OBAMA, ISRAEL and PALESTINE

By: Gulamhusein A. Abba

The Palestinian State was neutered by Obama before its birth!

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The reality is that it is not Israel but the Palestinians who have been betrayed by Obama.

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The number of Palestinian children killed by Israel durIng this “conflict” is far greater than Israeli children killed by Palestinians, on a proportion of approximately hundred to one.
The Zionists in Israel teach their children far greater hatred

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“The humiliation of occupation” is not all that the Palestinians have suffered. Their suffering goes far beyond that
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The international community has an obligation to, and can end an illegal occupation by one country of lands that do not belong to it

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The US may believe in the emergence of two states but more and more are veering to the belief that the only feasible solution is a single state.

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In any two-state negotiations, the starting point should be, not the 1967 borders but the borders delineated in the UN partition plan that created Israel and to which Israel owes its legitimacy
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From the frenzy that was let loose on President Barrack Obama referring to the 1967 borders in his Middle East speech, one would think that he had announced a major shift in US policy on the Israel/Palestine issue, had abandoned Israel and was now pandering to the Palestinians!

Former Massachusetts Gov. and GOP’s leading presidential candidate Mitt Romney screeched that Obama had “thrown Israel under the bus”. Talk show hosts outdid one another in claiming that Obama was letting down Israel. Glen Beck denounced Obama for “betraying” Israel. Matt Drudge claimed that Obama had sided with the Palestinians. Former House Speaker Newt Gingrich called it "the most dangerous speech ever made by an American president for the survival of Israel."

Netanyahu went over the top and immediately issued a statement, just one day prior to his meeting with Obama, rejecting the President’s proposal! His performance, when he did meet the President, was described in the media as “lecturing” to the President. The photographs of the meeting that appeared seemed to support that description. Obama was seen listening to Netanyahu, tight lipped, appearing very much like an errant schoolboy being scolded by the headmaster.

Netanyahu demanded a “reconfirmation of commitments to Israel from 2004”.

The “commitment from 2004” that Netanyahu was referring to is contained in a letter written by President George W Bush in April 2004 to former Israeli Prime Minister Ariel Sharon. It said: "In light of new realities on the ground, including already existing major Israeli population centers, it is unrealistic to expect that the outcome of final status negotiations will be a full and complete return to the armistice lines of 1949, and all previous efforts to negotiate a two-state solution have reached the same conclusion. It is realistic to expect that any final status agreement will only be achieved on the basis of mutually agreed changes that reflect these realities."

What Obama said is, "The borders of Israel and Palestine should be based on the 1967 lines with mutually agreed swaps, so that secure and recognized borders are established for both states." The 1949 and 1967 borders are the same. Obama proposed nothing more nor less than what Bush wrote in 2004, the only change being that he substituted Bush’s “mutually agreed changes” with “mutually agreed swaps.”

Clearly there was no abandoning or betrayal of Israel by Obama.

The reality is that it is not Israel but the Palestinians who have been betrayed by Obama. After his Cairo speech and his support of the recent democracy movement in the Mid East, in places like Tunisia, Egypt, Libya, Syria, Bahrain and Yemen, the Palestinians had high hopes of Obama supporting their just demands. Instead, he has let them down badly and is seeking to thwart their efforts to get a viable, contiguous, independent, sovereign state of their own in an area that is very much less than what is spelt out in the UN partition plan.

At one stage he mentioned “tearing down walls” but alas he was not referring to the gigantic wall of separation that Israel has built, mostly on Palestinian land. Instead, he was referring to the walls of “corruption of elites who steal from their people; the red tape that stops an idea from becoming a business; the patronage that distributes wealth based on tribe or sect”.

His very first sentence in introducing the subject of the Israeli/Palestinian conflict showed his bias and his insensitivity towards the Palestinians. He said, “For Israelis, it has meant living with the fear that their children could be blown up on a bus or by rockets fired at their homes, as well as the pain of knowing that other children in the region are taught to hate them”. Yes, that is fear enough, pain enough. But the number of Palestinian children killed by Israel during this “conflict” is far greater than Israeli children killed by Palestinians, on a proportion of approximately hundred to one.


And yet, there is no mention of the fear that Palestinians live under. As for the pain, the Zionists in Israel, and they number in millions, teach their children far greater hatred. The Israeli settlers in the West Bank not only preach this hatred but act it out daily by destroying Palestinian olive orchards, spewing their sewage onto West Bank territory and in a hundred other ways.

Obama did not ignore the Palestinians completely. He did say, “For Palestinians, it has meant suffering the humiliation of occupation, and never living in a nation of their own.” As though that is all that they suffered. No mention of the demolition of their homes, destruction of their crops, wave after wave of bombings that devastate their infrastructures and kill hundreds, the curfews, the closures, the checkpoints that keep families apart and prevent the sick from going to medical facilities and children from attending schools.

Though he correctly identified the cause of his administration’s failure to end this conflict, namely continuation of Israeli settlement activity in spite of his having called for its cessation, he sought to put the blame equally on the Palestinians by saying that they “walked away from (peace) talks.” They never did. All that they did was to refuse to allow the Israelis to go on using the “talks” to swallow up more and more of their land in the West Bank and go on building more and more illegal Israeli settlements in the West Bank. They were more than willing to participate in the talks provided the Israelis stopped their settlement activities. The Israelis refused.

Obama mentioned the world looking “at a conflict that has grinded on and on and on, and sees nothing but stalemate”. Surely the Quartet that was put in charge of the “Road Map” has some responsibility for this. It could have been more assertive. Most certainly it would have helped if the US had used its unique position to put pressure on Israel to cease its construction activities and enter into a serious discussion with the Palestinians about the creation of a Palestinian State.

His remarks that Palestinians’ “ …efforts to delegitimize Israel will end in failure. Symbolic actions to isolate Israel at the United Nations in September won't create an independent state” were a clear signal that the US would oppose the Palestinian effort to ask the UN in September to recognize a Palestinian State.

After having admitted that bi-lateral talks have “grinded on and on and on” and have yielded nothing but a “stalemate”, one would have thought that he would support the Palestinian initiative to put an end to an effort to arrive at a solution of the dispute through endless talks and instead put the issue in the hands of the international community. It was, to begin with, wrong to seek a solution through asymmetrical talks between an all-powerful occupying force and the powerless occupied. It was like asking the victim of a theft to negotiate with the thief! Had the international community carried out its duties, acted firmly and resolutely to end Israel’s illegal occupation of the West Bank, East Jerusalem, Gaza Strip, Golan Heights and parts of Sinai, as it did in the case of Iraqi’s occupation of Kuwait, this “stalemate” would not have occurred.

His remarks that “Palestinian leaders will not achieve peace or prosperity if Hamas insists on a path of terror and rejection. And Palestinians will never realize their independence by denying the right of Israel to exist” were uncalled for. There is nothing to substantiate that Hamas, at present, believes in or promotes “terror” or “rejection”. Nor is there anything to suggest that the Palestinians are opposed to the existence of Israel. What they deny is Israel’s right to exist. It has no such right, except the one given to it by a UN resolution adopted against strong opposition from the indigenous people to dividing up their land and imposing a foreign government on them. The morality, if the not the legality of this very resolution, is, to say the least, questionable.

Obama went on to assert that US friendship with Israel “is rooted deeply in a shared history and shared values. Our commitment to Israel's security is unshakeable. And we will stand against attempts to single it out for criticism in international forums”. The whole world knows this. It well knows the veto power exercised by the US on numberless occasions to save Israel from UN resolutions critical of its actions. This, in spite of the fact that there is not much evidence of “shared values” between the US and Israel. It will be a sad day indeed for US citizens, and for the world, if the US starts “sharing” the values that Israel at present has.

One can imagine the Palestinians holding their breath when he said that “precisely because of our friendship (with Israel), it's important that we tell the truth: The status quo is unsustainable, and Israel too must act boldly to advance a lasting peace”.

