Part II of the Series:

A Who’s Who of the „Free Muslims Board

In Part I of this series, we examined the activities of Jon „Yani“ Haigh, a longtime Queensland resident who operates and monitors a network of racist troll groups on Facebook, and Kamal Nawash (for whom Haigh provides a range of web design and programming services) of the „Free Muslim Coalition Against Terror“ , a group that advocates the political repression and surveillance of the US Arab and Muslim communities (related to the Facebook group „Free Muslims“). This, the second part of the series, examines some of the other shady characters who make up the „Free“ Muslims Coalition.

 

The board of the Free Muslims are exactly what you’d expect of a group with the stated purpose of putting a Muslim face on the plethora of repressive measures, human rights violations, and outright war crimes that make up the „war on terror“.

Particularly fitting is the presence on the Board of Ray Hanania, who began his career as a journo in Chicago, covering local and regional politics for the Sun-Times and other print, radio, and TV outlets. During this period, he also hosted call-in radio chatshows on WLS, and appeared regularly on Dick Kay’s City Desk on WMAQ-TV. In 1990, he served as a panellist at the Chicago mayoral debate, which resulted in yet another electoral victory for the Daley clan. Two years later, he delved headfirst into the world of Chicago machine politics, founding the Urban Strategies Group, a full-service PR agency whose clients include Mayor-For-Life Daley himself, various city agencies, aldermen, Democratic committeemen, and „three successful candidates for the U.S. House of Representatives“.

Hanania boasts particular expertise in „crisis management“ for „those with serious public relation [sic] challenges“. One imagines that such expertise was quite useful during his stint providing „basic media training“ to the propaganda agency of Israel’s „Palestinian Authority“. Nor could it have hurt when he was called upon by the U.S. State Department and U.S. „Information“ Agency to „provide media training sessions, meetings and presentations…to foreign media and government officials.“ Continue reading →

CAMERA’s Latest Scam:

The San Remo Irrelevancy and the Occupied Palestinian Territory

Sometimes the much-maligned Facebook ads have their merits. Last night, I happened upon a Facebook ad offering a course approved by the State Bar of California for credit towards the Bar’s minimum continuing legal education (MCLE) requirements entitled “Who owns Jerusalem?“.

It turned out to be an advertisement for a “course”, sponsored by the “pro”-Israeli PR organisation CAMERA and held by an obscure Canadian lawyer by the name of Jacques Gauthier, claiming that an even more obscure document from 1920 known as the “San Remo Resolution” had vested full legal title to the entirety of Palestine to Israel.

Before we turn to the content of the San Remo document, let us recall what the International Court of Justice, the supreme judicial body in the international system, concluded about the legal status of the territories occupied in 1967 (including East Jerusalem) after exhaustive analysis of the matter:

78.          The Court would observe that, under customary international law as reflected (see paragraph 89 below) in Article 42 of the Regulations Respecting the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 18 October 1907 (hereinafter „the Hague Regulations of 1907“), territory is considered occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory where such authority has been established and can be exercised.

The territories situated between the Green Line (see paragraph 72 above) and the former eastern boundary of Palestine under the Mandate were occupied by Israel in 1967 during the armed conflict between Israel and Jordan. Under customary international law, these were therefore occupied territories in which Israel had the status of occupying Power. Subsequent events in these territories, as described in paragraphs 75 to 77 above, have done nothing to alter this situation. All these territories (including East Jerusalem) remain occupied territories and Israel has continued to have the status of occupying Power.

Legal Consequences of the Construction of a Wall on the Occupied Palestinian Territory, paragraph 78 (emphasis added).

Put briefly, under the basic international legal principle of the “inadmissibility of territorial acquisition by war”, Israel has no claim to sovereignty over any of the territories occupied in the 1967 war. Those territories – the West Bank, Gaza, and East Jerusalem – are and remain “occupied territories”. The Court based this conclusion on an exhaustive study of the relevant legal framework, including foundational documents of international humanitarian law such as the Hague Regulations of 1907, the General Assembly’s Partition Resolution (on the strength of which the State of Israel was founded), and various Security Council resolutions calling for the withdrawal from the occupied territories (UNSC 242) and declaring “totally invalid”

„all legislative and administrative actions taken by Israel to change the status of the: City of Jerusalem, including expropriation of land and properties, transfer of populations and legislation aimed at the incorporation of the occupied section […]”

(UNSC 298).

CAMERA and Gauthier claim that the San Remo document negates all this, and gives Israel full title not only to the territory within Israel’s recognised (pre-June 1967) borders, but to the territory occupied in the 1967 war. If this is true, then the entire international legal consensus on the status of the Occupied Palestinian Territory is dead wrong.

This, of course, raises the question: Is it true? In order to answer this question, two fairly obvious requirements must be met:

(a)   The San Remo document must actually grant sovereignty to Israel (or, given that Israel would not exist for another 28 years, to a „Jewish state“ to be created on the entire territory of Mandatory Palestine); and

(b)   It must continue to be valid and applicable, meaning that any and all subsequent enactments must either not concern the subject matter of the San Remo document, or, if related, not conflict with it (the “last-in-time” principle – lex posterior derogat priori).

Note that (b) is a subsidiary question. If the San Remo document does not actually grant sovereignty over the territory in question to Israel or a future “Jewish state”, then its continuing vitality is of no relevance to whether Israel has any claim to the Occupied Palestinian Territory. Thus, we must first turn to the relevant provisions of the San Remo document:

(a)     To accept the terms of the Mandates Article as given below with reference to Palestine, on the understanding that there was inserted in the proces-verbal an undertaking by the Mandatory Power that this would not involve the surrender of the rights hitherto enjoyed by the non-Jewish communities in Palestine; this undertaking not to refer to the question of the religious protectorate of France, which had been settled earlier in the previous afternoon by the undertaking given by the French Government that they recognized this protectorate as being at an end.

