Some Observations on the Turkel Report and the Investigation of Wrongdoing by the Armed Forces

The long awaited Turkel report which examines Israel’s practice of investigating allegations of wrongdoing during armed conflict by its security personnel was published in early February 2013.  The report (see original in Hebrew and an English translation) was issued by an expert Commission established by the Israeli government in June 2010 and headed by Jacob Turkel, a former judge of the Israeli Supreme Court.  The Turkel Commission produced an earlier reportin January 2011 which dealt with legal aspects of the Israeli blockade of the Gaza Strip and the interception of the Gaza-bound flotilla in May 2010 (this report was discussed here).  The second and final report of the Commission considers whether the mechanisms employed by Israel to investigate complaints regarding violations of the Laws of Armed Conflict (LOAC) attributed to members of its armed forces conform with the state’s obligations under international law.

To a large extent, the Turkel report is a response to the report of the UN Human Rights Council Fact-Finding Mission (the Goldstone Report) that was published in September 2009 and looked into alleged violations of international humanitarian law and human rights law during the December 2008-January 2009 Gaza Conflict (codenamed by Israel as ‘Operation Cast Lead’).  The Goldstone Report, which was later endorsed by the UN General Assembly, found “major structural flaws” in the Israeli military justice system responsible for handling complaints of serious wrongdoing by Israeli soldiers, and further concluded that Israel’s investigation policies do not meet the required international standards.  The main concerns were the use of internal military investigations by the chain of command to examine complaints, as well as the dual role of the Israeli Military Advocate General (MAG).  The Fact-finding Mission was troubled that the MAG’s responsibility to provide legal advice to the military authorities creates a potential conflict of interest with the parallel responsibility to order the investigation and prosecution of unlawful actions which at times might be based on the MAG’S own legal advice.

Those issues were addressed by the Turkel Commission.  Four Israeli members and two non-Israeli observers prepared the report for two years.  They examined evidence provided by Israeli officials, academics and human rights NGOs, and further consulted several international law experts.  The comprehensive report which analyses the duty to investigate under LOAC and the relevant Israeli practice includes a significant comparative element.  To use the Commission’s own words, the report stands out in the sense that “is the result of considerable efforts to derive the main principles of international law from sources that are often vague and unclear”.  It is therefore a valuable document which might have a meaningful impact beyond the concrete Israeli context.

http://www.ejiltalk.org/some-observations-on-the-turkel-report-and-the-investigation-of-wrongdoing-by-the-armed-forces/

 

Annonser
Posted in Law

extracts from RECLAIMING HUMAN RIGHTS

Robin Blackburn
New Left Review

Review of
Samuel Moyn, The Last Utopia: Human Rights in History Belknap: London and Cambridge, MA 2010, hardback 352 pp, 978 0 674 04872 0

Thus the first writer to issue an unequivocal denunciation of slavery was George Wallace in a chapter devoted to the question in his book A System of the Principles of the Laws of Scotland in 1760. It is worth quoting as it clearly affirms an individual right. Wallace bluntly asserted that ‘men and their liberty are not in commercio’. He insisted:

For these reasons every one of those unfortunate men who are pretended to be slaves, has a right to be declared free for he never lost his liberty, he could not lose it, his prince had no power to dispose of him. Of course the sale was ipso jure void. This right he carries around with him and is entitled everywhere to get it declared. As soon, therefore, as he comes into a country where the judges are not forgetful of their own humanity it is their duty to remember that he is a man and to declare him free.

Moyn denies that the Haitian revolutionaries were animated by a concern for ‘human rights’, and tries to buttress his claim by drawing on what he takes to be the more hard-headed approach of C. L. R. James in his Black Jacobins: James did not think of presenting Toussaint L’Ouverture and his confederates as human-rights activists before their time. A Trotskyist, James’ view of droits de l’homme, instead, seems to have been as the ‘wordy’ promises of eloquent ‘phrase makers’ who, driven by the true economic motor of history to ‘perorate’, were in the end only willing to give up the aristocracy of the skin at the point of the gun.

James acknowledged the power of revolutionary ideals and noted that Toussaint invoked ‘liberty and equality’ in his declaration of 29 August, 1793. Likewise James stressed the huge importance of the moral factor. ‘It was the colonial question which demoralized the Constituent Assembly’, James insisted. ‘To avoid giving the Mulattoes the Rights of Man they had to descend to low dodges and crooked negotiations that destroyed their revolutionary integrity.’ We should recall that Toussaint L’Ouverture won his most important victories over Britain, Spain and the French royalists as a Republican general. Charting the changes in slave mentalities at a time of revolution is very difficult. We have to dig beneath ready-made notions—whether of purely heroic rebels or of implacable caste hatreds—to bring to light the forging of new identities and new ideals. The Haitian Revolution appealed powerfully to the Romantic imagination, but understanding it is not helped by the seductive and romantic notion that slaves were bound to rebel, bound to champion a general emancipation and bound to triumph (or to fail). It is important to note that the slave community had a reality, notwithstanding the hierarchy and heterogeneity within it between Creoles and the Africanborn, or between different African nations. The racialized structure of exploitation fostered a countervailing solidarity, since only those of African descent were enslaved. The Kréyole saying tou moun se moun, ‘everyone is a person’, perhaps echoed the African notion of ubuntu ngumuntu ngabantu— a person is a person through other people. This was a connection reiterated by Jean-Bertrand Aristide, the democratically elected President of Haiti overthrown by a Franco-American coup in 2004, in his introduction to a new collection of Toussaint L’Ouverture’s writings, The Haitian Revolution. The problem with Moyn’s re-reading is that it overstresses one important conjuncture—the 1970s—and plays down any sense of a longer history of rights, both before and after his magic moment.