At last, there would be some frank and straight talk. But that did not happen.

He was off the mark when he said that no peace can be imposed on the Israelis and Palestinians. The international community has an obligation to, and can end an illegal occupation by one country of lands that do not belong to it, and it is its duty to prevent an occupying power from transferring its population, in defiance of international law, on to occupied territory, just as it is the duty of the international community to prevent an occupying power from tyrannizing and terrorizing the people living in the occupied territories and grabbing more and more of their land. To try and put the blame on the Palestinians for these abuses that have been going on for years, in open sight of the international community, is palpably unjustified.

His claim of what “everyone knows” and what “America and the international community can do” is just not true. He said that “a lasting peace will involve two states for two peoples: Israel as a Jewish state and the homeland for the Jewish people, and the state of Palestine as the homeland for the Palestinian people”. There are those who believe that a true and lasting peace will come about only if there is a single, secular, democratic state which recognizes the right of all people who now live there to continue living there, and the right of the Palestinian refugees to return to their ancestral lands as also the right of all Jews to immigrate to this single state to be known as Palestine, and guarantees all its citizens the right to vote and equal treatment.

It must be reiterated that the United Stated may believe in the emergence of two states but more and more are veering to the belief that with the havoc wrought by Israel in the West Bank by dotting it with Israeli settlements all over and “for Jews only” connecting roads, the only feasible solution is a single state.

True that the international community decided that Israel would be a homeland for the Jews. There was and is no sanction, and certainly no mandate for it to be a Jewish state. A single state that acknowledges the right of any Jew anywhere in the world to immigrate to it will effectively make it a homeland for the Jews and offer Jews a far greater area to reside in than Israel. A Jewish state, or any state based on religion is an anomaly in today’s world.

He went on to say, “So while the core issues of the conflict must be negotiated, the basis of those negotiations is clear: a viable Palestine, a secure Israel. The United States believes that negotiations should result in two states, with permanent Palestinian borders with Israel, Jordan, and Egypt, and permanent Israeli borders with Palestine”. On the face of it, this sounds good. “Viable Palestine” must have sounded like music to Palestinian ears. And who can object to a “secure Israel.” But the devil is in the details, as we shall soon see.

Then came what much of the media went wild over. “We believe the borders of Israel and Palestine should be based on the 1967 lines with mutually agreed swaps, so that secure and recognized borders are established for both states. The Palestinian people must have the right to govern themselves, and reach their full potential, in a sovereign and contiguous state”.

Though hell was let loose and this was portrayed as a betrayal of Israel, in truth it hit hardest at Palestinians! If there is to be any justice, any respect for international law, Israel must be required to go back to the borders defined in the UN partition resolution that created Israel, not the armistice lines drawn after the 1949 war between Israel and the neighboring Arab states. Palestinians are not bound by it. They were not a party to it. It was agreed to between Israel and the surrounding Arab countries.

Worse. In Obama’s vision, not only is Israel, even before any negotiations on borders have started, awarded all the land it grabbed through military force after its creation up to 1967, but it gets a nod to ask for land swaps!

It needs to be understood that even under 1967 borders, the Palestinian State will comprise of only 22% of the total land the Palestinians occupied before the creation of Israel, a far cry from nearly 50% reserved for it under the UN partition plan.

The swaps, it is argued, are necessary because of “facts on the ground” that have come into existence over the years. These “facts on the ground” are the Israeli settlements that Israel has dotted West Bank with. The international community, including the US, considers these settlements to be illegal. It is strange that the US, that believes so strongly in justice and the rule of law, should lend its support to a solution which enables the party that has been guilty of violating international law in deliberately and knowingly creating these illegal “facts on the ground”, to keep for itself these ill gotten gains.

Besides, there is no adjacent Israeli land of equal strategic and commercial value that Israel can swap. Surely Obama knows that what matters is not just the number of square miles that are involved.

A fundamental principle is at stake here. Does a thief get a right to keep some of what he has robbed provided he gives to the victim some other object of equal size (as distinct from value)?

Any hope that may have been kindled in the breasts of Palestinians by Obama mentioning “sovereign” and “contiguous” with reference to the Palestinian State that he envisaged was short lived.

Almost seconds after uttering those words, Obama spoke about security. Here is what he said; “As for security, every state has the right to self-defense, and Israel must be able to defend itself -– by itself -– against any threat. Provisions must also be robust enough to prevent a resurgence of terrorism, to stop the infiltration of weapons, and to provide effective border security. The full and phased withdrawal of Israeli military forces should be coordinated with the assumption of Palestinian security responsibility in a sovereign, non-militarized state. And the duration of this transition period must be agreed, and the effectiveness of security arrangements must be demonstrated”.

In other words, in the name of Israel’s right to self defense, the Palestinian State would not have a military, would no be able to import any weapons (even as Israel continues to receive plane loads and ships full of military hardware from the US and others), would be surrounded by security zones, Israeli military forces already in West Bank would not be withdrawn forthwith but in a phased stage. Though not stated in so many words, all this would mean that Israel would have fly over rights over Palestine and would, for all practical purposes, have full control of the skies over Palestine. And, the “effectiveness of security would have to be demonstrated” – what ever that means. In effect, the Palestinian State would be far from sovereign. The Palestinian State was neutered by Obama before its birth!

One wonders why so much concern is being expressed about Israel’s security vis a vis Palestine. Israel has one of the largest army in the world. It has war ships, bombers, drones, gunships, sophisticated and remote controlled “smart bombs”, and an arsenal of nuclear weapons. Plus it has the support and backing of the most powerful nation in the world. Nor must it be forgotten that Israel defeated the combined military might of several neighboring Arab nations in the region, including Jordan, Egypt, Syria, Iraq.

Palestine has none of the above! It is Palestine that has been subjected to devastating military actions by Israel time and again, not the other way around.

One would have thought that there would be concern about the security and self defense rights of the nascent Palestinian State rather than that of Israel!

There was more. Obama brought up the “recent announcement of an agreement between Fatah and Hamas” to from a unity government. “How can one negotiate with a party that has shown itself unwilling to recognize your right to exist?” he asked.

Till yesterday it was being argued that no meaningful negotiations could be carried on with Fatah because it no longer represented all the Palestinians. Gaza was under the control of Hamas, and there could not be two agreements with two different entities for one single Palestinian State. Now that the two entities have arrived at an agreement to form a unity government, it is being argued that one cannot negotiate with it because of the presence of the other party in the government!

There is a factual misrepresentation in the rhetorical question posed by Obama. The agreement between Fatah and Hamas specifically provides that it is PLO/Fatah that will be in charge of negotiations with Israel. Furthermore, while Hamas disputes Israel’s right to exist, it has shown itself quite willing to let Israel continue to exist. This is a problem that does not exist, except in the minds and tongues of those who want to prevent the coming into existence of a viable, contiguous, independent and sovereign State of Palestine.

If there was anything at all in Obama’s speech to give comfort to the Palestinians, it was his admission that the future of Jerusalem and the fate of Palestinian refugees remain to be resolved “in a way that is just and fair.”

There is one thing that the President got right. He said that he was convinced that “the majority of Israelis and Palestinians would rather look to the future than be trapped in the past……That is the choice that must be made -- not simply in the Israeli-Palestinian conflict, but across the entire region -- a choice between hate and hope; between the shackles of the past and the promise of the future. It's a choice that must be made by leaders and by the people, and it's a choice that will define the future of a region that served as the cradle of civilization and a crucible of strife.”

Obama has got it right on that one. More and more Israelis and Zionists are beginning to realize how wrong and unjust are the actions of the Israeli government. More and more Jews all over the world are beginning to realize that neither their love, respect and reverence for Judaism nor their support for Israel prevents them from being critical of the unjust actions and behavior of the Israeli government but makes it obligatory on them to protest. Even Israeli soldiers and pilots are refusing to be a party to any action in the occupied territories.