(b) that the terms of the Mandates Article should be as follows:

[…]

The High Contracting Parties agree to entrust, by application of the provisions of Article 22, the administration of Palestine, within such boundaries as may be determined by the Principal Allied Powers, to a Mandatory, to be selected by the said Powers. The Mandatory will be responsible for putting into effect the declaration originally made on November 8, 1917, by the British Government, and adopted by the other Allied Powers, in favour of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.

In other words, the San Remo document calls for the implementation of the Balfour Declaration, which called for the establishment of a “national home for the Jewish people” in Palestine, and twice provides that the “rights hitherto enjoyed”/”civil and religious rights” shall in no way be impaired by the establishment of this “national home”. There is no reference to a “Jewish state”, nor any transfer of sovereignty to “the Jewish people” or to anyone else, merely a “national home” for Jews “in Palestine”. Even more fatally to Gauthier’s claims, the San Remo document makes no determination whatsoever as to boundaries, only noting that boundaries are to be determined on some later date by the Principal Allied Powers.

When I raised these fairly obvious issues on the Facebook event page set up by CAMERA Regional Coordinator, attorney Talia Shulman Gold, she claimed that “national home” and “state” were the same thing: “Just what do you think establishing a „national home“ meant anyway, Elise[1]?“

While this assertion may have some superficial appeal owing to the peculiarity of the phrase “national home”, there remains an obvious problem. The term “state” was in common use at the time that the San Remo document was signed. The drafters of the document can be reasonably assumed to have been aware of the term “state” and of its meaning. And yet, they did not use the term “state” to describe what they were creating for “the Jewish people” in Palestine, preferring the term “national home”. If they had intended to establish a legal basis for the creation of a “Jewish state”, they could quite simply have referred to “the establishment in Palestine of a state for the Jewish people”. Instead, they specifically chose to use a different term. To claim, as Shulman Gold has (and Gauthier must), that the drafters actually meant “state” is to claim that they did not really mean what they wrote.

Even if we were to accept, for the sake of argument, that it is permissible to read “state” where “national home” is written, the central claim – that the San Remo document gives Israel full sovereignty over the entirety of Mandatory Palestine, including the Occupied Palestinian Territory – runs into an even more serious problem: The San Remo document makes no determination at all with regard to boundaries, except to provide that “the administration of Palestine, within such boundaries as may be determined by the Principal Allied Powers, [is entrusted] to a Mandatory” (emphasis added). The Principal Allied Powers left the determination of the boundaries of Palestine for a later date.

In other words, the Gauthier-CAMERA claim that the San Remo Resolution made a final and irrevocable determination that the West Bank, Gaza, and East Jerusalem should be contained within the boundaries of the State of Israel is a cynical fraud. Israel’s lawful boundaries are the internationally recognised, pre-June 1967 boundaries, and the West Bank, Gaza, and East Jerusalem are – as was authoritatively reaffirmed by the International Court of Justice – Occupied Palestinian Territory.

A Hoax Worthy of Joan Peters

It is worth noting that this blatant misrepresentation of the content and legal status of the San Remo Resolution is not the only fraud promoted by the „Committee for Accuracy in Middle East Reporting in America”. CAMERA’s “suggested book list” includes such lowlights of American intellectual life as Joan Peters’ discredited From Time Immemorial, which grossly falsified archival documents in an effort to claim that Palestine was uninhabited on the eve of Zionist colonisation, and Alan Dershowitz‘ The Case for Israel, which plagiarises numerous passages from From Time Immemorial, and embellishes on it with further absurdities.

Why would an organisation ostensibly dedicated to “accuracy” in media reporting promote a long-since-exposed hoax like From Time Immemorial (absurdly claiming that “Joan Peters dispels the myth of Zionist dispossession of „native“ arabs [sic] in Palestine, drawing on rarely examined archives and statistics. She makes a credible case for Jewish indigenous habitation lasting thousands of years; a groundbreaking study necessary to any discussion of the current conflict in the region.”) and a phantasmagorical distortion of the San Remo Resolution and the legal status of the Occupied Palestinian Territory?

Obviously, these stories aren’t being promoted for their “accuracy”, so there must be some other motive. What goal could CAMERA be pursuing by promoting a work that falsely claims that Palestine was uninhabited prior to Zionist colonisation, and that an obscure 1920 document grants Israel full title to the Occupied Palestinian Territory? Simple: Promoting works such as these provides a pretext under which moral and legal objections to the constant violations of Palestinian rights by the US and Israel – from the ethnic cleansing (“Nakba”) of 1948 to the 1967 occupation and the displacement of Palestinians through state-subsidised illegal settlements – can be dismissed. It provides rhetorical cover for some of Israel’s most severe crimes.

They Give CLE Credit for This?

It is not particularly shocking that CAMERA is promoting a hoax that provides fraudulent reasons for ignoring Palestinian human rights. This is what they do, and they make no bones about it (even Dershowitz at least tried to camouflage his reliance on the Peters hoax). However, it should be the slightest bit alarming that the State Bar of California has seen fit to give attorneys continuing education credits for listening to a lecture that promotes it.

The California State Bar’s standards for approving MCLE activities are set forth in Rule 3.501 of the Rules of the State Bar, which requires that the activity “relate to legal subjects directly relevant to members of the State Bar and have significant current professional and practical content” (Rule 3.501(A)) and that the provider “have significant professional or academic experience related to its content” (Rule 3.501 (B). Unless California is a hotbed of litigation on the legal status of the Occupied Palestinian Territory, it is hard to see how even an accurate lecture on “Who Owns Jerusalem?” could be considered “directly relevant” or to have “significant current professional and practical content”.

Moreover, it seems a bit of a stretch to claim that Gauthier, who, based on a Google search for ‘“Jacques Gauthier” Israel’ (the latter term added to narrow down the vast multitude of people called ‘Jacques Gauthier’ in the world), has never held an academic post, has never published in a peer-reviewed journal of international law, and whose “academic or professional experience” appears to be limited to giving lectures like this to various right-wing Israeli PR organisations, qualifies as having had “significant academic or professional experience” on the subject.

