The Israeli human rights organization Yesh Din on Sunday submitted — in support of its own request on 10 January — an “expert opinion supporting its motion for an en banc review” of the Supreme Court’s own ruling at the end of December on Yesh Din’s petition against the operation of Israeli stone quarries which extract the natural resources of the occupied West Bank, which most of the world regards as Palestinian territory.

This case goes to the very heart of nature of the Israeli military occupation.

Yesh Din filed its original petition in March 2009 against the state of Israel and 11 Israeli stone quarries operating in the West Bank. The Israeli Supreme Court, or High Court, issued its judgement a month ago, on 26 December.

In the original petition, Yesh Din “demanded a cessation to all quarrying and mining activities by Israeli companies in the West Bank. The petition argued that Israeli quarrying activity in the West Bank is illegal and amounts to grave economic exploitation of an occupied territory for the benefit of Israel, the occupying power. It also argued that the transfer of most of the quarrying materials into Israel, a fact that was later confirmed in the State’s response, violates Israel’s duties under international law, which stipulates that Israel protect public property in the occupied territories, including natural resources”.

The expert opinion just submitted in support of Yesh Din’s move is signed by Israeli scholars of international law: Prof. Yuval Shany, Prof. Eyal Benvenisti, Prof. Barak Medina, Prof. Orna Ben-Naftali, Prof. Guy Harpaz, Dr. Amichai Cohen and Dr. Yael Ronen — who do not all have the same views on the Israeli occupation.

In a press release, Yesh Din, which has been represented in court by Michael Sfard, said this was “an unusual legal move”.

These Israeli international law experts have, according to Yesh Din, “filed an amicus curiae brief claiming that the High Court, in its ruling in the quarries’ petition, wrongly interpreted the laws of occupation and the provisions regarding the occupying power’s management of public property in the occupied territories, and that the Court’s ruling (HCJ 2164/09) stands in direct contradiction with the laws of occupation. The opinion was submitted on Sunday (January 29, 2012) to the High Court of Justice in support of human rights organization, Yesh Din’s, motion for an en banc review, an additional hearing in which all judges of the Court will hear the case, of the quarries’ petition”.

We have written earlier posts about the Supreme Court ruling on the Yesh Din petition, here, here and here.

Yesh Din reported that Dr. Guy Harpaz, one of the authors of the just-submitted amicus curiae brief, said that the Supreme Court’s 26 December judgment “is based on an erroneous interpretation of international law and directly contradicts the Supreme Court’s previous judgments … This erroneous interpretation has led a large number of scholars from different institutions and with differing views to take it upon themselves, without compensation, to address this issue in order to draw the Supreme Court’s attention to the numerous and significant errors of interpretation in the judgment in the hope that the court will reconsider its position and make the necessary corrections”.

According to Yesh Din:

“The experts claim that the court gave an erroneous interpretation to the laws of belligerent occupation which contradicts the objective and spirit of the laws of occupation … At the core of this expert legal opinion is the claim that the appropriate interpretation of Articles 43 and 55 of the Hague Regulations differs from that which was presented in the judgment … Specifically, they claim that the judgment contradicts an earlier and deeply rooted rule in the Supreme Court’s case law (the Jam’iyat Iskan Rule), which has guided the Court concerning the laws of occupation for the last three decades. The experts draw the Court’s attention to the fact that it is precisely the prolongation of the occupation of the West Bank (upon which the court based its justification for the granting of broad powers to the occupier in the occupied territory) which requires strict adherence to the principle that decisions by the military commander be made either on the basis of security considerations or in order to benefit the occupied population. Therefore, the experts’ opinion is that inasmuch as the prolongation of the occupation requires the adaptation of the ‘traditional laws of occupation’ to a prolonged occupation, as the judgment says, that adjustment should be made in such a way that benefits the protected population rather than harms it. The prolongation of the occupation surely does not allow the citizens of the occupying state to profit at the expense of the occupied population”.

Yesh Din’s own argument against the 26 December judgement by the Supreme Court argues that “the new ruling by the HCJ actually permits the looting of natural resources in an occupied territory, which contradicts the accepted interpretation of the laws of occupation”.

Dennis Ross, whose role as adviser to President Barak Obama continues on an unpaid basis even after he left the State Department [see Barak Ravid's story, here, in yesterday's Haaretz about his discovery of a "Red Line" direct telephone link installed by the White House in Ross' new office in Washington], has recently said that this Israeli Supreme Court judgment opens the way for Palestinian partners — or front men — in the Israeli stone quarries’ operations in the West Bank. See Ross’ Opinion Piece in the Washington Post, here, and our earlier post on this amazing proposal for taking advantage of any weakness in the Israeli Supreme Court’s judgement which is published here.

Yesh Din also said that the Supreme Court’s judgement could implicate Israel “in further violations of international law”.

The film shed light on the dynamics of “a system of long-term jurisdiction by an occupying army that is unique in the entire world”, as one of the film’s websites says here.

The website adds that the film attempts to show how Israeli military court judges faced “complex judicial and moral dilemmas in order to develop and uphold a system of long-term military ‘rule by law’ of an occupied population, all under the supervision of Israel’s Supreme Court, and, according to Israel, in complete accordance with international law”…

At more than one point in the part of the film that I saw, Israeli former judges in the military court system were asked if they were aware that the confessions made by Palestinians, upon which they were convicted and sentenced, were extracted after torture. The reactions of the former military court judges are truly difficult to watch…

Our earlier post on this new film, which we published in July 2011, can be read here. Now, as the film is being screened at Sundance and elssewhere, the shorter version has been removed from Youtube, and listed as private, with permission needed to access. [A longer, 23-minute first cut was removed from the Vimeo site the day our post was published last July, as we noted in our blot post that day...]

The Law in These Parts was screened last week by the Educational Bookshop and the French Cultural Center on Salah ad-Din Street in East Jerusalem.

The showings at the Sundance Film Festival — or in Haifa, West Jerusalem, and Tel Aviv — are listed on the film’s website here.

But, B’Tselem noted, the results of the Israeli military’s investigations into its own actions in that unprecedented operation in Gaza were “meager”.

B’Tselem noted that during Operation Cast Lead:

“damage to the civilian population in Gaza was colossal: Israeli security forces killed 1,391 Palestinians, at least 759 of whom (including 318 minors under age 18) were civilians who had not been taking part in the hostilities. More than 5,300 Palestinians were injured, at least 350 of them seriously. The operation also caused extensive damage to homes, industrial plants and the agricultural sector, in addition to the electricity, sanitation, water, and health infrastructure that had already been on the brink of collapse due to Israel’s siege on Gaza. According to UN estimates, the military destroyed more than 3,500 homes, leaving some 20,000 persons homeless”.

B’Tselem noted that it had just received its third update from the military on 1 January, although:

“After the operation ended, B’Tselem and other human rights organizations wrote to the attorney general, demanding that he establish an independent body for investigating the military’s actions during the operation. The attorney general rejected the demand, stating that the military had acted in accordance with international humanitarian law. In addition, he stated that military units were holding operational inquiries into incidents in which civilians had been harmed, and that the findings would be forwarded to the military advocate general and to the attorney general for a decision whether to pursuer further action in each case … B’Tselem wrote to the MAG Corps demanding that he order criminal investigations into 20 cases in which the organization’s research indicated suspected breaches of international humanitarian law. In total, these cases involved the killing of 92 Palestinians and the use of three Palestinian civilians as human shields.
No substantive reply was received. However, the Military Police Investigation Unit (MPIU) contacted B’Tselem to request assistance in advancing its investigations … At the MPIU’s request, B’Tselem helped arrange the arrival of witnesses for questioning in each of the ten cases. The organization also provided investigators with medical reports and other documents relating to the cases. Only in September 2010, more than a year and a half after the operation, did the MPIU request assistance in arranging the questioning of members of the Samuni family, regarding the incident in which 21 members of their family, including children, had been killed. Since then, B’Tselem has received no requests from the MPIU regarding any of the cases. The MAG Corps recently informed B’Tselem that another investigation had been opened, raising the total number of investigations opened into cases researched by the organization to 11 … It was not until 1 January 2012, almost three years after the end of the operation, that the MAG Corps sent B’Tselem an update regarding hundreds of complaints that that organization had submitted over the past decade and more, including those relating to Operation Cast Lead”.