And there is a mass awakening among the Palestinian people too. The number of non-violent protests, and their size, is increasing dramatically. Soon it will escalate from passive non-violent protests into what Gandhi called active non-violent non-cooperation.

Add to this fact that the Boycott, Divestment and Sanctions movement is also gathering momentum.

All evidence suggests that Obama’s prediction that Palestinians’ “efforts to delegitimize Israel will end in failure” will be proven wrong. Israel is a pariah state and must be treated as such, and reality indicates that more and more are veering round to this belief. Unless Zionist Israelis now in charge of the government mend their ways or are replaced by the people, Israel will become increasingly isolated.

It is time for the international community to wake up and take serious note of what is going on in that part of the world. There is need for them to take corrective action to right the wrongs that have been committed, and continue to be committed, before they are caught napping again and are surprised by another Tunisian, Egyptian, Libyan, Syrian, Yemen, Bahrain type revolution by the people. This time by the Palestinians, and, in time, by the Israelis themselves.

If the international community wants peace and stability in this volatile region, it must grasp Martin Luther King Jr.’s dictum: “Injustice anywhere is a threat to Justice everywhere.”

UNFORGETTABLE WORDS FROM AN ISRAELI GENERAL'S SON

In the name of truth and justice
(and as a very special favor to me)
PLEASE read the following and see the video
Gulamhusein Abba

UNFORGETTABLE WORDS FROM AN ISRAELI GENERAL’S SON
They will shake you to the core.

“So those people who want to associate themselves with Israel, Zionism and drape themselves in the Zionist flag – the flag that has come to symbolize intolerance, hatred, racism and brutality – they can feel free to do so.

But, they need to know this: that when the trials begin and the tribunals take their place, and when the truth and reconciliation commission begins its work and they are finally shamed into admitting they were wrong, they need to remember to go down on their knees and beg forgiveness from the people they so greatly wronged.

They need to realize that we will never forget them and that their conscience will never allow them to forget that they supported the killings, that they draped themselves in the flag and that they mocked the bereaved.

The rest of us will move on in line with the rest of the Middle East which will follow the example of the people of Egypt to create something that will surely be a tremendous accomplishment – a democratic, secular state in our own shared homeland – a state where Muslims, Christians and Jews live as equals and educate their children to love their homeland with its multitude of cultures, its rich history and its promising future.”

SO ENDS MIKO PELED’S NARRATION
YOU MUST WATCH THE WHOLE OF THIS POWERFUL VIDEO

Please send on to family, friends, lists
Spread as widely as possible
The book “The General’s Son” will be available later this year.

Sonja Karkar
Editor: Australians for Palestine

THE CASE AGAINST DEATH PENALTY

Examining What Has Been Hidden From View

By Dr. George Kain, Ph.D

Dr. George Kain, Ph.D
Associate Professor, Western CT State University
Police Commissioner, Town of Ridgefield

Note: Dr. George Kain is a principled and highly qualified opponent of the death penalty everywhere. However, what follows is a transcription from a speech he gave on May 6 at a luncheon discussion organized by the Danbury Bar Association, at a time when a bill for the abolition of the death penalty was before the Legislature of Connecticut. The events in Connecticut weighed heavily on his mind and this is reflected in this piece, which is not meant to be a word-for-word translation and has been edited for easier reading. For a brief, and strange history of the legislation in Connecticut, please see the editor’s note at the end of the article.

Be it a question of costs, or getting justice done, or ensuring that perpetrators of heinous crimes get their just desserts or helping grieving families of victims get closure, the death penalty just does not measure up. Worse, it creates little known but serious and worrisome consequences, unintended though they be.

In 1972, the then Unites States Supreme Court Justice Thurgood Marshall (TM), stated, in what’s still referred to as the “Marshall Hypothesis” in the case of Furman v GA, that if people knew the TRUTH about Capital Punishment and how the Death Penalty was applied, in his opinion, they would never support it.

The truth that he was referring to then, was based on issues that were only merely anecdotal at the time: racial discrimination/disparity, the risk of executing the innocent and the havoc that the Death Penalty causes in the Criminal Justice System. These were issues that had only been suggested as problematic then, but not yet researched and examined closely.

Today, they have been clearly documented. In 1972, some people laughed at Thurgood Marshall because of what he said; ironically today he’s being remembered by some as a prophet, as all the issues he spoke about back then, have turned out to plague the Death Penalty system in our country. So in keeping with the theme of the TRUTH about Capital Punishment, I’d like to bring a perspective and a reality about Capital Punishment that one does not read about in a law book, a perspective which many people are not willing to even talk about.

I went out this semester and tracked down a number of people whose voices have for the most part been hidden from public view and whose stories are just now finally being recognized and gaining national prominence. In each and every case, these important voices are the voices of victims in the Capital Punishment process. In Connecticut, we have historically done a pretty good job in at least trying to give victims voices -- from the inclusion of Victim Impact Statements in Pre-sentence Investigations, to creating an Office of Victim Services in every Judicial District in the state. We have actually come a long way, but we can, and need to do better. And I was very proud to be a part of the increasing participation of victim’s voices in the criminal justice process while I was with the Judicial Branch as the state broke new ground in creating a Victims’ Bill of Rights and brought their concerns to the forefront in the process.

But when it comes to Capital Punishment, I have learned that the list of those who are victims in this process is a list that is actually much longer than we might realize, and whose voices and stories are just now being recognized.

Like many, I grew up a staunch supporter of Capital Punishment. From my earliest years growing up -- watching the Watts riots on TV and having my father tell me that the beatings proffered by the police on the looters were being properly administered and well justified -- to being taught by my parish priest that Martin Luther King was most likely the anti-Christ -- to graduating from West Conn State University with my criminal justice degree and working as a Probation Officer, I of course, supported the Death Penalty for reasons of protecting me and my fellow Law Enforcement Officers (LEO’s). I did not think twice about it, and I had plenty of support around me. It’s not that we talked about it much, but we just knew- we told ourselves- that the Death Penalty was an important tool in fighting crime and in keeping us safe.

“These murderers are cold, calculating marauders who need to be made an example of -- and killing them will prevent others- and us- from being killed.” What a mistake that we did not talk more about it in light of what we know today. Law Enforcement Officers who were at one time silent because of their questions concerning the actual validity of these claims, are finally speaking up. Police chiefs all over the country are finally speaking out: in 2 studies completed -- one in 2005 and one in 2009 -- police chiefs nationally ranked the Death Penalty dead last- pardon the reference- dead last in the tools that they know to be effective in fighting crime. Even in 2010- which was a horrible year for LEOs across the country, the highest number of cops killed on the job in recent history.

When you break down the numbers, most of the cop killings happened in states that HAVE a Death Penalty! So much for the deterrent effect of having a Death Penalty on the books.

Prosecutors and judges and corrections administrators from California to Florida -- even retired Unite Sates Supreme Court Justices -- are finally speaking out against the Death Penalty because of the truths that Justice Marshall spoke about. They did not teach in the universities in the 1970’s and 1980’s that the Criminal Justice System makes mistakes, big mistakes in big cases, and that sometimes we exact the ultimate punishment on the wrong person in those cases. And in the case of many of the 138 people that we sentenced to death -- and later learned that we were wrong -- it was not the Criminal Justice System that was responsible for fixing it. It was law students and outside agencies that took up the cause, and found in 138 cases across the country, that we were wrong. It was eyewitness ID, bite marks, burn patterns -- what we now know is “junk science” -- those things sent the wrong people to the Death House.

For those who say it couldn’t happen in Connecticut -- “we don’t make mistakes like this” -- just ask Ken Ireland, or James Tillman- each of whom recently spent over 12 years of their lives locked up for crimes that they didn’t commit. It is only because of the Innocence Project are they living free today. Victims of an imperfect system. But those aren’t capital cases, you might say. We do it better in Connecticut with those cases. That’s probably true to some extent, but I’m not convinced that it couldn’t happen in a capital case in Connecticut.

