Out Of The Spotlight, Gazans Continue to Suffer

Despite fewer deaths from hostilities since the June ceasefire between Israel and Hamas, the situation on the ground in Gaza remains dire, writes Mustafa Qadri

Candles are in short supply in the Gaza Strip, as are most necessities — and with blackouts for up to 16 hours every day, candles are one of the most important.

The situation in the tiny coastal territory was meant to have improved this year when Israel and the Hamas Government in Gaza negotiated a ceasefire which took effect on 19 June. Hostilities had been raging ever since the Islamic political movement’s armed takeover of Gaza in June last year.

It’s true that there have been fewer deaths since the ceasefire took effect: according to the UN, 298 Gazans and nine Israelis were killed in hostilities prior to the ceasefire this year. Only one person has been killed since then, although the statistics do not include those killed due to lack of medical assistance caused by Israel’s blockade and deaths caused by the stresses of the occupation.

However, the humanitarian situation on the ground remains dire. The World Bank estimates that over 60 per cent of the population continues to live on less than $US1 a day, while inflation has been running at 28 per cent this year. Access to vital medical care is close to non-existent for most. The World Health Organisation (WHO) notes that, except for the few drug shipments it has made, no pharmaceutical supplies have been delivered to Gaza since 1 September 2008. “Currently, 95 essential drugs and 174 medical supplies are reported to be out of stock”, according to WHO.

Supplies have been briefly allowed in on two occasions in recent weeks, most recently on 24 November, although relief agencies say the short opening would have little effect because crossings have been closed for so long. The severe restrictions led United Nations Secretary-General Ban Ki-Moon to take the unusual step of personally calling for an end to the blockade.

Despite the brief opening of supply channels, Gaza’s only power plant broke down after Israel refused to permit spare parts to enter Gaza. The lack of power has meant that raw sewerage is being pumped straight out to sea. In the past, sewerage has flooded the streets of Gaza, also due to the lack of power caused by Israel’s blockade. Access to water has been greatly reduced because water pumps are not operational without electricity.

Israel blocked all supplies into Gaza for all of last week. The ostensible reason was the homemade rockets that were fired from Gaza into southern Israel on 4 November. It was not the first incident of this kind during the ceasefire.

In fact the June ceasefire has been breached on several occasions. The vast majority of those breaches involve Israeli attacks on Palestinian civilians in Gaza. On an almost weekly basis, for instance, Israeli naval vessels have shot at or interdicted Palestinian fishermen well within coastal waters Israel acknowledges is administered by the Hamas authorities.

The most recent incident, on 18 November, occurred when the Israeli Navy arrested 14 fisherman and three foreign human rights observers. The men were apprehended seven nautical miles off the coast of Deir al Balah, within the permissible fishing zone under the 1994 Oslo Peace Agreement.

Israel violated the ceasefire seven times in its first week. Most of the incidents involved Israeli forces firing at Palestinian farmers attempting to reach their land near border fences. In the same period there was one Palestinian violation when Islamic Jihad fired three rockets towards the Israeli town of Sderot.

On that occasion, as now, Israel closed all entry points into Gaza in protest at the Sderot attack. Humanitarian agencies have widely condemned the practice which almost certainly constitutes collective punishment, a war crime under international law.

Yet Gaza’s suffering has been almost entirely absent from the world’s media. Even the heavily state-influenced Arab media have remained largely silent. The silence may in part be explained by Israel’s refusal to allow journalists into the territory. Israeli Defence Minister and former prime minister Ehud Barak ordered a ban on all foreign journalists from entering the small coastal territory. A letter protesting the ban and signed by Associated Press, Reuters, the New York Times, the BBC, CNN and other major news organisations was sent last week to Prime Minister Ehud Olmert.

Other foreigners, including medical teams and a group of senior European diplomats have also been refused entry.

There is nothing to suggest a change in the power equation between the Palestinians and Israel. US President-elect Barack Obama’s pro-Israel rhetoric and choice of an ardent Zionist for Chief of Staff appears to confirm this.