But, B’Tselem wrote, in an information note published here today, said that the “meager results” of the military investigations were not surprising:

“Three years after the end of the operation, the dozens of MPIU [Military Police Investigation Unit] investigations opened into cases of harm to civilians have yet to yield results. The Military Advocate General Corps has created a haze around them, preventing any possibility of examining their effectiveness. The Corps’ responses to B’Tselem, combined with media reports, indicate that three indictments have been filed against soldiers who took part in the operation: for theft of a credit card from a Palestinian civilian, for use of a nine-year-old Palestinian child as a human shield, and for ‘manslaughter of an anonymous person’.

In three other cases, disciplinary action alone was taken. Two officers were disciplined for firing explosive shells that struck an UNRWA facility; three officers were disciplined for shelling the al-Maqadmeh Mosque, in which 15 Palestinians were killed, nine of them civilians; and one officer was disciplined for the use of Palestinian civilian Majdi ‘Abd Rabo as a human shield, after the Adalah organization wrote to the MAG Corps demanding an investigation into the case.

The investigations were all opened at a very late stage – the first, to B’Tselem knowledge, in October 2009, a full ten months after the operation had ended. At present, three years after the operation, there is hardly a chance that investigations will lead to further indictments. There has never been a serious investigation into the suspicions raised by B’Tselem and additional Israeli, Palestinian and international organizations regarding breaches of international humanitarian law by the military during the operation.

Most of B’Tselem’s demands for investigation were not met. The investigations that were opened did not, to B’Tselem’s knowledge, address the responsibility of high-ranking commanders, but rather focused on the conduct of individual soldiers. Israel’s choice to investigate only isolated incidents, and not the military’s conduct as a whole during the operation, gives cause for concern that persons responsible for extremely grave breaches of law have not been questioned. Among the issues that have not been investigated are the following:
The policy that guided the forces during the offensive;
the legality of the orders given to the soldiers;
the choice of targets for bombing;
the means taken to protect the civilian population.
These questions lie at the very heart core of international humanitarian law. Their resolution is vital to examining the legality of the military’s conduct during Operation Cast Lead”.

Yesh Din first challenged the legality of Israeli quarrying activities in the occupied West Bank in a petition filed in March 2009.

The petition focuses on the specific case of the stone quarries, but it exposes many of the incongruencies and the quite deliberate ambiguities of the continued Israeli occupation of the West Bank.

On 26 December 2011, after almost two years of deliberation, a panel of judges of Israel’s High Court of Justice (HCJ), chaired by Chief Justice Dorit Beinisch, “dismissed the petition and held that the quarrying activities are legal and do not violate the provisions of international law”.

Yesh Din has said that it considers that ruling “in our view both factually and legally mistaken”.

Yesh Din’s legal adviser, Attorney Michael Sfard indicated strong disagreement with the Supreme Court’s ruling by stating that ‘Quarrying natural resources in an occupied territory for the economic benefit of the occupying state is pillage”.

Yesh Din’s has posted its reaction to the Israeli High Court ruling on 26 December here.

Yesh Din has challenged, in the petition, the legality of Israeli actions during its prolonged occupation of a territory on which Israel evidently has an as-yet-unspecified claim.

Though Israel officially deals with the situation as an occupation, it avoids to the maximum extent possible using the word, or discussing the consequences.

Israeli arguments of ideological position generally say that the Palestinian territory is “disputed” rather than “occupied”.

Israel does not dispute, however, that its Ministry of Defense administers the West Bank.

And, the Israeli Ministry of Defense has installed a “Civil Administration” which restrictively regulates most aspects of Palestinian life in the West Bank. Israeli life in the West Bank, by contrast, is governed by Israeli law — in effect, creating a slow, partial, unclear and unofficial, but progressive, annexation.

While “facts on the ground” are proceeding apace, there has not yet been an official Israeli act of annexation. If and when annexation is declared, an international uproar can be expected.

Meanwhile, Palestinians argue that the Israeli creation of facts on the ground — particularly, though not exclusively, Israeli settlement-building — is intended to make the situation irreversible.

The exact nature of Israel’s claims to the Israeli/Jewish settlements that that the government has overtly and officially facilitated is still unstated.

It has become apparent that Israel does not want to evacuate not only the three or four major Israeli settlement blocs in the West Bank, but also isolated settlements, and now even what have been called “unauthorized outposts”.

The new Yesh Din petition filed on January 10 asks for further Supreme Court review of the Israeli quarries’ continued exploitation of a Palestinian natural resource — by an expanded panel of judges.

In its new request, Yesh Din argues that “Relaxing the prohibition on harm to the capital of properties of the occupied territory lays the legal foundation for irreversible economic exploitation of occupied territory by an Occupying Power, despite the fact that the prohibition on such exploitation is amongst the primary objectives (and therefore amongst the primary principles) of the international law of occupation”

In fact, Yesh Din argues, the recent Supreme Court decision “permits the Occupier (in a prolonged occupation) to make use, for its own purposes, of plunder found in the occupied territory: to pump water found there, to transfer archeological findings out of the occupied territory, to exploit open spaces for waste disposal, to sell public property and other such irreversible acts which harm or alter the capital of public properties.”

To clarify the matter, Yesh Din said it is specifically requesting the High Court of Justice to hold a further hearing with a broader panel of judges, on the following questions:

• What are the boundaries of the State of Israel’s authority in relation to its administration of the natural resources belonging to the territories occupied by Israel in ‘belligerent occupation’, and in this context, what is the relationship between Article 55 and Article 43 of the Annex to the fourth Hague Convention Respecting the Laws and Customs of War on Land (1907)?
• Specifically, does an Occupying Power, in a prolonged occupation, have the authority to grant its citizens, or corporations owned by its citizens and/or registered in the Occupying Power, rights to quarry natural resources in occupied territory in general, and in quarries which did not exist prior to the occupation, in particular?
• In as far as an Occupying Power is permitted to grant rights to quarry natural resources in occupied territory, is this authority subordinate to the principle of ‘continuity’ or to the principle of ‘reasonableness’?
• Does the fact that Israeli quarries provide employment opportunities for Palestinians and pay royalties to the Civil Administration make granting these rights an act which should be considered, from a legal perspective, “for the benefit of the local population”?

The full request [in Hebrew, for those who read Hebrew] is posted here.

We have written earlier posts about the Supreme Court ruling on the Yesh Din petition, here and here.

Some three months ago, the Palestinians filed their “UN bid” — an application for full membership of the State of Palestine that was proclaimed by Yasser Arafat and endorsed by the Palestine National Council in November 1988 — on 23 September 2011.

This “UN bid” specifies that the Palestinian State was declared within the lines that existed before 4 June 1967.

Israel has vigorously opposed this “UN bid”, saying it is a “unilateral” act that is forbidden by the Oslo Accords agreed between Israel and the PLO in the mid-1990s. Following the Palestinian “UN bid”, financial and other sanctions have been threatened, and in some cases enacted — and in some of these cases rescinded, at least for as long as the Palestinians don’t do anything further.

Palestinian officials say they won’t do anything further until 26 January — the end of the three-month period specified by the Quartet for first steps to be taken by both sides to indicate what they want to see in a final settlement.

Jordan has recently begun to act as a mediator, with the apparent full backing of the United States, and two meetings have been held in Amman between Palestinian and Israeli negotiators.

The Oslo Accords never mentioned a Palestinian state, but they did envisage a transition from “Autonomy” [sort of] within five years — that is, by 1999 — and that never happened.

Instead, a second Palestinian Intifada which broke out in late September 2000 caused a full Israeli military re-invasion of major Palestinian urban areas. Acts of resistance from armed Palestinian security forces, fighting by various Palestinian factions, and Palestinian suicide bombing missions of murky authorization conducted in Israeli urban areas led to a breathtaking decision to build a Wall ["Security Barrier"] around the West Bank which in significant ways does not conform to the 1967 “Green Line” [where Israeli and Jordanian forces stood on the eve of the 1967 "Six-Day" War.

Meanwhile, most of the countries who are member states of the UN continue regard the West Bank, including "East Jerusalem" as occupied Palestinian territory. The International Court of Justice's 2004 Advisory Opinion on The Wall, formulated in response to a request from the UN General Assembly, stated that the West Bank [and Gaza] — territory described consistently in important agreements signed by Israel and the P.L.O. under the Oslo Accords as constituting a single political unit — are under belligerent military occupation by Israel.