Add to this the fact that we want to shorten Habeas petitions! In 40% of all death sentences handed down in this country -- 40 % -- federal courts have stepped in on appeal and said the death sentence was wrong, either in substance or procedure.

Coming back to victims. “We need the Death Penalty for victims. It is the least that we can do for them. Any sentence less than death serves to dishonor the victim, and cheapens their life. They need to be given the opportunity for closure.” Admittedly there are crimes that people commit that are atrocious. There are things that people do to others that are horrendous. The pain and suffering that is inflicted on victims and their families in such cases are unspeakable. The perpetrators should be locked up forever.

However, based on the huge number of surviving family members that I’ve spoken to -- and I have personally spoken to hundreds of them nationwide -- having the Death Penalty drags their pain and suffering on and on. In many of those cases, the family of the victims initially wanted the Death Penalty, and that’s totally understandable, It took some period of time for them to get to the point of realization that it was the sentence of Death Penalty that was the cause of the case, and with it their pain and suffering, being dragged on and on.

It is true that there are certainly victims’ family members who, even after many years, still want the Death Penalty- and they’re still searching for “closure”- but there is no doubt that this process drags on and on and holds out a promise -- a promise that we really want to believe in -- that it is going to make them feel better in the end when their loved one’s murderer is dead. But the fantasy of this “closure”, the pot of gold at the end of the rainbow, leaves most of them empty, and waiting, right up to the end. Their loved one is not coming back.

In the only rigorous research study that has been conducted in the US on “co-victims” in the Death Penalty process, Scott Vollum found, after interviewing and following hundreds of Death Penalty cases (and I quote from his study): “We find that the Death Penalty path is one that seems to suspend the lives and the healing and grieving process for co-victims. Their needs for closure, healing and justice are, in many cases, delayed. It is not that co-victims cannot obtain these things while waiting for an execution, but the evidence shows that the Death Penalty does not necessarily help this process and, in many cases, impedes it. Co-victims thus hold onto their pain, waiting for an execution to be some form of turning point in their lives. We must ask: how much sooner might these co-victims have moved through the natural grieving and healing processes had they not waited for the promised salve of the execution? The realities of the Death Penalty are hardly conducive to healthy grieving and healing.”

If the lives of victims, and their co-victims who are left behind, are truly valued, then why do we do this, and who are we really doing it for?

I was proud to be the moderator for a press conference at the Capital in February where a letter was presented to the legislature on behalf of 76 surviving family members whose loved ones had been killed, 76 people with direct ties to the State of Connecticut. In their letter they called out for abolition of the Death Penalty, because they all learned that having a Death Penalty does not bring closure and does not honor their loved one.

By having a Death Penalty, we create new victims of a horrible process, after they’ve already suffered a horrible loss.

But, some argue, in Connecticut we still need a Death Penalty for the “worst of the worst” cases, because it’s the least that we can do for the victims. Two questions arise: Is it only the “worst of the worst” murderers that get the Death Penalty here in Connecticut, where we allegedly do it better than Texas or Florida? Or, even worse, do the worst of the worst always get the Death Penalty in Connecticut? I don’t think so.

Look at what happened in the two capital trials that were decided recently, the Cheshire home invasion and the Fairfield felony murder robbery. A triple rape murder in a family home, and a double murder of a husband and his wife in a jewelry store robbery. Do you imagine that the Donnelly children did not think that their parent’s murder in Fairfield wasn’t “especially heinous and cruel”? Do you think that they thought that Connecticut got it right? So, on the one hand, we have a horrible triple murder in Cheshire that stripped a husband and father of his family, and on the other hand a double murder of an unsuspecting mother and father who were unceremoniously blown away by a drug addict. One was “cruel and heinous”, and the other wasn’t?

Therein lies a huge problem, the problem with Capital Punishment in Connecticut. We do it better than Texas or Florida? We still cannot get this thing right! And I am not blaming anyone here. It’s just simply a system that cannot be fixed. We are human beings working in a human system that makes human mistakes and under human rules. And we’re all victims of this process. It’s not the jury’s fault; it’s not the prosecutors’ fault. Maybe the verdict of Life in Prison Without Parole (LWOP) in the DiMeo case was actually a blessing in disguise.

After the verdict of LWOP was rendered, Tara Donnelly, the daughter of Kim and Tim Donnelly who were killed said: “It’s been a very emotional experience for the family but this is a sense of closure and finally allows my mom and dad to rest in peace.” So, obviously we really don’t need the Death Penalty for closure or to “honor” victims. Hopefully, the Donnelly family is going to be spared years and years of waiting for healing to occur, and Chris DiMeo won’t be a celebrity in the media for years every time a hearing is held or an appeal is being heard.

There is also research that is beginning to be done to show us new sets of victims in this horrible process. Jurors in capital cases, for example. How many followed the on-line twittering as the Hayes verdict was being read by the jurors right here in Connecticut? The examples of jurors crying and trembling as they were forced to respond “Death, Death”.

And the research and the stories about corrections personnel, the “death team” and the “death squad” that have to carry out these executions. From the warden all the way down the line, victims of a process that puts them on Death Row too, and then puts them on Valium, or Prozac or Ambien because they can’t sleep afterward. Post Traumatic Stress Disorder. And for those of you who might not know this, this very thing happened right here in CT-- where we do it better than Texas and Florida! It happened to those involved in the Michael Ross execution 6 years ago. So I ask, why are we doing this, and who are we really doing this for?

There is one last set of victims in this Death Penalty process that I want to mention here, a group that is almost never heard from, and often sentenced to death at the same time as the offender, the family of the condemned. Some even go as far as to say they deserve it! But what did they do to deserve a death sentence? What did they do to suffer the pain, from their point of view and in their eyes, of the state sanctioned murder of their loved one? Can we shrug this off by just saying that their father or husband deserve to die and they simply have to suck it up and accept that and just get over it?

One of the most touching stories I’ve ever heard was that of the mother of a son who had been murdered. She was in court during sentencing. and sitting across from her was the mother of the condemned murderer of her son. After the sentence of death was pronounced, the mother of the victim looked over and realized that the mother of the condemned man was suffering from the exact same pain that she was experiencing at that moment. She was able to acknowledge, that the pain of losing her son to murder was the same exact pain that the mother of the condemned -and her family-was now going to endure for years and years, and that they, like her, had done nothing to deserve it. So again I ask, why are we doing this, and who are we really doing it for?

So, in closing, what’s the point of this? I have not even talked about the many other moral, ethical and cost-benefit arguments that exist to justify abolition of the Death Penalty. Still, we need to acknowledge that by having a Death Penalty in Connecticut, a flawed process that we simply can’t fix, we are actually creating new sets of victims in capital cases, even when the verdict isn’t death. The voices of those we should be concerned about, and about whom we are learning more, are becoming louder and clearer.

So, is having a Death Penalty in Connecticut the least that we can do for victims and surviving family members of murder to honor the memory of their loved one? The truth is, it is the LEAST that we do TO them, and to all victims in this process, and it’s for that reason that we need to get rid of the Death Penalty once and for all.

About the author:

Dr. George Kain is a full-time faculty member in the Division of Justice and Law Administration and focuses his teaching in the area of capital punishment, and institutional and community based corrections. He is a retired State of Connecticut Judicial Branch administrator, having served as both an adult probation officer and a special programs administrator before moving to WestConn to teach full-time in 1994. He graduated in 2006 with his Ph.D. in criminal justice from the City University of New York (John Jay College of Criminal Justice). He is currently a police commissioner in the Town of Ridgefield, CT, having first been elected in 1999 and then re-elected every four years thereafter.

Dr. Kain has been affiliated with Western CT State University for over 30 years. He began as an undergraduate student in 1978, and graduated with a BS in Justice and Law Administration in 1982. He immediately started graduate school and earned an MS in Guidance and Counseling from WCSU in 1985. He then began to adjunct in the JLA Division in 1986, and was hired full-time in 1994.