Although one of Obama’s senior foreign policy advisers, Robert Malley, was known to advocate a more rational, balanced approach to the Israel-Palestine conflict, he was quickly removed once it was publicly disclosed that he had met with Hamas leaders in the Middle East.

Obama’s stance bears a striking similarity to the Bush White House. Two weeks ago the Israeli newspaper Haaretz revealed that the Hamas Government in Gaza had approached the Bush Administration offering a compromise with Israel. The offer was flatly refused, Bush instead opting to covertly arm and train militants from the rival Fatah movement.

For its part, the Australian Government returned to a more balanced position on the conflict when it supported UN General Assembly resolutions calling for the Geneva Conventions — the laws regulating military occupations — to be respected and for Israel to remove its settlements from the occupied West Bank. From 2002 to 2007, the Howard Government voted against or abstained from these resolutions — which are held to a vote annually — along with Israel, the United States and a handful of Pacific island states. While the most recent vote returns Australia to the position of the vast majority of the international community, it is more of a symbolic gesture than a concrete change in Australian policy. It will have no effect on the blockade of Gaza.

In the absence of political leadership it has been left to ordinary people to break Israel’s siege of Gaza.

Recently, three groups of activists have sailed into Gaza from the high seas, including two boats from the Free Gaza movement, an international network of peace activists, that were organised by veteran Palestine activist Michael Shaik. The boats safely arrived on shore to the cheers of onlooking crowds. Another boat loaded with humanitarian aid, leaving from Libya, hopes to make the voyage to Gaza soon.

There are fears Israel’s navy will attempt to stop this latest convoy.

Cover Story: The torturing truth

‘Philippe Sands’ timely book’, says Mustafa Qadri, ‘is in essence a record of how one seemingly innocuous document led the United States towards officially-sanctioned torture. Torture Team is a chilling portrayal of the banality with which even a highly regulated government like the United States can become susceptible to criminality. The author has methodically documented how middle-ranking officials, under pressure to produce actionable intelligence on Al Qaeda, quietly peeled away the legal protections against torture.’ Sands recently spoke about his book, the Geneva Conventions and the rule of law…

Mustafa Qadri: When did you decide to write Torture Team and how did you approach the task?

Philippe Sands: In the spring of 2005 my book Lawless World was published, telling the story of how Bush and Blair were subverting the system of international rules that was put in place after the Second World War. I wanted to home in on a more specific story, and was intrigued by the memo that Donald Rumsfeld signed in December 2002, authorising new techniques of interrogation that plainly violated the Geneva Conventions.

And then I happened to see an old, Oscar-winning movie called Judgment at Nuremberg that told a story about the criminal responsibility for lawyers. Spencer Tracey plays the judge, and gives a powerful closing speech, right at the end of the film. I suppose you could say he persuaded me to write this book.

MQ: You are one of the foremost British practitioners in international law and you were involved in the prosecution of General Pinochet of Chile for the crime of torture. How did your experiences as a lawyer influence your decision to write the book?

PS: One of the main lessons I have learnt as a courtroom lawyer is that things are not always as they seem. Every document tells a story, although not necessarily the one its authors intended. To get to truth you need to hear from the people most directly involved. That is what I decided to do, I hope with an open mind. I tried to piece together what really happened — as opposed to what the administration wanted us to believe had happened — from the individual stories I heard.

MQ: You claim that Rumsfeld, Haynes (his senior lawyer at the Pentagon) and many others are liable to prosecution for torture. That’s a very big claim. Did you expect to reach this conclusion? What were the other surprises, for you personally, that came to light while writing the book?

PS: The interrogation of Mohammed Al-Qahtani — also known as Guantanamo detainee 063 — plainly violated Common Article 3 of the Geneva Conventions, which prohibits cruelty, outrages against human dignity and torture. On the administration’s claim that the US is at war and so subject to international humanitarian law, war crimes were committed.

The main question is: who was responsible? You then follow the paper trail and identify those who were mainly responsible. Is it the soldier who carried out the interrogation, or the lawyer who recommended the techniques, or the Secretary of Defense who authorised the new techniques, or someone else, or all of the above? At the end of the day, in my view, real responsibility lies with those at the top of the food chain. The biggest surprise? That ordinary, decent, lawyers trained at Harvard Law School and other leading US law schools could ever have signed off on such atrocities. That is also a grave disappointment.

