Category Archives: Justice

When an Alien is Our Brother, Son, Friend

I think that most of us instinctively avoid people with mental illness.

I think in many ways what my films are about is that search for my grandpa’s dentures: for that humanizing narrative that bridges the gap between “us” and “them” to arrive at a “we.”
—Brian Lindstrom, documentarian

I first had my real run-in’s with “the law,” in Tucson, Arizona. Pima County Sheriff’s deputies in three vehicles were chasing me on my Bultaco 360cc, as I was cutting through dirt roads and gullies as a 15-year-old unlicensed motocrosser. The mayhem those deputies created, going after me as if I was a mass murderer.

It took six months and probably a few snitches at my high school before the knock on the classroom door of my physics class when the vice principal and two deputies greeted me. The two weaponized cops, in the hallway, handcuffed me and walked me away.

I was charged with driving a motorcycle without a license, along with 18 moving violations.

All of the charges were dropped, as my mother was well-connected to both Tucson Police Department captains and the chief of police, as well as a senator in the Arizona legislature.

Bottom line was the deputies were humiliated, over a one-year period, by my smart-ass ripping up the desert and eluding them. Without evidence that I was actually the one on the Bultaco each time I eluded them, the judge threw the cases out the window while admonishing me to wear a helmet and get a license.

It didn’t take much longer in my life to have more interfaces with cops, as I became the police reporter for both the college daily in Tucson and eventually several dailies and weeklies in Southern Arizona along the US-Mexico border.

My first real live reporter’s story on a cop shooting was when I had to cover a killing of a person with bipolar effective disorder who was in distress near Ajo, Arizona. A mother calls 911 about her son, a Vietnam veteran, drinking a lot and standing in their fenced yard talking to and yelling at ghosts. He had a six-inch Buck knife, and a tall boy PBR in the other hand. Deputy skids to a stop, comes out of the patrol car, pulls his gun, and while in a shoot-to-kill stance, mind you, on the other side of the clear demarcation of the property line to the son and mother’s double-wide trailer and shed set up, he shouts at the man to put the knife down and lay on the 120 degree desert ground with fingers laced and around his head.

The mother pleads to the cop to just back off, to not yell; her son yells back, cussing out this dude, telling him, “Don’t you come onto our property or I’ll stick you.” One thing leads to another, the distressed man charges, while still in his yard, the four-foot high fence between the police official and him. The deputy yells stop, and the Vietnam veteran tells him to fuck off and get away.

At the property line, on his family’s side of the line, the veteran waves his beer and his knife. Fifteen seconds later, the cop fires three rounds, pumping metal into the 42-year-old’s chest.

That was my first foray into investigating police policies around distressed and mentally deranged and emotionally flagging citizens.

One way to end the mental health crisis is to “shoot them out of existence” said one asshole El Paso deputy to me off the record.

Jump cut almost four decades later: Portland, Oregon. Pearl District. Daytime. Man who is deathly afraid of police is confronted by cops, runs away, is subdued, and in less than 120 minutes from the point of confrontation and while in police custody, said perpetrator is dead.

Watching Brian Lindstrom’s Alien Boy: The Life and Death of James Chasse, I am reminded of my forty plus years in and around cops, with mentally distressed clients, as a social worker with homeless and re-entry and veteran clients, and as a teacher in many alternative high school programs, community college, prisons, with military students, and with adults living with developmental disabilities.

I viewed the five year old film with homeless veterans and their family members in Beaverton, Oregon. Three in the audience (including me) had heard of the James Chasse case of Portland Police slamming to the pavement a skinny 42-year-old while also kicking him, applying a Taser, and hogtying the man with schizophrenia and letting him turn ashen gray while standing around sipping Starbucks.

Lindstrom’s film is powerful on many levels, notwithstanding the filmmaker’s ability to ply through the historical record to humanize this interesting and buoyant son who was known around Portland for many years. The quintessential peeling back of the biographical onion peel is what’s compelling about the filmmaker’s approach.

Here, a quote Lindstrom, lifted from a 2013 Portland Mercury interview:

With Alien Boy, our main goal was to honor Jim and really to kind of restore the depth and dimension to Jim’s life. We wanted to restore his humanity and depth. When he died his whole existence was reduced to this headline, 42 Year Old Man with Schizophrenia Dies in Police Custody, and that’s just such a desolate interpretation of his life. Actually, it’s really just an interpretation of his death not of his life. So we painstakingly researched his life, and found friends, family, his old girlfriend, his neighbors, all these people that could talk about him and give him the kind of fullness he deserved. He lived a life of hardship. He was dealt a hard hand but he played it well. He had a lot of integrity and drive. He built a meaningful life and we really wanted to show that in the film.

Mr. Chasse was living in an SRO (subsidized single room occupancy apartment) in downtown Portland, with his own little space from where he positioned his life to survive the voices and the hardships a schizophrenic lives through attempting to be accepted and left alone as an atypical in a neuro-normal and highly judgmental world.

The promontory idea my audience participants who viewed the film expressed was how a person who lives their life disheveled and as a loner with obvious atypical clothing and demeanor can end up at the blunt end of the macho and violent world of a police force. What is really compelling are the eyewitnesses to the event – people who did not know James at the time of the brutal and misanthropic and cavalier way he was meted out injustice – and the stake they had in reviving the 42-year-old’s humanity.

As is the case in all these incidents of police brutality, overreach, and killing, the victims are rarely treated as sons and daughters, fathers and mothers, uncle and aunts, friends and neighbors. They are un-people, aliens, reduced to their prior run-ins with the law, their rap sheets, their mental states, and their resistance.

Lindstrom takes this case, and builds a life, and in the process of reportage, he is able to elicit the emotive power of those of us bearing witness to injustice, a crime against humanity, and any warped expression of the human condition vis-à-vis a cliquish and many times felonious police force. Bearing witness, we as the documentary’s viewers are compelled to see a man, Jim, whose origins are a boy, a child, a son, a boyfriend, a character in the community, and a citizen of not only Portland, Oregon, but of the world.

Image result for james chasse jr

Image result for james chasse jr

James Chasse, Jr., was a fixture in the early punk rock scene in Portland, and Lindstrom allows a kaleidoscope of memories to enter the milieu of his film. One might expect the fury of the chase, or the fear of a dark alley and known crack dealer’s crib. In the case of James Chasse, Jr., he was minding his business in his grimy state in an upscale part of Portland. That was his crime.

“I think we’re used to viewing a lot of police tragedies that are unfortunate one-time decisions about pulling a trigger,” Lindstrom says. “What’s so disturbing about this [case] is that the film reveals this cascade of deceits, omissions, and lies that lead to this terrible death, which was preventable.”

Alien Boy premiered in February 2013 at the Portland International Film Festival after six years of production. The architectonics of the film peers back into our own souls – many of us have experienced videotaped depositions, court documents, and witness interviews up close. September 17, 2006 police approached Chasse, believing he was behaving suspiciously. Herein lies the universal truth of community police forces – if you run away, you most probably will be maimed or injured by officers.

In the case of Jim, he ended up with two dozen breaks on 16 ribs. The policemen signed a waiver denying the EMT unit authority to send him to a hospital.

I’ve seen this shit in Guatemala, in Mexico, in El Paso and Spokane – a hog-tied and writhing-in-pain screaming suspect thrown in a cell, whereupon the person stops breathing or has a seizure, and then slow-to-respond jailers and deputies load the suspect into a police vehicle headed for a hospital. Jim’s level of pain was captured on video and audio, and the viewer sees the brutality of group think in the jailer-cop mindset as people stand around inside the Multnomah County Detention Center as the dying Jim Jim went white and cyanic.

Jim was dumped in a squad car where the cop who pounded him to the pavement drove him to Providence Medical Center. He died in transit, a few minutes away from the emergency room.

This film does not hearken back to some episode of Law and Order, and instead we get a wonderful and human portrait of not an alien, but a life of a man who was a seeker of art as musician, writer, and cartoonist.

Here’s the rub – men and women can live lives of dignity and worth even with mental illness and the so-called hearing voices effects of schizoid disorders. They have friends, they believe in things, they are many times artists, and they can be creative and have meaningful relationships. Lindstrom calls Jim Jim “an amazing success story … a beautiful, sensitive, fragile-yet-resilient nature.”

As a practitioner in the social services world, I have worked with hundreds of people who are looked upon by mainstream society as broken, damaged, suspect and unworthy of all the rights embedded in a democracy, part and parcel what it means to be a citizen. I’ve had clients who lived in the same subsidized apartment building Chasse lived in. This world of neuro-atypical people living in our communities is a success story when social services and the full suite of programs come in and help people like James Chasse function in the world.