Dr. Kain is involved in many civic and community-related activities. He is Director of Training for the Police Commissioners Association of Connecticut and on the Board of Directors of the Connecticut Network to Abolish the Death Penalty (CNADP). In 2010, he was awarded the Walter Everett Humanitarian Award from the CNADP in recognition of his anti-death penalty work in Connecticut and nationally. His wife, Marilyn Kain (WCSU 1985 MS; 1981 Justice and Law Administration BS), is an adjunct in the JLA Division, and teaches courses in the Corrections and Offender Rehabilitation concentration as well.

Dr. Kain is known by his students to have connections with the hidden world of corrections, and brings his students to the Garner Correctional Prison every semester. In 2007, Dr. Kain assumed the duties of coordinator of the Master of Science in Justice Administration Program. Please feel free to contact Dr. Kain for further information and for current course offerings and office hours, both of which change every semester

Dr. Kain lives in Ridgefield, CT with his wife and daughter, Grace.

Editor’s note: In 2009, in mid May, the House of Representatives approved 90-56l the bill to abolish the death penalty in Connecticut. The Connecticut Senate, eight days later, fter a nearly 11-hour debate, voted 19-17 to abolish the death penalty. In the Senate, the victory was due to three senators who moved from supporting the death penalty to opposing it. Sen. Gary LeBeau who had long favored the death penalty, changed his mind after witnessing a series of high-profile exonerations of innocent people. Joining LeBeau’s change of heart were Senators Andrea Stillman and Edith Prague. Sen. Stillman had in 1955 voted in support of the death penalty but in 2009 he changed his mind, saying: “The world was different then.” Sen. Edith Prague, who also once favored the death penalty, changed her mind in 2009. She then said: "I always believed if someone was so cruel to take someone else's life ... they deserve it. Then along came Mr. Tillman,'' Prague said, referring to James Tillman, an innocent man who served 18 years for a crime before he was exonerated on the basis of new DNA evidence. "I know that the mistake made was horrendous,''

They Call it “Independence” … We Call it Nakba

by Reham Alhelsi

My Palestine , May 11, 2011 They celebrate the hundreds of massacres their Zionist terror gangs committed against unarmed Palestinian civilians. They celebrate the murder of thousands of Palestinian children and women. They celebrate their Zionist colonies built on the corpses of Palestinians. They celebrate war crimes, crimes against humanity and genocide. They celebrate the massacres they committed in Jerusalem, Haifa, Ash-Sheikh, Al-Abasiyyeh, Khishkhash, Qazaza, At-Tantoura, Deir daras, Dahmash, Ramleh, Tireh, Sa’sa’, Husseiniyeh, Abu Kbeir, Deir Yassin, Um Ish-Shof, As-Sufsaf, Jeez, Wadi Shubash, Huwwaseh, Al-Lydd, Deir Ayyoub, Kufr Hassiniyeh, Nasir Id-Din, Beit Daras, Yaffa, Ad-Dawaymeh, Yazour, Mansurat Al-Khayt, Qisarya, Wadi 'Ara, Hawsha, Al-Wa’ra As-Suda, Ein Az-Zaytoun, Burayr, Khubbayza, Abu Shusha, Al-Kibri, Ijzim, Jish, Beir As-Sabi’, Majd Il-Krum, Saliha, Arab As-Samniyeh, Aylaboun, Al-Ba’na, Al-Khisas and many many more. They call it "independence" … and they celebrate the savage murder of innocent Palestinian civilians. We mourn and remember the thousands of innocent Palestinians massacred by Zionist terror gangs. We mourn and remember the thousands of women and children murdered in their own homes. We mourn and remember the thousands of Palestinian men murdered while defending their homes and their families. We mourn and remember the pregnant Palestinian women who were bayoneted in front of their children by Zionist terror gangs. We mourn and remember the Palestinian children butchered in front of their mothers. We mourn and remember the Palestinians murdered as they tried to return to their villages. We mourn and remember the Palestinians who were killed out of thirst, hunger and illness after they were forced out of their homes. We mourn and remember the thousands of Palestinian fathers, mothers, grandfathers, grandmothers, uncles, aunts, brothers, sisters, cousin, nephews, nieces, sons, daughters, grandsons, granddaughters tortured before being massacred and their bodies mutilated. We remember the Zionist massacres and mourn the Palestinian victims. We call it Nakba … And we swear; never to forget, never to forgive. They celebrate the destruction of tens of thousands of Palestinian homes. They celebrate the destruction of Palestinian olive fields. They celebrate the destruction of Palestinian groves. They celebrate the destruction of Palestinians property, businesses and gardens. They celebrate blowing up building, cinemas, kindergartens, schools, restaurants, hospitals and placing bombs in markets, cafes, bus stations and residential areas. They celebrate the destruction of ancient Palestinian towns and villages. They celebrate erasing over 530 Palestinian small towns and villages off the face of the earth, completely defacing them. They celebrate building colonies and planting forests on the ruins of Palestinians homes and villages. They celebrate converting Palestinian towns into Zionist colonies, and changing their names to bury the truth. They celebrate looting and plunder of Palestinian property, land and natural resources. They call it "independence" … and they celebrate the destruction of Palestinian lives, homes and livelihoods. We mourn and remember the tens of thousands of Palestinian homes demolished by Zionist terror gangs. We mourn and remember the warm ancient houses, the beautiful herb gardens, the historical squares and arches made into rubble by the Zionist terror gangs. We mourn and remember the green meadows turned into ashes, the uprooted millions of olive trees, apple trees, apricot trees, carobs, fig trees, orange trees. We mourn and remember the harvest stolen by the Zionist terror gangs while Palestinians were left to starve. We mourn and remember the Palestinians groves stolen and proclaimed as "Zionist miracle of making the desert bloom". We mourn and remember the over 530 Palestinian villages completely defaced and ethnically cleansed by Zionist terror gangs. We mourn and remember 'Allar, 'Artuf, Bayt 'Itab, Bayt Mahsir, Bayt Naqquba, Dayr Aban, Dayr Yasin, Jrash, Al-jura, Al-Maliha, Al-Qabu, Qalunya, Al-Qastal, Ras Abu 'Ammar, Al-Bassa, Al-Birwa, Danna, Kafra, Sirin, Al-’Imara, Al-Jammama, Al-Khalsa, Bayt Daras, Isdud, Julis, Al-Jura, Al-Khisas, Al-Jalma, Al-Mansi, Qisarya , Al-Tantura, 'Ajjur, Bayt Jibrin, Bayt Nattif, Al-Dawayima, Zakariyya, Bayt Dajan, Saqiya, Yazur, Al-Lajjun, Al-Mazar, Ma’lul, Al-Mujaydil, Saffuriyya, Abu Shusha, Al-Burj, Dayr Ayyub, Qazaza, Al-Dawwara, Kafr Bir’im, Sa’sa’, Yarda, Hittin, Lubya, Al-Majdal, Fardisya, Al-Jalama, Wadi Qabbani and many many more. We call it Nakba … And we swear; never to forget, never to forgive They celebrate the ethnic cleansing of Palestine. They celebrate expelling 80% of the indigenous population of Palestine from their homes and making refugees out of them. They celebrate usurping Palestinian homes, occupying them and claiming them their own. They celebrate stealing Palestinian culture, stealing the thob, the dabkeh, the dal’ouna, the falafel and the zaatar and zeit. They celebrate massacring Palestinian literature, strangling Palestinian poems and deleting Palestinian thoughts. They celebrate oppressing the Palestinians who remain steadfast in their ancestral homes, on their ancestral lands. They celebrate treating the Palestinians like slaves in their own homeland, on their own land. They call it "independence" … and they celebrate erasing everything that is Palestinian. We remember those who were expelled from their homes. We remember those who died in exile dreaming of their home, dreaming of Palestine, dreaming of the day they return. We remember those who wait, dream and hope, year after year, and swear never to forget, never to forgive. We remember those who teach their children that no matter where they are born in the exile, their blood is Palestinian, their hearts beat only for Palestine, that they are and forever will remain Palestinians. We remember those who live in over-crowded refugee camps, those who refuse the sell out their rights, refuse to go anywhere but return to their ancestral homes, who say out loud despite all the conspiracies and all the temptations: The right of Return is Inalienable. We remember our grandparents, their memories of their ancestral homes, our legacy, carved in our hearts. We remember their words, we remember our promises to them; one day to liberate Palestine, rebuild the homes and repopulate the villages and replant the fields and the groves. We remember and repeat every day, every hour, every minute, every second, until Palestine is free: No peace without justice, and no justice without the right of return. We call it Nakba …. And we swear; never to forget, never to forgive. They celebrate the ethnic cleansing of Palestine and call it "independence" … They celebrate the mass murder of Palestinians and call it "independence" … They celebrate the colonization of Palestine and call it "independence" … They celebrate the systematic oppression of Palestinians and call it "independence"… They celebrate the occupation of Palestine and call it "independence" … They celebrate a fake entity and call it "Israel" And we mark 63 years of Zionist ethnic cleansing of our ancestral home and call it an on-going Nakba … We mark 63 years of Zionist colonization of our ancestral home and call it an on-going Nakba… We mark 63 years of Zionist mass murder of our people and call it an on-going Nakba… We mark 63 years of brutal Zionist occupation and oppression and call it an on-going Nakba… And we call it an on-going Nakba because it is a Nakba; a catastrophe that has been on-going since 63 years … And we remain steadfast because the land is ours, and because our cause is just and because justice shall prevail… And we swear; never to forget, never to forgive And we swear to fight for our freedom, for our rights, if needs till the last breath and till the last drop of blood And we swear to liberate our homeland, to liberate every inch of Palestine, for it was always Palestine, and will forever be Palestine from the River to the Sea, from Ras In-Naqoura to Im Ir-Rishrash. © http://avoicefrompalestine.wordpress.com