PS: The British authorised similar techniques of interrogation — known as the ‘five techniques’ — for a short period in the early 1970s. Aside from the patent illegality, they soon learnt that these techniques didn’t produce useful or reliable information.

That abuse undermined morale and authority. That the abuse and cruelty became recruiting tools for the IRA. And that the use of these new techniques was extending the conflict.

MQ: What are your thoughts on the ticking time-bomb scenario?

PS: It’s not immediately apparent to me that such a scenario exists. I oppose torture in all circumstances, on legal, moral, political and utilitarian grounds.

MQ: Lawyers are meant to be independent officers of the court. Do you think this book and your previous popular work undermines your role as a professional advocate?

PS: I wear two hats: academic and practicing lawyer. Sometimes the two roles might come into conflict, and certainly my writings mean that I would be precluded from sitting as a judge in cases in which I have expressed clear views! But I continue to act as counsel in cases in which allegation of torture have been made, for example the case of Binyam Mohammed, the British resident detained at Guantanamo who alleges that he was transferred from Pakistan to a third country where he was tortured. It has never been suggested that my writings would preclude me from acting in such cases.

MQ: How on earth did you manage to interview so many of the people directly involved in the Haynes memo and interrogations at Guantanamo? Who was the most challenging interviewee?

PS: Good question! I was probably perceived as a foreigner and a legal academic, so not seen as too threatening. Some have suggested that the British accent helped! Either way, I remain grateful to all the people I met with for telling me their stories, a mark of the openness of American society for which I have great admiration.

The most challenging? Jim Haynes was the most resistant, although eventually he invited me to meet with him in the Pentagon on two occasions. In a curious way the conversation with Diane Beaver may have been the most challenging, in the sense that I started with one view of her role and ended with another.

MQ: Here in Pakistan we have several petitions before the Supreme Court involving disappeared persons. According to the Human Rights Commission of Pakistan around 1000 people are missing. Many are believed to have been tortured either in Pakistani or US custody. Some may have been taken to Guantanamo. Do you think the Haynes memo gave the green light for renditions such as these?

PS: The memo I write about in Torture Team was limited to the use of interrogation techniques by the military at Guantanamo, for a short period from the end of November 2002 to mid-January 2003.

MQ: Is there a message for people like former President Pervez Musharraf and former PM Shaukat Aziz in your book? Could they be exposed to torture suits abroad?

PS: There may be, depending on the facts, of course, which I do not master. Article 4 of the Torture Convention prohibits complicity in torture, which could include direct or indirect participation in any renditions, and even recklessly turning a blind eye. I wouldn’t want to speculate without knowing specific facts.

MQ: One of the surprises of your books is how many institutional checks and balances, while ignored by the leadership, actually warned against authorising torture at Guantanamo.

For example the FBI independently cautioned against the harsh interrogations authorised by Rumsfeld in the Haynes memo. How can these checks and balances be strengthened to prevent repetition of what happened under the Bush administration?

PS: It is very important to understand that the abuse started as a result of the actions of a small number of high-level political appointees. As far as I can tell the vast majority of career military and civil servants were opposed to abuse, especially at the senior levels. That is, presumably, why they were by-passed in the decision-making processes.

The key to avoiding this from happening again in the future is making sure that those with real knowledge and experience are fully involved in the decision-making processes. And various important decisions of the US Supreme Court remind us of the vital role that is played by an independent judiciary, a point which will be widely understood in Pakistan.

MQ: Can we expect to see George Bush and Donald Rumsfeld being prosecuted for torture?

PS: Who knows! Certainly Mr Pinochet was taken by surprise whilst on foreign travels, many years after he left office. I recently raised the possibility with former US president Jimmy Carter, who came surprisingly close to recognising that the current US President may well face future difficulties.

