End Israel's Violations of International Law in Gaza

By Jimmy Carter and Mary Robinson, Guardian UK

11 March 15

sraelis and Palestinians are still burying loved ones killed during Gaza’s third war in six years. Since 8 July, more than 1,800 Palestinian and 65 Israeli lives have been sacrificed. Many in the world are heart-broken in the powerless certainty that and despite the latest ceasefire, it seems that more willcould die yet; that more are being killed every hour.This tragedy results from the deliberate obstruction of a promising move towards peace, when a reconciliation agreement among the Palestinian factions was announced in April.

This was a major concession by Hamas, opening Gaza to joint control under a consensus government that did not include any Hamas members. The new government also pledged to adopt the three basic principles demanded by members of the International Quartet (UN, US, Europe, Russia): non-violence, recognition of Israel, and adherence to past agreements. Tragically, Israel rejected this opportunity for peace and has until now succeeded in preventing the new government’s deployment in Gaza.

Two factors are necessary to make the unity effort possible: at least a partial lifting of the seven-year sanctions and blockade that isolate the 1.8 million people in Gaza; and an opportunity for public sector workers on the Hamas payroll to be paid. These requirements for a human standard of life continue to be denied. Instead, Qatar’s offer to provide funds for the payment of employees was blocked by Israel and access to and from Gaza has been further tightened by Egypt and Israel.

There is no humane or legal justification for how the Israeli Defence Force is conducting this war, pulverising with bombs, missiles and artillery large parts of Gaza, including thousands of homes, schools and hospitals, displacing families and killing Palestinian non-combatants. Much of Gaza has lost its access to water and electricity completely. This is a humanitarian catastrophe.

There is never an excuse for deliberate attacks on civilians in conflict. These are war crimes. This is true for both sides. Hamas’s indiscriminate targeting of Israeli civilians is equally unacceptable. However, two Israeli civilians and a foreign worker were killed by Palestinian fire as opposed to an overwhelming majority of civilians among the Palestinians killed more than 400 of whom were children. The legal need for international judicial proceedings should be taken seriously, to investigate and end these violations of international law.

The UN Security Council should vote a resolution recognising the inhumane conditions in Gaza and mandate an end to the siege. The resolution could also acknowledge the need for international monitors who can report on movements to and from Gaza, as well as ceasefire violations. It should then enshrine strict measures to prevent the smuggling of weapons into Gaza. Members of the Elders, a group of independent leaders working together for peace and human rights, hope that these will continue and reach fruition.

At the Palestinians’ request, the Swiss government is considering whether to convene an international conference of the Geneva Conventions’ signatory states. This could pressure Israel and Hamas into observing their duty to protect civilian populations under international law. We sincerely hope all states – especially those in the west, with the greatest power – attend and live up to their obligations to uphold the Fourth Geneva Convention governing the treatment of occupied territory.

Unity Between Fatah and Hamas is stronger than for many years. As Elders, we believe this is one of the most encouraging developments of recent years and welcome it warmly. This presents an opportunity for the Palestinian Authority to reassume control over Gaza – an essential first step towards Israel and Egypt’s lifting of the blockade.

The Palestinian Authority cannot manage that task on its own. It will need the prompt return of the EU Border Assistance Mission to cover not just Rafah but all Gaza crossings. Egypt and Israel would, in turn, cooperate with international monitors backed by a UN Security Council mandate to protect civilian populations.

The initial goal should be the full restoration of free movement of people and goods to and from Gaza through Israel, Egypt and the sea. And the US and EU should recognise that Hamas is not just a military force but also a political one.

It cannot be wished away, nor will it cooperate in its own demise. Only by recognising its legitimacy as a political actor – one that represents a substantial portion of the Palestinian people – can the west begin to provide the right incentives for Hamas to lay down its weapons. Ever since the internationally monitored 2006 elections that brought Hamas to power in Palestine, the west’s approach has manifestly contributed to the opposite result. Ultimately, however, lasting peace depends on the creation of a Palestinian state next to Israel.

Leaders in Israel, Palestine and the world’s major powers should believe that these policy changes are within their reach and would move Israelis and Palestinians closer to a day when the skies over the Holy Land can forever fall silent.