Yesh Din has posted information about the original filing of the petition in March 2009 here. It says:

The petition demanded “a halt to all quarrying and mining activities by Israeli companies in the West Bank. The petition also demanded that no new concessions for quarries be issued, and that existing quarrying licenses not be extended. The petition relied on research conducted by the Coalition of Women for Peace and published on the site www.whoprofits.org, showing the extent of Israeli mining activities in the West Bank, and the companies involved. In the petition, served against the State as well as 11 Israeli corporations operating quarries in the West Bank, Yesh Din claimed that Israeli mining activity in West Bank quarries is illegal and executed through brutal economic exploitation of occupied territory for the economic needs of the State of Israel, the occupying power. In addition, Yesh Din presented a document prepared for the Interior Ministry that it obtained showing that 75% of output from Israeli quarrying in the West Bank is transferred into Israel for consumption by the Israeli construction industry, in spite of Israel’s duties under international law to protect public property in the occupied territories, including natural resources”.

In the Supreme Court proceedings, the State of Israel filed the following responses, according to Yesh Din, here”

“…the Government of Israel (GOI) informed the HCJ in May 2009 that the GOI would freeze processes of land allocation for Israeli quarrying purposes in the West Bank, and will cease to approve any expansion of existing quarries there as well. In addition, the GOI stated that it has begun an examination of the legality of quarrying operations by Israeli companies in the occupied territories, and therefore asked the HCJ to delay the hearing on the issue by 6 months. In its statement, the GOI emphasized that it does not intend to stop mining activity in existing quarries, as demanded by Yesh Din in its petition. In its response the GOI affirms that most of the yield from Israeli quarries operating in the West Bank is transferred into Israel and even admits that of the rest, most is used by settlements. In the statement the GOI says that in light of the legal claims Yesh Din has raised, it is ‘conducting extensive work … to examine the issue of Israeli-owned quarries operations in Area C’. Following the 6 month delay, in September 2009 the GOI filed its second response to the Court and clarified that it would expand its original halt from May 2009 to additional quarries. In May 2010 the GOI released a comprehensive document on its quarrying policy in the West Bank. The report claimed that in the past the GOI had acted properly in regards to quarry activity in the West Bank, but that the State would, here on out, begin to freeze out new quarries. This report signified the first time the GOI has publicly questioned the legality of its quarrying operations in the West Bank, as previously it had acted without legal considerations”.

[Have we mentioned how much the terrible Qalandia checkpoint is clogged up by the huge double-dump truck convoys loaded with cut stone and spraying rock dust all over the area? These huge stone transport trucks mix with tens of thousands of stressed and some crazed-aggressive drivers, on a two-lane road -- with just one lane in each direction. Many tens of thousands of people, and perhaps more, are forced to drive on this dreadful route around or through Qalandia every single day, for lack of any alternative routes...]

Ross’ piece in the Washington Post is entitled, How to break a Middle East stalemate…

It is an astonishing reading of the Israeli Supreme Court ruling.

In effect, as we have written earlier [on December 28] here, the Israeli Supreme Court rejected a petition filed by Tel Aviv-based lawyer Michael Sfard on behalf of the Israeli human rights organization Yesh Din against the Israeli exploitation of Palestinian natural resources in the occupied West Bank.  The only argument from the Yesh Din petition retained by the Israeli Supreme Court is that there should be no more Israeli-owned stone quarries.  The Israeli government supported that argument in the Yesh Din petition, too — so it wasn’t really very hard for the Israeli Supreme Court to back it.

But, for Dennis Ross to extrapolate from that Israeli Supreme Court decision rejecting the petition, and argue that the Israeli Supreme Court has now opened the way to Palestinian ownership, is a surprising logical leap.

Dennis Ross wrote [referring to the Haaretz story here as his source], in his Washington Post opinion piece:

To give one example, there are Palestinian stone masonry factories in Area A, but Palestinians have limited access to the rock quarries in the West Bank, which are in Area C. In a case brought against Israeli ownership of the rock quarries, the Israeli Supreme Court ruled late last month that no additional quarries should be Israeli-owned. That ruling creates an opening for private Palestinian ownership, should any new quarries be established — and there clearly is room for more”.

Ross then leverages his argument to suggest a slight opening in Area C to more Palestinian “economic activity”.

Maybe what Ross is really suggesting is simply that it would be nice if Israeli stone quarry operations simply put figurehead Palestinians as their titular heads, so that they would merely seem like Palestinian-owned operations? But, are there Palestinians who would accept this role?

But which Palestinians, exactly, would be in a position to own stone quarries in Area C [Israeli-controlled] of the occupied West Bank? Maybe those with East Jerusalem IDs [and, if so, what recourse would they have, if any dispute should arise over the stone quarry operations]? Maybe those with Israeli citizenship?

Such hybrid co-owned stone quarries in the West Bank would still employ Palestinian workers — which the Israeli Supreme Court thought was good, so good that it argued for the continuation of the present situation where some 11 stone quarry operations are Israeli-owned,.

But, would the hybrid co-owned stone quarries still pay “royalties” to the Israeli Ministry of Defense’s “Civil Administration” that manages the Israeli occupation in the West Bank. [Note: the word "taxes" was not employed in the Supreme Court decision].

Ross is disingenuous, if not deceptive, in his description of the complicated situation in the West Bank, which the Oslo Agreements between Israel and the Palestine Liberation Organization divided up into three Areas [reminiscent of the four Areas stipulated in the Israel-Egypt Camp David agreements of 1979-1981]. Ross writes:

“From the fall of 1995 to the spring of 2002, the Israel Defense Forces (IDF) largely stayed out of Area A, which constitutes about 18 percent of the territory and includes all the major cities in the West Bank. According to the Oslo agreements, the Palestinians are to have civil and security responsibility in this area. But in 2002, at the height of the second intifada and the horrendous suicide bombings that Palestinians were executing in Israel, the IDF began operating in Area A again to try to stop the attacks. Though the intifada ended in 2005 and Palestinian security forces have been generally effective in preventing terror attacks, the IDF still carries out periodic incursions into Palestinian cities to reinforce local security efforts. This grates on Palestinians, reminding them who remains in control”.

But, even if Palestinian entepreneurs might be offered a limited economic space in Area C, according to Ross’ theoretical argument, they would not be able to rely upon Palestinian security to protect or enforce their rights in Area C.

For, Ross is not supporting the call made in previous years by Palestinian negotiators for the IDF to withdraw from Palestinian cities and a return to the positions of 2001. [This call has now apparently been abandoned by Palestinian negotiators in favor of the single-minded focus, advocated by Obama envoy George Mitchell but since withdrawn by Obama, on halting further Israeli settlements, while merely chastising continuing IDF incursions into Area A.]

Now, Ross merely suggests that:

“…one meaningful step would be either to stop all such incursions in Area A or, if there are continuing security concerns, to phase them out based on the security situation”.

Ross does not argue strongly, either, in this piece, that parts of Area C [60% of the West Bank] should be converted to Area B, or parts of Area B should be converted to Area A, and effectively transferred even in part to Palestinian security [an idea that was floated by Obama administration officials, other than Ross, as a possible "confidence-building" measure that could help restart direct negotiations]. No.

Ross adds, merely, that:

“In Area B, about 22 percent of the West Bank, Palestinian police maintain law and order but are not permitted to deal with terrorist threats. Israel could allow their presence to grow. From my discussions with Israeli Defense Minister Ehud Barak, I know that he is open to increasing the number of Palestinian police stations and broadening the areas where Palestinian security personnel operate. Now would be a good time to take these steps, as any such expansion would certainly be noticed, and welcomed, by the Palestinian public”.

Ross has evidently not spoken to very many Palestinian citizens in the West Bank, who have complained of the continuing onerous Palestinian security presence at the expense of basic rights.

“We used to call the Palestinian policemen ‘blue flles’ or ‘mosquitos in blue’ — meaning that they were not effective, but merely minor nuisances. Now, the Palestinian police are showing us their authority by coming to call us for questioning on the grounds that we are monitoring or even spying on them. But they never interfere with the Israeli operations at all hours of the day and night to come to our homes to arrest people — even the elderly or infirm — for security questioning on any pretense or pretext whatsoever”.

It has been a long and difficult transition — still clearly far from complete — to imbue the Palestinian security forces with ideas of human rights and rule of law. They have been generally, but not totally, less intrusive on the streets — [see our earlier piece here on interception by men in civilian clothes in an unmarked car who showed no identification and gave no reason for the interception].

But the Palestinian security forces do love to show off all their new patrol cars, uniforms, trained German Shepherd dogs, helmets, and plexiglass riot shields identical to those deployed by the Israeli Border Police in the Old Cities.