MQ: The removal of Pakistan’s Chief Justice of the Supreme Court was arguably the catalyst for the demise of Pakistan’s most recent dictator, Pervez Musharraf. In the US we saw that the Supreme Court, despite a mainly conservative bench, was compelled to decide that the Geneva Conventions did apply to Guantanamo inmates. Is there a message here about the rule of law?

PS: I hope so. From my own friends and colleagues in Pakistan I know there exists a widespread and passionate commitment to the rule of law in Pakistan, as a bulwark against governmental excess and abuse.

In London we have observed with admiration the actions of so many members of Pakistan’s community of lawyers and judges, and we stand in the strongest solidarity. Any attack on the judiciary and on lawyers is an affront to core values and the rule of law. That is one of the key arguments of Torture Team.

Cover Story: Ways and means

Reviewed by Mustafa Qadri
In February 2002 President Bush decided to exclude Al Qaeda and Taliban detainees from the protection of the Geneva Conventions, the international laws regulating war. This included Common Article 3 which prohibits, without exception, torture and humiliating and degrading treatment. ‘The person who violates Common Article 3’, writes Sands, ‘is an international outlaw, liable to prosecution in many parts of the world.’

10 months later when US Secretary of Defense Donald Rumsfeld signed the ‘Haynes memo’, so named after his chief lawyer at the Pentagon Williams Haynes III. The document authorised the use of three different types of interrogation techniques on Mohammed Al-Qahtani, an alleged Al Qaeda operative who was captured in Afghanistan.

The terse one page document provides little detail on individual interrogation techniques (a copy of it is featured at the beginning of the book). It has since entered notoriety after Rumsfeld, writing on the document, remarked ‘I stand for 8-10 hours a day. Why is standing limited to 4 hours?’ Sands methodically dissects the memo, recording the history of how it was developed and interpreted once signed.

The memo resulted in the abrogation of principles guiding US military interrogations dating back to President Lincoln’s 1863 instruction that ‘military necessity does not admit of cruelty’.

Significantly, the document had the approval of Justice Department lawyers but did not involve consultation with the Joint Chiefs of Staff and State Department lawyers.

The Defense Department feared they would challenge its conclusions. Incredibly, a poorly drafted legal advice from a mid-ranking military lawyer, Diane Beaver, was relied upon when the Haynes Memo became public knowledge. Even more startling, in the absence of proper guidance, soldiers at Guantanamo tasked with carrying out much of the interrogations were inspired by the television programme 24.

This is a carefully written book that serves not only to highlight those officials who sanctioned torture but those who tried to prevent it. From November 2002 onwards, the FBI had concluded that 10 of the 18 techniques authorised by the Haynes memo violated the US torture statute.

Alberto Mora, General Counsel to the Navy at the time, also realised that the techniques were a breach of US and international law. He warned that Rumsfeld’s handwritten note on the memo, even if flippant, could be construed as giving ‘a wink and a nod’ to more aggressive interrogation methods. Mora even drafted an advice warning that the Haynes memo ‘probably will cause significant harm to our national legal, political, military and diplomatic interests.’ But his boss, William Haynes, ignored his and the FBI’s advice.

Some of the personalities detailed in the book, like former military head of interrogations at Guantanamo General Mike Dunlavey, former Chairman of the Joint Chiefs of Staff General Richard Myers and military lawyer Diane Beaver come across as both victims and culprits.

They followed their orders and yet somehow lacked the capacity to fully appreciate the gravity of what they were getting involved in.

Less ambiguous is the culpability of the lawyers who created the legal justification for torture. Near the apex of responsibility is William Haynes. Sands documents how he continuously ignored the warning signals that something was very wrong.

Haynes seemed to spend little time considering the impact of his memo on US policy, its international standing, or, indeed, his own culpability before a court of law. So too did Jay Bybee and John Yoo, two senior Department of Justice lawyers who advised in favour of the aggressive interrogation techniques.

The Bush administration maintains, officially at least, that their advices were never adopted. More in the shadows are Rumsfeld himself and David Addington, Vice-President Dick Cheney’s Chief of Staff who was then his senior counsel. Sands concludes that they must have been involved.

