Sunday, June 06, 2010

Human Rights Regimes in an Era of Religious and Ethnic War—Freedom Flotillas, Criminal Miscegenation, and the Conundrums of Law as a Weapon of War for States and Corporations

Like the rest of the people on this planet, I have been treated to the theatre set-piece which has been the contrived drama of the so-called “Freedom Flotilla” organized with the cooperation of the current Islamist Turkish government and made more dramatic by the realization of the hoped-for violent and clumsy Israeli overreaction and ill thought response (a mark of Israeli governments since the incapacity of Mr. Sharon). See, Jonathan Crane, Gaza activists' ships set sail on blockade-busting mission , France 24, May 31, 2010; Jeffrey Heller and Alastair Macdonald, Nine Dead as Israel Storms Aid Ship, Reuters, May 31, 2010; Jonathan Crane, Israel faces global outrage over Gaza ship raid  France 24, June 1, 2010; João Novaes, Relações entre Turquia e Israel chegam ao momento mais difícil Países eram aliados regionais desde a criação do Estado judeu. A partir da ofensiva contra Gaza em 2008, desgaste tem sido constante, O Globo, June 3, 2010; Mehdi Chebil, Repatriated flotilla activists challenge Israeli version of deadly raid, France 24, June 1, 2010; Israeli military releases footage of Gaza ship raid, France 24, June 1, 2010 (Amid mounting international criticism of its raid on a Gaza-bound flotilla, the Israeli military has released a video it says provides evidence of the violence Israeli soldiers encountered as they stormed the main vessel); Campbell Clark, Canada backs U.S. opposition to UN-led flotilla inquiry, The Globe and Mail, June 1, 2010; UN chief to undertake investigation on aid flotilla raid: UNSC president, Xinhua News, June 2, 2010 ("There is "a lot of concern on the follow-up" over the investigation, Heller said, specifying such factors as who will be in charge of the investigation, as well as the "interpretation" of Israeli responsibility to take initiative in the incident."); Joshua Mitnick, Israel rejects international investigation of Freedom Flotilla raid, Christian Science Monitor, June 3, 2010 ("But part of the shift may be an Israeli perception that its prospects for vindication are greater this time around. An investigation of the isolated flotilla operation is seen as likely to be more straightforward than those that looked into the 2008-2009 Gaza war or Israel's 2002 invasion of a Palestinian refugee camp in Jenin that killed dozens.").

Everyone involved has played their part to ensure the success of this affair as a media, propaganda, political and legal event of potentially great significance. Governments have used proxies to serve as the instruments of provocation and offense necessary to trigger the formal requisites of state action (something that invokes the forms of Roman practice of 200 years ago). See, e.g., Alan Watson, International Law in Archaic Rome: War and Religion (Ancient Society and History) (The Johns Hopkins University Press, 1993).  The Egyptian government, complicit in the blockage of Gaza has used the affair to make its role effectively invisible and wholly “Jewish.” Civil society elements have refined their ability to serve as independent subjects of international law, as instruments of global political action—but always subject to the protection of the nationalities with which they clothe themselves as both protection ands insurance against interference as “independent” actors. These actors are looking to have their cake and eat it too by entry into a war zone and then claiming special status to do as they like among the combatants without consequence. This is not just diplomacy by arrogant rich people or ancient politicians, like Henry Ford and Jimmy Carter, but now involves the mobilization of armies of civil society actors through global networks of autonomous governance communities in cooperative arrangements with each other and with political states. The Israelis are also fond of embracing formalism—the increasingly irrelevant rules of war involving armies and state-to-state action. Locked in a false belief in the binding nature of the legal construct of a global order that ceased to exist a decade or so ago, they remain mystified by the way that state and non state actors have been able to invoke legal and social process to their advantage. They invoke law and lawfulness, but are relying increasingly on a past version of a moving legal target. The sort of law of right they invoke is now solely available to the most powerful states—the Russians in Chechnya, the Chinese and the United States. For everyone else, a new legal regime seems to be developing. But the Israelis think they see the writing on the wall—a global willingness to return the Jews to the status quo ante in which they are again reduced to the well behaved hostages of whatever territory from which they have not been expelled (and the power of that fear, along with the determination to avoid it, ought not to be underestimated).