A film, entitled Donor Opium, viewable on Youtube, here, focuses on the current Palestinian economic dependency, and contains an interview with development expert Khaled Nakhleh, who says that Palestinians in the West Bank can see the need for traffic police and ordinary security, but fail to understand why there is a Presidential Guard and Special Forces that are heavily armed for special military operations…

Because the idea of the Palestinian Security forces acting in any way in defense of the Palestinian people was thrown out following their defeat in the Second Intifada, when the Israeli military reoccupied the major Palestinian cities, there is now no idea at all that serving in the Palestinian Security is a national duty. It is merely another job — one better paid than most, and more privileged if only because they get to order other people around…

Ross’ argument is a restatement of Israeli Prime Minister Netanyahu’s economic proposals to keep Palestinians satisfied, while still occupied and without the normal range of human rights or democratic freedoms, by giving them greater “economic freedom” in the West Bank:

“There is no practical reason that the Palestinians cannot be permitted dramatically more economic access and activity in this area. Expanding the Palestinians’ economic opportunities in Area C would do wonders for job creation and the overall Palestinian economy … These steps should be feasible from an Israeli standpoint. First, these or similar changes could be implemented without altering the territory’s political status and could be done in a way that would not put Israeli security at risk, particularly if coordinated closely with the IDF. Second, Netanyahu has said repeatedly that he does not want to rule over Palestinians and that the stronger their economic base, the better the prospects for peace. These steps would certainly demonstrate that the prime minister means what he says…”

The reason for supporting the Netanyahu economic proposals is, simply, as Ross argues, that the negotiations are not working out:

“…there should also be no illusions about the prospects of a breakthrough any time soon. The psychological gaps between the parties make it hard to resolve their differences and have bedeviled all the work for peace talks over the past few years … While there may be no early breakthrough on holding negotiations, it is possible to overcome the stalemate. One way to do so — and to validate those Palestinian leaders, such as Abbas and Prime Minister Salam Fayyad, who believe in nonviolence and coexistence — is for the Israelis to change the realities on the ground. After all, these Palestinian leaders need to be able to show that their approach is producing a process that will, in time, end the occupation…”.

This Dennis Ross opinion piece in the Washington Post can be read in full here.

Noam Sheizaf pointed out, on Twitter, that there is a mistake in the date of the Oslo Accords on a graphic that illustrates Dennis Ross’ piece on the Washington Post:
“@nsheizaf: Does Dennis Ross believe the bizarre stuff he write? & btw, WPost got the date of Oslo accord in the graphics wrong wapo.st/yOl0Ru”

Sheizaf wrote wrote about the Israeli Supreme Court’s rejection of the Yesh Din petition on Israeli-owned stone quarries in the West Bank on his blog, The Promised Land, here, noting that:
“The court also cites previous cases, in which it declared the circumstances of the Israeli occupation ‘unique’, in a way that demands certain ‘adjustments’ to the rights and duties of the occupiers. What is the reason for this unique situation? Among other things, that the Israeli occupation has been going on for so long. Israel, the court says, ‘is responsible for the development and growth of the area, in various ways’ (article 10 in the ruling). Only in the Orwellian language of the occupation can developing the area be interpreted to mean profits through the shipping of its natural resources to Israel”…

Sheizaf also states, in my opinion incorrectly, that the Israeli Supreme Court “verdict also quotes the fact that in the Oslo Accords, the Palestinians agreed to let the quarries operate until the final agreement on the status of the land”. Without being able to read the original Hebrew of the ruling [which Sheizaf does], all the other commentaries on the verdict, including an email sent by Yesh Din, indicate that the Israeli Supreme Court stated that Palestinian “agreement” to let Israelis operate stone quarries in the West Bank [and not only help support the occupation via "royalties", but also very kindly to sell the quarried stone to Palestinian stone engravers who cannot access the quarries unhindered] was implicit in the Palestinian overall agreement to the Oslo Accords, but was not explicit, as Sheizaf states.

It is interesting to contrast Dennis Ross’ disingenuous piece on How to break a Middle East stalemate, with Henry Siegman’s piece, The Mideast Peace Process in 2011: Hopes and Disillusionment, published on 6 January here.

Siegman, now a research professor at the School of Oriental and African Studies at the University of London,
wrote:

“The Israeli notion that the Occupied Territories beyond the 1967 border are ‘internal’, allowing Israeli governments to do with them as they please without regard for the rights of the Palestinian people or for international law, has not just ‘complicated’ the peace process, as the United States and other governments have often put it. It has turned the peace process into a farce, for it exposes the strategic choice of Israel’s current and previous governments of territory over peace, and leaves no doubt that the goal of Israel’s settlement project is the prevention of Palestinian statehood … In his speech to the United Nations General Assembly in September, President Obama asserted that Palestinians can achieve statehood only through direct negotiations with Israel, effectively subjecting the Palestinian right to national self-determination to Netanyahu and Avigdor Lieberman’s veto. If Netanyahu and his government choose to present Abbas terms for an agreement that no Palestinian leader could conceivably accept—which, by insisting on Israel’s annexation of all of Arab East Jerusalem is exactly what they have done—they will be able to keep the West Bank and its population under permanent subjugation … Despite the U.S. administration’s rhetorical objections to Israel’s settlements and its equally rhetorical support of Palestinian statehood, Obama’s rejection of international intervention and his insistence that a Palestinian state can come about only as the result of a bilateral Israeli-Palestinian agreement sent a clear message to Netanyahu’s government. For all practical purposes, a Palestinian state is no longer on America’s political horizon”.

[Thanks to Sam Bahour for sending the Siegman article today via his email list...]

And, Daniel Levy [now in Washington, but once the chief aide of Yossi Beilin and lead drafter of the Israeli team of the Geneva Inititative] has written that:

“While 2011 will be remembered as a tumultuous year in the Middle East, that most headline-grabbing of regional issues—the Israel-Palestine conflict—barely merits a footnote. The glacial pace of developments on that front could not have been more out of sync with the surrounding frenzy. There has been no Palestinian Spring to date (although there have been weekly demonstrations in Palestinian villages impacted by Israeli land confiscations) and the entire year passed without even a day of Palestinian-Israeli peace talks (those were in part resumed on Jan. 3 in Jordan, albeit surrounded by realistically low expectations). Instead, 2011 was marked more by continuity than by change—more occupation, more settlements, more Palestinian disunity, and the continued prevalence of strategic myopia on all sides”…

Levy also says that:
“…something else has also been going on: Israel’s maintenance of an illegal occupation and thoroughly undemocratic system beyond the Green Line (only partially mitigated by the creation of a Palestinian Authority lacking in sovereign powers). Under any circumstances, it would be difficult for a democratic entity to run a democratic system in one space and an undemocratic one in another over a prolonged period of time. This has been the Israeli reality for 44 years and counting. The shortcuts taken by a nondemocracy in depriving people of rights (how Israel manages the Palestinians in the territories) have started to seep back over the Green Line into ‘Israel proper’. The inevitable moral corrosion that accompanies the maintenance of an illegal foreign occupation has blunted Israeli moral sensibilities at home. These are long-term trends”.

Meanwhile, people like Dennis Ross continue to try to camouflage what is really happening…

Israeli Prime Minister Netanyahu explicitly raised the possibility of using Administrative Detention against “rioters” — this is understood to mean, including Israelis — in a statement made at one of the regular Sunday cabinet meetings a few weeks ago.

The invocation of measures authorized by military regulations [developed for use in the West Bank, and formerly also in Gaza], now, against “rioters” is currently understood as meaning the radical religious-nationalist right, particularly but not exclusively settlers. But it could presumably also be applied at those Israelis who demonstrate in solidarity with Palestinian demands — and perhaps also against international solidarity types as well.

Netanyahu got the approval of government ministers on 14 December for the proposal [see below] to extend military regulations to people other than Palestinians — and the measures include the use of Admininstrative Detention, trials [such as they are] in military courts, as well as expulsion from “various areas”.

UPDATE: On Sunday 8 January, the New York Times reported here, “Israeli prosecutors on Sunday charged five radical Jewish settlers with tracking troop movements in the West Bank and organizing a raid on an Israeli Army base there last month. The indictment was the first sign of a promised crackdown on settlers whose increasingly provocative actions have been described by some Israeli officials as homegrown terrorism … But it was the civil Jerusalem District Court [n.b. - and NOT the Israeli miltary court system in the West Bank] that indicted the five on Sunday. The indictment said that all were residents of Judea and Samaria, the biblical names for the West Bank … They were charged with, among other things, operating a hot line to collect reports on troop and police movements in the West Bank, distributing the information and calling on supporters to be at specific locations to thwart attempts by Israeli forces to evacuate outposts. Some reports of troop movements were based on information received from soldiers on active duty, according to the charges. The suspects were also charged with illegally holding intelligence material like classified aerial photographs and maps of areas of the West Bank. One of the five, Akiva HaCohen, has long been considered an architect of the ‘price tag’ doctrine. He and three others among the five have been served administrative orders in the past barring them from the West Bank for certain periods”.

