British government gets lucky with Chagos case

by Sean Carey

from the Mauritius Times

The legal profession in Britain (and countries like Mauritius which remains within its sphere of influence due to colonial ties) is extremely hierarchical as anyone who has experience of the system will know.

Some people find the rituals of the courtroom which dramatize the legal tradition very off-putting. I know I do. But I remind myself that it doesn't matter if people are required to dress up in strange clothes and wigs and sit in higher places or on bigger chairs if the final outcome is a just one.

In any case, the legal system is widely perceived to benefit injured or innocent parties. Judgements which are found wanting in the lower courts or where there is a need for clarification can be taken to higher ones. The idea is that the prolonged scrutiny involved in a case which ascends the legal ladder will deliver a fair and reliable judgement.

That's the theory. Alas, it doesn't always work out like that in practice.

Since 2000, seven senior British judges unanimously found in favour of the Chagos islanders�right of return to their homeland and variously found the UK government's case "irrational", "repugnant", "unlawful" and "an abuse of power".

In the case heard before the Court of Appeal in 2007, the government was refused permission to appeal but was still able to directly petition the House of Lords even though the judges stated that the government would bear all further legal costs irrespective of the outcome. It was a clear signal of the legal displeasure of this branch of the UK judiciary towards the executive.

I remember talking to a barrister friend of mine who works in the Ministry of Justice in London about the government's strategy at the time the petition was announced last year. "Surely, the government doesn't think it can win this time," I said. "It's had such a mauling in the lower courts wouldn't it be better to accept defeat and try and make the best of it?" "It's always worth the government going to the House of Lords," he smiled. "You never know what can happen. The government might get lucky."

My friend was right -- the government did get lucky. On October 22, by a majority verdict of 3 to 2 the law lords found against the right of return of the Chagos islanders who had been forced out of their homeland by the British between 1968 and 1973 to make way for the US military base on Diego Garcia.

I don't think anyone involved on the islanders�side expected this result. My guess is that even the people at the Foreign & Commonwealth Office including the Foreign Secretary, David Miliband, were surprised at the outcome.

It has led to a flurry of legal commentary. A few days ago academic expert, Marcel Berlins, writing in The Guardian argued that the law lords should have their workload cut and only hear appeals "raising points of law of general public importance". In cases of constitutional significance like the one concerning the Chagos islanders it would be much better if all the twelve law lords were present, he suggested.

The point is that the selection of only five law lords to hear a case increases the chance of an unfair verdict. Another panel of five could quite easily come up with a different judgement.

I suppose the existing arrangements wouldn't matter so much if there were a further right of redress in the UK but the House of Lords is the highest court in the land.

Of course, the British law lords might resist any attempt to reform their organisation believing that because of their legal seniority and accumulated wisdom they are impartial and objective. This is certainly the view of South African-born Lord Hoffmann, the second most senior law lord, whose judgement was so critical in finding against the Chagos islanders�right of return.

In 1998 a law lords�ruling concerning the immunity from prosecution of the former Chilean dictator General Pinochet had to be set aside because Lord Hoffmann, one of those involved in the case, had not declared that he had worked as an unpaid director of Amnesty International Charity Ltd nor that his wife worked for the organisation. Afterwards, he proclaimed: "The fact is I'm not biased. I am a lawyer. I do things as a judge. The fact that my wife works as a secretary for Amnesty International is, as far as I'm concerned, neither here nor there."

Neither here nor there, Lord Hoffmann? That's absurd. The simple fact is that we are all biased and no amount of learning -- legal or otherwise -- can undo it.

We should, therefore, recognise this and create the necessary institutional arrangements which serve to control and minimise the undesirable consequences of individual (and group) prejudice which can be found even among those with the finest legal minds.

An increase in the number of law lords hearing major cases wouldn't eliminate bias altogether but it would undoubtedly produce fairer verdicts. Such a reform would ensure that neither citizens nor governments would be obliged to rely on their luck. And it's a fair bet that the Chagos islanders would not now be obliged to take their case to the European Court of Human Rights in Strasbourg.