All of this fuss is meant to move all relevant actors closer to a “final solution” to the problem of Israel. And, more importantly, all of this action is meant to trigger access to the real battleground of modern warfare—law, and the legitimating processes of judicial determination of right. This is not to suggest there is anything “wrong” with any of these actions. The rules of engagement tend to be written by the victors, and it is too early to determine the outcome of this conflict. This brings me to the point of this short essay—the “freedom flotilla” drama has reminded us all of the importance of human rights of individuals as a basis for the behavior of individuals, enterprises and especially states.

Yet it appears that the human rights of Palestinians appears only an abstraction to states and civil society elements eager to make law—and discipline the Jews. and those Muslims who would live  with them.  And that disciplining has spilled over to affect the basic individual rights of Egyptians as well. I have suggested before about the ironic position of Palestinians in the drama of global engagement against Israel. As a people they serve as a cause célèbre—the ultimate collective martyr. Yet as individuals, they are stereotyped as little better than Muslim Jews within the popular culture of the Middle East. They have been transformed into the Jews of the Middle East—essentially stateless people whose cause draws sympathy in the abstract but whose people are subordinated and stereotyped by the various states and civil society actors eager to use them for their own purposes. See Larry Catá Backer, Palestinians: More Jewish (and Less Muslim) than the Jews of the Middle East?!, Law at the End of the Day, March 18, 2009.

A recent news report provides a window on this curious paradox. It suggests the complexities inherent in the conflict between Jews and Muslims that has acquired a cultural, religious and political life of its own from which a variety of actors appear to draw freely for their own purposes. But in doing so, they lead law in curious and perhaps unfortunate directions.
A court in Cairo has upheld a ruling urging the government to consider stripping Egyptian men who are married to Israeli women of their citizenship.
The ruling requires officials to send all such cases to the cabinet, to be decided on an individual basis.
The interior ministry had appealed against the original ruling, made by a lower court last year.
Cairo court rules on Egyptians married to Israeli women, BBC News OnLine, June 5, 2010. The BBC reported without much surprise that this decision appeared perfectly natural—fear of disloyalty and the production of half breed children whose identity with the Egyptian volk would be impossible.
The new decision is seen as a sign of negative feeling towards Israel in Egypt, despite a 1979 peace treaty.
Anti-Israeli sentiment is high in the country in the aftermath of Israeli raids on Gaza aid ships - but the long-scheduled court decision was not connected.
It calls on the cabinet to determine whether to remove the nationality of the men concerned, as well as that of their children.
The court said the government should consider whether the Israeli woman was an Arab or a Jew.
It is estimated that about 30,000 Egyptians are married to Israeli women.
Id. And, indeed, the emphasis on a pre-War volkish mentality underlying the Egyptian position on citizenship might be understood as contrary to efforts respecting citizenship and political membership at the heart of the de-nazification of the global political order after 1945. Consider the treatment of citizenship in the German Basic Law (Article 16 [Citizenship, Extradition] (1) German citizenship may not be taken away. The loss of citizenship may only be imposed pursuant to a statute and against the will of the person affected only where such person does not become stateless as a result thereof.). See, Myres S. McDougal, et al., Nationality and Human Rights: The Protection of the Individual in External Arenas, 83 Yale L.J. 900 (1973-1974); Refugees International, Nationality Rights for All: A Progress Report and Global Survey on Statelessness (March 2009) (
International law gives every person the right to a nationality. Article 15 of the Universal Declaration of Human Rights stipulates, “Everybody has the right to a nationality.” Article 24 of the International Covenant on Civil and Political Rights (ICCPR) and article 7 of the Convention on the Rights of the Child (CRC) also affirm, “Every child shall have the right to acquire a nationality.” . . . In addition to the prohibition on arbitrary deprivation of nationality, the 1961 Convention on the Reduction of Statelessness provides additional guidance on situations in which nationality must not be withdrawn: states must not “deprive a person of his nationality if such deprivation would render him stateless.” To the contrary, article 1 of the convention stipulates that a state “shall grant its nationality to a person born in its territory who would otherwise be stateless.” The convention also declares that states must not “deprive any person or group of persons of their nationality on racial, ethnic, religious or political grounds” and that a “transfer of territory shall include provisions designed to ensure that no person shall become stateless as a result of the transfer.”
Human Rights Watch, "Stateless Again: Palestinian-Origin Jordanians Deprived of their Nationality", Feb. 1, 2010, at 12, 14 (citing Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948), art. 15; International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, art. 24. Convention on the Rights of the Child (CRC), G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force September 2, 1990, art. 7; and Convention on the Reduction of Statelessness, 989 U.N.T.S. 175, entered into force December 13, 1975, art. 1, 8-10).