Exposing Goldstone’s Bogus Test

A note by Sonja Karkar, editor of Australians for Palestine: As the likelihood of Israel invading Gaza again hangs ever-threateningly over the Palestinians still trying to recover from Israel’s last military operations, Lynda Burstein Brayer’s brilliantly-argued article comes in good time.

Israel has done everything in the two plus years since that attack to demonize the Palestinians for their resistance to the collective punishment that has been imposed on them, not only by Israel, but also by the West, most notably the US.

According to Israel’s version of its three week rage, there were no justifications for the Palestiniansto act,
and certainly none for Hamas, the government in Gaza. Israelis were being “terrorized” by monsters in a cage. This sort of propaganda is par for the course for Israel and the media. That an eminent judge with years of legal experience joined that hollow chorus after he had already found Israel had committed “potential war crimes” (here Lynda Brayer finds fault with him as well) was a deliberate attempt to bury the original report.

The legal analysis (see below) shows precisely how shamefully Goldstone failed the Palestinians in Gaza. In many ways, this is much more explosive than Goldstone’s recantation, but it is unlikely to receive the exposure it should in the mainstream media.

Please distribute this as far and wide as possible through your networks. We all need to take responsibility for righting the terrible wrongs that have been done to the Palestinians and stop any more from being perpetrated against them.

Sonja Karkar
Editor
Australians for Palestine
http://australiansforpalestine.com


The “legal analysis” that Ms.Sonja Karkar refers to follows:


COUNTERPUNCH
Weekend Edition
April 29 - May 1, 2011

Phony Baloney

Judge Goldstone's Bogus Test of War Time Culpability

By LYNDA BURSTEIN BRAYER

Wikileaks has once again brought attention to the question of Israel's war crime culpability in the military “Operation Cast Lead” it conducted from 27th Dec 2008 - 18th Jan 2009, a period of twenty three days, against the Palestinian population living in the Gaza Strip. The American Ambassador to the United Nations, Susan Rice, unsuccessfully tried to prevent a commission of inquiry into this war because of an obvious finding of culpability. Now, more that one and a half years later, Justice Goldstone, the head of that UN Commission seeks to introduce a peculiar twist into his original findings by raising the question of Israel's intentions with respect to the killing of Palestinian civilians during that war.

Approximately 1,417 Palestinian civilians and 9 Israeli soldiers were killed by Israeli fire, whilst one soldier and three civilians were killed by Palestinians. The Israeli war machine also caused massive material loss, damage and destruction in Gaza, estimated at a cost of 2 billion dollars, while Israel suffered almost no damage. Justice Goldstone informs the reader that now he would write a different report with respect to Israel, but not to the Palestinians, in which he would seriously minimize its culpability. So how does he come to such a conclusion?

Let me quote him in his own words:
“The final report by the U.N. committee of independent experts — chaired by former New York judge Mary McGowan Davis — that followed up on the recommendations of the Goldstone Report has found that ‘Israel has dedicated significant resources to investigate over 400 allegations of operational misconduct in Gaza’ while 'the de facto authorities (i.e., Hamas) have not conducted any investigations into the launching of rocket and mortar attacks against Israel.’

“Our report found evidence of potential war crimes and ‘possibly crimes against humanity’ by both Israel and Hamas. That the crimes allegedly committed by Hamas were intentional goes without saying — its rockets were purposefully and indiscriminately aimed at civilian targets.

“The allegations of intentionality by Israel were based on the deaths of and injuries to civilians in situations where our fact-finding mission had no evidence on which to draw any other reasonable conclusion. While the investigations published by the Israeli military and recognized in the U.N. committee’s report have established the validity of some incidents that we investigated in cases involving individual soldiers, they also indicate that civilians were not intentionally targeted as a matter of policy.”

His new position does not rest on any new facts about that war, but rather on the notion of Israel's intentionality or lack thereof. According to him, the fact that Israel set up investigating committees to find out whether or how war crimes and crimes against humanity occurred, or could have occurred, indicates, a priori, that the Israeli government had no intention of committing such crimes, even if it found that some had been committed. These crimes occurred therefore, either unintentionally or by some “bad apples” in the army, who would be brought to trial. Therefore, no culpability may be laid upon the Israeli government. It might be apposite to highlight the fact that more than two years after that war, no-one in Israel has been brought to trial for a war crime or a crime against humanity. On the other hand, Justice Goldstone excoriates Hamas, unhesitatingly and incontrovertibly attributing to this group an “intention” to kill civilians, because they did not set up commissions to investigate the intentions of their resistance fighters. The fact that they have neither money, nor resources, nor the obligation to do so, was not mentioned.

Here I shall concentrate on two issues: 1) the speciousness of the parity equation between the sovereign state of Israel and the besieged and imprisoned Palestinian population confined to the military-occupied Gaza Strip and 2) the legal defects of the “intentionality” argument.

I. The presumption of parity between Israel and the Occupied Territories
of Palestine

It is a sine qua non of all legal systems worthy of that name, that for justice to prevail, equals must be treated equally. But its corollary is just as essential: unequal parties or situations may not be treated equally, but rather appropriately or in adequatio. Inequality in real life, as a principle of non-identity, is not merely recognized in law, but is integral to it where it is appropriate, in order for law to be administered in a just and fair manner. For example, the legal definition of a minor recognizes the incompetence of young children to bear the same responsibility or liability that is imposed upon an adult. Therefore when a child or young person commits a crime, the laws and procedures are different from those for an adult.

The element of intentionality itself reflects different applications of the law for what, ostensibly are the same facts. For instance, if a person is found dead and forensic examination determines that the person was killed, it is often impossible to know from the actual death, the circumstances of the death and the motivations of the person who might have killed the victim. It is only after the trial of an accused, in which all the evidence is brought to bear, that it may be determined whether the death was a murder, manslaughter, a mistake, the result of self-defense, or simply committed by someone else, because the accused had an alibi. The question of the particular legal matrix of an occurrence is essential to the application of the law. Without preserving such distinctions, the law becomes either nonsense or a weapon of the rich and powerful.