Jim Jim was part of our world, and given that, we have a responsibility to honor and respect the individual. Our versus his, or us versus them, are not paradigms in 21st Century USA, and Brian Lindstrom plays out that criticism through the people he interviewed and the narrative flow of his powerful film. Unfortunately, police departments, jailers and prison authorities, and now ICE against undocumented immigrants believe that the men and women with the weapons, military gear and new super powers to harass citizens are the “us” and we are the “they.” For people with developmental, psychological and intellectual disabilities, they are at the bottom rung of “humanity” in the minds of many street-level cops.

Lindstrom has spent years confronting the stories of people he says “society kind of puts an X through.” When the audience finishes a film like Alien Boy, we come away as better people in that same collective community, many times with a greater sense of empathy.

For some, it’s not a cakewalk as this filmmaker is challenged to “expose some grit and grace, that otherwise you might not know was there, in the people you may walk by every day.”

The filmmaking involved many sealed documents and gag orders since the city and police bureau were being sued by the Chasse family. “It was an exercise in faith,” he says. “We would just show up and do the work and hope that a way would be revealed.” The floodgates of evidence opened in 2010 when the Chasse family settled for $1.6 million from the City of Portland.

The viewers last week in the homeless veteran shelter where I work asked if things had changed, and some in the audience answered:

“Hell, no. The Portland police have gotten worse. They attack protesters against ICE detention camps. They give me no evidence that they know how to deal with people in mental health crises.”

A bit of a Lindstrom’s biographical underpinning points to a Portland kid who was thinking all the time about stories he wanted to tell, and he came to the conclusion that it was film as a medium to express those narratives.

Lindstrom was the first member of his family to attend college, paying for this education at both University of Oregon and then Lewis & Clark University by working summers at a salmon cannery in Cordova, Alaska. A linchpin to Brian’s transformation into believing he would be a filmmaker occurred when communications professor Stuart Kaplan screened Edward R. Murrow’s 1960 documentary, Harvest of Shame, about the hard lives American migrant farmworkers faced producing America’s food.

“Brian was really captivated by that, and thought that that’s the kind of thing he would like to do,” Kaplan says. “Documentaries that could bring about social change.”

After graduating from Lewis & Clark, Lindstrom got into Columbia University’s film directing program, where he produced educational videos for the New York City Department of Transportation. His thesis films included a short drama adapted from a Charles Baxter short story and a five-minute documentary about the famous schoolyard basketball player Earl “The Goat” Manigault.

Brian Lindstrom

He’s connected to the NW Film School, and he’s worked with one of my old stomping grounds, Central City Concern, a Portland nonprofit that provides housing, health care, and addiction-treatment services. The fruit of his labor includes Kicking, a half-hour documentary that follows three drug addicts through the medically supervised detox process at Central City’s Hooper Detox Center, and then Finding Normal, about CCC’s Mentor program, where recovering drug addicts get housing and a peer mentor to bust the cycle of addiction, sobriety, relapse.

Today, Lindstrom works intently on other projects while also spending time with his two children and wife, writer Cheryl Strayed, author of the best-selling memoir, Wild, which was turned into a Hollywood film.

My quick mini-interview of Alien Boy‘s Brian Lindstrom:

Paul Haeder: What’s the lesson you take away in 2018 after making the film Alien Boy, and after the screenings, the interviews, the passage of time from that 2006 killing?

Brian Lindstrom: We need to do more to support and protect people dealing with mental illness. I naively thought, way back in 2013 when we were finishing Alien Boy, that the Justice Dept. would come in and make everything better. That hasn’t happened. I want to think the opening of Unity is a step in the right direction and takes pressure off of PPB in terms of dealing with people in mental health crises, but evidently there are some issues at Unity that need to be worked out. I want to be clear that just because I’m advocating for anything that takes the burden off of PPB dealing with people with mental illness, I am in no way condoning or excusing what the PPB did to James Chasse. What is clear to me is that we have to figure out a way to support and protect people with mental illness so that PPB isn’t the defacto mental health services provider.

PH: You make documentaries. What influence do you want these films to have on audiences? The old conundrum is as artists who cover social/environmental/cultural/community injustices we get both the 35,000 foot perspective and the two inch POV, yet in the back of our minds we say, “Shit nothing has changed … in fact, it’s worse.” Riff with this in terms specifically with how you see not only PPB dealing with people they come in contact with living with mental health diagnoses, but writ large in the USA?

BL: I have a confession to make. If I’m truly honest with myself, I don’t make films for audiences. I make them for the people in the film. It is my small way of honoring them. That doesn’t mean I don’t delve into dark areas or that I ignore that person’s struggles. I’m much more concerned with trying to achieve an honest depiction of that person’s life than I am with any potential audience reaction.

PH: Why do you focus on the subject matter you have thus chosen in your documentarian body of work?

BL: It chooses me. I don’t know how else to explain it.

PH: Which story that hasn’t been told but for which you would like to see be told by anyone, or you yourself?

BL: Hmm… So many. I will go with the first that comes to mind: I’ve always wanted to make a documentary about an adult overcoming illiteracy.

PH: What advice do you give young or nascent filmmakers who want to make a difference and tell those stories that might spark a difference in our world?

BL: Grab a camera and go for it. Learn to get out of the way of the story.

PH: Anything you learned in the making of Alien Boy that you have just come to grips with?

BL: We must keep fighting for those whom life has dealt a hard hand.

PH: Why do you make documentaries?

BL: The camera is a bridge of sorts that allows me to get to know people I otherwise might never get to meet. I’m forever grateful for the brave people who have let me tell their story.

Of Genocide and Those Who Do Nothing

Of genocide one thing becomes clear: the perpetrators are usually governments. The perpetrators may be cliques within the government, using the government, but the organization of such cataclysmic events is beyond the skills of amateurs.  So it isn’t a surprise that the domain of preventing genocides is as tightly controlled as the mechanisms of punishment. A control not entirely foreseen by the conceptual author, Raphael Lemkin, was written-into the Convention on the Punishment and Prevention of the Crime of Genocide, with the support of countries which had risen to power through colonialism. It is the word “intent” as in “intent to destroy”, which is now considered a requirement, if any attempt to destroy a “national, racial, ethnical or religious” group of people is to be considered a genocide.

The mass killing has to provably have the intention of destroying one of these groups protected by the Convention.

The vagaries of “intent” and the difficulties of ever proving “intention” deep within a perpetrator’s mind is a domain claimed by the government’s policy makers, academics, inevitably psychologists, and the judiciary, who keep the Convention on Genocide basically out of the hands of the people.  The people are universally the victims.

To move beyond this control we might put aside nationalism and look at governments on one hand, and peoples on the other as not always having the same interests.

The emergency brake of puzzlement about “intent” is customarily used to obstruct application of the Convention on Genocide. It’s the standard way genocidal governments seek to avoid responsibility for their actions. Still we recognize the horror of a genocide as it occurs, which is partly that we are not doing something to stop it.

For example, can the military forces of North American countries bomb the civilian water supply of Iraq, her civilian infrastructure, entire cities, museums, bomb the country “back into the stone age,” without intention to destroy the national group? Civilian casualties were falsely referred to as “collateral damage.”

This assumed lack of intention spares our leaders and ourselves but is sophistry. Intention is established by repetition with a similar result each time leading to the inevitable mass civilian deaths. North Americans find the meaning of “intention” difficult. Too many dead Aboriginals, slaves, prisoners of our histories clogging our minds, never dealt with, never admitted. Denying the people their history leaves no chance for rehabilitation.

The U.S. having signed and after forty years ratified the Convention on Genocide presents objections as “Reservations and Declarations”1 which specifically underscore the need for intent to be present in the destruction of a group, if it’s to be considered genocide.

The Convention has already limited its own applicability to groups. It fails to specifically protect gender based and sexuality based groups, as well as the aged, the sick, ableist and groups defined by genetic traits, as well as groups defined by mental health, criminal records, or prisoners as a group. These are all vulnerable to genocide-like actions by fascist states as shown in the German Third Reich’s practices. A contemporary Convention on Genocide should include them.2

The Convention on Genocide as it appeared in 1948 was a very narrowly conceived document in one sense: it addressed the safety of the powerful victim groups of Hitler’s inhumane policies while ignoring less powerful victim groups, which in many cases continue to be victimized.

Understanding #4″ of the U.S. objections to the Convention prepares the U.S. for wars such as the destruction of Iraq by armed force. It’s very simple, it says: “4. That acts in the course of armed conflicts committed without the specific intent required by article II are not sufficient to constitute genocide as defined by this Convention” (Article II is where the Convention prohibits “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group…).