The Case to Release The Eric Garner Grand-Jury Records

By Jonathan Blitzer, The New Yorker

11 March 15

or three hours last month, in a crowded courtroom in Staten Island, lawyers sparred before a New York Supreme Court Justice about the case of Eric Garner, a forty-three-year-old who died last summer when a plainclothes police officer named Daniel Pantaleo choked him during an arrest. In December, a grand jury declined to indict Pantaleo, despite seemingly irrefutable evidence of misconduct in the form of a widely circulated video of the incident shot by a bystander and the findings of a medical examiner who identified neck and chest compression as the cause of death. The question currently before the Staten Island court is a narrow one, with important consequences: Can the materials from the grand-jury proceeding be made public so that we can understand why, and how, grand jurors arrived at their decision?

A judge has already released some basic information about the grand jury, including how long it sat (nine weeks); how many witnesses the prosecutor called (fifty); and how many exhibits he presented (sixty). Transcripts and testimony, however, are still sealed, in accordance with strict statutory rules for grand-jury secrecy. Prosecutors use grand juries to determine whether there’s probable cause to believe that a crime has been committed; if grand jurors find that there is, the case goes to trial. Historically, grand-jury secrecy has been a procedural advantage. Witnesses know that their identities and testimony will be protected, and the accused are spared public embarrassment in the event of a wrongful accusation. Prosecutors like grand juries for some of the same reasons. They have broad subpoena power over witnesses and almost complete control over the materials presented to grand jurors.

This doesn’t mean that an argument can’t be made to release grand-jury records, particularly in cases where some measure of transparency could serve the public interest. In the Garner case, the public stakes are high: last year saw a significant uptick in police killings nationwide, and widespread protests of police violence against African-Americans. When the grand jury opted not to indict Pantaleo, tens of thousands protested the decision in the streets of New York City. There’s no reason to conceal Pantaleo’s identity at this point, either, because he was immediately identified as the officer who put Garner in a choke hold. (Pantaleo has also been sued twice before for harassing people during arrests, and is reported to have cost the city thirty thousand dollars in settlements in 2012.) If witnesses’ names are redacted and measures are taken to protect the identity of the grand jurors, there might be grounds to make the transcripts and testimony public.

So claim the five petitioners—the New York Civil Liberties Union, the Legal Aid Society, the city’s public advocate, the N.A.A.C.P., and the New York Post—that are collectively making the case for transparency. Their reasons vary slightly, as do some of their specific requests, but the thrust of their shared argument is that the public needs to know more about the case made last year by the Staten Island district attorney, Daniel Donovan. Prosecutors like Donovan have enormous latitude in the cases that they present to grand juries, because there is no opposing counsel to challenge any of their evidence, and the hearings themselves are confidential. It’s famously said that a grand jury would “indict a ham sandwich” if a prosecutor wanted, but prosecutors also have the ability to significantly increase the likelihood of a non-indictment by presenting materials and witnesses that play up the inconclusiveness of the evidence.

New York follows federal norms on grand juries, which are “ruthlessly rigorous” about secrecy, Robert Weisberg, a Stanford law professor, told me. This means that the petitioners face a difficult task in convincing state Supreme Court Justice William E. Garnett, the judge assigned to rule on the request, to override secrecy considerations. One state judge, who asked to remain anonymous, told me, “There is no legal precedent in New York that gives a road map for how to depart from grand-jury secrecy.”

Still, the petitioners raise a critical point. Without transcripts or exhibits, it’s impossible to know how Donovan made his case before the grand jury, and to counter mounting public skepticism about the proceedings. “Maybe there were a multitude of charges presented to the grand jury on Staten Island,” Letitia James, the city’s public advocate, told me recently, in her Manhattan office. “Perhaps only one charge was presented to the grand jury, the charge of murder … Maybe the district attorney didn’t present criminally negligent homicide … Anything is possible; it’s all speculation,” she said. According to James, her office has a public-policy interest in the Garner case; she wants to reform the grand-jury process altogether (“It’s run its course”) in order to restore the public’s faith in the criminal-justice system. The other petitioners in the case also see a First Amendment right at issue.