Robert Fisk’s World: Whenever I'm in Tajikistan, my mobile phone says I'm in Dubai

by Robert Fisk

from The Independent

I knew I was in Tajikistan this week when my Lebanese roaming mobile phone welcomed me to "Russia" on arrival at Dushanbe airport. Yup folks, Alpha Beirut really believed I was in Mr Putin's empire. And, wondrous to behold, the phone pinged again when I was on my way to the Tajik town of Panj on the Amu Darya, welcoming me to Afghanistan. An hour later, when I was still in Tajikistan north of the ancient Oxus River – traversed by Alexander, who actually married a Tajik (later murdered, of course) – my mobile pinged once more. This time it welcomed me to the United Arab Emirates.

Forgetting the whole of Afghanistan, part of Pakistan – or a hunk of Iran, depending on your flight path – my mobile actually believed that I was among the gleaming towers of Dubai when I was in one of Stalin's poorest Muslim former republics. It reminded me of how, back in the mid-1970s, a foreign editor on The Times used to keep a spinning globe on his desk as a sign of his global importance and would place the tip of his thumb on the scene of a catastrophe in order to dispatch his nearest reporter to the location. Thus he once sent my predecessor in Lebanon by road to a northern Turkish earthquake on the grounds that – despite a Syrian border crossing for which a visa took a week to negotiate – Beirut was only half a thumb from Trabzon. Ping. Welcome to Turkey.

I suspect this is pretty much how the Bush administration regarded Muslim south-west Asia. One bunch of Muslims in Dushanbe was pretty much the same as another in Kabul or the Emirates. After all, Dushanbe boasts a French air force squadron flying close air support to the Brits in Afghanistan's Helmand province while Dubai welcomes the Royal Navy, the French air force and successive US secretaries of state. Those pesky Muslims are just about covered by a finger and thumb. Why bother with the detail?

An oddly similar parallel has emerged since the election of Obama. During the campaign, President Ahmadinejad of Iran announced that the "Israeli regime" would be destroyed. That's actually what he said in Farsi – not "Israel", though the distinction might appear to be splitting hairs. Immediately, Mrs Hillary Clinton announced that if Tehran attacked Israel, she would "flatten Iran". And now she is to be secretary of state, the Iranians are understandably a little bit angry. Was the new pussycat in the State Department going to take over from the previous pussycat by threatening violence against Iran when Obama supposedly wants "dialogue"?

And a kind of inverted hypocrisy immediately followed. Mrs Clinton, American "officials" let on, should not be taken too seriously because this was an election campaign. Indeed, Obama – putting distance between the mutual recriminations of both Democrat candidates a few months ago – this week blithely dismissed their own election speeches. What he meant was that they both told lies to get votes. Yet the crackpot president of Iran's threat was still to be taken with the greatest seriousness. Not difficult to get the message, is it? The future secretary of state should not be believed when she threatens Iran – but Iran must be taken seriously when it threatens Israel.

I guess we ordinary folk are going to go on sipping at the same creepy narrative under Obama's regime. Take the easy way we have already accepted the story of the "highly disciplined", "professional" and "military" way in which Mumbai's T-shirted butchers slaughtered their way through hotels and railway station last week. Were they from Pakistan's Kashmir or trained in the camps of Afghanistan? Well, I wonder. I recall how, when Algeria's obscene civil war began between Pouvoir and "Islamists" in the early 1980, we were regaled by the authorities with stories of "terrorists wearing police uniforms" cutting the throats of civilians. This went on for months before Dumbo Fisk realised – and later confirmed by interviewing members of the Algerian security forces – that the men in police uniforms were policemen. Ergo Baghdad where journalists regaled the world with stories of attacks on civilians and foreigners by men "wearing police uniforms". Since there were no ready-to-wear police uniforms in Bakuba warehouses, they were policemen working for the insurgents.