There is no explicit requirement in the rules on approval of MCLE activities that an activity provide an accurate portrayal of applicable law; however, it seems fairly reasonable to assume that the California State Bar would not grant MCLE approval to, say, the hucksters who claim that there is no obligation to pay income taxes, or the right-wing “common law” militias who claim that the Fourteenth Amendment is invalid and that the only competent courts in the US are the “common law courts” they have created. Lest these seem like somewhat extreme examples, it is worthwhile to recall at this point that we are talking about a lecturer who claims that the entire international legal consensus on the status of the West Bank, Gaza, and East Jerusalem is wrong, and bases this on a blatant distortion of an obscure 1920 document that has long since been superseded, in an effort to deny the Palestinians any right to self-determination or even protection under the Fourth Geneva Convention. This is a serious fraud.

The State Bar of California needs to answer a few questions in this matter:

(a)   Is the “Who Owns Jerusalem” lecture in fact approved as an MCLE activity, as is claimed on its Facebook event page?

(b)   What representations were made in the request for approval?

(c)    Was the request signed by a member of the State Bar of California?

(d)   On what basis was the lecture found to have “direct relevance” and “significant current professional or practical content”?

(e)    How in-depth is the Bar’s review of proposed MCLE activities?

(f)     What safeguards, if any, are in place to prevent the approval of fraudulent providers?

---

[1] Perhaps thinking the better of allowing open debate on the original Facebook event page, Shulman Gold has since deleted it. However, in anticipation of this, I had already saved the relevant threads to a Word document.

In the wake of the killings of several settlers in the Occupied Palestinian Territory (OPT), there has been much handwringing from on high. A case in point is David Samel’s post Are the settlers civilians? On MondoWeiss.

Others, particularly Max Ajl, have already pointed out the immorality of condemning the acts of people who live under the heel of a criminal occupation in which we are all complicit. Indeed, one need only imagine the torrent of outrage that would ensue even today if Germans were to condemn the European antifascist resistance for their attacks on civilians under German occupation. The media in Nazi Germany in fact did carry such condemnations of the “barbaric” acts of the resistance. Would anyone today dream of citing these condemnations as proof of anything other than the revolting cynicism and hypocrisy of their authors?

In the following remarks, I would like to deal with an equally egregious defect in Samel’s piece – the way in which it deals with – or, perhaps, fails to deal with – international humanitarian law.

Samel’s post goes awry before he’s even done writing the title, which misstates the issue by conflating the different types of settlers in the OPT – commonly known as “lifestyle settlers” and “ideological settlers” (though he does touch on the distinction in the text of the piece, in a manner to which we will return) – and creates the impression in those unfamiliar with the applicable legal principles that the discussion is taking place on uncharted territory.

Even though the applicable legal framework – the 1949 Geneva Conventions and their Protocols Additional – sets clear and mandatory standards for determining who is a civilian, and reams of doctrinal literature exist interpreting those and other related provisions, Samel does not even attempt to engage the legal definitions of the terms “civilian” and “combatant” – indeed, he never even cites the relevant provisions. Instead, he prefers to cloud the issue with red herrings about the upbringing of settlers (“They have been taught since birth that they are entitled to live on this land“) and absurd strawman arguments such as his question about “allowances for those who are retarded or autistic”. To make matters worse, he creates an express functional equivalency between those resisting a brutal, criminal occupation and those actively participating in one.

It only goes downhill from there.

International Humanitarian Law and Armed Illegal Settlers

International humanitarian law – the law of armed conflict – recognises exactly two kinds of people: civilians – who are entitled to the protections of the Fourth Geneva Convention (including, crucially, the right not to be shot at if they are not directly participating in hostilities) – and combatants – who enjoy the privileges and protections enshrined in the Third Geneva Convention (but can be shot at with impunity as long as they don’t surrender or become physically incapacitated). Combatants are members of military and paramilitary organisations, with the exception of the members of the medical services of those organisations, who bear arms openly, make themselves recognisable by affixing badges or other distinctive marks to their persons, and are subject to a fixed chain of command. Civilians are, basically, everyone else. Under international humanitarian law, they may not be targeted for attack except to the extent that they actively participate in hostilities, and even then, only for the duration of their participation in the hostilities (the latter restriction, it is worth noting, is expressly rejected by the Israeli government). The relevant definitions can be found in Art. 4 of the Third Geneva Convention, as well as Art. 43(1) and Art. 50 of the 1977 Protocol Additional.

How, then, do these definitions apply to the illegal settlers in the OPT?

The “lifestyle settlers” are Israelis who have moved to the illegal Israeli settlements (generally) in close proximity to the Green Line, so called because their decision to become settlers is based on the tax incentives and other subsidies that allow them to enjoy a living standard unavailable to them within Israel. While their presence is totally illegal and serves to render the robbery of Palestinian land a fait accompli, the “lifestyle settlers”, by and large, do not participate actively in hostilities (except, of course, for those who are active members or reservists of the Israeli military). As such, they clearly fall within the definition of “civilian” within the meaning of international humanitarian law (subject to the aforementioned qualifications).

There is, however, another type of settler: the paramilitary “ideological settler”. These are far-right, fanatical nationalists, who go out of their way to encroach on Palestinian territory. They are also armed to the teeth. With regard to this group, Samel writes:

Armed – Some have questioned whether the victims were armed, and suggested that if they were, they deserved their fate. This makes little sense to me. If they were armed, it seems it was purely for defensive purposes, as they were not engaged in any aggressive operation themselves. Considering what happened to them, their fears were not imaginary. True, if they and their fellow settlers were not living this illegal, immoral lifestyle that was choking the lives of their fellow human beings, they would have no need for armed defense, but here, their possession of weapons to use defensively in the case of hostility does not make them kill-worthy. There’s no reason to believe that the Palestinian gunmen even knew whether they were armed. (emphasis added)

There are two possibilities here: Either Samel is being extremely disingenuous, or he is almost impressively ignorant of the relevant facts. Either way, this paragraph alone should suffice to make clear that his comments are not to be taken seriously.