The NYTimes story, by Isabelle Kershner, also reported that “Israeli leaders have expressed growing alarm at the actions by the settlers, including arson attacks against several mosques. But the December attack on the army base shocked much of country and drew a strong condemnation from leaders of the settler establishment, not least because the Israeli Army is responsible for protecting the settlements in the West Bank. According to the indictment, the military was planning to dismantle an illegal outpost in the northern West Bank called Mitzpe Yitzhar on the night of Dec. 12. But the prosecutors said that the evacuation was thwarted by the five suspects who organized the raid on the army base, during which dozens of settlers broke in, rioted, blocked the entrance with rocks and burning tires, and damaged military vehicles. A deputy brigade commander was injured when he was struck on the forehead. The same night, extremists stopped a car driven by a local Israeli commander and threw a brick at him. The forces that had been deployed to dismantle the outpost ended up being diverted to handle the disturbances”.

ACRI, in a letter dated 1 January that was submitted with their testimony to the Knesset Constitution Committee [on 5 January], stated that:

“We wish to emphasize that we reject the proposals to expand the use of injurious tools [law] enforcement liable to violate human rights and the proper criminal process to which all those suspected and/or accused of breaking the law are entitled. Various reports suggest that the law enforcement agencies have decided to use injurious means, such as administrative detention and removal orders, preventing defendants’ right to review the prosecution material, and so forth. We believe that such injurious means of enforcement should not be employed – neither against Palestinians nor Israelis. [emphasis added] Instead, proper criminal proceedings should be followed that ensure the full rights of suspects and defendants to dignity, liberty and due process. Insofar as there is a shortage of tools for enforcement, personnel, and so forth, it must be ensured that the security and law enforcement agencies are allocated such resources as necessary in order to enable them to pursue investigations, detentions, indictment and trials that maintain the rights of suspects and defendants”.

This ACRI letter is posted here

UPDATE: AFP reported Friday that a senior police official, commander Haim Rahamim, told the members of the Knesset members of constitution committee [on constitution, law and justice] that “Jewish extremists carried out 228 attacks on the Israeli security forces operating in the West Bank in 2011″. AFP noted that Rahamim’s remarks were published in Haaretz on Friday, and added that Rahamim told the Knesset members that “2011 was the first year in which police kept separate numbers for attacks on the security forces by Israelis”. According to AFP, “Rahamim, who heads the West Bank police’s intelligence division, also said they had filed 65 indictments against extremists suspected of assault or for causing property damage in so-called ‘price tag’ attacks … Rahamim’s remarks were made a day after police issued restraining orders against 12 extremists suspected of attacking Palestinians and Israeli troops, barring them from entering the West Bank for between three and nine months”. This AFP report is published here.

On 13 December, the IDF issued a statement saying that “Overnight, approximately 50 right-wing activists infiltrated the Ephraim Regional Division Headquarters, set fire to tires and damaged vehicles with stones, bottles of paint and by placing nails on the road. IDF forces, together with the Israel Police, expelled these rioters from the base. In addition, rocks were thrown at the Ephraim Regional Division Commander’s vehicle. The commander was not injured. The IDF acts in accordance with the orders it receives from the political echelon. Together with the Israel Police and COGAT, the IDF will continue to enforce the law in Judea and Samaria, in spite of any violence that may be directed at IDF soldiers”. This statement is postedhere.

A day later, on 14 December, Netanyahu’s office reported [news received by email from the GPO, Israeli Government Press Office, part of the Prime Minister's office] that the Prime Minister:

“today (Wednesday), 14.12.11, accepted the recommendations of Public Security Minister Yitzhak Aharonovitch and Justice Minister Yaakov Neeman for dealing with disturbances in Judea and Samaria. The ministers formulated the recommendations after meeting with ISA, IDF, Israel Police and State Attorney’s Office teams. The recommendations approved by Prime Minister Netanyahu are:
1. The immediate issuing of administrative detention orders against rioters;
2. Immediately increasing the number of those barred from various areas;
3. Trying rioters in military courts;
4. Giving IDF soldiers the authority to detain people; and
5. Increasing both the number of special ISA, Israel Police, IDF and State Attorney’s Office investigation teams and the resources for investigations.
Prime Minister Netanyahu rejected, at this stage, the recommendation to define the rioters as terrorists”.

Until now, the Palestinians in the West Bank have been handled under Israeli military regulations — some dating back to the British Mandate era, others made up during Israeli’s prolonged 44-year military occupation.
But, Israelis have always previously been treated under Israeli law.

It remains to be seen what effect Netanyahu’s recent proposal to use Administrative Detention and other undemocratic measures against “rioters” [whether Palestinian or Israelis from the right or from the left...] will ultimately have.

As Alon Ben-Meir has just written, here:
“The attack of hard-line Jewish settlers on an Israeli military base in the West Bank must not be seen as a passing incident that can simply be eradicated by punishing the perpetrators, as Prime Minister Netanyahu said in the Israeli Parliament. This dangerous and most deplorable incident is a byproduct of the continuing settlement policies that Netanyahu and his hard-core coalition partners have zealously been pursuing for the past three years … This is no longer just a small group of criminals and vandals who are out to burn or daub inflammatory graffiti on the walls of Palestinian Mosques or vandalize an Israeli military base. This is a whole movement deeply entrenched and continues to exert disproportionate influence on all Israeli governments, especially a right-leaning coalition government. It is a clear manifestation of a movement determined to control any future political agenda in the West Bank and will not be, as Netanyahu seems to believe, easily eradicated. Yes, he can incarcerate one, two, or a dozen settlers but how he does he intend to incarcerate a whole movement, which represents the core of his own constituency? Notwithstanding the Netanyahu’s government ‘revulsion’ to the settlers’ criminal acts, these settlers know where Netanyahu and his cohorts really stand as long as the government continues to authorize construction of new housing in the heart of the Palestinian neighborhood”.

Today, we will leave aside the awfulness of all other passage through Qalandia Checkpoint, and focus just on the issue of pedestrian crossing of Palestinians from the West Bank of those who need to be at work, or who have any other appointment early in the day on the other side.

Here is a video compilation comparing the situation facing of people [yes, human beings] waiting to get through the checkpoint in January 2008, and again on another morning in December 2011, nearly 4 years later. The video — prepared by friends at Machsom Watch, the organization of Israeli women for human rights — was posted on the Mondoweiss blog on 24 December by Adam Horowitz [Co-Editor of Mondoweiss.net] here.

It can also be watched on Youtube here:

Horowitz wrote about it on his post on Mondoweiss, simply saying: “As you watch this video keep in mind that the Qalandia checkpoint is not a border crossing between Israel and the West Bank. Like most Israeli checkpoints in the occupied territories, Qalandia is located squarely in Palestinian territory”…

For Israel, Qalandia Checkpoint — and a stretch of the road further north going from Jerusalem towards Ramallah — is within the boundaries of the “Greater Jerusalem Municipality” — a unilateral composite extension of “Jerusalem” in late June 1967, several weeks after the Israeli military conquest of the area in the June 1967 Six-Day war.

For Palestinians, for the United Nations, and for most European and many other countries, Qalandia Checkpoint is within the West Bank — as defined by the UN-negotiated cease-fire lines of 1949 [later known as the Green Line], which is not quite exactly, but still largely, the same line across which Israeli and Jordanian forces faced each other until 4 June 1967.

As such, according to the Advisory Opinion of the International Court of Justice on “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory“, posted here, in English + French, which was developed in response to a request from the United Nations General Assembly after Israel started building The Wall in mid-2002, and which was handed down by the ICJ in the Hague on 9 July 2004:

[140.]…
“In the light of the material before it, the Court is not convinced that the construction of the wall along the route chosen was the only means to safeguard the interests of Israel against the peril which it has invoked as justification for that construction.[141.] The fact remains that Israel has to face numerous indiscriminate and deadly acts of violence against its civilian population. It has the right, and indeed the duty, to respond in order to protect the life of its citizens. The measures taken are bound nonetheless to remain in conformity with applicable international law.

[142.] In conclusion, the Court considers that Israel cannot rely on a right of self-defence (or on a state of necessity in order to preclude the wrongfulness of the construction of the wall resulting from the considerations mentioned in paragraphs 122 and 137 above. The Court accordingly finds that the construction of the wall, and its associated régime, are contrary to international law…

[147.] Since the Court has concluded that the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated régime, are contrary to various of Israel’s international obligations, it follows that the responsibility of that State is engaged under international law.

