harris is right that the medium of e-mail was, in retrospect, a less than valuable way of attempting to get something resolved.

Harris and Chomsky would do well to speak to one another in private with the specific intent to come to the understanding I have outlined here. In doing so, hopefully the dialogue may carry a different tone and allow for the noble, if not slightly naive, desire that Harris attempted to engage Chomsky in the first place. I would be interested to hear from either Chomsky or Harris if my reading of the situation is correct.