Samel’s claim here is that, assuming the settlers who were killed were indeed armed, it was “purely for defensive purposes”, because “they were not engaged in any aggressive operation themselves.” This is loopy. The fact that they were not involved in any aggressive operation at the time they were killed does not mean that they were never involved in such actions. Even John Wayne Gacy and Jürgen Stroop took some down time every now and then. However, even leaving aside this rather curious logic, there is ample evidence of the way in which these settlers use their weapons (for an extensive, but hardly exhaustive, list see Seham’s post on MondoWeiss).

The fanatical “ideological settlers” routinely and systematically engage in violent, sadistic attacks against defenceless Palestinians, including young children. These attacks range from harassment of Palestinian villagers, crop destruction, house occupations, and rock throwing to wanton murder. They knowingly and voluntarily take up positions in a war zone. They routinely kill and maim defenceless people (the only kind they are willing to confront), and have done for decades. Their weapons – which allow them to engage in their regular pogroms without fear of retaliation – are military-grade automatic assault rifles and the like.

These settlers make no secret of their violence. Indeed, they celebrate it as openly as they bear their arms, to the extent of building a shrine to Baruch Goldstein, who earned their undying adoration by massacring Palestinians as they worshipped in a Hebron mosque. They are part of an organised movement that has the specific objective of ethnically cleansing and settling every last bit of Greater Israel.

Paramilitary Settlers as State Organs

They commit their crimes with the knowledge of the Israeli government. Given that they conduct their terrorist operations in an area under complete occupation by Israeli military and police forces, and that their general objectives (at a minimum, the settlement and ethnic cleansing of Palestine) are entirely consistent with official Israeli objectives, it seems reasonable to say that they are operating not only with the knowledge of the Israeli government, but with its more or less active approval, as the government makes no effort to punish their crimes, disarm them, remove them from the OPT (as required by international law), or otherwise meet its duty to ensure that the occupied Palestinian population is safe from their depredations. Indeed, to the extent that Israel’s military get involved at all, it is to protect these settlers from any kind of retaliation from their victims.

As such, it is at least arguable that these paramilitary settlers meet the dependency and control test established by the International Law Commission’s Draft Articles on State Responsibility and the jurisprudence of the International Court of Justice. In essence, this doctrine holds that a person or group can be considered a de facto organ of a State – and its unlawful acts thus can be attributed to that State – where that person or group operates under conditions of complete control and dependency on that State. While it is not necessary to prove that the paramilitary settlers are de facto State organs in order to hold that they are not civilians under international law, it is useful to examine this question in order to fully understand their legal status.

The degree of control required in order for a person or group’s crimes to be attributed to a State as a de facto organ is a matter of some debate. In Bosnia and Herzegovina v. Serbia and Montenegro (ICJ 2007), the International Court of Justice held that various Bosnian Serb paramilitaries operating within Bosnia could not be considered de facto agents of Serbia and Montenegro in the context of the massacre committed by them at Srebrenica. There, the Court found that the paramilitaries, which (at the time) were operating in territory not controlled by Serbia and Montenegro, and which answered not to the government of that State but to the quasi-state Republika Srpska established in Bosnia, were organisationally and operationally too independent of Serbia and Montenegro to be deemed de facto agents at the time of the Srebrenica massacre.

The situation of the paramilitary settlers in the Occupied Palestinian Territory is fundamentally different in ways that suggest that they could validly be deemed de facto organs of the Israeli State. For one thing, they operate in territory that is under the complete and exclusive control of the State of Israel, which exercises that control through extensive occupying military and police forces. As Marko Milanović has noted, the ICJ in the Srebrenica case “all but hinted at the possibility that its demanding complete control test would indeed have been met for events taking place in 1992,” when Yugoslavia’s regular army was operating in Bosnia. This would seem to hold particularly true in the case of the Occupied Palestinian Territory, given that the Israeli government, which exercises civilian and military jurisdiction, as well as complete military control, over the OPT, has not made the slightest effort to disarm the paramilitary settlers or to remove them (along with the other illegal settlers) from the territory, as required by international law. Indeed, Israel protects the paramilitary settlers from any form of reprisal (or even protest) for their actions by the Palestinian civilian population.

In short, the Israeli government, through its military and police organs, not only refuses to take any action to curtail the activities of these settlers, but in fact takes decisive action to ensure that they can operate with impunity.

It is not saying too much to argue that, in these circumstances, the combination of deliberate actions and omissions of the Israeli armed forces, are what make the terrorist operations of the paramilitary settlers  – which are entirely consistent with the overall Israeli policy of settling and ethnically cleansing every useful bit of the Occupied Palestinian Territory – possible in the first place. Without the cover provided by the Israeli military, these notorious cowards would not even be in the Occupied Palestinian Territory, let alone engage in systematic attacks on the Palestinian population. They are only tough when there’s no risk.

Put briefly, given their open bearing of arms and organised, systematic violent conduct, crucially enabled by the full military force of the Israeli government, these “ideological settlers” look less like private individuals and a lot more like a semi-official paramilitary wing of the Israeli government on the model of the South Lebanon Army or the US death squads in Latin America, Afghanistan, and Iraq.  This description seems particularly apt in the light of the fact that they direct their military efforts against the same occupied population as the government of the state to which they profess allegiance. As such, there is at least a strong case to be made that they constitute part of the armed forces of a Party to the conflict within the meaning of Art. 43(1) of the First Protocol Additional to the 1949 Geneva Conventions, which provides that“[t]he armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct or its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party”.