On the other side of the dispute is the district attorney’s office, which has reiterated the arguments for keeping grand juries secret. At the hearing last month, Anne Grady, the assistant district attorney, filled in for Donovan, who is currently running for the House seat vacated by Republican Michael Grimm after his resignation in January. She told the judge that releasing the Garner grand-jury materials would do “maximum damage” in future cases where prosecutors need witnesses to testify. “We all know the adage: snitches get stitches,” she said.

The case got off to an inauspicious start in December, when the initial presiding judge, Stephen A. Rooney, insisted that the first petitioners seal their requests to the court. It was an odd move in a case in which petitioners were calling for transparency, and an appellate court promptly overruled him. A week later, on December 17th, the judge called the parties to his chambers to inform them that he was recusing himself from the case. His reason was that his wife sits on the board of the Staten Island hospital from which E.M.T.s were called to treat Eric Garner in July. “Judge Rooney recused himself because, he said, there was a ‘potential appearance of impropriety,’ ” Stephen Gillers, an expert on judicial ethics and a professor at N.Y.U. Law School, said. “That is not the rule and is not a basis for recusal . . . Of course, we don’t have the grand-jury minutes, but it’s hard to imagine how their contents might reveal additional facts harmful to the hospital itself and therefore be a basis for recusal.”(Justice Garnett subsequently took over the case.)

Court clashes over whether to make grand-jury materials public have happened before in New York. (In 1991, a judge ruled against unsealing grand-jury testimony from the trial of Yosef Lifsh, a Hasidic Jew who unintentionally struck two children with his car, killing one and setting off the Crown Heights riots.) But the political landscape has changed in recent months, and the idea of grand-jury reform is becoming a consensus position among prominent officeholders, in New York and beyond. Several state legislatures have been debating proposals to reform the grand-jury system, and a federal bill has been introduced by Congressman Hank Johnson, a Democrat from Georgia. Johnson described his reform bill to me as “a modest approach that would not abolish grand juries but add a layer on top of it,” in the form of a special prosecutor, to counteract the growing “lack of confidence” in the criminal-justice system.

In his State of the State address, in January, New York Governor Andrew Cuomo broached the prospect of reforming the grand-jury process in cases involving police violence. First, he called for broader powers for district attorneys to release information from grand-jury proceedings. Then, he said, he would name an independent monitor to preside over cases involving fatal incidents with the police. It’s not yet clear how serious Cuomo is about pursuing his proposals, nor is there ready agreement in Albany about the utility of a special monitor. “I don’t even think we need to go as far as setting up a special monitor,” state Senator Diane Savino, from Staten Island, told me. Savino has proposed a grand-jury-transparency bill that would allow for the disclosure of grand-jury materials in all cases, “not just police-misconduct cases,” she said. “Let’s preserve our system, but find a way to provide some greater explanation to people, so they can get access to information even if they don’t like the information they get.”

A few weeks ago, I spoke with Jonathan Lippman, the chief judge of the New York Court of Appeals. Last month, in his annual State of the Judiciary address, he offered his own proposal for reforming the grand-jury system, predicated largely on strengthening the role of the judge in grand-jury proceedings. “The grand-jury system has to be updated. For God’s sake, it’s a medieval institution,” he said. At present, “the judge provides oversight, but isn’t in the grand-jury room.” Lippman wants to bring the judge into the process, to make legal determinations, rule out inadmissible or improper questions, and provide legal instructions before the grand jury deliberates. “We’re not replacing the role of the district attorney; we’re lending more credibility to it,” he said.

The other thrust of his reform proposal is, as he put it, “to end grand-jury secrecy as we know it.” The privacy protections afforded by grand juries “are all good things,” he said, but materials should be made public in “any case when there’s no indictment; when the public already knows that the subject is out there; the identity of the accused is known; and there’s significant public interest.” It’s too early to tell whether Lippman’s proposals have the political backing to pass, although they have obvious appeal. According to Lauren-Brooke Eisen, senior counsel at the Brennan Center for Justice and a former assistant district attorney, Lippman’s approach is particularly promising because “it’s not a complete break from how the process works now.” (She is less encouraged by Cuomo’s call for a special monitor.)

Justice Garnett, who surely has Lippman’s and Cuomo’s words ringing in his ears, is expected to rule any day on whether to release the grand-jury records in the Garner case.