[148.] The Court will now examine the legal consequences resulting from the violations of international law by Israel by distinguishing between, on the one hand, those arising for Israel and, on the other, those arising for other States and, where appropriate, for the United Nations.  The Court will begin by examining the legal consequences of those violations for Israel.

[149.] The Court notes that Israel is first obliged to comply with the international obligations it has breached by the construction of the wall in the Occupied Palestinian Territory (see paragraphs 114-137 above). Consequently, Israel is bound to comply with its obligation to respect the right of the Palestinian people to self-determination and its obligations under international humanitarian law and international human rights law. Furthermore, it must ensure freedom of access to the Holy Places that came under its control following the 1967 War (see paragraph 129 above).

[150.] The Court observes that Israel also has an obligation to put an end to the violation of its international obligations flowing from the construction of the wall in the Occupied Palestinian Territory…

[151.] Israel accordingly has the obligation to cease forthwith the works of construction of the wall being built by it in the Occupied Palestinian Territory, including in and around East Jerusalem. Moreover, in view of the Court’s finding (see paragraph 143 above) that Israel’s violations of its international obligations stem from the construction of the wall and from its associated régime, cessation of those violations entails the dismantling forthwith of those parts of that structure situated within the Occupied Palestinian Territory, including in and around East Jerusalem.

All legislative and regulatory acts adopted with a view to its construction, and to the establishment of its associated régime, must forthwith be repealed or rendered ineffective, except in so far as such acts, by providing for compensation or other forms of reparation for the Palestinian population, may continue to be relevant for compliance by lsrael with the obligations referred to in paragraph 153 below.

[152.] Moreover, given that the construction of the wall in the Occupied Palestinian Territory has, inter alia, entailed the requisition and destruction of homes, businesses and agricultural holdings, the Court finds further that Israel has the obligation to make reparation for the damage caused to al1 the natural or legal persons concerned.”

[153.]…The Court considers that Israel also has an obligation to compensate, in accordance with the applicable rules of international law, all natural or legal persons having suffered any form of material damage as a result of the wall’s construction…

[155.] The Court would observe that the obligations violated by Israel include certain obligations erga omnes. As the Court indicated in the Barcelona Traction case, such obligations are by their very nature “the concern of al1 States” and, “In view of the importance of the rights involved, all States can be held to have a legal interest in their protection” (Barcelona Traction, Light and Power Company, Lirnited, Second Phase, Judgment, I.C.J. Reports 1970, p. 32, para. 33). The obligations erga omnes violated by Israel are the obligation to respect the right of the Palestinian people to self-determination, and certain of its obligations
under international humanitarian law.

[156.] As regards the first of these, the Court has already observed (paragraph 88 above) that in the East Timor case, it described as ‘irreproachable’ the assertion that ‘the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character’ (I.C.J. Reports 1995, p. 102, para. 29). The Court would also recall that under the terms of General Assembly resolution 2625 (XX’V), already mentioned above (see paragraph 88), ‘Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle’ . . .

…

[158.] The Court would also emphasize that Article 1 of the Fourth Geneva Convention, a provision common to the four Geneva Conventions, provides that “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in al1 circumstances.” It follows from that provision that every State party to that Convention, whether or not it is a party to a specific conflict, is under an obligation to ensure that the requirements of the instruments in question are complied with.

[159.] Given the character and the importance of the rights and obligations involved, the Court is of the view that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction.  It is also for all States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination is brought to an end. In addition, all the States parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 are under an obligation, while respecting the United Nations Charter and international law, to ensure compliance by lsrael with international humanitarian law as embodied in that Convention.

[160.] Finally, the (Court is of the view that the United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated régime, taking due account of the present Advisory Opinion…
[162.] … The Court considers that it has a duty to draw the attention of the General Assembly, to which the present Opinion is addressed, to the need for these efforts to be encouraged with a view to achieving as soon as possible, on the basis of international law, a negotiated solution to the outstanding problems and the establishment of a Palestinian State, existing side by side with Israel and its other neighbours, with peace and security for all in the region.”

The UN General Asembly asked the ICJ for this Advisory Opinion on The Wall in order “to assist it in the proper exercise of its functions”…

We are still waiting.

The 22-day operation was launched at 11:30 am or so, on 27 December 2008. In the first strikes, some 250 Hamas police were mowed down at their police academy graduation ceremony in Gaza City. The debate continues over whether they were legitimate military targets, or not [many international lawyers say no].

Will sirens sound today in the streets of the West Bank, or even of Gaza? Will people stop and get out of their cars, to stand in memory of the lives lost?

And, how will the day be marked in Israel?

Israeli military spokespersons and government officials said that the target of this massive and unprecedented military operation was Hamas.

They say that Hamas was the “address” in the Gaza Strip, the political movement that could be held responsible [following its rout of Fatah/Palestinian Authority Preventive Security Forces in mid-June 2007] for any and all rocket, mortar and missile attacks.

Hamas, it was argued, was in charge of a physical space whose status has been defined [in the wake of Israel's unilateral "disengagement" in September 2005 of some 8,000 settlers and the troops protecting] by leading Israeli experts on international law as a sui generis [of itself / unique to itself] entity — and whose population 0f some 1.5 million people is almost exclusively Palestinian.

More than half of the population of Gaza are children. Some 2/3 to 3/4 of the population are refugees who fled or who were expelled during the fighting that surrounded the creation of the state of Israel in 1948

Operation Cast Lead was carried out on a trapped population with nowhere to flee — all borders were closed.

The dropping of leaflets by Israeli airplanes warning of some of the upcoming strikes did not offer any information about where to seek refuge — they did not even say exactly which areas were about to be attacked. They simply added to the confusion and terror.

In the annals of warfare, the IDF’s Operation Cast Lead was not a war. It was a military operation, with vague aims that were, in the end, not achieved.

In grief and despair at the time, I wrote that it was like shooting fish in a barrel.

Gilad Shalit was not released until negotiations with Hamas– which had started well before Operation Cast Lead — were concluded this year.

The firing of rocket, mortar and missile firing from Gaza on surrounding areas of Israeli population and territory continues until this day, though sporadically and diminished — despite the agreement even at a recent Fatah-Hamas reconciliation summit in Cairo in November, in which Hamas signed on to join the popular non-violent resistance being backed by Mahmoud Abbas in the West Bank [though Abbas did not launch the current non-violent strategy.

The IDF's Operation Cast Lead was ordered by Israel's "political echelon", by popular demand, aided and abetted by the Israeli media.

Operation Cast Lead ended with two parallel cease-fires -- one declared by Israel at the request of Barack Obama who was sworn into office just hours after it went into effect at 2am local time on 18 January 2009, the other one declared by Hamas to allow the Israeli ground troops to withdraw.

Maybe it can be said that one lasting "achievement" of Operation Cast Lead was the recognition of the need to turn to human rights instruments and norms to institute a "real" announced and declared naval blockade of the Gaza Strip on the night of 3-4 January 2009, as the ground phase of Operation Cast Lead got underway.

Another achievement, the growing [though not yet universal] recognition that this kind of massive use of force, against an essentially defenseless population, no matter how deep the enmity, should never be authorized again.

So, instead of serving a second 6-month [renewable] sentence of Administrative Detention in an Israeli jail,  as determined two weeks ago in Ofer, the Israeli military judge reduced Hussam Khader’s present term to just 3 months [December, January + February].

One has to ask, however, why Hussam Khader is now serving any time at all…

According to news reports and to Hussam Khader’s family, this was done as a result of an appeal filed by his lawyer, Jawad Bulous.  Bulous, who has offices in East Jerusalem as well as in his home town in Israel’s Galilee,  has been retained by the Palestinian Prisoners Society or Club, headed by Qaddura Fares in Ramallah.

Hussam Khader, a Fatah leader and activist from the Balata Refugee Camp in Nablus, who was born in 1961, was taken from home and his terrified family in a 2am raid on 2 June this year.

This one-hour night raid on 2 June was unusual because it was conducted by massive numbers of armed Israeli forces operating in near-total SILENCE — which we reported on earlier, here,

It was Hussam Khader’s 25th arrest by Israeli military forces in the last 35 years.

Hussam was also deported by Israeli forces, once, dumped onto Lebanese soil, during the First Intifada, and returned five years later as the Oslo Accords went into effect.

He was imprisoned for six years during the Second Intifada –  when he was a member [elected in 1999 balloting] of the Palestine Legislative Council [PLC] set up under the Oslo Accords — on charges of  somehow funnelling Iranian funding to Fatah militants,  which he denied.  After interrogation during a near-legendary 45-day period of sleep deprivation in 2003,  and further months of  extended interrogations,  Hussam says he accepted a plea bargain to end the torture and possibly reduce the time he would be separated from his family.  He later said he was told by Israeli officials that the dossier that was used to convict him was compiled by Palestinian Authority or PA Security officials.