Indeed, the only open question that arises in determining whether the paramilitary settlers are combatants within the meaning of Art. 43(1) is whether there is any accountability for their actions at all, and that question only remains open because of the culture of impunity enforced by the Israeli government. However, even in the absence of serious efforts to hold the paramilitary settlers accountable, it seems reasonable to assume that the Party to the conflict in whose interest they act (Israel) would likely hold them accountable if they were ever to do something to which that Party seriously objected (though, given Israel’s standards, this could forever remain a theoretical question). Furthermore, the existence of a system of accountability is merely a prerequisite for POW status; it need not be met in order to establish that a person is a lawful military target. As such, it seems fair to assume that the paramilitary settlers are not entitled to the protections afforded civilians by the Fourth Geneva Convention.

Samel makes much of his assumption that the Palestinians who killed the settlers could not know whether they were lifestyle settlers or (paramilitary) ideological settlers:

This was most probably all the gunmen knew about their victims – that they were settlers. Maybe they were indeed armed and fanatic members of the most racist strain of the settler movement. But they were anonymous settlers when killed. In my view, they were civilians, not engaged in any immediately threatening behavior, and therefore not subject to a death sentence.

That’s assuming a lot. First of all, the killings occurred near Hebron, a hotbed of paramilitary settler activity. Second of all, Palestinians would hardly have access to lifestyle settlers, who live a highly sheltered existence in gated enclaves and use the bypass roads to avoid any actual contact with Palestinians in the OPT. Third of all, the paramilitary settlers do not, as a rule, make any attempt to conceal their identities when they carry out their pogroms. Given the regularity of these attacks, and the fact that the attackers do not go far from home to commit their crimes, it does not seem particularly “out there” to suggest that the Palestinians would recognise at least their most frequent attackers on sight.

This is, unlike much of the rest of Samel’s assertions, a question of legal significance. Art. 50(1) of the 1977 Protocol Additional provides that “[i]n case of doubt whether a person is a civilian, that person shall be considered to be a civilian.” However, Samel has not provided any actual facts in support of his claim that “all the gunmen knew about their victims” was “that they were settlers”. The fact that neither Samel nor I can say what they knew at the time does not mean that there was actual doubt.

It is worth recalling at this point that Samel is a lawyer. As such, he can be expected to have at least some rudimentary understanding of legal analysis and research. Yet he makes no attempt to apply – or even cite – the legal provisions that are dispositive of the question his article is ostensibly supposed to answer.

Not only does he fail to analyse the question based on the controlling legal provisions, he blatantly mischaracterises the standard when he accuses those who doubt that the paramilitary settlers are entitled to the protections afforded to civilians of applying a standard that is “[obviously similar] to Alan Dershowitz’s ‘continuum of civilianality, one of his most morally reprehensible concepts” (which is also a blatant mischaracterisation of Dershowitz’s bogus continuum). By Samel’s reckoning, denying civilian protections to members of heavily armed paramilitary groups working closely together with a Party to the conflict – as the Geneva Conventions and Protocols Additional themselves do – is morally equivalent to a “continuum” that allows for the wilful killing of persons who never even remotely participated in hostilities. One gets the distinct impression from Samel that the Geneva Conventions allow the crucial question of who is entitled to civilian protections to hinge on the signature on a person’s paycheque.

One might object at this point that Samel’s article was published on a political blog frequented by the lay public looking for a brief, informative article and not a treatise, rather than a specialised journal of international humanitarian law. This is no excuse for two reasons. First of all, the Geneva Conventions and other international legal instruments are no stranger to MondoWeiss, as they come up frequently in discussions of Israeli crimes. Second of all, discussing the Geneva Conventions does not require a confusing foray into the world of fertile octogenarians and unborn widows. These are well-known legal instruments, written in fairly straightforward language, and, as noted above, this would hardly be the first time that the readers of MondoWeiss were confronted an analysis of the Geneva conventions. Samel’s failure to engage the legal standards contained in the Conventions and Protocols is at best intellectually lazy, and at worst a disingenuous attempt to shed darkness on a well-lit corner of the law.

Barack Obama has balls as big as all outdoors

Before we begin, a challenge: I defy anyone to find a single phrase in Obama’s speech on Iraq last night that couldn’t have issued forth from the foetid maw of George W. Bush (with the possible exception of his mentions of George W. Bush).

Barack Obama’s Iraq speech last night is an impressive entry in the annals of war propaganda. In it, he glosses over a criminal war as ‘a remarkable chapter’ in US history, and creates the false impression that the occupation of Iraq is over. He places the responsibility rebuilding a society out of the rubble we created on the shoulders of the Iraqi people (we are, of course, blameless), and tells us that it’s time to ‘turn the page’ on a crime that is continuing, and for which not a single perpetrator has yet even been indicted. It is a wonder that he wasn’t struck by lightning before finishing.

The Withdrawal that Isn’t

In his speech last night, Obama announced that “the American combat mission in Iraq has ended. Operation Iraqi Freedom is over, and the Iraqi people now have lead responsibility for the security of their country.” This, many people will – not unreasonably – conclude, means that the war against Iraq, the long national nightmare we have visited on millions of people, is over.

It’s not.

In reality, Obama is continuing a rhetorical shell game that he started in the campaign, betting that most people will hear that he intended to end “combat operations” and assume that that meant ending the occupation (a word that Obama used not a single time in his speech) of Iraq. After all, isn’t the entire occupation one big “combat operation”? Isn’t every US soldier and mercenary there – engaged, as they are, in controlling Iraq by the gun and the electrode – a “combat soldier”?

“Nothing could be further from the truth”, Seumas Milne writes in the Guardian newspaper:

The US isn’t withdrawing from Iraq at all – it’s rebranding the occupation. Just as George Bush’s war on terror was retitled „overseas contingency operations“ when Obama became president, US „combat operations“ will be rebadged from next month as „stability operations“.

But as Major General Stephen Lanza, the US military spokesman in Iraq, told the New York Times: „In practical terms, nothing will change“. After this month’s withdrawal, there will still be 50,000 US troops in 94 military bases, „advising“ and training the Iraqi army, „providing security“ and carrying out „counter-terrorism“ missions. In US military speak, that covers pretty well everything they might want to do.