What could be interpreted at the diplomatic level as a threat to other countries, of war without quarter, possibly to assure their cooperation, was in Iraq a threat fulfilled. Through “Understanding #4” the U.S. could excuse itself from obligation at international courts as long as it controls the courts or interpretation of the law.

Not all countries agree that the U.S. can define applicability of the Convention on Genocide to itself, which the U.S. attempts in “Reservation #1” and “Understanding #5.” The Convention is considered currently applicable to actions in all countries signatory to the Convention. Under the World Court this could include the U.S., willing or not, with applicability a political issue not reliant on any statute of limitations.

Because of the U.S. extreme insistence on the element of “intent” (also specified in “Understanding #1”), as necessary to genocide, the interpretation of the Convention became slightly skewed.

The difficulty rises from an awareness which keeps asserting itself, that intent is very hard to prove. It becomes harder as perpetrators learn to disguise their intentions to avoid eventual prosecution. And harder as those who struggle to be moral, repress and twist their own motives to avoid the guilt of their own actions or inaction.

Protected from application of the Convention by the U.S. withdrawal from International Criminal Court U.S. writers and academics write more freely about genocides. Karen Goldsmith’s work, “The Issue of Intent in the Genocide Convention”3 discusses this within academic traditions, aware of attempts historically to trap interpretation of the Convention into serving the powerful. She encourages a more relaxed approach.

Instead of acceding to an academic discussion of intention which has allowed the confusion of whether an instance of insane mass murder is a genocide or not, wouldn’t it be more wise to cede a situation to the laws against genocide without immediate consideration of the issue of intent?

It may be arrogant to ever suppose to know or understand what happens in another person’s mind. It may take a long time to identify a pattern of behaviour which might prove intent through points of evidence. Realizing that the Convention attempts to shield a number of groups deserving of its protection, logically one would assign the word genocide to situations where one group as defined, is being repetitively killed or deprived of necessities or of lives for its children. It is certainly genocide to its victims.

To suggest the academic or professional jurist’s difficulty with this I recommend some consideration of the work of Kai Ambos4 who is not only an academic (professor of international criminal law) but has served as a district judge and a judge at the International Court of Justice (at the Hague), and is comfortable with the differences available in “intent to destroy.”

Is this general intent and knowledge of what one is doing, or a “surplus” of intention, an ulterior intention which exceeds the persecution of a group, a “special” intention? While the study of projected meanings presents its own kind of hell of devils dancing on the head of a pin, it makes no difference at all to the victims, their family, and village slaughtered most probably by an array of expensive modern technology.

To ascertain guilt by identifying precisely the perpetrator’s state of mind is the result of an evolution in response to the Convention’s prohibition. It is also a distraction from what is moral. Or a distraction from the pain of confronting human nature. ‘Legalese,’ by removing a subject from day to day life and placing it in a domain which is not necessarily ruled by love, may spare the judges of humanity’s excesses suffering and an ongoing PTSD syndrome.

But people at large seem to be moving beyond “dolus generalis” and “dolus specialis” as categorizations of kinds of intent to what is more simply expressed and noted by both Ambos and Goldsmith: Article 30 of the Rome Statute of the International Criminal Court.

The ICC holds the Convention on Genocide within its jurisdiction since one of the Court’s purposes is to address the crime of genocide. Therefore the ICC’s interpretation of the Convention can solve years of puzzlement created by patriotic lawyers:

Article 30 Mental Element

1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.

2. For the purposes of this article, a person has intent where:

(a) In relation to conduct, that person means to engage in the conduct;

(b) in relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.

3. For the purposes of this article, “knowledge” means awareness that a circumstance exists or a consequence will occur in the ordinary course of sequence or events. “Know” and “knowingly” shall be construed accordingly.

The Rome Statute’s definitions end run much of the smokescreen available in discussions of general intention versus special intention. This makes it much easier for countries subscribing to the International Criminal Court to address instances of genocide.

Because the path forward is in a way clear to address and consider instances of genocide currently in motion why haven’t the world nations attempted to honour their commitment to the Convention which demands some response when a genocide occurs?

Because a reader might not agree with one example I’ll point out four salient instances where the situation could be declared genocide by the courts:

1. The peoples of the The Democratic Republic of Congo (Zaire) are being destroyed in the battle for Congo’s resources, by foreign interests.

2. Palestinians, particularly of Gaza, are being destroyed as a national and as a religious group by the Zionist government in Israel.

3. In Myanmar the Buddhist Army found few impediments to its attempted destruction of the Muslim Rohingya people. Signatory governments are complicit through inaction.

4. Indigenous peoples of Canada are subjected to extreme conditions of life, health and water by the Government over a long period of time. The government’s inability to move beyond its denial, or educate Canadians to their full rights and responsibilities under human rights law can be equated with an attempt to destroy the victim group.

Any United Nations intervention to directly counter a genocide in progress would, I think, have to pass through the Security Council for approval, and could meet a U.S. veto.

The attempts to effect the Convention on Genocide have been obstructed by:

1. The difficulty of proving intent as a condition required for identifying a genocide.

2. Likely obstruction at the Security Council where the political and financial interests of one of its members can veto intervention.

3. Lack of public knowledge and misinformation campaigns (demonization of a targeted victim group’s leader).

4. National reluctance to identify genocide since under law a signatory nation is required to intervene.

5. The fact that genocides are almost exclusively effected by governments and the Convention on Genocide can only be effected by governments or possibly large international organizations.

While genocides are waged for national or corporate purpose by governments the Convention on genocide is a mechanism of protest, alleviation, intervention, at the service only of governments. In areas where the genocide might be of gain to many governments it is less likely that the Convention will be brought into play.

Note, for example, NATO’s attempt to force the overthrow of Syria’s leadership by making conditions of life unbearable for Syria’s people. This became a concerted military effort by France, England, the U.S., Turkey, Israel and others. The resulting partial destruction of the national group was an intended genocide with a deflection of its purpose by a “civil war” waged by a minority assuming responsibility for a rebellion initiated by the foreign powers who provided funding.

There are also policies which many governments can agree on and ignore when they share the guilt. A current example is the forcible transfer of children as a way of managing migrants and asylum seekers entering the U.S.. While this isn’t accompanied by an intention to destroy a portion of a “national, ethnical, racial or religious group” it could be if the U.S. were considered responsible for destruction of the refugee’s country of origin. Both Canada and the U.K. separate children from their families when officials consider it in the “best interests of the child.” The issue has stronger interface in the area of transferring children to a country’s social services and the practices of ‘sponsoring’ the children of one protected group, with sponsors outside that group.

To address directly our own genocide defenses in North America: these almost exclusively rest with organizations funded by the government, at the service of government policy, staffed by academics with strong ties to government, or who have worked for the government, or will work for the government. Or who have government loans, or grants. The organizations’ political positions accommodate government policies, despite the innate confusion in identifying genocides, previously discussed here.

It’s unlikely that one will find in the active agendas of the genocide related NGOs any protests or any actions hampering government policy. This is particularly notable in the controversial area of Israel’s ongoing persecution of Palestinians.

If the issue may be considered within the multi-million dollar funded structure of the enterprise, or studied in a course from the hosting university, one might find that the well known NGOs are not usually allies in struggles to save the peoples oppressed criminally by the NGO’s host governments or its allies.

A run down of these specific non-governmental organizations, funded through service to the government either overtly or covertly, is avoided because much of what they accomplish does address the needs of victim groups. In a sense they pay off humanity by doing a portion of their job. The difficulty is that they refuse to address the crimes of our own governments. And they provide on occasion impetus for falsely raising the issue of genocide, in the service of government programs for corporate expansion which in situations of ‘genocide’ can threaten with military intervention.  Powerful NGOs concerned with genocide risk at some point supporting government policies which are genocidal. When they do not purvey genocides as genocide which is the major portion of their usefulness, they become complicit.

Against these difficulties with the “Convention on the Prevention and Punishment of the Crime of Genocide,” as it stands, and the difficulties of applying it, is the fact that it corresponds deeply to the beliefs of the largest portions of humankind. We believe it’s valid and necessary – not the law of it only, as much as its affirmation of our humanity – its refusal of the horror we find unacceptable.

In Rwanda after the genocide there were trials of the accused perpetrators under international law but also under Rwandan law, and then under village law in that the courts were held in the communities. In villages throughout the country people were brought together and found they had to account for themselves and explain what they did or didn’t do – their part in the genocide. These courts were known as Gacaca courts.4;5

What begins to evolve in the accounts of village trials is a world view of justice asserting itself in a landscape of the ultimate horror. And it has very little to do with arguments of what kind of intent was involved, or the mental state of the perpetrators, the Faculty coffee room, the judges or judicial chambers.