And I rather suspect that the "highly disciplined" and "professional" killers of Mumbai come from the same stable. The Pakistani Inter Service Intelligence? Quite possibly. The Pakistani army – many of whose men have been mysteriously captured and equally mysteriously vanished in the tribal territories? Maybe. Or the Indian security services, whose inter-religious makeup is never discussed, but against whom there is substantial evidence of massacres in Kashmir? These days, all such acts of cruelty should be referred to by what the police used to call an '"open mind".

Just look how we've forgotten the CIA's secret prisons. In Afghanistan, a Fisk source who has never – ever – been wrong, tells me that there are at least 20 of these torture centres still active in the country, six in Zabol province alone. But we don't care about Afghans. Yet I was struck by a tiny – irrelevant, you might say – incident at Herat airport a couple of weeks ago when two Afghans invited me for lunch beside the runway. Our small Kandahar-Kabul aircraft was refuelling while I shared their bread and tea and boiled egg, leaving my web of eggshells on the burned grass. Imagine my embarrassment when I stood up and turned to find them gently collecting each piece of eggshell and placing them in a plastic bag. Keep Afghanistan clean. Will we? Ping. Welcome to Afghanistan.

Alternate visions of island paradise

"That's the price you pay for our protection." - A high-ranking US official referring to the rape of a 12-year-old Okinawan girl by three American soldiers.

by Marius Gombrich

from The Japan Times

In our global information age, when all of us are exposed to more data than we can perhaps adequately manage, the appeal of cliches has never been stronger. By a process of reduction and crude characterization, that which is complex, ambiguous, and difficult-to- know becomes simple, and is summed up by a few stock images or ideas. 

This has particularly affected the way we see countries and locales. Now a difficult and daring exhibition at the Museum of Modern Art, Tokyo, is attempting to reverse this process in the case of Okinawa, by inviting us to take a look at aspects of the archipelago that tend to get airbrushed out of the brochures that typically advertise it as a hibiscus-wreathed "paradise" of sun and sand, with a quaint archaic culture.

Looking like a typo, "Okinawa Prismed 1872-2008," the title of the exhibition, actually makes perfect sense as the intention of the curator, Katsuo Suzuki is to present a show where the image we have of Okinawa is "prismed," or split like a beam of light by a prism, in order to unravel it — "Rashomon"-like — into separate, complexly interwoven narratives, some of them at odds with the island's official place in Japanese history, its role in hosting important U.S. military bases, and most significantly its image as Japan's own domestic island paradise.

"The stereotype of Okinawa is made by the mass media and the interests of consumerism," Suzuki explains. "My point is to make the visitors question existing images of Okinawa in order to find its reality by themselves."

This intent seems obvious almost from the moment you enter, as the bulk of the exhibition, which also features paintings, installations and videos, is made up of monochrome photographs, of which there are more than 100. For somewhere as colorful as Okinawa, this reliance on black, white, and gray is a shock. So is this an intentional device to deconstruct preconceived notions? 

"The 'colorful' image of Okinawa is a kind of stereotype constituted historically," Suzuki comments. "But I regard Okinawa as a special place of evocative power that has inspired many artists, poets and scholars. The aim of this show is to figure our meaning of this island as a creative source. I chose important artworks made in the islands for this exhibition, and I met not a few photographers who did such a wonderful job in monochrome."

While some of the photographers, like Genichiro Kakegawa and Taira Koshichi, deal in gritty reportage, detailing the often harsh everyday lives of Okinawans, other photographers evoke the elemental beauty of the islands. With their strong shadows and skittery clouds, Shomei Tomatsu's "Pencil of the Sun" works capture the sultry heat of the Okinawan summer, while Yasuo Higa's "Kuba no Ki" (1975-77) from "Rituals of Kudaka Island" evokes a sense of wind-borne mystery.