Granted, 50,000 is a major reduction on the numbers in Iraq a year ago. But what Obama once called „the dumb war“ goes remorselessly on. In fact, violence has been increasing as the Iraqi political factions remain deadlocked for the fifth month in a row in the Green Zone. More civilians are being killed in Iraq than Afghanistan: 535 last month alone, according to the Iraqi government – the worst figure for two years.

(emphasis added)

Simply put, Obama isn’t using the words “the occupation of Iraq is over” because the occupation of Iraq is not over.

A ‘Remarkable Chapter in the History of the United States and Iraq’

Whitewashing a Criminal War

Having cleared up that rather important terminological issue, let’s return to Obama’s speech:

From this desk, seven-and-a-half years ago, President Bush announced the beginning of military operations in Iraq. Much has changed since that night. A war to disarm a state became a fight against an insurgency. Terrorism and sectarian warfare threatened to tear Iraq apart. Thousands of Americans gave their lives; tens of thousands have been wounded. Our relations abroad were strained. Our unity at home…

Hold on just one second. What did he just say?

“A war to disarm a state became a fight against an insurgency.“

Allow me to repeat that once again, just to make sure the important bit really sinks in:

“A war to disarm a state (???!!!!) became a fight against an insurgency.“

Yes, that’s right. Obama just said, with a straight face, that the purpose of US aggression against Iraq was “to disarm a state”. Obama is seriously telling us, seven years after the last remnants of the Bush Administration’s claims about WMD were exposed as an utter fraud, that this war, in which the United States has killed well over a million Iraqis and rendered 4 million homeless, was about “disarming” a country that everyone involved knew was long since disarmed.  For those who cling to the illusion that Obama is – or ever was – some kind of ‘peace candidate’, it’s worth noting that the speech contains not a single word questioning the WMD Deception. He repeated the lie not to correct it, but to join in it.

While he tells us that ‘Thousands of Americans gave their lives; tens of thousands have been wounded’, he wastes not a single word on the number of Iraqis killed. Indeed, Iraqi civilians are only mentioned a single time, in which we hear that they are attacked by ‘extremists’ (theirs, not ours).  While there is a single mention of the refugees, they are merely ‘displaced by war’ in an agentless tragedy.

Of note, too, is the language Obama uses to discuss the war. As noted above, the word ‘occupation’ does not occur even once in his speech. Similarly, he describes the start of the US war in the following terms: ‘President Bush announced the beginning of military operations in Iraq.’ The ‘beginning of military operations in Iraq’, as if it were a start-up company in Basra just opening its doors. It is with this mealy-mouthed euphemism that Obama avoids ever stating the truth: That the US (and the UK) invaded Iraq. That, on the orders of George W. Bush, the United States military violated the borders of that country and proceeded to engage in a vicious bombing campaign that killed thousands in just the first few weeks. The word “invade/invasion” is nowhere to be found in the speech.

We hear precious little in the way of specifics about what these US troops have been doing since they ‘began military operations in Iraq’ back in 2003. When they’re not ‘giving their lives’ (our troops never, ever take anyone’s life), they’re ‘serv[ing] with courage and resolve,’ the ‘one constant amongst these shifting tides.’ Obama tells us that:

"The Americans who have served in Iraq completed every mission they were given. They defeated a regime that had terrorized its people. Together with Iraqis and coalition partners who made huge sacrifices of their own, our troops fought block by block to help Iraq seize the chance for a better future."

As commander-in-chief, I am incredibly proud of their service. And like all Americans, I am awed by their sacrifice and by the sacrifices of their families.

The Americans who have served in Iraq completed every mission they were given. They defeated a regime that had terrorized its people. Together with Iraqis and coalition partners who made huge sacrifices of their own, our troops fought block by block to help Iraq seize the chance for a better future.

They shifted tactics to protect the Iraqi people, trained Iraqi security forces, and took out terrorist leaders. Because of our troops and civilians — and because of the resilience of the Iraqi people — Iraq has the opportunity to embrace a new destiny, even though many challenges remain.

…

We’ve persevered because of a belief we share with the Iraqi people, a belief that, out of the

"Because of our troops and civilians -- and because of the resilience of the Iraqi people -- Iraq has the opportunity to embrace a new destiny, even though many challenges remain."

ashes of war, a new beginning could be born in this cradle of civilization. Through this remarkable chapter in the history of the United States and Iraq, we have met our responsibilities.

This is a slightly less crass echo of his campaign-trail call for ‘victory’ in (i.e. over) Iraq, in which he praised US occupation soldiers for ‘performing their duty with bravery, with brilliance, and without question‘ noted that: ‘The American people have been extraordinarily resolved. They have seen their sons and daughters killed or wounded in the streets of Fallujah.’

Apparently, Obama feels that this ‘remarkable chapter in the history of the United States in Iraq’ is a ‘glorious page that has not and will not be written’, at least judging from his unwillingness to discuss the nature of the ‘sacrifices’ made by the US occupation (especially who was doing the sacrificing and who got sacrificed). While Obama may prefer to present this singularly murderous occupation in high school civics book platitudes and Hallmark sentiments, we would do well to look more closely, and there’s no better place to start than Fallujah to get an idea of the kind of ‘duty’ the occupation soldiers performed with the ‘brilliance and without question’ that Obama had so admired on the campaign trail.

Fallujah had been a symbol of Iraqi resistance to occupation ever since the people of the city took to the streets to protest the occupation forces’ confiscation of a school for use as a post. The US occupation forces responded violently to the demonstrations, killing 20 local residents and wounding 85. In response, even more Fallujis defied the US-imposed curfew to demonstrate against the confiscation and the killings of the demonstrators. Resistance in Fallujah came to a head when a gang of four Blackwater mercenaries were captured and killed after entering the city.