It has everything to do with surviving what the people never chose of their own accord. I think this defense might well be applied to a majority of North Americans as their corporations and capital continues to destroy less powerful nations. These instances of taking life are so much more clear in the Rwandan genocide.

This is the shadow which falls between the studies of genocide and the massive losses of humanity, decency, tenderness, life.

Prof. Giorgía Donà’s study of “situated bystandership”6 explores the realities of the bystanders, those who were neither the victims nor the perpetrators of the genocide which by her figures killed close to a million Tutsi (April 7th through July 18, 1994).

This group most closely parallels the majority of North Americans during the destructions of Iraq, Afghanistan, Yugoslavia, Libya, Syria to begin a longer more complicated list of massive loss of life and destruction.

She notes both external bystanders such as the United Nations and signatories of the Convention who knew and did nothing, and the internal bystanders who might be thought of as the people, and bear the guilt of the people for crimes that came from beyond them, were broadcast to them, programmed into them like an experiment with Rwanda as its laboratory.

A terrible thing here is that the killing was accomplished by so many and by my understanding so many were forced into the conformity of killing others lest they be killed, and under pressures that might make our judgment of them and our concept of ‘heroism’ irrelevant. In some instances those who wouldn’t kill were killed. Those who hid fugitives, if caught, were killed or forced to kill the fugitives they had harboured. Can this be considered within a context of law?

How deeply have North Americans responded to the massive death caused by our inception, our wars, armaments, economic needs, when our survival has had so many options other than war?

Donà’s paper suggests that in the aftermath of the Rwanda genocide the majority of people tried to separate themselves from the perpetrators whom they considered “extremists” and evil. The bystander majority would consider itself as retaining moral values. The Kagame government at first promoted the assessment of morally guilty bystanders, complicit through inaction.7

This group of bystanders then sorts out into those who acceded to the perpetrators’ actions and those who attempted to resist under the tremendous pressure from the overall program to kill. Those who remained non-violent would have to hide as did the victims.8 When refusing to participate in the killing meant death, some then participated. At a local factual level this was understood by the Gacaca courts, because how does one judge this with reference to the intent of genocide.

While Gacaca courts prosecuted murder and rape they didn’t the crime of non-intervention,9 and so under the policy of the community courts non-intervention was no longer necessarily one of guilt. These courts also shifted guilt and the responsibility for a crime, from mass action to the individual.

Crimes during the mass killing of the genocide were no longer abstract or collective but personal. While many of the Hutu were found guilty, many were found innocent and were freed from the condemnation of collective guilt.10

The Gacaca courts present a challenge to academic studies, and what is often an intellectual or judicial tendency to categorize and perceive through the application of abstractions. The community level courts were more realistic and humane than the courts of international law? Possibly so. But then they were addressing the people who as victim, killer or bystander, were the objects of a planned and prepared-for national atrocity.11

This focusing of attention on the bystander element of genocide may help many North Americans reconsider our own relationship to guilt, the ultimate price of silence, the relationship between our morality and what happens about us, realizing that despite the tremendous social pressures programming us by schools, corporately funded universities, from media, from history, by conformity and each other, we deserve to be judged for how we’ve responded to the crimes against others.

  1. The “Declarations and Reservations” which at ratification the U.S. added to the Convention are generally kept out of sight so I list them here:
    Reservations:
    1. That with reference to article IX of the Convention, before any dispute to which the United States is a party may be submitted to the jurisdiction of the International Court of Justice under this article, the specific consent of the United States is required in each case.
    2. That nothing in the Convention Requires or authorizes legislation or other action by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.
    Understandings:
    1. That the term ‘intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such’ appearing in article II means, the specific intent to destroy, in whole or in substantial part, a national, ethnical, racial or religious group as such by the acts specified in article II.
    2. That the term ‘mental harm’ in article II(b) means permanent impairment of mental faculties through drugs, torture, or similar techniques.
    3. That the pledge to grant extradition in accordance with a state’s laws and treaties in force found in article VII extends only to acts which are criminal under the laws both of the requesting and the requested state and nothing in article VI affects the right of any state to bring to trial before its own tribunals any of its nationals for acts committed outside a state.
    4. That acts in the course of armed conflicts committed without the specific intent required by article II are not sufficient to constitute genocide as defined by this Convention. 5. That with regard to the reference to an international penal tribunal in article VI or the Convention, the United States declares that it reserves the right to effect its participation in any such tribunal only by a treaty entered into specifically for that purpose with the advice and consent of the Senate.
    – According to “Multilateral Treaties deposited with the Secretary-General.” Status as of 31 December 1992. United Nations, New York.
  2. I initially stated this suggestion in “An Essay on Genocide: or why the Convention on Genocide hasn’t worked,” peacemedianews (Netherlands), 1995. Reprint: Night’s Lantern.
  3. Karen Goldsmith. “The Issue of Intent in the Genocide Convention, and Its Effect on the Prevention and Punishment of the Crime of Genocide: Toward a Knowledge Based Approach,” Vol. 5, 2010 (Issue 3, Article 3), Genocide Studies and Prevention: an International Journal (IAGS).
  4. Kai Ambos. “What does ‘intent to destroy’ in genocide mean?” Vol. 91, #876, December 2009, International Review of the Red Cross.
  5. Giorgía Donà. “‘Situated Bystandership’ During and After the Rwandan Genocide,” Vol. 20, No.1, Journal of Genocide Research, 2018; passim.
  6. Ibid.
  7. loc. cit., p. 8.
  8. loc. cit., p. 14.
  9. loc. cit., p.17.
  10. Concerning the issue of alleged massacres of Hutu by Tutsi I suggest the work of Professor Peter Erlinder (William Mitchell College of Law in St. Paul, Minnesota), The Rwanda Documents Project.
  11. Alison Des Forges. “The Ideology of Genocide,” Volume 23/Issue 2/1995. African Issues.

The Middle Man: The Jurisprudence of Justice Anthony Kennedy

“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”  This near-kitsch description comes from Justice Anthony Kennedy, US Supreme Court justice whose resignation sent Democrats screeching and Republicans chortling with opportunity.

There was a general registered lament from the fearful that Justice Kennedy’s retirement had ended what was, at least in some circles, a terrible period in US jurisprudence punctuated by odd moments of sensible, even delightful refrain.  It was, he relayed to President Donald Trump in a letter, “the highest of honors to serve on this Court”, and expressed “profound gratitude for having had the privilege to seek in each case how best to know, interpret, and defend the Constitution and the laws that must always conform to its mandates and promises.”

In being nominated by President Ronald Reagan in November 1987, Kennedy came as a mere third choice in the aftermath of Justice Lewis Powell’s retirement.  Robert Bork of the US Court of Appeals for the District of Columbia Circuit failed to impress the Senate, and his nomination sank by a vote of 42 to 58.  Douglas Ginsberg came next, but fell foul because of his use of marijuana as an adult.  The whirligig of time did the rest.

It is worth iterating that Reagan was confident enough with his third choice to claim he had gotten a “true conservative”, though Kennedy seemed to induce a degree of dissatisfaction over the issue as to whether he was that true.   His tendency to seem, at least, like a compromiser did not impress some, though it did win over the centrists.

When it came to decisions, Kennedy could be relied upon to threaten those conventions held dear to progressives.  This, it was said, was simply him being the middling man, sporting a libertarian streak.  On abortion, he flirted with reasoning that came awfully close to undermining Roe v Wade, a canonical case found along the fault line of Supreme Court battles.  While a woman’s right to have an abortion remains intact, Kennedy was not one to entirely ignore a pitch at altering it.

Wobbling somewhat, he would write in a joint judgment with Justices O’Connor and David Souter permitting, for the most part, Pennsylvanian abortion laws to stand, that “men and women of good conscience” could disagree with abortion in principle, being “offensive to our most basic principles of morality, but that cannot control our decision.”  Attempts to regulate abortions prior to the foetus becoming viable would fall within the constitution’s protection as long as they did not impose an “undue burden” on the right of a woman to end her pregnancy.

In 2016, Kennedy again joined with fellow judges Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayer and Elena Kagan on the topic in Whole Woman’s Health v Hellerstedt, taking issue with parts of a Texas law which imposed onerous impediments on abortion clinics to focus in that state.

On matters of workers’ rights, he was cool, and, in some cases hostile.  Mark Kagan, in a penned peace for Jacobin, was under no illusions, remembering “Kennedy’s apparent glee in the destruction of unions.”  He cites an exchange in the case of Janus v AFSCME between Kennedy and the legal counsel for the unions. The good justice, it seemed, was missing the entire point on the issue of union influence in politics.  The result was crippling for public sector unions, barring them from charging fees for supplying bargaining services for members.