Interestingly, the book draws upon an old Nuremberg case, the only international precedent of its kind, on the role of lawyers in assisting the commission of crimes. Sands even speaks to the son of one of the defendants in this case. The issue here, as Sands points out, is not to compare the Bush administration to the Nazis but rather to learn from the regime which perhaps did more than any other to shape modern international criminal law.

Al-Qahtani was also shown images calculated to offend him, such as women in bikinis and victims of the September 11 attacks. There is also a useful chapter in which a clinical expert engaged by Sands concludes that the evidence suggests Al-Qahtani was tortured.

The book does rush a little from the period when the memo was signed to the past two years. The relationship between interrogations at Guantanamo and the Abu Ghraib scandal are also only briefly addressed. Nor is there very much discussion of extraordinary rendition, the US practice of sending suspected terrorists to countries that practice torture. But perhaps that is a story for another book.

The most valuable aspect of Torture Team is that it humanises the people at the centre of the controversy. Sands had the good fortune and tenacity to interview many of the senior officials involved in the saga.

It may have helped that most are no longer employed by the US government. Nevertheless, it is perhaps a testament to the freedoms that still remain in the US that he was able to meet them so soon after the events discussed in the book.

“The West has, in short, become a mature society entering into what future generations, in the recurring pattern of civilizations, will look back to as a “golden age,” a period of peace resulting in… “the absence of any competing units within the area of the civilization itself, and from the remoteness or even absence of struggles with other societies outside.””[1]

Leaving aside the accuracy of Huntington’s statement, implicit in it is an assumption that the “absence of struggle” is a product of the intrinsic nature of “the West” and its “commitment to democratic and pluralistic politics”[2] which other societies have at present proven incapable of fully realizing. For Huntington this incapacity is not explained by a failure of tactics or strategy on the part of other “civilizations”. Rather, other civilisations seek hegemony on terms that are either totally or generally antithetical to democracy and pluralistic politics. The West therefore is the exception to an otherwise still chaotic world, a world in which acts of genocide are perpetrated. But where the West is concerned it is an exception that proves the rule, the rule being that international peace and order cannot be realized unless the centre of civilisation, the West, takes a leading role. While Huntington goes further to lament the inevitable demise of the West as the hegemonic world civilisation,[3] he does not view as inevitable that future hegemons will reproduce the West’s “golden age” because they have not hitherto demonstrated the necessary capacity for lasting stability along democratic and pluralistic lines. Implicit in this is a belief that, matters of politics apart, the West retains a moral responsibility to remain hegemonic so that it may continue to be the paramount expression of human civilization.

In strikingly similar terms, Mahmood Mamdani relates a dominant expression of the distinction between civilised West and uncivilised others:

“…the world we live in is divided in two: between those modern and those pre-modern. It is said that those modern make their culture; they have a reflexive attitude to it; they can separate the good from the bad, build on the good and correct the bad; their culture develops historically; and the story of that historical development is what we call progress. The pre-modern peoples, in contrast, are said to be born into a culture; they are said to have a tendency to internalize their culture rather than have a critical attitude to it. Rather than make their culture historically, they seem condemned to live it uncritically, and content to pass it on from one generation to another. Pre-modern peoples are said to wear culture as a badge, or to suffer from it, like a twitch, even a fever.”[4]

Mamdani here is speaking of the manner in which two key American public intellectuals understood the cultural boundaries of the current United States War on Terror. But his assessment also resonates with the historical colonial distinctions between civilised and uncivilised, the West and the Other, modern and pre-modern.

The distinction between those with the capacity to civilise and those who require civilising is significant for a number of reasons. For our purposes there are two in particular that warrant further consideration. Firstly, it reminds us of the moral dimension of colonialism. If colonialism represents a power relationship, then it is a relationship where the colonial power believes it has the moral authority to intervene in the affairs of the peoples they wish to subordinate. Secondly, as contemporary literary theorists like Edward Said have shown, representations that reproduce a relationship of subordination endure even after formal representations of decolonisation have been obtained.[5] The international law of genocide is no exception in either of these respects.