However, this understanding and practice has often been undermined by the demand of even-handedness in dealing with two or more opponents. This is a formal model and presumes no moral content, its purported aim being the achievement of neutrality, itself taken to be an indication of fairness and lack of prejudice. One is advised to hear “both sides out” working on the presumption of equality of opponents, although this equality is not spelled out.

There also seems to be a presumption that a surface explanation is sufficient, without need for background and/or historical information. Father Albert Nolan op, a South African liberation theologian whose main work was done during the apartheid regime, wrote an article called “Taking Sides” in which he maintains that the demand for treating equally the two opposing sides of a political conflict is based on three misunderstandings.

The first assumes that a consensus can be (always) be reached, the second that neutrality is essential, and the third that a conflict is worse than the oppression which gives rise to it. He argues that if one adopts any one of these positions, the result will favor the oppressor rather than the oppressed, the strong over the weak, and possibly injustice over justice.

In contrast, Father Nolan argues that it is precisely to avoid unfairness, prejudice, deception and falsehood, that one may not treat equally that which is not equal. One cannot equate an oppressor with the oppressed, nor an aggressor with a victim. In the particular case of apartheid South Africa, it was a travesty of justice to equate apartheid, a legal system which enshrined racism and inequality, with the values of liberty, equality and fraternity. The demands of morality required that sides be taken in that struggle.

In Jewish law, or Halacha, prejudice invalidates automatically a legal opinion. The term “prejudice” which etymologically means to pre-judge, is recognized as an irremediable fault. The Hebrew expression is maso panim, the “lifting up of the face”. It refers to the fact that those who appeared in court were required to lie down facing the ground so that the judge could not identify any of the parties. Such anonymity necessarily requires the judge to base his decision solely upon the facts and the law, without respect to the persons involved. The example given in Jewish law is that favor may not be shown to the rich man over the poor man, because of their obvious inequality of status, means and ability to protect themselves. In other words, steps must be taken to compensate for existing inequalities, much in the manner that affirmative action was introduced into US law.

This brings us back to the question of legal and moral parity with respect to Israel and the Gaza Strip. Here is a very brief overview of the comparative strengths and weakness of these opponents.

Israel is an independent sovereign state the population of which can be distinguished into military personnel and civilians. It boasts one of the best-equipped armies in the world; it has the 24th largest economy and is ranked 15th among 169 world nations on the UN's Human Development Index, placing it in the category of a "Very Highly Developed" nation. Among the world's most economically developed nations, its economy ranks 17th, according to IMD's World Competitiveness Yearbook rankings. The median household income per annum is $37,000 for 2009. The size of Israel is 20,700 sq km and the population density is 292 per sq km.

The Gaza Strip, on the other hand, is not a sovereign state and enjoys no independence. Because it has no army all its inhabitants fall into the civilian category, although strictly speaking their status resembles more that of a prisoner of war status, because it does not enjoy peace. The area is a sealed military-occupied and controlled territory, the population of which is not only forbidden to raise an army, but has no money to do. It cannot be ranked on the list of world nations, nor is it mentioned on the UN's Human Development Index. Its median household income per annum does not appear on the CIA list, but it is incorporated with the figures for the West Bank where the standard of living is somewhat higher. I am of the opinion that the statistics are so bad that it is not in the interests of the US to make them available. Seventy per cent of the population lives under the poverty line, and over 80 per cent lives on humanitarian aid. Its economy is at the bottom of the ladder ranking at 175. Nearly 70 per cent of its population has refugee status. Its total area is 360 sq km and its population density is just under 9,700 people per sq km. Hamas, an acronym for the Islamic Resistance Movement, has been put under sanctions by the West with no financial aid being sent by Western governments.

There is a further question to be raised concerning parity touching on questions of prejudice and good faith. It is the question of the treatment of the realm of the ius ad bellum – the laws governing the resort to armed force. The Goldstone report ignored completely the exponentially huge differentials in power between the parties, and the total subservience of the Palestinians in Gaza to Israeli might and force. Here is a blatant instance of a mala fide equalization of that which is not equal, and it is clear that it was used in order to relieve Israel of the charge of opening a war of aggression. This would have led to the conclusion that Operation Cast Lead was a war of aggression and therefore a crime against the peace. Furthermore, because Israel is responsible in international law for the well-being of the Gazans as the military occupier of that territory, the actual deliberate bombings, shootings and shellings could be interpreted as an intended massacre. In this context the home-made rockets cannot be classified in any category of military hardware!

II. Intentionality and the framework of law

Any action of an individual is an exercise of power. We all must act, and therefore we all exercise power. The underlying rationale of all law is to limit the exercise of power, particularly in its raw form of violence. This applies to both individuals and states, because the exercise of power has the potential to be destructive by hurting, maiming or killing people, or depriving them of their livelihood or property. When exercised by a state it can cause massive death and destruction. The law seeks to contain and restrict the use of power in the interests of the well-being of the population. A priori it is assumed that when damage has been caused, avenues must be provided for reparations of some sort. The law makes various provisions for an understanding and application of the intent to harm, in the interests of either stopping the use of power, or apportioning liability with the intent of restoring a status quo ante or paying damages for the loss and harm caused.

Intentionality with respect to individuals in private law

Intention is a subjective necessary element required in the many areas of the law in order to establish first responsibility and then, depending on the circumstances, culpability and then liability where a breach of the law has caused damage. It is one of the main elements required in order to assign responsibility, because the intention of an agent indicates both his foreseeing the outcome of his actions and his desiring that outcome. The proven absence of intention may relieve a person of responsibility, culpability and liability. The element of intention appears in both civil and criminal laws. A breach of certain civil laws or the commission of most crimes gives rise to presumptiones hominis vel facti, which is a presumption of fact that an agent/person acted intentionally. This presumption however is not conclusive and can be rebutted by factual evidence.

The main categories which provide a defense against the presumption of intention include mistake, misrepresentation, exploitation and legal or mental incompetency in the civil law. In the criminal law the defenses are widened to include self-defense, alibi, fraud, necessity, duress, justification, and mental illness. The laws of evidence of the civil and criminal laws require different standards of proof, but for the purposes of this essay, they are irrelevant. There is a category of liability known as “strict liability” according to which there is no evidence which can be brought to defray either culpability or liability. This would be the case in the trial of a spy, whose intentions are conclusively imputed because of the acts of spying he has carried out. The act of spying is a reflection of the intention to spy. Similarly if treason is found to have been committed, then the intention to betray may be conclusively imputed.

Intentionality in public law as it pertains to government in its various branches

The question of intention in public law, which is almost identical in all western legal systems, is quite different from that in private law. First of all, it is obvious that the powers of government must be closely regulated and limited because the power it wields is exponentially greater than that wielded by individuals, and therefore there is a far greater potential for harm. The strictures and constraints placed upon government are expressed in the presumptions which govern its actions. They are called presumptio de iuris et de iure and are presumed to prevail at all times and are irrebutable, or irrefutable. This means that any and all government activity takes place under the conditions of these presumptions. These include the presumptions of legality, intentionality, rationality, morality and honesty, fairness and good faith. It also includes the presumption that all government activity is for the benefit of the population. When a statutory body acts outside of the powers given to it, it can be held to have acted ultra vires, and its actions may be deprived of validity or it may be required to restore a status quo ante or to pay damages. This is the doctrine of limited power within administrative law and provides a legal avenue to sue the government.

There is no possibility for a statutory body to defend itself by arguing that here was a lack of intentionality on the part of that body. Similarly there is no defense of illegality, or bad faith or ignorance of the law. In fact, such arguments are prima facie absurd. Consequently, the government can never be relieved of its responsibility and/or culpability and its consequent liability by “proving” that it did not intend the particular harm resulting from the actions of one of its branches, even if that might be the case in fact. Rather, such an argument would be taken to reflect government incompetency, and depending on its severity, could lead to its fall.