A considerable softening to Kennedy came in various decisions on the subject of gay-rights jurisprudence. These centred on old notions of discrimination, such as the 1996 case of Romer v Evans, where he formed a majority striking down an amendment to the Colorado constitution barring state and local governments from passing laws prohibiting discrimination based on sexual orientation.  “A State cannot so deem a class of persons a stranger to its own laws.”

In Obergefell v Hodges, Kennedy delivered the Court’s ruling in striking down Ohio’s ban on same-sex marriage, arguing that limiting the institution of marriage “to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest.” He had etched himself into the good books of the rainbow community.

There were those ghoulish decisions that should not be forgotten, despite the effusive commentary on Kennedy’s exploits that dubbed him the “first gay justice”. He joined, for instance, the 5-4 majority upholding the death penalty for juveniles, but would then reflect, as he did in 2005, that the practice be outlawed.  He also proved vital in the handing over of the 2000 presidential election to George W. Bush, a decision that did its share of monumental damage to the Republic.

Court viewers and judiciary commenters have unduly ignored the conservative rust with the “Kennedy legacy”. A post- Kennedy world is seen in apocalyptic terms, the possible overturning of Roe v Wade, reining in efforts to challenge capital punishment, and dramatic beefing up of religious freedoms.

The fuss is not merely about the actual legacy of Justice Kennedy, which was often a case of knife-edge consequence and exaggerated efforts at being middling, but the political timing of his decision.  “This Supreme Court vacancy,” suggested Dylan Matthews, “will give Donald Trump the power to shift jurisprudence on a range of critical issues.  It could wind up being the most important part of his legacy.”

Jack Goldsmith in the Chicago Tribune was even less modest in his description of the retirement, which he sees as “the most consequential event in American jurisprudence at least since Bush v Gore in 2000 and probably since Roe v Wade in 1973.”  Such observations are best left at home. Judges do not necessarily do what their appointing masters think they will.  Not only is the law an ass; its interpreters can do a fine job of either affirming that point or moderating it.

Red Fawn Fallis and the Felony of Being Attacked by Cops

What happened to Standing Rock water protector Red Fawn Fallis is what has happened to many women political dissenters who go up against Big Government/Corporate power.  After she was viciously tackled by several police officers (caught on video), she was brought up on serious charges of harming those who harmed her.  Fallis, after months of intense corporate/military surveillance and handy informant reports, was targeted as a coordinator and a leader, a symbol and an inspiration.  For daring to make a stand for her people against the encroaching poison and destruction brought by the Dakota Access gas pipeline, she became a political prisoner.

Native-American women suffering dire consequences because of the ever-expanding needs of capitalist/white rule is nothing new.  Native-Americans have endured environmental racism for a very long time—from New England merchants to men seeking gold and to “tame” the West.  Late 20th century technology brought uranium mining and nuclear testing to the Southwest, bringing new and far-reaching disaster.  The Dakota oil pipeline, carrying explosive crude Canadian oil, goes through tribal lands, without tribal consent, potentially poisoning their water and desecrating their sacred sites.  Women have been on the frontlines of DAPL resistance, with their traditional ties to “Mother Earth” and to ancient matriarchal spiritual leadership.  But Standing Rock women resister/water protectors, faced all-out war from government/corporate forces.

In a militarized police state, colonized Native-Americans taking a stand to protect their land and water from rapacious banks and oil companies can expect what was unleashed against them.  In one battle late in 2016, troopers from North Dakota and neighboring states launched an attack against hundreds of united, unarmed Native-American protesters and their allies.  Rubber bullets, icy water cannons, concussion grenades, mace and tear gas did enormous damage.  As head of the Medic and Healer Council Linda Black Elk put it, she was attacked as part of the “continued legacy of oppression by the United States government.”  Native-American women have felt this legacy of oppression in particular ways directed at “squaws.”  Natïve women were raped, imprisoned, tortured, mutilated and killed by white colonial settlers, and that tradition and mentality still lives on in the experience of Red Fawn Fallis and her fellow women water protectors.

White police forcibly assaulted, stripped and searched demonstrators.  In a very familiar pattern, Prairie McLaughlin, daughter of LaDonna Brave Bull Allard, Lakota historian, was cited with “resisting arrest,” after objecting to being forcibly stripped.  An officer broke Apache-Navajo Laurie Howland’s wrist during her arrest.  Echoing Annie May Aquash, who was killed during the Wounded Knee uprising, Howland thought the white officers objected to her not being white and not praying to Jesus. Women dissidents against governmental authority, from Shaker Mother Ann Lee, to women militant suffragists, to black freedom riders, to revolutionary weatherwomen, have met male police violence, as “unnatural” noncompliant women.  For black and Native-American women, branded by a racist culture as even more beneath contempt, it is always worse.  So naturally, Red Fawn Fallis, singled out as a leader by the authorities, would be thrown down and arrested, and then brought up on serious charges which she would have no hope of beating.

It was October 2016, when 40-year-old Red Fawn Fallis was arrested after being tackled and pinned by several officers.  Fallis came from a family well used to resistance and its consequences.  Red Fawn is an Oglala Sioux from Pine Ridge.  Fallis’ mother Troylynn Yellow Wood was active in AIM (American Indian Movement) and was at the Wounded Knee protest in 1973.  She died shortly before the Standing Rock demonstrations.  She had taught her daughter to fight for “social and environmental justice” and to “stand up for her people.”  Red Fawn was serving as a medic at Standing Rock.  She was known as a “mother” to young activists, known to be “dedicated to peaceful tactics.”  When she was accused of shooting at a police officer, her supporters found it hard to believe.  Terrell Ironshell of the Indigenous Youth Council said that Fallis told them:  “You don’t have to be afraid of the government.  This is our land.”  Apparently the government has not yet been convinced of that.

On October 27, 2016, there was a 400-person rally near a DAPL construction site.  The police used the occasion to raid an “1851 treaty camp” and to take and destroy ceremonial and sacred items from a sweat lodge.  They dispersed the crowd with rubber bullets, tear gas and a “long-range acoustic device.”  There were 147 arrested that day and all were released except Red Fawn.  Deputy Thad Schmit said he spotted Fallis “being an instigator and disorderly” so he “took her to the ground.”  She allegedly fired a gun while down, and according to the arresting officers told them they were lucky she didn’t “shoot all you fuckers.”  [What military conference do they go to for this stuff?]  A video taken at the time clearly shows her being violently tackled by a dozen police, who then pinned her down, with a gun (according to witnesses) in her back.  The scene is horrific and typical of fascist militarized authorities quelling unarmed protesters.  It was the same response shown when black women protesters confronted Ferguson police and when Occupy demonstrators met up with the NYPD.

The initial (state) charge against Red Fawn Fallis was “attempted murder” of a police officer.  This was dropped in November in favor of federal charges of “civil disorder” and “possession of a firearm by a convicted felon” (a felon for allegedly driving the car while her male companion shot and wounded another man).  US authorities ordered her held without bail—standard for political prisoners, whether black Panther or Weatherwoman or water protector.  At a June 2017 hearing, she was denied bail, purportedly because the judge said Standing Rock protesters were “violent.”  In October she finally was released to a half-way house in Fargo, after being in North Dakota jails for months.

In January 2018, she had a trial, but, of course, the defense could not use the abrogation of treaty rights or the elaborate military-style surveillance and intelligence reports used to target her, reports which equated her with “jihadist fighters”; or the role of the swarmy FBI informant Heath Harmon, who insinuated himself into a relationship with Fallis, and said he provided her with the gun she allegedly fired.  With the defense hamstrung, as it always is when a woman political is a supposed terrorist, “eco-terrorist” in her case, she and her lawyer Bruce Ellison (Leonard Peltier’s attorney—hm), decided it’d be best to take a plea deal for civil disorder and possession of a firearm, with the dropping of the discharge of firearm (potentially a life sentence).  She also had to express remorse for causing any danger to the police [!].  After some delays, Red Fawn was finally sentenced on July 11, to 57 months in federal prison, with 18 months credit for prison time served.  She will serve about 39 months and three years probation.  She is appealing, but—vicious government prosecutors in North Dakota courts not known for Native-American sympathies–?  Not much chance.  Interestingly, Fallis said, before sentencing, she “wanted to move forward in a positive way away from Harmon and the things he tried to put on me while I was trying to push him away.”  Guess he got even.