He was sentenced to serve six years in Israeli jail.  He was released a year early, in September 2008, for “good behavior”.

Because he was in jail during the 2006 PLC elections,  Hussam has not been an elected MP in recent years, but continues his political campaigning.

He is most known for opposing PA “corruption” — and was defeated when he ran for membership in the Fatah Central Committee in the movement’s Sixth General Conference [the first in 18 years] in Bethlehem in August 2009.   There was a clash in the Conference’s supposedly closed-to-the-press opening session, when Hussam rose from his seat in the audience to ask Mahmoud Abbas, who was presiding, about various matters.

Abbas interrupted Hussam and told him to “sit down and shut up”.

I asked Hussam in the Peace Center Bethlehem’s Manger Square [opposite Nativity Church] set up for media during the Fatah Sixth Conference, what he did.  “I sat down and shut up”, he told me.  Why did you do that, I asked?  “Out of respect”, he answered.

But, he then went out of the conference and up to Manger Square, where he gave serial interviews to every television camera and crew set up on the site, and then moved to the print media seated inside the Peace Center…

Hussam also told me, a few days later, that his greatest regret was the price his family had paid — and he said he had promised them, when he was released from Israeli jail the previous September, that he would make up to each of them for the five years without them during his imprisonment.

He lost the election in  the Sixth Fatah Conference in Bethlehem, but did not leave Fatah.  He worked for months, years, to repair some of his relations with the Fatah leadership and, despite his contacts with members of other Palestinian groups including Hamas, he strongly backed the Abbas-appointed PA Prime Minister Salam Fayyad.

As Fatah-Hamas reconciliation contacts continued in the spring of this year, Hussam Khader made headlines in the Palestinian and international media, with statements expressing hope for national unity combined with scepticism, but always urging that Salam Fayyad be kept in office in any transitional technocratic government.

Then, just under a month after a reconcilation agreement was signed by Mahmoud Abbas and Hamas Politbureau Chief Khaled Meshaal in Cairo [on 4 May this year], Hussam was rearrested in the eerie and terrifying silent night raid on his home.

He was held in the IDF military base in Huwwara for over a week, then transferred to the Israeli military court in Salem.  Weeks later, with his two teenage daughters and his just-teenage son in Court, and while Hussam was waiting in a nearby room without seeing his children — and even without being brought in to face the Judge — he was sentenced to six months of Administrative Detention.

Administrative Detention is a phenomena of the Israeli military occupation of Palestinian territory since June 1967.  In Administrative Detention cases, the evidence and even the precise charges against the Palestinian accused are kept secret — making any defense completely impossible.

In cases of Administrative Detention, the only information given to the Palestinian accused, and to his or her lawyer[s], are that they are believed to be “threats to peace and security in the area”…

Meantime, it is interesting to note that Hussam Khader was not allowed to travel, in the first year following his release from Israeli jail in September 2008.  He was not informed about any restrictions on his activities after his release [on "good behavior"], so he was shocked and outraged when he was stopped at Allenby Bridge when he tried to depart to address a conference in Germany to which he had been invited.

Somehow, and apparently without much further information being officially communicated to him, Hussam tried again to leave [in late 2010? ] to attend conferences in Lebanon and Syria.  There was no problem.  He was not stopped.  He went, and he came back, safely and without any problem, on two separate occasions.

It appeared that this travel may have been eased because he was going with the blessing of — and perhaps as an envoy of – Mahmoud Abbas…

The first trip was in the Summer of 2010, to a Conference in Damascus. The second trip was in November 2010, to a meeting in Lebanon on Palestinian refugees.

Hussam was thrilled, overjoyed, at the apparent restoration of his freedom — at least, to the extent possible under occupation.

Now, however, it appears that the reason for his terrifying re-arrest in June 2011 — and for the seven months he has now spent mostly in Israel’s Megiddo Prison north of the West Bank — are contacts he had with other attendees at and around these conferences, including with members of Hamas, many months earlier.

These contacts were not secret. Hussam talked about them publicly.

It seems that Hussam Khader may have been jailed, since June [a month after Mahmoud Abbas signed the Palestinian reconciliation agreement with Khaled Meshaal in Cairo], because of these contacts which were somehow approved by Mahmoud Abbas …

If these contacts were a security threat to Israel, there is no doubt that such a long time would have passed before any Israeli action.

This suggests that it is not Israel which feels Hussam is a “security threat”…

And, so far, no one in the Palestinian leadership — particularly, not Mahmoud Abbas — has said anything about Hussam Khader’s Administrative Detention.

The UN Report states that all nine appeared to have been unarmed.

The UN report, which the NYTimes posted on its website today here, says that “The events of 31 May 2010 should never have taken place as they did”.

It also says that “The incident and its outcomes were not intended by either Turkey or Israel … But more could have been done to warn the flotilla participants of the potential risks involved and to dissuade them from their actions”.

Gaza was allocated a maritime space for fishing and economic activities by agreement between Israel and the Palestine Liberation Organization [PLO], and a map defining this space as extending 20 nautical miles straight out into the Mediterranean is attached to 1994 and 1995 agreements signed under the Oslo process. The map is signed by Israel’s late Prime Minister Yitzhak Rabin, and by the PLO’s late leader Yasser Arafat — and it is also signed by the U.S. Secretary of State and by the Russian Foreign Minister, as well as a high-ranking member of the Egyptian military. And, plans for the construction of a deep sea port in Gaza were pointedly endorsed in a November 2005 Agreement on Movement and Access brokered by U.S. then-Secretary of State Condoleezza Rice.

But, despite the Israeli “disengagement” of its settlers and the military forces protecting them in September 2005, Israel has not loosened its military control over Gaza’s external boundaries, particularly Gazan air and sea space.

Israel tightened its imposition of sanctions after the surprise Hamas victory in Palestinian parliamentary elections in January 2006, and the capture of IDF soldier Gilad Shalit from Kerem Shalom in late June 2006. then the Hamas rout of Fatah-led Palestinian Preventive Security Forces in Gaza in mid-June 2007. In September 2007, the Israeli Government declared Gaza an enemy entity, or hostile territory, and the Israeli military was given the task of devising a regime that would allow into Gaza only the bare minimum of humanitarian necessities –and it went into effect in late October 2007.

Throughout, there has been sporadic but indiscriminate firing by various militant groups from Gaza of mortars, rockets, and other projectiles onto surrounding Israeli territory. Over the years, there have been thousands of these projectile attacks on Israel, which Palestinians have explained as natural responses to Israeli strikes on Gaza, but which the UN as well as human rights bodies have denounced as war crimes. Though Hamas has not claimed responsibility for several years, and has many times acted to try to control these attacks, Israel maintains that Hamas is now running Gaza, and is the ultimate “address”.

The Free Gaza movement launched its first expedition by sea to Gaza in August 2008, with the aim of “breaking the siege”.

Israel explained that it decided to allow the ship to pass, in order to deny the activists on board a “propaganda victory”. But, several expeditions later, by December 2008, Israel threatened and indeed did use force, once badly damaging a vessel by ramming, in order to block passage.

Then, on the night of 3-4 January 2009, halfway through the Israeli military’s Operation Cast Lead — a massive three-week assault of overwhelming force on targets said to be related to Hamas — Israel declared its formal naval blockade of the Gaza Strip.

The UN report states that “The Panel is not a court. It was not asked to make determinations of the legal issues or to adjudicate on liability…In particular, the Panel’s means of obtaining information were through diplomatic channels. The Panel enjoyed no coercive powers to compel witnesses to provide evidence. It could not conduct criminal investigations. The Panel was required to obtain its information from the two nations primarily involved in its inquiry, Turkey and Israel, and other affected States”.

Specifically, the UN panel said it reviewed “statements from 93 individuals that were appended to the Turkish report, and excerpts of statements by IDF personnel engaged in the incident that were included in the Israeli report. In this regard, we stress again that the Panel is not a court. We have not personally heard the witnesses whose statements we have read. Nor are we able to make definite findings on each statement’s reliability and credibility. They are more plausible on some aspects than others. But in certain areas, when viewed as a whole, we regard them as useful material for the purposes of the Inquiry”.

The Panel said that it could not “make definitive findings either of fact or law. But it can give its view”.