Still, there is a long tradition of cynical manipulation of citizenship in this region for political purposes, irrespective of the potential violation of state duty to respect human rights.
In a report titled “Stateless Again,” issued last month, Human Rights Watch said that 2,700 people in Jordan lost their citizenship from 2004 to 2008, and that at least another 200,000 remained vulnerable, largely those who moved abroad at some point in search of work.

The government says it is trying to help by requiring Jordanians of Palestinian descent who fled the West Bank or Jerusalem after the war in 1967 to keep their Israeli documents valid. This has become a more urgent matter recently, political analysts and government officials said, with the accession of a right-wing Israeli government and its ultraconservative foreign minister, Avigdor Lieberman.

“It is no secret that some elements in Israel would like to see the Palestinian areas without the people,” said Nabil Sharif, Jordan’s minister of state and a government spokesman. “We do not want to be party to this.”

Critics and human rights advocates, however, see a different motivation. They said the Jordanian government acted to preserve its own interest, trying to appease non-Palestinian Jordanians concerned about the growing economic and political influence of citizens of Palestinian descent, a charge Mr. Sharif denied. They say it also appears that Jordan is frightened by talk of declaring Jordan a Palestinian homeland as an alternative to a Palestinian state in the West Bank and Gaza.

The critics accuse the government of acting in an arbitrary manner, frequently dividing families between citizens and noncitizens, sometimes based on the timing of their birth, and for not offering effective avenues to appeal of decisions on citizenship.

For years now, Jordanian officials have expressed concern for preserving the demographic balance in a nation of six million people, divided about evenly between those from the East Bank of the Jordan River — considered original Jordanians — and those from the West Bank.
Michael Slackman, Some Palestinian Jordanians Lose Citizenship, New York Times, March 13, 2010. See Human Rights Watch, "Stateless Again: Palestinian-Origin Jordanians Deprived of their Nationality", Feb. 1, 2010.  The Report can be accessed here

But there is irony as well. This goes well beyond the usual—the conflation of the Jew and the Israeli, that is of religion and nationality (something that the state actors tend to be more careful of when speaking “in translation” to their Western and Latin American friends). This conflation is well brought out in an offensively titled report from a South African newspaper-- Egypt to clamp down on Arab, Jew marriages, Pretoria News, June 5, 2010.

The law, and its application is also meant to serve Islam—preventing half breed Muslim Jewish children (and thus a throw-back to the sort of nasty ethnic eugenics of a generation ago now verboten in the West, at least in polite society) but it also suggests that Muslim and Arab citizens of Israel are also tainted with the disease of Jewishness. “Earlier this year, the second highest religious authority in Egypt, Mufti Nasser Farid Wasil, proclaimed it was sinful to marry an Israeli.” Egyptian men seek Israeli brides, BBC News Online April 3, 2010. The religious prohibition might extend to Muslim-Muslim marriages. This is significant. “There are now an estimated fourteen thousand Egyptian men married to Israeli wives -- many of these are Israeli Arabs of Palestinian descent. . . .” Id. However, some reports suggested that the marriage abomination applied only to marriages with Jewish women. “Before reading the verdict, Husseini said the case would not apply to Egyptian men married to Arab Israeli women. "The case for (Egyptian) men married to Israeli Arab women is different to those married to Israeli women of Jewish origin because (Israeli Arabs) have lived under Israeli occupation," Husseini told the court.” Egypt to clamp down on Arab, Jew marriages, Pretoria News, June 5, 2010 ().