The US response was a massacre. The US set up a perimeter to ensure that refugees could not leave the city, with snipers firing at anyone who tried. They attacked and ransacked the only major hospital in the city, holding doctors, nurses, and patients hostage and looting medical equipment. When a provisional hospital was set up nearby to treat those wounded in the US onslaught, the occupation forces bombed it. In addition to destroying the places where the wounded could have been treated, the US forces attacked ambulances (including during an alleged ‘ceasefire’), thus preventing the wounded being evacuated, as well.

In an assault that would seem to have been the model for the ‘Cast Lead’ massacre in Gaza, the US bombed the entire city – and its captive population – with napalm and white phosphorus. Anyone found in the streets was subject to attack by the US military, and even the wounded were not spared. To compound these war crimes, the occupation forces also denied the Red Crescent access to the city. Entire neighbourhoods were razed, and mass graves were being found in the city long after the massacre. According to the US, occupation forces killed an estimated 1,500 people there, though Spanish journalist Javier Couso estimates that “more than six thousand” were killed (http://www.josecouso.info/article.php3?id_article=128).

Today, almost certainly as a result of the use of chemical weapons such as white phosphorus, napalm, and depleted uranium (DU) munitions, “cancer and leukaemia in the city of Fallujah…exceed those reported by survivors of the atomic bombs that were dropped on Hiroshima and Nagasaki in 1945, according to a new study.”

Iraqi doctors in Fallujah have complained since 2005 of being overwhelmed by the number of babies with serious birth defects, ranging from a girl born with two heads to paralysis of the lower limbs. They said they were also seeing far more cancers than they did before the battle for Fallujah between US troops and insurgents.

Their claims have been supported by a survey showing a four-fold increase in all cancers and a 12-fold increase in childhood cancer in under-14s. Infant mortality in the city is more than four times higher than in neighbouring Jordan and eight times higher than in Kuwait.

Dr Chris Busby, a visiting professor at the University of Ulster and one of the authors of the survey of 4,800 individuals in Fallujah, said it is difficult to pin down the exact cause of the cancers and birth defects. He added that „to produce an effect like this, some very major mutagenic exposure must have occurred in 2004 when the attacks happened“.

…After an eight-month stand-off, the Marines stormed the city in November using artillery and aerial bombing against rebel positions. US forces later admitted that they had employed white phosphorus as well as other munitions.

In the assault US commanders largely treated Fallujah as a free-fire zone to try to reduce casualties among their own troops. British officers were appalled by the lack of concern for civilian casualties. „During preparatory operations in the November 2004 Fallujah clearance operation, on one night over 40 155mm artillery rounds were fired into a small sector of the city,“ recalled Brigadier Nigel Aylwin-Foster, a British commander serving with the American forces in Baghdad.

He added that the US commander who ordered this devastating use of firepower did not consider it significant enough to mention it in his daily report to the US general in command. Dr Busby says that while he cannot identify the type of armaments used by the Marines, the extent of genetic damage suffered by inhabitants suggests the use of uranium in some form. He said: „My guess is that they used a new weapon against buildings to break through walls and kill those inside.“

(emphasis added)

Also not feeling the love are the women of Iraq, whose rights had already deteriorated under the 12 years of US-UK sanctions, which are estimated to have killed 1,000,000 people, including 700,000 children. However, even given the disastrous situation prior to the US invasion, Iraqi law granted women constitutional equality and the right to work, study, divorce, marry without anyone’s permission, and to dress in Western or traditional clothing.

The writing was on the wall from the start: One of the first acts of the “Governing Council” hand-picked by the US occupation after the war was to put an end to all that, by issuing a decision that brought domestic relations law – which had been governed by a statute based on the French Civil Code since 1958 – under Sharia rule. Not long thereafter, a new US-imposed “Iraqi” constitution was passed, which demoted women from constitutionally equal to “equal to the extent consistent with Sharia”.

Since the US invasion, Iraqi women have been living something akin to an Arabic-English-language remake of The Handmaid’s Tale. Women who work, drive, go outside alone, wear trousers, wear makeup, don’t cover their heads or faces, go to school, go to university, or do any number of things that Iraqi women have been doing for quite some time now run the risk of being lynched. And that, it’s worth bearing in mind, is in addition to the risk of being raped, murdered, or abducted by the occupation forces.

While Obama does not mention this, or any of the other wonderful features of the US occupation directly (the concentration camps, the torture facilities, the death squads, the looting of the oil reserves, the looting of the cultural heritage of what he calls ‘the cradle of civilisation’, the enclosed ghettos, the ethnic cleansing of Sunnis, etc.), the above might be what he means by:

The Americans who have served in Iraq completed every mission they were given. They defeated a regime that had terrorized its people. Together with Iraqis and coalition partners who made huge sacrifices of their own, our troops fought block by block to help Iraq seize the chance for a better future.

They shifted tactics to protect the Iraqi people, trained Iraqi security forces, and took out terrorist leaders. Because of our troops and civilians — and because of the resilience of the Iraqi people — Iraq has the opportunity to embrace a new destiny, even though many challenges remain.

The US should know a thing or two about “the resilience of the Iraqi people” – they’ve been testing it since 1991.

And what exactly are “Iraqi security forces”? Are they being trained and equipped to combat the main security threat the Iraqi people face, i.e., the fact that they have been overrun by heavily armed foreign teenagers who can’t pronounce the place name and have the quaint habit of breaking into their homes in the middle of the night and dragging their family members off to torture camps? Of course not. They’re being trained and equipped to kill the main security threat that the occupation faces, i.e., Iraqis.

Here’s a thought experiment: Let’s say the US were occupied by a hostile foreign power bent on robbing us and imposing a puppet regime (though about the only force that is as militarily powerful compared to the US as the US is compared to Iraq would be those aliens from the otherwise forgettable Independence Day). What would people here call anyone who joined forces with the occupying army and started torturing, killing, and abducting us? Somehow, I don’t think the term would be ‘security forces’.

No, the term we’d probably use is ‘collaborators’ (though ‘traitors’ would also be an acceptable answer), just as they were called in occupied Europe.