Thus Moyn argues that few directly cited the 1948 Universal Declaration of Human Rights in the twenty years that followed its adoption by the un; during this period, the New York Times barely mentioned ‘human rights’. Yet the Non-Aligned Movement formally adopted the Universal Declaration at its meetings in Bandung and Lusaka.

The Declaration had far-reaching significance because it defined the meaning of the defeat of fascism and, by incorporating significant social and economic rights, summarized the results of nearly a century of labour struggles. Anti-racist movements in South Africa and the United States also rightly claimed its mantle. The framers of the UN Declaration in the late 1940s were certainly aware of the terrible carnage that had wiped out some seventy million human beings; they were offering a response to the widespread aspiration for a world without the terrible ravages that had just been experienced, and without the distempers and depression that had produced the War in the first place. Roosevelt’s ‘Four Freedoms’ included ‘freedom from fear’, one with a particular relevance to African-Americans living in the Southern Jim Crow regime. Many of the social rights in the 1948 Declaration echoed the Soviet Constitution of 1936—drafted, it should be noted, by Bukharin, not Stalin, as a widespread myth has it. The Declaration reflected, rather than created, the longing for an attainable utopia. One of the impulses that led to its drafting was an ‘Appeal to the World’ from the us National Association for the Advancement of Coloured People (naacp), written in part by W. E. B. DuBois, and which—as Moyn is obliged to note— presented ‘African American subordination as a human-rights violation’. (Carol Anderson’s outstanding book, Eyes Off the Prize, helps to fill out this narrative.) The ‘Appeal to the World’ was formally submitted to the un in October 1947; Eleanor Roosevelt, a member of the naacp, was apparently alarmed at the possibility that the Soviet delegation would use it against the us government.

Moyn apparently does not regard the anti-racialist component of much anti-colonialism and anti-imperialism as a dimension of the ‘human rights’ package—wrongly, in my view. The struggle against apartheid South Africa was an icon of the anti-imperialist movement and surely had an absolute claim to the banner of human rights.

from Homo sacer / bare life in modern democracy

Agamben, p. 13

If anything characterizes modern democracy as opposed to classical democracy, then, it is that modern democracy presents itself from the beginning as a vindication and liberation of zoē, and that it is constantly trying to transform its own bare life into a way of life and to find, so to speak, the bios of zoē. Hence, too, modern democracy’s specific aporia: it wants to put the freedom and happiness of men into play in the very place – “bare life” – that marked their subjection. Behind the long, strife-ridden process that leads to the recognition of rights and formal liberties stands once again the body of the sacred man with his double sovereign, his life that cannot be sacrificed yet may, nevertheless, be killed. To become conscious of this aporia is not to belittle the conquests and accomplishments of democracy. It is, rather, to try to understand once and for all why democracy, at the very moment in which it seemed to have finally triumphed over its adversaries and reached its greatest height, proved itself incapable of saving zoē, to whose happiness it had dedicated all its efforts, from unprecedented ruin. Modern democracy’s decadence and gradual convergence with totalitarian states in post-democratic spectacular societies (which begins to become evident with Alexis de Tocqueville and finds its final sanction in the analyses of Guy Debord) may well be rooted in this aporia, which marks the beginning of modern democracy and forces it into complicity with its most implacable enemy. Today politics knows no value (and, consequently, no nonvalue) other than life, and until the contradictions that this fact implies are dissolved, Nazism and fascism – which transformed the decision on bare life into the supreme political principle – will remain stubbornly with us. According to the testimony of Robert Antelme, in fact, what the camps taught those who lived there was precisely that “calling into question the quality of man provokes an almost biological assertion of belonging to the human race” (L’espèce humaine, p. II).

from Homo sacer / concept of homo sacer in Roman Law

Agamben, p. 12

The protagonist of this book is bare life, that is, the life of homo sacer (sacred man), who may be killed and yet not sacrificed, and whose essential function in modern politics we intend to assert. An obscure figure of archaic Roman law, in which human life is included in the juridical order [ordinamento]1 solely in the form of its exclusion (that is, of its capacity to be killed), has thus offered the key by which not only the sacred tests of sovereignty but also the very codes of political power will unveil their mysteries. At the same time, however, this ancient meaning of the term sacer presents us with the enigma of a figure of the sacred that, before or beyond the religious, constitutes the first paradigm of the political realm of the West. The Foucauldian thesis will then have to be corrected or, at least, completed, in the sense that what characterizes modern politics is not so much the inclusion of zoē in the polis – which is, in itself, absolutely ancient – nor simply the fact that life as such becomes a principal object of the projections and calculations of State power. Instead the decisive fact is that, together with the process by which the exception everywhere becomes the rule, the realm of bare life – which is originally situated at the margins of the political order – gradually begins to coincide with the political realm, and exclusion and inclusion, outside and inside, bios and zoē, right and fact, enter into a zone of irreducible indistinction.