The focus on the half-breed was also grounded in national security. Religion and nationality were thus conflated in ways that might make sense in the dar al Islam (or perhaps just in sections thereof) but is presumably somewhat troubling elsewhere when international human rights norms are applied.
“"The court's decision is taking into account Egypt's national security," the judge said.
Lawyer Nabil al-Wahsh said he originally brought the case to court in order to prevent the creation of a generation "disloyal to Egypt and the Arab world."
Children of such marriages "should not be allowed to perform their military service," he said.”
Id. These conflations of religion, ethnicity and nationality, and their complex relationships as interpreted by political and religious authorities are nicely illustrated in this case.
In 2005, former Grand Mufti Nasr Farid Wasel issued a religious edict, or fatwa, saying Muslim Egyptians may not marry Israeli nationals, "whether Arab, Muslim, or Christian." The possibility of a Jewish spouse was not mentioned.

Mohammed Sayyed Tantawi, the late Grand Sheik of Cairo's Al-Azhar, Sunni Islam's premier institution and oldest university, has said that while marriage between an Egyptian man and an Israeli woman is not religiously forbidden, the government has the right to strip the man of his citizenship for marrying a woman from "an enemy state."
Egypt restricts marriage to Israelis, The Jerusalem Post, June 6, 2010. There is a whiff of old fashioned Jewish cosmopolitanism—and of the inability of Jews to be loyal to the state of their ostensible citizenship because their religious affiliation always trumped their national loyalties—newly applied to a new set of actors. This use of cosmopolitanism to separate and marginalize has been popular among both the left and right in the developed world in the last century. This is a sensibility especially well understood in Europe but is newer to Islam. Indeed, its connection to the Western European left, through its nostalgia for the ethno political culture of Stalinism is hard to ignore. Indeed, in its most mature post Nazi manifestation the “term "rootless cosmopolitan" referred mostly (but not explicitly) to Jewish intellectuals, as an accusation in their lack of patriotism, i.e., lack of full allegiance to the Soviet Union.” Rootless Cosmopolitanism. However, it may be difficult to reconcile this notion of the inherent disloyalty of even half-breed Jewish-Muslim individuals with the arguments of worldwide Islam that Muslims do not suffer from the same disloyalty disease as has afflicted Jews. This is the “Jewish problem” for example, of American Muslims. For one example of a growing number of sites like this, consider “Muslims for a Safe America.”

Apparently national pride is involved. Israel is a more economically successful state than Egypt. And the Israelis are more open to polyethnicity than their Arab neighbors in Muslim majority states. 
“An Egyptian member of parliament has complained that unemployed Egyptian men are increasingly turning to Israeli women for brides.
The MP, Abu'l-ezz al-Hariri, told a parliamentary committee that rising unemployment and the desire to escape the poverty trap they were marrying Israeli women in ever greater numbers. ” 
Egyptian men seek Israeli brides, BBC News Online April 3, 2010 . This is a perception problem that transcends the local population. See Gamal Kkrumah,Here today, gone tomorrow Why are increasing numbers of Sudanese refugees fleeing Egypt for Israel, Al-Ahram Weekly, 2-8 August 2007 ; Larry Catá Backer, Hierarchies of Subordination: The Curious Case of Sudanese Muslims Fleeing Egypt for Israel, Law at the End of the Day, Aug. 8, 2007.

Yet the stereotyping, ethnic and religious, cannot be avoided.
Negad al-Borai, an Egyptian lawyer and a human rights activist, said he was "surprised" by the verdict and that the government was sending out mixed messages about Israel.

"The president congratulates Israel's president in national holidays yet it punishes the people for having relationships with Israel," he told Reuters news agency.