When it comes to political dissent, the US government has a long history of violently suppressing it.  When it comes to women dissenters, US authorities have a long history of saving special kinds of punishments for them.  In 1973, black liberationist Assata Shakur was pulled over in a traffic stop, ended up being shot and then falsely accused of shooting her attacker.  Knowing she’d be killed in prison, her comrades helped her escape to Cuba.  In 1990, environmentalist Judi Bari was blown up with a car bomb in California, very likely by the FBI and the Pacific Lumber Company.  She was charged with “possession of an explosive device.”  She never recovered from her injuries.   Muslim- Pakistani scientist Aafia Siddiqui, a Boston doctor, was caught up in the horror of false terrorism charges in the early 2000s.  After years of imprisonment, rape and torture, she was set up for a staged shooting of US army officers in Afghanistan, was herself grievously wounded in the stomach, and, as an accused “terrorist,” got 86 years in prison.  Occcupy’s Cecily McMillan was sexually accosted by an NYPD officer, tackled by a number of other officers, and was charged with attacking the police.  She served time in Rikers and was released.  Black Lives Matter activist Sandra Bland was pulled over in Texas for not signaling for a lane change, was tackled with her head hitting the ground, charged with the felony of attacking an officer, and was found hanged in her cell a few days later under suspicious circumstances.  In a police state, you can be a New Jersey mother on a beach and get accosted by cops, a black woman at a waffle house and be tackled by officers, a young woman jaywalking and get attacked by the police.  This is the mark of an authoritarian, patriarchal power structure.

Red Fawn Fallis will serve hard time in federal prison because she stood up to government/corporate power.  The Free Red Fawn facebook page says—on July 12, 2018—that she is a “political prisoner.  She stood up for justice against environmental genocide, encroachment of our land and water.”  Like other Native-American and Puerto Rican women politicals, Fallis sees her status as a war captive of the US government.  She knows she faces a long prison sentence, but has heard her supporters sing outside her window.  She says, “So I stand strong. . .  I grow stronger every passing hour.”  She was treated brutally and with a punishment far in excess of any possible crime.  Such treatment of women political prisoners is the mark of a state which has little patience for defiant women resisters:  a fascist state, a police state –not one beginning with Trump—Standing Rock and Ferguson happened under Obama. The repression against those women who have fought for freedom and justice began with the first settlers.

Did Israel Inspire Trump’s Family Separation Policy?

This past May, the United States Attorney General, Jeff Sessions, announced the government’s ‘zero tolerance’ policy at US border crossings. It was a matter of weeks before the new policy began yielding tragic outcomes. Those attempting to unlawfully cross into the US were subject to federal criminal prosecution, while their children were taken away by federal authorities, which placed them in cage-like facilities.

Expectedly, the policy caused outrage and was eventually reversed. However, many of those who have chastised the administration of President Donald Trump seem willfully ignorant of the fact that Israel has been carrying out far worse practices against Palestinians.

In fact, many within the American ruling classes, whether Republicans or Democrats, have been captivated with the Israeli model for decades. For years, US pundits have praised, not just Israel’s supposed democracy, but also its security apparatus as an example to be emulated. Following the September 11, 2001 attacks, a renewed US love affair with Israel’s security tactics blossomed, where Tel Aviv raked billions of American taxpayers’ dollars in the name of helping secure US borders against perceived threats.

A new, even more appalling chapter in the ongoing cooperation was penned soon after newly-elected Trump declared his plan to build a ‘great’ wall at the US-Mexico border. Even before Israeli companies jumped on the chance to build Trump’s wall, Israeli Prime Minister, Benjamin Netanyahu, tweeted approvingly of Trump’s “great idea”, claiming that Israel’s own wall has been a “great success” for it “has stopped all illegal immigration.”

‘Birds of a feather flock together,’ is an English proverb. Netanyahu and Trump have flocked together for over a year and a half in perfect harmony. Alas, their personal affinity, opportunistic style of politics and, more alarmingly, ideological meeting points have made matters worse.

In the case of Israel, the word ‘democracy’ is hardly fitting. At best, Israel’s democracy can be described as unique. The Jewish State’s former Supreme Court President, Aharon Barak, was quoted as saying that “Israel is different from other countries. It is not only a democratic state, but also a Jewish state.”

At a Tel Aviv conference earlier this year, Israel’s divisive Justice Minister, Ayelet Shaked, offered her own version of Barak’s assertion. “Israel is a Jewish state,” she said. “It isn’t a state of all its nations. That is, equal rights to all citizens but not equal national rights.”

In order for Israel to preserve its version of ‘democracy’, it must, in the words of Shaked, “maintain a Jewish majority even at the price of violation of rights.”

Israel spins the concept of democracy in whichever direction that would allow it to ensure the dominance of the Jewish majority at the expense of Palestinians, the native inhabitants of the land, whose rising numbers are often seen as a ‘demographic threat’, a ‘bomb’ even.

Israel, to this day, has no formal constitution. It is governed by what it is known as ‘Basic Law‘. Having no moral code or legal foundation according to which the state’s behavior can be judged, the Israeli parliament (Knesset) is, therefore, free to draft and impose laws targeting Palestinian rights without having to wrangle with such notions as these laws being ‘constitutionally’ challenged.

One of the reasons that Trump’s family separation law at the border failed is that, despite flaws in its democratic system, the US has a constitution and a relatively strong civil society that can utilize the country’s moral and legal codes to challenge atrocious state conduct.

In Israel, however, this is not the case. The government invests much energy and funds to ensure Jewish dominance and to establish physical links between illegal Jewish settlements (built on Palestinian land in defiance of international law) and Israel itself. At the same time, it invests equal resources to ethnically cleanse Palestinians from their own land, while keeping their communities everywhere separated and fragmented.

The sad truth is that what Americans have witnessed at their southern border in the last couple of months is what Palestinians have experienced as a daily reality at the hands of Israel for the last 70 years.

The kind of separation and segregation that Palestinian communities endure goes even beyond the typical outcomes of war, siege and military occupation. It is something that is enshrined in Israeli law, crafted mainly to weaken, even break down the cohesiveness of Palestinian society.

For example, in 2003, the Knesset voted in favor of the ‘Citizenship and Entry into Israel Law’, which placed severe restrictions on Palestinian citizens of Israel who were applying for family unification. When rights groups challenged the law, their efforts failed as the Israeli Supreme Court ruled, early 2012, in favor of the government.

In 2007, that same law was amended to include spouses from ‘enemy states’ – namely Syria, Iran, Lebanon and Iraq. Unsurprisingly, citizens of some of those ‘enemy states’ were included in Trump’s ban on citizens of mostly Muslim countries from entering the US.

It is as if Trump is following an Israeli blueprint, fashioning his decisions around the principles that guided Israeli policies towards the Palestinians for many years.

Even the idea of caging children is an Israeli one, a practice that was exposed by the rights group, the Public Committee against Torture in Israel (PCATI).

The policy, which has allegedly been discontinued, allowed for the placing of Palestinian detainees, including children in outdoor cages, even during severe winter storms.

The ‘caging’ of Palestinians, however, is an old practice. Today, the Israeli Apartheid wall separates Palestinians from their land and segregates between Arabs and Jews on racial grounds. As for Gaza, the entire Strip, which hosts 2 million people, mostly refugees, has been turned into a massive ‘open air prison‘, of walls and trenches.

While many Americans are relieved by Trump’s decision to end the practice of family separation at the border, US politicians and media are oblivious to the fate of Palestinians who have endured horrific forms of separation for many years. Even more troubling is the fact that many among Republicans and Democrats see Israel, not as a liability to real democracy, but as a shining example to be followed.

Leaving the UN Human Rights Council

The margin between what is a human right as an inalienable possession, and how it is seen in political terms is razor fine. In some cases, the distinctions are near impossible to make.  To understand the crime of genocide is to also understand the political machinations that limited its purview.  No political or cultural groups, for instance, were permitted coverage by the definition in the UN Convention responsible for criminalising it.

The same goes for the policing bodies who might use human rights in calculating fashion, less to advance an agenda of the human kind than that of the political. This can take the form of scolding, and the United States, by way of illustration, has received beratings over the years in various fields.  (Think an onerous, vicious prison system, the stubborn continuation of the death penalty, and levels of striking impoverishment for an advanced industrial society.)

The other tactic common in the human rights game is gaining membership to organisations vested with the task of overseeing the protection of such rights.  Membership can effectively defang and in some cases denude criticism of certain states.  Allies club together to keep a united front.  It was precisely this point that beset the UN Commission on Human Rights, long accused of being compromised for perceived politicisation.

The successor to the UN Commission on Human Rights, the UN Human Rights Council, has come in for a similar pasting.  The righteous Nikki Haley, the US ambassador to the United Nations, had made it something of a personal project to reform the body. It was a body that had been opposed by the United States.  But reform and tinkering are oft confused, suggesting a neutralisation of various political platforms deemed against Washington’s interests.  Is it the issue of rights at stake, or simple pride and backing allies?

For one, the barb in Haley’s protestation was the HRC’s “chronic bias against Israel”, and concerns on the part of Zeid Ra’ad al-Hussein, a UN human rights chief unimpressed by the Trump administration’s policy of separating migrant children from their parents.