Everything happens as if, along with the disciplinary process by which State power makes man as a living being into its own specific object, another process is set in motion that in large measure corresponds to the birth of modern democracy, in which man as a living being presents himself no longer as an object but as the subject of political power. These processes – which in many ways oppose and (at least apparently) bitterly conflict with each other – nevertheless converge insofar as both concern the bare life of the citizen, the new biopolitical body of humanity.

Homo sacer – bare life/political existence, zoē/bios, exclusion/inclusion

Agamben, p. 12

If this is true, it will be necessary to reconsider the sense of the Aristotelian definition of the polis as the opposition between life (zēn) and good life (eu zēn). The opposition is, in fact, at the same time an implication of the first in the second, of bare life in politically qualified life. What remains to be interrogated in the Aristotelian definition is not merely – as has been assumed until now – the sense, the modes, and the possible articulations of the “good life” as the telos of the political. We must instead ask why Western politics first constitutes itself through an exclusion (which is simultaneously an inclusion) of bare life. What is the relation between politics and life, if life presents itself as what is included by means of an exclusion? The structure of the exception delineated in the first part of this book appears from this perspective to be consubstantial with Western politics.

In Foucault’s statement according to which man was, for Aristotle, a “living animal with the additional capacity for political existence,” it is therefore precisely the meaning of this “additional capacity” that must be understood as problematic. The peculiar phrase “born with regard to life, but existing essentially with regard to the good life” can be read not only as an implication of being born (ginomenē) in being (ousa) but also as an inclusive exclusion (an exceptio) of zoē in the polis, almost as if politics were the place in which life had to transform itself into good life and in which what had to be politicized were always already bare life. In Western politics, bare life has the peculiar privilege of being that whose exclusion founds the city of men.It is not by chance, then, that a passage of the Politics situates the proper place of the polis in the transition from voice to language. The link between bare life and politics is the same link that the metaphysical definition of man as “the living being who has language” seeks in the relation between phonē and logos:

The question “In what way does the living being have language?” corresponds exactly to the question “In what way does bare life dwell in the polis?” The living being has logos by taking away and conserving its own voice in it, even as it dwells in the polis by letting its own bare life be excluded, as an exception, within it. Politics therefore appears as the truly fundamental structure of Western metaphysics insofar as it occupies the threshold on which the relation between the living being and the logos is realized. In the “politicization” of bare life – the metaphysical task par excellence – the humanity of living man is decided. In assuming this task, modernity does nothing other than declare its own faithfulness to the essential structure of the metaphysical tradition. The fundamental categorial pair of Western politics is not that of friend/enemy but that of bare life/political existence, zoē/bios, exclusion/inclusion. There is politics because man is the living being who, in language, separates and opposes himself to his own bare life and, at the same time, maintains himself in relation to that bare life in an inclusive exclusion.

Homo sacer / Foucault – technologies of the self

Agamben, p. 11

One of the most persistent features of Foucault’s work is its decisive abandonment of the traditional approach to the problem of power, which is based on juridico-institutional models (the definition of sovereignty, the theory of the State), in favor of an unprejudiced analysis of the concrete ways in which power penetrates subjects’ very bodies and forms of life. As shown by a seminar held in 1982 at the University of Vermont, in his final years Foucault seemed to orient this analysis according to two distinct directives for research: on the one hand, the study of the political techniques (such as the science of the police) with which the State assumes and integrates the care of the natural life of individuals into its very center; on the other hand, the examination of the technologies of the self by which processes of subjectivization bring the individual to bind himself to his own identity and consciousness and, at the same time, to an external power. Clearly these two lines (which carry on two tendencies present in Foucault’s work from the very beginning) intersect in many points and refer back to a common center. In one of his last writings, Foucault argues that the modem Western state has integrated techniques of subjective individualization with procedures of objective totalization to an unprecedented degree, and he speaks of a real “political ‘double bind,’ constituted by individualization and the simultaneous totalization of structures of modern power” (Dits et écrits, 4: 229-32).

from Homo sacer / the refugee

Agamben, p.78

The concept of the refugee, (and the figure of life that this concept represents) must be resolutely separated from the concept of the rights of man, and we must seriously consider Arend’s claim that the fates of human rights and the nation-state are bound together such that the decline and crisis of the one necessarily implies the end of the other. The refugee must be considered for what he is: nothing less than a limit concept that radically calls into question the fundamental categories of the nation-state, from the birth-nation to the man-citizen link, and that thereby makes it possible to clear the way for a long-overdue renewal of categories in the service of a politics in which bare life is no longer separated and excepted, either in the state order or in the figure of human rights.