On Israel’s formal naval blockade of the Gaza Strip, where 1.5 million people are virtually sealed inside a small strip of land from which Israel unilaterally “disengaged” in September 2005, and on which Israel maintains a tight military control, the UN report says:

“The fundamental principle of the freedom of navigation on the high seas is subject to only certain limited exceptions under international law. Israel faces a real threat to its security from militant groups in Gaza. The naval blockade was imposed as a legitimate security measure in order to prevent weapons from entering Gaza by sea and its implementation complied with the requirements of international law…[However]…Bearing in mind its consequences and the fundamental importance of the freedom of navigation on the high seas, Israel should keep the naval blockade under regular review, in order to assess whether it continues to be necessary…”
“All States should act with prudence and caution in relation to the imposition and enforcement of a naval blockade. The established norms of customary international law must be respected and complied with by all relevant parties…”
“The imposition of a naval blockade as an action in self-defence should be reported to the Security Council under the procedures set out under Article 51 of the Charter…”
“States maintaining a naval blockade must abide by their obligations with respect to the provision of humanitarian assistance…”
“States enforcing a naval blockade against non-military vessels, especially where large numbers of civilian passengers are involved, should be cautious in the use of force. Efforts should first be made to stop the vessels by non-violent means. In particular, they should not use force except when absolutely necessary and then should only use the minimum level of force necessary to achieve the lawful objective of maintaining the blockade. They must provide clear and express warnings so that the vessels are aware if force is to be used against them…”

But, Sari Bashi, the Director of the Israeli human rights organization GISHA, which led a group of ten Israeli and Palestinian human rights organizations in an unsuccessful effort to get Israel’s Supreme Court to stop the collective punishment involved in the Israeli military-imposed sanctions against the Gaza Strip, issued a statement this evening saying: “In a failed attempt to achieve political compromise, the Palmer Report squandered an opportunity to evaluate the overall Gaza closure policy, still in place today. Stopping ships to Gaza for reasons of security is legal – the civilian closure of Gaza is not”.

Bashi said that “Gisha shares the position of the Palmer Commission that international law allows Israel to stop ships on their way to Gaza for the purposes of security. Nonetheless, Gisha recalls that, in parallel, the law requires Israel to allow freedom of movement for people and civilian goods to and from the Strip, subject only to individual security inspections. The Palmer Commission did not review Israel’s overall closure of the Gaza Strip, still in place today. For it to conform to the principles of international law, Israel must remove the sweeping restrictions on export of goods, movement of people between Gaza and the West Bank and entrance of construction materials”.

In a separate fact sheet on the UN Report, posted here, GISHA argues that in its view the formal Israeli naval blockade of the Gaza Strip is not lawful: “In our opinion, the legality of the maritime closure must be considered in the context of the overall closure of the Gaza Strip, which is also enforced by air and land. In this context, Israel has failed to meet its legal obligations. It is a fundamental principle of international law that with control comes responsibility; this in order to avoid a situation where no side takes responsibility for the protection of civilians during wartime or in situations of occupation. Accordingly, the substantial control Israel exercises over the crossings into the Gaza Strip imposes an equally substantial responsibility to permit the movement of people and goods at the level required in order to maintain the proper functioning of the economy, the health and education systems, and other aspects of civilian life. Israel is permitted to prevent the passage of merchandise or people only if there is a concrete security reason for doing so, and even then it must strike a balance between its security needs and its obligation to maintain normal life in the occupied territory. By preventing the passage of civilians and goods of a civilian nature to and from the Gaza Strip, Israel has paralyzed the economy of the area and caused substantial damage to key aspects of civilian life. In so doing, it has violated its obligations under international law, rendering its policy of closure – including the maritime closure – unlawful”.

The UN report makes several points of specific and pointed criticism about the use of force, and resistance, during the Israeli naval interception — which, the report notes, took place 72 nautical miles off the coast, well outside of Israeli territorial waters [or Gaza's maritime space]:

“Israel’s decision to board the vessels with such substantial force at a great distance from the blockade zone and with no final warning immediately prior to the boarding was excessive and unreasonable … Non-violent options should have been used in the first instance…[and]…The operation should have reassessed its options when the resistance to the initial boarding attempt became apparent…”
“Israeli Defense Forces personnel faced significant, organized and violent resistance from a group of passengers when they boarded the Mavi Marmara requiring them to use force for their own protection. Three soldiers were captured, mistreated, and placed at risk by those passengers. Several others were wounded…”
“The loss of life and injuries resulting from the use of force by Israeli forces during the take-over of the Mavi Marmara was unacceptable. Nine passengers were killed and many others seriously wounded by Israeli forces. No satisfactory explanation has been provided to the Panel by Israel for any of the nine deaths. Forensic evidence showing that most of the deceased were shot multiple times, including in the back, or at close range has not been adequately accounted for in the material presented by Israel…”
“There was significant mistreatment of passengers by Israeli authorities after the take-over of the vessels had been completed through until their deportation. This included physical mistreatment, harassment and intimidation, unjustified confiscation of belongings and the denial of timely consular assistance…”

Paul Woodward wrote, on his War in Context blog, a post entitled “How Israel got away with Murder on the Mavi Marmara”, in which he noted: “But just a minute. The panel — even if it’s conclusion amounted to saying, can’t you all just learn to get along — did actually note that Israel provided no information whatsoever on the circumstances in which nine men were killed. And had those deaths not occurred, there would have been no inquiry. Let’s repeat that … Israel provided no information whatsoever on the circumstances in which each of these deaths occurred”.

Woodward cites the UN report itself which says that “No evidence has been provided to establish that any of the deceased were armed with lethal weapons. Video footage shows one passenger holding only an open fire hose being killed by a single shot to the head or throat fired from a speedboat”.  This is posted here.

Back to the UN report — on the Freedom Flotilla, which was organized by a loose alliance of European and American advocates of Palestinian rights joined, for the first time by the Turkish humanitarian relief organization IHH [which Israelis have called "terrorist"] and a Malaysian NGO/charity, the report states:

“Although people are entitled to express their political views, the flotilla acted recklessly in attempting to breach the naval blockade. The majority of the flotilla participants had no violent intentions, but there exist serious questions about the conduct, true nature and objectives of the flotilla organizers, particularly IHH. The actions of the flotilla needlessly carried the potential for escalation”.
“All humanitarian missions wishing to assist the Gaza population should do so through established procedures and the designated land crossings in consultation with the Government of Israel and the Palestinian Authority…”
“Humanitarian missions must act in accordance with the principles of neutrality, impartiality and humanity and respect any security measures in place. Humanitarian vessels should allow inspection and stop or change course when requested…”

Then, the UN report says that “An appropriate statement of regret should be made by Israel in respect of the incident in light of its consequences” and “Israel should offer payment for the benefit of the deceased and injured victims and their families, to be administered by the two governments through a joint trust fund of a sufficient amount to be decided by them”.

According to an article published in the New York times this afternoon, here, “The Foreign Ministries in Turkey and Israel declined to comment publicly on the report, saying they preferred to wait for its official release. No one was available to comment in the office of the United Nations spokesman”.

But, at a briefing for journalists today at the Mishkenot Shaananim center in Jerusalem, organized at rather short notice. former IDF Chief of Staff Dan Haloutz said: “Yes, we are sorry people were killed during the operation, very sorry”. Haloutz added: “I believe there were some innocent ones among those nine, but…that mission was not so innocent”.

Is that an official apology?

Haloutz was IDF Chief of Staff from 2005-2007, and was previously commander of the Israeli Air Force, and he said today that he made many trips to Turkey in his professional capacity. But, Haloutz is now retired from active military service, having been severely criticized for Israel’s military performance during the Second Lebanon War — and dabbled in business before joining, just eight months ago, the opposition Kadima party led by former Foreign Minister Tzipi Livni [who ran a hard-fought campaign against the current Prime Minister Benyamin Netanyahu in the last Israeli general elections in February 2009, and she continues to be very critical of Netanyahu's conduct of office].

Haloutz’s profile is perfect for making an unofficial [yet somehow official] apology.

The timing and purpose of the press briefing would otherwise seem…vague. And, he appeared at the press briefing in the company of a professional Public Relations man.

Haloutz told the journalists at the press briefing that the “The word apology is too strong…because Israel was doing a legal action to prevent [a violation] of the siege we imposed”.  And,  Haloutz added: “Our soldiers were under a live threat”.

Yes, it looks like Haloutz had already been briefed about what was in the UN report, and yes, it sure looks like a finessed Israeli apology.

After his meeting with journalists, Haloutz smoked a quick cigarette in the sunshine outside, then turned and quickly bounded up three flights of stone stairs, taking the whole rise two steps at a time. The PR man, also in as good [military-grade] shape, followed one step behind.