The exhibition's emphasis on photography also serves to fulfill another intention of the exhibition: to present Okinawa as a real place, existing in the modern world, with a distinct identity different from that of Japan. This is also why the exhibition avoids including traditional Okinawan craft arts, part of the stock representation of the islands that de-emphasizes their modernity. According to Suzuki, modernity in Okinawan culture has been suppressed because it evokes the islands' difficult history, including attempts to submerge the islands' distinct identity in the interests of national unity, as well as a lengthy period of U.S. military occupation, and the situation today where it bears the brunt of a continuing U.S. military presence in Japan.

"By stopping at early-modern times, the tense relationship between Japan and the United States gets abstracted, and the expressions made by earnestly confronting the reality in Okinawa lose the opportunity to be discussed properly," Suzuki writes in the exhibition catalog. 

This is something the exhibition tries to make amends for. A video installation, "Wartime Experience Narrated with Okinawa Islanders' Language," (2003-2008) gives recognition to the impossible situation in which Okinawans were caught up during the struggle between two external powers — America and mainland Japan. 

"In this exhibition, this oppression was represented in this video work, in which old Okinawa people are talking about their memories of the Battle of Okinawa in the Okinawan language," Suzuki explains. "Their spoken language is impossible to understand without subtitles in standard Japanese. And this language was suppressed and prohibited in schools and is on the verge of disappearing."

The islanders' ambivalence is more poetically summed up in a mesmerizing installation of eight illuminated photographs and a large wall-projection by Okinawan-born Chikako Yamashiro. Mistranslated as "Seaweed Woman" (2008), the Japanese title "Arthur Woman" better captures the artist's intent, which is clearly to invoke the Lady of the Lake from Arthurian legend. The installation shows a young woman emerging from or submerging beneath the waves. This figure from legend, with its connections to the trials and battles of the knights and the magical island of Avalon, resonates particularly well with the 20th century history of Okinawa.

"Okinawa Prismed 1872-2008" is showing till Dec. 21 at the Museum of Modern Art, Tokyo; admission ¥850; open 10 a.m.-5 p.m. (closed Mon.; Fri. till 8 p.m.). For more information, call (03) 5777-8600 or visit www.momat.go.jp

China urges Israel to lift siege of Gaza

from Xinhau

China on Wednesday called on Israel to lift its siege of the Gaza Strip and allow the passage of international aid into the region, where over 1.5 million people are struggling to survive in a dire humanitarian situation. 

    Minister Counselor of China's UN mission La Yifan told an emergency meeting of the UN Security Council that China was "deeply concerned" over the developments regarding the Libyan ship Al-Marwa. 

    Two Israeli gunboats on Monday prevented Al-Marwa, which was carrying humanitarian aid for the Palestinians, from entering the port of Gaza. 

    China regretted that the provision of humanitarian supplies to Palestine was once again blocked, he said. 

    The humanitarian situation in Gaza is "grave" and people over there are in urgent need of food, medicine and other emergency items, he said. 

    In these circumstances, Israel's closure of Gaza and blocking of humanitarian assistance will not only further exacerbate the plight of the population, but also undermine the atmosphere for both sides to conduct political dialogue and negotiations, he said. 

    No issue should constitute ground to inflict collective punishment against the population of Gaza, La stressed. 

    Israel, as the occupying power, is obligated under international law to respect and guarantee the normal humanitarian need of the population in the region, he added.

Government should negotiate return of Okinawan waters closed off for U.S. military drills

"That's the price you pay for our protection." - A high-ranking US official referring to the rape of a 12-year-old Okinawan girl by three American soldiers.

from Akahata, 2008 November 25

Okinawa's fishers are strongly demanding that waters closed off for U.S. forces' training be returned. 

Pressured by fishermen, Okinawa Governor Nakaima Hirokazu for the first time joined the prefectural association of fishermen's cooperatives in making representations to the Foreign Ministry, the Defense Ministry, and the US Ambassador to Japan. He demanded that air space and waters closed off for US forces' shooting, bombing, and other training exercises on the islands of Kumejima and Torishima be returned and that the designation of the so-called "Area Hotel Hotel" air space and waters as training area be revoked. 