Accordingly, Haley announced that the United States would be withdrawing from “an organisation that is not worthy of its name”, peopled, as it were, by representatives from such states as China, Cuba, Venezuela and the Democratic Republic of Congo.  “We take this step,” explained Haley, “because our commitment does not allow us to remain a part of a hypocritical and self-serving organisation that makes a mockery of human rights.”

The Congolese component deserved special mention, the state having become a member of the HRC even as mass graves were being uncovered at the behest of that very body.  Government security forces, according to Human Rights Watch, were said to be behind abuses in the southern Kasai region since August 2016 that had left some 5,000 people dead, including 90 mass graves.  A campaign against the DRC’s election to the Council, waged within various political corridors by Congolese activists, failed to inspire UN members to sufficiently change their mind in the vote. A sufficient majority was attained.

The move to withdraw the US received purring praise from Israel’s Prime Minister, Benjamin Netanyahu, still glowing with satisfaction at Washington’s decision to relocate the US embassy to Jerusalem.  For the Israeli leader, the Council had been nothing but “a biased, hostile, anti-Israel organisation that has betrayed its mission of protecting human rights.”  It had avoided dealing with the big violators and abusers-in-chief, those responsible for systematically violating human rights, and had developed, according to Netanyahu, an Israel fixation, ignoring its fine pedigree as being “the one genuine democracy in the Middle East”.  The slant here is clear enough: democracies so deemed do not violate human rights, and, when picked up for doing so, can ignore the overly zealous critics compromised by supposed hypocrisy.

Israel’s ambassador to the UN, Danny Danon, did not restrain himself in praise.  The United States had “proven, yet again, its commitment to truth and justice and its unwillingness to allow the blind hatred of Israel in international institutions to stand unchallenged.”

The common mistake made by such states is that hypocrisy necessarily invalidates criticism of human rights abuses. To have representatives from a country purportedly shoddy on the human rights front need not negate the reasoning in assessing abuses and infractions against human rights.  It certainly makes that body’s credibility much harder to float, the perpetrator being within the gates, but human rights remains the hostage of political circumstance and, worst of all, opportunistic forays.  The US withdrawal from the Council does little to suggest credible reform, though it does much to advance a program of spite typical from an administration never keen on the idea of human rights to begin with.  The Trump policy of detachment, extraction and unilateralism continues.

Beating the US “Veto”: Palestinians Need Urgent Protection from Israel

What is taking place in Palestine is not a ‘conflict’.  We readily utilize the term but, in fact, the word ‘conflict’ is misleading. It equates between oppressed Palestinians and Israel, a military power that stands in violation of numerous United Nations Resolutions.

It is these ambiguous terminologies that allow the likes of United States UN Ambassador, Nikki Haley, to champion Israel’s ‘right to defend itself’, as if the militarily occupied and colonized Palestinians are the ones threatening the security of their occupier and tormentor.

In fact, this is precisely what Haley has done to counter a draft UN Security Council Resolution presented by Kuwait to provide a minimum degree of protection for Palestinians. Haley vetoed the draft, thus continuing a grim legacy of US defense of Israel, despite the latter’s ongoing violence against Palestinians.

It is no surprise that out of the 80 vetoes exercised by the US at the UNSC, the majority were unleashed to protect Israel. The first such veto for Israel’s sake was in September 1972 and the latest, used by Haley, was on June 1.

Before it was put to the vote, the Kuwaiti draft was revised three times in order to ‘water it down’. Initially, it called for the protection of the Palestinian people from Israeli violence.

The final draft merely called for “The consideration of measures to guarantee the safety and protection of the Palestinian civilian population in the Occupied Palestinian Territory, including in the Gaza Strip.”

Still, Haley found the language “grossly one-sided.”

The near consensus in support of the Kuwait draft was met with complete rejection of Haley’s own draft resolution which demanded Palestinian groups cease “all violent provocative actions” in Gaza.

The ‘provocative actions’ being referred to in Haley’s draft is the mass mobilization by tens of thousands of Palestinians in Gaza, who have been peacefully protesting for weeks, hoping that their protests will place the Israeli siege on Gaza back on the UN agenda.

Haley’s counter draft resolution did not garner a single vote in favor, save that of Haley’s own.  But such humiliation at the international stage is hardly of essence to the US, which has wagered its international reputation and foreign policy to protect Israel at any cost, even from unarmed observers whose job is merely to report on what they see on the ground.

The last such ‘force’ was that of 60 – later increased to 90 – members of the Temporary International Presence in Hebron (TIPH).

TIPH was established in May 1996 and has filed many reports on the situation in the Occupied Palestinian city, especially in Area H-2, a small part of the city that is controlled by the Israeli army to protect some of the most violent illegal Jewish settlers.

Jan Kristensen, a retired lieutenant colonel of the Norwegian army who headed TIPH had these words to say, following the completion of his one-year mission in Hebron in 2004:

The activity of the settlers and the army in the H-2 area of Hebron is creating an irreversible situation. In a sense, cleansing is being carried out. In other words, if the situation continues for another few years, the result will be that no Palestinians will remain there.

One can only imagine what has befallen Hebron since then. The army and Jewish settlers have become so emboldened to the extent that they execute Palestinians in cold blood with little or no consequence.

One such episode became particularly famous, for it was caught on camera. On March 24, 2015, an Israeli soldier carried out a routine operation by shooting in the head an incapacitated Palestinian.

The execution of Abd al-Fattah al-Sharif, 21, was filmed by Imad Abushamsiya. The viral video caused Israel massive embarrassment, forcing it to hold a sham trial in which the Israeli soldier who killed al-Sharif received a light sentence; he was later released to a reception fit for heroes.

Abushamsiya, who filmed the murder, however, was harassed by both the Israeli army and police and received numerous death threats.

The Israeli practice of punishing the messenger is not new. The mother of Ahed Tamimi, Nariman, who filmed her teenage daughter confronting armed Israeli soldiers was also detained and sentenced.

Israel has practically punished Palestinians for recording their own subjugation by Israeli troops while, at the same time, empowering these very soldiers to do as they please; it is now in the process of turning this everyday reality into actual law.

A bill at the Israeli Knesset was put forward late May that prohibits “photographing and documenting (Israeli occupation) soldiers”, and criminalizing “anyone who filmed, photographed and/or recorded soldiers in the course of their duty.”

The bill, which is supported by Israeli Defense Minister, Avigdor Lieberman, demands a five-year imprisonment term for violators.

The bill practically means that any form of monitoring of Israeli soldiers is a criminal act. If this is not a call for perpetual war crimes, what is?

Just to be sure, a second bill is proposing to give immunity to soldiers suspected of criminal activities during military operations.

The bill is promoted by deputy Defense Minister, Eli Ben Dahan, and is garnering support at the Knesset.

“The truth is that Ben Dahan’s bill is entirely redundant,” wrote Orly Noy in the Israeli 972 Magazine.

Noy cited a recent report by the Israeli human rights organization ‘Yesh Din’ which shows that “soldiers who allegedly commit crimes against the Palestinian population in the Occupied Territories enjoy near-full immunity.”

Now, Palestinians are more vulnerable than ever before, and Israel, with the help of its American enablers, is more brazen than ever.

This tragedy cannot continue. The international community and civil society organizations, – independent of the US government and its shameful vetoes – must undertake the legal and moral responsibility to monitor Israeli action and to provide meaningful protection for Palestinians.

Israel should not have free reign to abuse Palestinians at will, and the international community should not stand by and watch the bloody spectacle as it continues to unfold.

The Colonization of Palestine: Rethinking the Term ‘Israeli Occupation’

June 5, 2018 marks the 51st anniversary of the Israeli Occupation of East Jerusalem, the West Bank and Gaza.

But, unlike the massive popular mobilization that preceded the anniversary of the Nakba – the catastrophic destruction of Palestine in 1948 –  on May 15, the anniversary of the Occupation is hardly generating equal mobilization.

The unsurprising death of the ‘peace process’ and the inevitable demise of the ‘two-state solution’ has shifted the focus from ending the Occupation, per se, to the larger and more encompassing problem of Israel’s colonialism throughout Palestine.

The grass-root mobilization in Gaza and the West Bank, and among Palestinian Bedouin communities in the Naqab Desert are, once more, widening the Palestinian people’s sense of national aspirations. Thanks to the limited vision of the Palestinian leadership, those aspirations have, for decades, been confined to Gaza and West Bank.

In some sense, the ‘Israeli Occupation’ is no longer an occupation as per international standards and definitions. It is merely a phase of Zionist colonization of historic Palestine, a process that began over a 100 years ago, and carries on to this date.