"Egyptian law says citizenship can only be revoked if the citizen is proven to be spying on his country, and this verdict considers marrying an Israeli an act of spying".
Cairo court rules on Egyptians married to Israeli women, BBC News OnLine, June 5, 2010. This, of course, is the sort of collective subordination that would be unacceptable when undertaken by another state—say the United States in Iraq, or the State of Arizona in efforts to secure its borders against migration by undocumented individuals. In both of those cases, global civil society and state actors raised a tremendous fuss. See, e.g., posts at Nuestras Voces Latinas. But Palestinians, and Israeli Arabs appear related to another status—that of professional martyr and victim, ironically, of course, the role once reserved for Jews in Europe among the well-meaning. Like the Jews, it seems, Israeli Arabs, and derivatively Palestinians, are most useful to civil society and other states as a collective abstraction. Its individuals, however, are just another variety of “Jew” to be avoided when not of use for some greater purpose.

This might be a state of affairs that ought to be offensive to the rule of law and the protection of the sort of global human rights that serve as the foundation for “flotilla fleet” legal framework actions. But it appears that the rule of law is much more contextually specific. Indeed, there seems to be a significant global tolerance for the political and economic disabilities of Egypt’s indigenous population, its Copts, who are the remnant of the pre-invasion Christian population of Egypt. Gamal Nkrumah, Race Against Time, Al'Ahram Weekly, July 17-23, 2008. Useful in the context of the Egyptian eagerness to avoid the infusion of more suspect Muslims or mixed individuals into the body politics—or to tolerate those who would “dilute” Egyptian blood through such intercourse—is a reading of the Coptic demands for “mere” equality—announced form the relative safety of the United States. See, U.S. Copts Association, Copt Demands. So disposed against Egyptian Christians, the extension to the foreigner—and especially half-breed foreigners—might well appear quite ordinary and perfectly acceptable as the contextual application of human rights in Egypt. Egyptian Copts however continue to speak to an audience of civil society and state actors with little taste for the subject. The issue of interbreeding with Jews and Israeli Muslims is a far more potent and profitable site for the construction of law, especially in its transnational and multi religious aspects.

There is a strong set of overtones to the development of the law affecting Jews as it was developed and applied within the Roman Empire from the reign of Hadrian to the commencement of the Byzantine state. For an interesting study in that regard, and one whose description of the elaboration of a tightly bound and formally legitimate set of disabilities against Jews and converts is worth considering. See Iulius Moga, The Legal Rights of Jews From Hadrian to Theodosius I, Journal for Interdisciplinary Research on Religion and Science, No. 3 (July 2008) (on the development of a system of formal preservation of rights and their gradual diminution).

And thus, an irony: In order to vindicate the rule of law in Egypt, it might be necessary to (1) induce the Israelis to produce a similar constitutional and statutory framework, (2) attack that legal framework (inevitably successfully) as foundationally inconsistent with human rights and humanitarian law, and then (3) use that determination to attack the Egyptian constitutional position. One wonders if the irony and perversity of law construction is lost on some of the important actors of the great enterprise of law making sourced in the conflict between Jews and Muslims in the Middle East.

That leaves one last loose end: The action by the Egyptian court may have an impact on the obligations of business seeking to respect human rights in the region. It is possible to suggest that though the Egyptian action potentially stripping individuals of their Egyptian citizenship merely because they marry Israelis may not violate Egyptian domestic law, it may violate international human rights norms. To the extent that a corporation may have an autonomous responsibility to protect human rights, it may be under an independent duty to fail to give effect to the consequences of such action, to the extent of its own power, where such consequences may impact negatively the welfare or working conditions of the individual affected. Where such protection is impossible, the company may be put in an awkward position. For a discussion of a possible approach to resolving that inconsistency consonant with emerging obligations under transnational governance frameworks, see Larry Catá Backer, Business and Human Rights Part XVI--Implementation: When International and National Norms Conflict, Law at the End of the Day, Feb. 17, 2010.

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