In Okinawa, fishermen have been driven out of the best fishing grounds by US forces. In addition, they are now facing serious financial difficulty due to the rising fuel cost. It is natural that Okinawa's fishermen demand that the training areas that force fishers out be returned. 

The Japanese Communist Party has consistently demanded the return of airspace and waters used by US forces for their training exercises. 

Unjust provision of waters to US forces 

Currently, the Japanese government allows US forces to use 49 locations in waters surrounding the country for their training exercises, and 29 of them are in Okinawa. Many of them are integrated with training airspaces that include facilities for live-fire exercises. Thus, Okinawa remains without freedom to use its own land, waters and airspace. 

The vast training areas reserved for US forces in Okinawa are hampering local efforts to develop fisheries. The "Area Hotel Hotel," which is as large as 20,000 square kilometers, shuts out fishermen. Fishermen could harvest pricy tuna and sode-ika squid in that area. 

The Japanese government says fishermen can go fishing in the area while US forces do not hold training exercises. But the fact is that U.S. forces are allowed to use the area every day between 6:00 AM and 8:00 PM. How is it possible to carry out fishing there? 

Fishermen, who are driven out of the training area, are forced to move to distant fishing grounds in order to make a living. What is more, fishermen are also forced to take a detour of hundreds of kilometers to go to distant fishing grounds because they are barred from going through the training areas. They have to pay for the extra fuel costs for this. In addition, the rising fuel cost is making fishers suffer more. 

The government, however, does not even try to understand the fishermen's suffering. It has no intention to act to demand the return of the training area. Foreign Minister Nakasone Hirofumi on November 11 flatly rejected the fishermen's request, saying, "It is difficult at this point to request that the United States return the training area." If the government is really willing to keep the promise to "reduce Okinawans' burden of US bases," it should not continue to give Okinawans the cold shoulder. 

If Japan is a sovereign country, it should not allow US forces to use the fishing grounds in waters off Kumejima and Torishima islands. The Japanese government is unilaterally designating certain areas as training waters closed off for use by US forces and shutting out fishermen in complete disregard of international law. 

Fishermen will not retreat 

The United Nations Convention of the Law of the Sea (UN Law of the Sea Treaty) provides for "freedom of the high seas", which includes freedom of fishing. It is in contravention of the UN Law of the Sea Treaty for the Japanese government to keep fishers out of waters on the grounds that "US forces are allowed to use the area." 

The UN law recognizes that coast states have fishing rights in waters within 200 nautical miles even in high seas. It is extraordinary for the Japanese government to renounce such rights. 

The government has forced the Japanese people to endure the burden of the US military presence on the grounds that it serves the defense of Japan. However, it is clear that the US forces stationed in Japan are not tasked to defend Japan. US Navy, Air Force, and Marines are stationed in Japan as "strike forces" for intervention in conflicts abroad. 

There is no reason for Japan to continue to provide US forces with the training waters. 

The Japanese government must stop acting at the US beck and call and begin negotiating the return of the training waters with the United States.

Human rights and the Chagossians

From the Letters section of  TimesOnline, 2008 December 1

Sir, Today the Foreign and Commonwealth Office celebrates with an open day the 60th anniversary of the Universal Declaration of Human Rights, which the UN Secretary-General will launch on December 10, Human Rights Day, under the theme of “dignity and justice for all of us”. 

The UK has been a leading force in the promotion of human rights for the past 60 years. We have an admirable reputation for upholding human rights abroad, but not always at home. Those who visit the FCO for this celebration should spare a thought for the Chagossian people who were exiled by the UK from their homeland 40 years ago. 

Article 9 of the universal declaration states: “No one shall be subjected to arbitrary arrest, detention or exile.” Article 8 provides that everyone has the right to an effective remedy by the competent national tribunal for acts violating their fundamental rights. Last month the law lords denied the Chagossians the right to return to their homeland. Despite this verdict, the FCO can still permit the Chagossians, who wish to resettle, to do so on two of the fifty-five islands of the archipelago. What a fitting way it would be to celebrate this anniversary and Human Rights Day. 