“The law of occupation is primarily motivated by humanitarian consideration; it is solely the facts on the ground that determine its application,” states the International Committee of the Red Cross website.

It is for practical purposes that we often utilize the term ‘occupation’ with reference to Israel’s colonization of Palestinian land, occupied after June 5, 1967. The term allows for the constant emphasis on humanitarian rules that are meant to govern Israel’s behavior as the Occupying Power.

However, Israel has already, and repeatedly, violated most conditions of what constitute an ‘Occupation’ from an international law perspective, as articulated in the 1907 Hague Regulations (articles 42-56) and the 1949 Fourth Geneva Convention.

According to these definitions, an ‘Occupation’ is a provisional phase, a temporary situation that is meant to end with the implementation of international law regarding that particular situation.

Military occupation’ is not the sovereignty of the Occupier over the Occupied; it cannot include transfer of citizens from the territories of the Occupying Power to Occupied land; it cannot include ethnic cleansing; destruction of properties; collective punishment and annexation.

It is often argued that Israel is an Occupier that has violated the rules of Occupation as stated in international law.

This would have been the case a year, two or five years after the original Occupation had taken place, but not 51 years later. Since then, the Occupation has turned into long-term colonization.

An obvious proof is Israel’s annexation of Occupied land, including the Syrian Golan Heights and Palestinian East Jerusalem in 1981. That decision had no regard for international law, humanitarian or any other.

Israeli politicians have, for years, openly debated the annexation of the West Bank, especially areas that are populated with illegal Jewish settlements, which are built contrary to international law.

Those hundreds of settlements that Israel has been building in the West Bank and East Jerusalem are not meant as temporary structures.

Dividing the West Bank into three zones, areas A, B and C, each governed according to different political diktats and military roles, has little precedent in international law.

Israel argues that, contrary to international law, it is no longer an Occupying Power in Gaza; however, an Israel land, maritime and aerial siege has been imposed on the Strip for over 11 years. With successive Israeli wars that have killed thousands, to a hermetic blockade that has pushed the Palestinian population to the brink of starvation, Gaza subsists in isolation.

Gaza is an ‘Occupied Territory’ by name only, without any of the humanitarian rules applied. In the last 10 weeks alone, over 120 unarmed protesters, journalists and medics were killed and13,000 wounded, yet the international community and law remain inept, unable to face or challenge Israeli leaders or to overpower equally cold-hearted American vetoes.

The Palestinian Occupied Territories have, long ago, crossed the line from being Occupied to being colonized. But there are reasons that we are trapped in old definitions, leading amongst them is American political hegemony over the legal and political discourses pertaining to Palestine.

One of the main political and legal achievements of the Israeli war – which was carried out with full US support – on several Arab countries in June 1967 is the redefining of the legal and political language on Palestine.

Prior to that war, the discussion was mostly dominated by such urgent issues as the ‘Right of Return’ for Palestinian refugees to go back to their homes and properties in historic Palestine.

The June war shifted the balances of power completely, and cemented America’s role as Israel’s main backer on the international stage.

Several UN Security Council resolutions were passed to delegitimize the Israeli Occupation: UNSCR 242, UNSCR 338 and the less talked about but equally significant UNSCR 497.

242 of 1967 demanded “withdrawal of Israel armed forces” from the territories it occupied in the June war. 338, which followed the war of 1973, accentuated and clarified that demand. Resolution 497 of 1981 was a response to Israel’s annexation of the Golan Heights. It rendered such a move “null and void and without international and legal affect.”

The same applied to the annexation of Jerusalem as to any colonial constructions or any Israeli attempts aimed at changing the legal status of the West Bank.

But Israel is operating with an entirely different mindset.

Considering that anywhere between 600,000 to 750,000 Israeli Jews now live in the ‘Occupied Territories’, and that the largest settlement of Modi’in Illit houses more than 64,000 Israeli Jews, one has to wonder what form of military occupation blue-print Israel is implementing, anyway.

Israel is a settler colonial project, which began when the Zionist movement aspired to build an exclusive homeland for Jews in Palestine, at the expense of the native inhabitants of that land in the late 19th century.

Nothing has changed since. Only facades, legal definitions and political discourses. The truth is that Palestinians continue to suffer the consequences of Zionist colonialism and they will continue to carry that burden until that original sin is boldly confronted and justly remedied.

The Dispossession of Canada’s First Nations and the Kinder Morgan Pipeline

Imagine that a group of bandits entered your house without permission and booted you and your family members out. Afterwards the bandits continue to occupy the house, but they graciously allow you and your family to stay in the cellar. Would you accept such a state of affairs? Would you not want your house back in its entirety? And would you not want the usurpers evicted?

Now imagine that the usurpers had some dubious code of honor whereby if they made any alterations to the stolen abode that they must consult with the original home occupants. Moreover, if the displaced first occupants sought to legally challenge their dispossession or alterations to their former domicile, the usurpers would graciously cover the legal expenses of the dispossessed original occupants from the largess of the goods befallen the usurpers through acts of dispossessing others. Of course, the legal proceeding is controlled by the usurpers and ruled according to usurpers’ law with judges appointed by the usurpers.

No intelligent person denies that the Indigenous peoples of Turtle Island (North America) were the original inhabitants. In fact, they precede the coming of Norsemen, Christopher Columbus, John Cabot, and conquistadors by several millennia. Yet the Catholic Church of later seafarers decreed (in the papal bull Inter Caetera, 1493) that non-believers were savages and that their territory would belong to European monarchs. This was largely overturned by the papal bull Sublimis Deus in 1537.

One might have thought that humankind would have evolved morally such that the egregious crimes of centuries ago would not be perpetuated in the 21st century. Nonetheless, at the very least, human morality wouldn’t devolve, would it?

*****

In Canada, the American pipeline conglomerate Kinder Morgan desires to multiply the amount of fossil fuel carried from the province of Alberta to the British Columbia harbor city of Vancouver. Many First Nations and a multitude of British Columbians are opposed to the Kinder Morgan Trans Mountain project.

While the NDP-Green Party coalition in BC is opposed to the pipeline project, the federal government has approved it. However, chicanery has been unveiled in the process that led to federal approval.

Investigative reporting by the National Observer, revealed documents that the federal government had “instructed public servants to find a way to approve the project, even though the government was supposed to be consulting and accommodating First Nations at that time.” Consultation with First Nations is required by the constitution in Canada.

This filliped the Tseil-Waututh Nation, supported by at least four other First Nations (the Coldwater Indian Band, the Stk’emlupsemc te Secwepemc (SSN), the Squamish Nation, and the Upper Nicola Band), to file an extraordinary motion asking the Federal Court of Appeal to force the government to order the release of uncensored copies of federal documents cited in the National Observer investigation.

The federal government and Kinder Morgan reacted by asking the Tseil-Waututh Nation to pay for their legal fees for the delayed pipeline project.

BC is unceded territory.1 First Nation oral histories tell of a colonial-settler control over the landmass of the province that was wrought by genocide.2 Canadian courts have evaded the question of who has legal jurisdiction over the land.3 As for the treaties, Andrea Bear Nicholas – a Maliseet from Nekotkok (Tobique First Nation) in New Brunswick, and a professor emeritus at St. Thomas University – points out that in the Maritime Provinces, most treaties were nation-to-nation agreements – peace agreements between the encroaching settlers and Original Peoples – not land treaties.

“When you add it all up, for about 90 per cent of Canada, even under the best possible scenario, there is no legal transfer of title from the Aboriginal inhabitants to the Crown,” said Dr. Roland Chrisjohn, an Onyota’a:ka (Oneida) and former Director of Native Studies at St. Thomas University in the audio documentary Hoping Against Hope? The Struggle Against Colonialism in Canada.4

Now the federal government which finances itself through the dispossession of First Nations is requiring the First Nations to pay for a legal determination in the court of the usurpers.

Informed people should not be surprised. One brave lawyer, a specialist in Indigenous sovereignty matters, Dr. Bruce Clark charges that the situation is so dire that the Canadian legal profession and the judiciary are complicit in misprision of treason, fraud, and genocide.3

  • First published at Global Research.
    1. Kerry Coast, The Colonial Present: The Rule of Ignorance and the Role of Law in British Columbia (Clarity Press and International Human Rights Association of American Minorities, 2013). See review.
    2. Tom Swanky, The Great Darkening: The True Story of Canada’s “War” of Extermination on the Pacific plus The Tsilhqot’in and other First Nations Resistance (Burnaby, BC: Dragon Heart Enterprises, 2012). See review.
    3. Bruce Clark, from his soon to be published book, Aboriginal Rights and Genocide (Theytus Books).
    4. The link is now dead for the audio series. See review.