Translating from bullshit, then, Obama is saying that the rebranding of the occupation has been made possible because the US has press-ganged an army of collaborators who will kill and torture their own people. And, now that the US occupation is a ‘stability mission’, the collaborators will be able to count on the support of US ‘advisers’, just like in the old days with our good friend Diem.

Another interesting expression in Obama’s speech is ‘credible elections’: “This year also saw Iraq hold credible elections that drew a strong turnout.” Note that he doesn’t say ‘free’, ‘fair’, ‘legitimate’, ‘valid’, ‘lawful’, or any number of things. He doesn’t, because the elections weren’t any of those things. However, they were ‘credible’. They were ‘elections we can believe in’.

And elections held under hostile military occupation that bring a long-time employee of the occupying power (Iyad Allawi) to power amidst “the banning and killing of candidates and activists and subsequent political breakdown“ (Seumas Milne in the Guardian) and widespread accusations of fraud, are certainly not free or legitimate, but they are probably ‘credible’ enough for the folks back home.

Looking back on years of mass murder and plunder, Obama can think of nothing better to say than: ‘We have met our responsibilities. Now it’s time to turn the page.’ Yes, now that ‘Iraq is dead, never to rise again’ (Nir Rosen), it’s time for us to move on. While the devastation we’ve wrought may cause a few difficulties for the people there, it’s time for them to step up to the plate. If they find it’s difficult to build a viable society out of the wreckage, they’re just not trying hard enough and we will have every reason to be sorely disappointed in them.

‘It’s Time to Turn the Page’ – Obama Calls for Amnesia

‘Turning the page’ is what this speech is really all about. By creating the (false) impression that the occupation of Iraq is over – when, in reality ‘In practical terms, nothing will change’ (Gen. Lanza) – he is telling the population that it’s time to shut up about Iraq. The ‘patriots’ both supporting and opposing a murderous, patently illegal war of aggression (none of whom ‘can doubt President Bush’s support for our troops or his love of country and commitment to our security’) that began with a massive deception are now supposed to ‘[turn] the page’ and realise that ‘[t]he greatness of our democracy is grounded in our ability to move beyond our differences’ and unite in support of the equally illegal, equally murderous war against Afghanistan (euphemised here as ‘our fight against Al Qaeda’).

This is how abusers talk. ‘Of course we differ about what I did, baby. You call it “abuse”, and I insist that it was love, but I’ve said I’m not going to do it again, so can’t we just move past our differences and leave all that ancient history behind? It doesn’t matter now, anyway.’

It matters. Even if the occupation were really ending, even if every last permanent base were emptied, and all but enough space in the Vatican-sized ‘embassy’ complex for a genuine embassy were given back to the Iraqis, the country would still be devastated. The treasury would still be looted. The oil would still be under foreign control. The rights of women would still be flagrantly violated. The infrastructure would still be destroyed. The cancer and leukaemia rate would still be well above average, and there would be no end to the birth defects. The rifts in the society created by the occupation’s divided-and-conquer strategy would still exist (though a majority of Iraqis did say in an occupation-run poll that they thought that they could probably work out their differences if the occupation left). The million killed by 12 years of murderous ‘sanctions’ would still be dead, as would the about 2 million killed by now by US aggression. There’s no ‘turning the page’ for them. They have to live in the hell we’ve built them.

And there can be no turning the page for us, either. Not until the last person involved in the planning of this war of aggression (‘the supreme international crime’ in the words of the Nuremberg Tribunal) has been brought before the International Criminal Court, not until the Iraqis get the billions in reparations due them (in addition to the money plundered from the treasury, plus interest), not until the US government issues an official, unqualified, abject apology to the people of Iraq and the world, not until the generation that let this happen – my generation – is truly overcome by shame and guilt for the crime that some of us actively participated in, others did nothing to stop, and still others didn’t do enough to stop. This war – this ‘supreme international crime’ – is our disgrace, and we should all be deeply ashamed. There is much that we must do, but we must not forget even for an instant that it is our responsibility to make sure that these criminals, who would have been hanged at Nuremberg, but will live comfortably as ‘elder statesmen’ or the like in our ‘civilised’ society, are accompanied everywhere they go by the memory of their crimes. If they cannot be brought to justice, then they should not get even a moment’s peace, nor should we.

And, as hard as it will be for some to accept this, we need to realise that Obama is one of them. He didn’t just ‘inherit’ these crimes – he has become a very active participant in them, and now he is helping to cover them up. Obama is as guilty as anyone in the Bush White House.

The first German feature film after the end of the Second World War was the 1946 DEFA production Die Mörder sind unter uns (The Murderers Are in Our Midst). In it, the protagonist, a Wehrmacht veteran, comes to realise that his commanding officer, who had gone on to become a ‘respectable’ industrialist in the post-war, was in reality a war criminal who ordered a massacre of defenceless men, women, and children on Christmas Eve. The message was clear: ‘The criminals who participated in aggression and mass murder walk free in our society, and it is our duty to bring them to justice, because their crimes were our crimes.’

Today, the lawyers who helped create a fig leaf of legality for torture and who prosecuted and continue to prosecute those detained in our concentration camps (for that’s what they are – in the original sense of the word) in bogus kangaroo courts, the strategists who planned a war of aggression, the doctors and psychologists who aided in torture and issued false death certificates to cover up the real cause of death of those who died under torture, the officers who ordered terrorist attacks on Iraqi and Afghan civilians – they are in our midst. Many of them will no doubt ‘turn the page’, and reenter society in our hospitals, law firms, doctor’s offices, prosecutor’s offices, judges’ chambers, and other ‘respectable’ places. It is our duty to find them and expose them.

At the height of US aggression in Indochina, Noam Chomsky – contemplating a display at the Chicago Museum of Science and Industry that invited children to participate in a simulated massacre of a Vietnamese village – asked whether this country needs ‘dissent or denazification’.

We need denazification.