David Snoxell 

British High Commissioner to Mauritius, 2000-04

Israel punishes Gaza’s civilians

From the Sunday Herald

by Louisa Waugh in Jerusalem

Published 2008 November 30

"WE HAVE power cuts for about 10 hours every day. So if we have electricity at home in the morning, we know there will be no light in the evening. I bought two lamps with rechargeable batteries for the house, and that helped us, but now they are not working, and there are no spare parts to repair them, so we are using candles."

Khalil Shaheen, his wife Zahia and their three children live in the Talil-Hawa district of southern Gaza City. "We live on the third floor" he says, "and when the power is cut, the electric water pump stops working too - so we sometimes have no water either. It's miserable, especially for the kids. My 10-year-old, Amir, is doing his homework with candles." Khalil and his wife are both working, and by Gazan standards the family is quite well off. But no-one is being spared the misery of power cuts and chronic fuel shortages during this latest closure of Gaza by the Israeli government.

Zekra Ashour, aged 31, and her family live in Il Tufa, a working-class neighbourhood in northern Gaza city. Her family is also enduring daily 10-hour power cuts. "We use a lot of candles" she says, "but now they are getting expensive, because everyone is depending on them. We can't cook at home because now we have very little gas. We just make hot drinks, and buy food that is already cooked, or we eat something cold."

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Gaza is crumbling under the impact of this latest closure, which began more than three weeks ago. On November 5, claiming to have found a tunnel leading from eastern Gaza into Israel, the Israeli military launched an incursion, killing five Palestinian fighters in eastern Gaza. Militant groups inside Gaza responded by launching a barrage of rockets towards Israel, claiming the Israelis had broken the terms of the Tahdiya, or temporary cease-fire, that was agreed between Israel and Gaza back in June.

Tensions rose as Israel closed the five border crossings into Gaza that it directly controls, claiming this was in response to "the continuation of Palestinian rocket attacks against southern Israel".

These crossings include the Erez terminal in northern Gaza, the main pedestrian crossing into the Strip, and the Nahal Oz crossing in the east, which is used exclusively for fuel deliveries. Gaza has one power plant, which requires 350,000 litres of industrial gasoline a day to run at full capacity. It is operating at less than 20% capacity.

Israel has also banned the entry of humanitarian supplies into Gaza. According to the UN Office of Humanitarian Affairs (OCHA), less than five trucks of goods have entered Gaza per day since the closure started, compared with 123 per day in October.

After years of Israeli restrictions and increasingly tight economic sanctions, 76% of the population of Gaza are receiving humanitarian aid, making this one of the most aid-dependent communities on Earth. OCHA's Co-ordinator for the Occupied Palestinian Territories, Maxwell Gaylard, describes the current closure as "an assault on human dignity with serious humanitarian implications".

Apart from UN staff, representatives of the International Committee of the Red Cross and a handful of diplomats, no-one is currently permitted to enter or leave the Gaza Strip. Human rights organisations, such as the Palestinian Centre for Human Rights (PCHR), say this latest closure is a continuation of Israel's control over Gaza, and its policy of collectively punishing its population.

"We have been living under Israeli closure and restrictions for years" says Hamdi Shaqqura of PCHR. "This latest closure represents a tightening of the Israeli siege of Gaza that started after the Hamas takeover of Gaza in June last year."

Shaqqura agrees that Gaza is facing a serious humanitarian crisis. "But we are also facing a major human rights crisis," he says. "The siege and closure of Gaza violate international humanitarian and human rights laws. People in Gaza have no freedom of movement, and the local economy has been devastated by Israel's refusal to allow goods to be exported from Gaza. These are grave human rights violations."

Despite petitioning Israeli prime minister Ehud Olmert for access, journalists have been banned from Gaza since the closure started.