General government responsibility does not automatically disqualify a particular official from being found responsible for the harm caused by the government. This principle of responsibility and liability of a government is most clearly seen in ministerial responsibility, which does not include any element of intentionality at all. It does not even require knowledge on the part of the Minister.

Thus, even if the minister himself might have had nothing to do with the breach of the law and the subsequent damage caused by his ministry, he is often required to resign in recognition of his personal responsibility as chief office holder. This occurred in Israel after the invasion into Lebanon 1982, when Ariel Sharon was found culpable for the Sabra and Shatilla massacres – not personally, but as the Minister of Defense and when Dan Halutz, the chief of staff stepped down after the Lebanese war of 2006 as a result of the findings of a lack of preparedness of the Israeli army by a commission of inquiry.

Intentionality presumed for government actions entailing government responsibility

The reasons for this state of affairs should be fairly obvious, but they bear explication. When a government acts, it does not just “do something it wants to do”. Its power has been delegated to it by the citizenry and all government actions consist in the wielding of power in order to serve that citizenry. This is why governments need to explain, or more often, justify their decisions. They must act in order to bring about those ends for which they were delegated power in order to legitimize their power. The power delegated through elections is given for very specific purposes, and it imposes upon the government the duty and obligation of exercising its power for the administration of goods and services of the population and for its protection. One of the breakdowns in the Western legal systems is that governments no longer respond adequately to the wishes of their populations. The dismantling of the English welfare system and the wars conducted by the USA are not actions supported by the vast majority of their populations.

Intentionality and the conduct of an army

The army is a branch of government governed by both the presumptio de iuris et de iure as well as by the laws of war which have been developed over centuries in order to restrict the use of violence and not merely power. In a sense, these laws operate similarly to the ultra vires doctrine in peace time. The army is guilty of war crimes when it violates the laws of war. The two main categories qualifying the exercise of violent force are proportionality, which relates to the amount of force used and discrimination, the manner in which it is exercised. These categories are incorporated into the three basic principles governing warfare: the principle of necessity, or military necessity, the principle of humanity and the principle of chivalry. Except for the special case of Geneva Convention on Genocide of 1948, where certain acts of killing and destruction are taken to be acts of genocide if it is found that a government intended to commit genocide, none of the laws of war deal with intent.

Not all acts of war fall into the categories of crimes against the peace, war crimes or crimes against humanity. These crimes have been delineated and described in the laws of war and the manner of evaluating an army's actions is objective according to its actual activity and the actual state of affairs it has caused. The intention of the army is quite irrelevant. This ought to be apparent in that it is obvious that an army conducts warfare, its business is to kill and destroy, its weapons and tactics and strategies are all developed with this in mind. An army is simply the killing machine of the state. Therefore to ask what it intends to do when it engages in warfare, is absurd.

When a government wants to protest its culpability it may argue that it carried out the acts of war in self-defense. It cannot argue that it did not intend to kill or destroy. If an inhabited area is bombed and shelled, once again, it is absurd to argue that the killing and maiming and property destruction that resulted was not intended! Therefore, the logic of the self-defense argument is a confirmation that acts of war were carried out, death and destruction resulted, but, and here it is stressed, all these actions were acts of defense. They were acts carried out in response to aggression and therefore justified. This is the essence of the “Just War” theory. This is the main defense against the charge that the opening of hostilities is a crime against the peace. Similarly this is the argument for the actual conduct of the war itself. An army or government may not, however, use the defense of “military necessity” to justify a breach of the laws of war, because the laws themselves have taken into consideration such “military necessity” when they were formulated and applied.

The original Goldstone report found that “potential war crimes” had been committed by Israel. I am not sure what he meant. Could he have meant that objectively speaking, Israel could plausibly use, or have used, the argument of self-defense to clear it of the charges of war crimes and crimes against humanity, as well as the crime against the peace by beginning the war? Could he have meant that Israel was threatened by the huge and overpowering army of Hamas, by its overwhelming fire power? By its fighter bomber capacities, its hundreds of tanks and shells, its navy warships, its infantry and land to land missiles? And that in the face of such threats and previous attacks, Israel had to respond to the dangers Hamas posed to its safety and security? Or did he expect that Israel would or could argue that it began Operation Cast Lead as a “pre-emptive war” in order to paralyze the huge military arsenal of the Palestinian government and army in the Gaza Strip?

The state of Israel wishes to relieve itself of any culpability by transferring the culpability of the state, over to individuals, when it sets up its investigating committees. What Justice Goldstone has chosen to either overlook or not understand, is that such individual culpability occurs in addition to, but not in the alternative, that is, it does not come in place of state culpability. Even if particular persons are found to be guilty in specific instances, the overall responsibility always lies with the government which conducted the war, and it remains liable for its actions and the damages these actions incurred. It is on these grounds that reparations are demanded from a country, and not from those who might have been found guilty for war crimes or crimes against humanity.

In the light of what I have written, Justice Goldstone's retraction has no basis in the laws of war. I would go further and argue that Israel did not commit “potential war crimes” but is in violation of all the three categories of the laws of war.

III. Resistance and self-defense: heroism and legality

There is one outstanding question and issue which Justice Goldstone chose not to address: neither in the original commission nor in his retraction. This is the question of the right of a people to resist an aggressor and/or an oppressor, and the legitimacy of such resistance. I would argue that according to international law today, Israel has no rights to or in the Occupied territories of Palestine. According to the same international law, the occupation ought to have ceased one year after its beginning, that is by June 1968. The United Nations Security Council passed a resolution requiring Israel to withdraw from all occupied territories, Resolution 242 in November 1967.

I would contend that the continuing presence of Israel in these occupied territories, its building of settlements and the transfer of a huge Jewish population into it, and an infrastructure built from Palestinian assets to serve those settlements, its control over the use of land and water, and its continuing oppression of the indigenous population, should be classified as a colonialist venture. From the Palestinian point of view, the Israeli policies and practices are formulated and executed for the destruction of Palestinian society, private and public life, and their material assets.

In this situation of continuing oppression, dispossession, detention, killing and destruction of social frameworks, are Palestinians not permitted to resist all or any of this? If Israel is a colonizing power over and above its status as Military Occupier, precisely because of its settlement activity and control of the resources of the territory in Occupied Palestine then it would seem that the Declaration on Granting Independence to Colonial Countries and Peoples, 1960 General Assembly Resolution 1514 (XV), December 14, 1960 applies to Palestinians today. I quote two relevant articles.

1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation.

2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
Above and beyond the basic right of all human beings to resist their being killed and harmed, and a society to take armed actions to protect itself, this document legitimizes also national liberation struggles, including, at this time in history, most particularly, the Palestinian people's struggle for its own freedom. It is this right which legitimizes all Palestinian attempts to lift the yoke of Israeli oppression from Palestine, including all the actions taken by the Palestinians during Operation Cast Lead.

And is not the right to resist oppression universal? Does this right not justify the American Revolut8ion and then the French Revolution and the wars of liberation in the 1950's and 1960's. Nelson Mandela is a hero because of his resistance to, not because of his subservience to apartheid repression. And the Warsaw Ghetto uprising by the Jewish population against the Nazi repression is a beacon of pride in modern Jewish history. it is also a fact that Jews who joined the resistance, say in Poland or other places under Nazi occupation, are heroes for the Jewish people. I would contend that one cannot deny that right of resistance to Palestinians which the Jews appropriated to themselves, and which is the right of all peoples living under military occupation and/or colonialist regimes.

That Israel is not innocent of the crimes which Goldstone has bent over backwards to whitewash, can be found in this article in the leading Hebrew newspaper, Haaretz. (http://www.haaretz.com/weekend/magazine/mean-street-1.357617)


Lynda Burstein Brayer is a South African born, Israeli-trained lawyer and has worked in the area of human rights and public law in Israel and the West Bank. She can be reached at lyndabrayer@yahoo.com

For original article, click: http://www.counterpunch.org/brayer04292011.html