23 March 2024

Surviving, in Whole or in Part

When Israel’s defence minister ordered a ‘complete siege’ of the Gaza Strip in October, including ‘no food’, commentators immediately called it out as siege starvation of a civilian population, a war crime. This week, five months and several US-vetoed ceasefire resolutions later, Gaza became the third declared famine of the 21st century, with half of Palestinians in Gaza facing imminent acute malnutrition. This grizzly milestone was noted by the head of the United States Agency for International Development, Samantha Power, a genocide scholar-turned-politician who once wrote an acclaimed book on ‘America and the age of genocide’ – how and why the US failed to prevent genocide in Bosnia and Rwanda. Meanwhile, in this age of genocide, the US Congress is preparing legislation to prohibit US funding for UNRWA, the UN agency for Palestine refugees, which is by far the largest humanitarian actor in Gaza.

Does arming and funding Israel while defunding UNRWA in the present circumstances constitute complicity in genocide? A US federal appellate court will soon decide whether the judiciary may determine that the Biden administration has been complicit in genocide. A lower federal court considered this a non-justiciable question, all while recognising ‘it is plausible that Israel’s conduct amounts to genocide’ and imploring the Biden administration ‘to examine the results of [its] unflagging support of the military siege against the Palestinians in Gaza.’ One almost wonders whether the pathetic spectacle of the world’s superpower reduced to airdropping food parcels is Biden’s way of trying to convince the world at large, or at least a few thousand Arab-American voters in Michigan, that the US cannot end the siege starvation that its arms and diplomatic cover have enabled.

Sanity amidst these unrelenting horrors requires me to tell myself: the destruction of Gaza and its Palestinian population must eventually end. Israel, along with those enabling its international crimes, may evade legal consequences but will always bear the moral stain. We Palestinians will survive, ‘in whole or in part’. But this self-soothing dead-ends with the realisation that UNRWA, where I proudly worked not once but three times, very well may not survive this episode. And thus, given carte blanche to write an editorial on Palestine, I find myself writing about UNRWA once more.

++++++++++Advertisement++++++++

An der Professur für Bürgerliches Recht, Handels-, Gesellschaftsrecht, Compliance und Nachhaltigkeit sind mehrere Qualifikationsstellen als Akademische Mitarbeiter*innen (m/w/d/x) (Kenn-Nummer 1104-24-01) für 20 Stunden/Woche zu besetzen.

Bewerbungsschluss ist der 8. April 2024.

Unser ausführliches Stellenangebot: https://www.europa-uni.de/stellenangebote

++++++++++++++++++++++++

UN system organisations have distinct cultures. These cultures often trace to the historical circumstances that gave birth to them: UNCTAD and the G77, UNIDO and the New International Economic Order, UNOPS and the Washington Consensus. UNRWA is a curious case. It was not born from the ashes of the 1948 war that established Israel and dispossessed most Arab Palestinians, at least not directly. Rather, its creation was recommended by the UN Economic Survey Mission for the Middle East, comprised of delegates from the UK, France, and Turkey, and headed by the chairman of the Tennessee Valley Authority (TVA), a works and industrial development programme for an impoverished band of the southern United States. Many of the relief and works programmes for Palestinian refugees which the Mission recommended were modelled on the TVA. The Agency’s provenance, then, is distinctly Western.

When the Mission’s plans for grandiose works projects failed to materialise, UNRWA’s mandate reoriented around human development. Ironically, while the Mission’s recommendations were meant to promote the resettlement of Palestinian refugees over their repatriation, UNRWA, through the fulfilment of this human development mandate, helped preserve Palestinian identity and national aspirations. UNRWA, which is funded almost entirely through voluntary contributions, was nevertheless still understood as a Western organisation: more precisely, as an expression of Western responsibility for the tragedy of Palestine and the unresolved fate of Palestinian refugees.

For the last three decades, UNRWA’s identity and culture have been linked to an Israeli-Palestinian ‘peace process’. Following the Madrid Conference and the Oslo Accords, the UN moved UNRWA’s headquarters from Vienna to Gaza. Most Palestinians, myself included, have for some time recognised the ‘peace process’ as a sham, a sideshow meant to divert attention as Israel entrenched its domination over the occupied territory and its Palestinian population. (The more prescient amongst us, Edward Said included, knew that from the outset.) And yet, in 2010, after successive rounds of permanent-status negotiations had failed, the Agency adopted the slogan ‘peace begins here’. As its spokesperson wrote at the time, UNRWA ‘gives those on whose shoulders will rest the task of delivering peace a solid basis on which to begin that onerous task.’

The idea that exiled and occupied Palestinians bear principal responsibility for peacemaking with their dispossessor and occupier was and remains a fundamental and fundamentally perverse belief of UNRWA’s Western donors. It speaks to their view of place of Palestinians in the international order, as demonstrated by many of their interventions in the ongoing ICJ advisory proceedings. Israel’s prime minister, the longest-serving in its history, vows there will not be a Palestinian state – the position of his party since 1977. Yet for the US, UK and others, Israel’s nearly 60-year denial of Palestinian self-determination through occupation can only be brought to an end through negotiated settlement. In other words, the Palestinians must change Israel’s mind – but not through resistance, diplomatic manoeuvres, ‘lawfare’, boycotts, or anything besides supplication.

++++++++++Advertisement++++++++

Praktikum bei der Schweizerischen Menschenrechtsinstitution SMRI

Die 2023 gegründete SMRI schreibt erstmals eine Praktikumsstelle (80-100%, 6-12 Monate) aus. Aufgabe der SMRI ist der Schutz und die Förderung der Menschenrechte in der Schweiz. Sie erfüllt diese Aufgabe durch Dokumentation, Forschung, Beratung und Vermittlung.

Bewerbungsfrist ist der 7. April.

Weitere Informationen finden Sie hier.

++++++++++++++++++++++++

The funding conditions imposed by UNRWA’s Western patrons have reshaped the Agency. Long gone are the refugee affairs officers, tasked with documenting human rights abuses of Palestinian refugees by Israeli forces in the occupied territory. In their stead are protection-and-neutrality officers, tasked with enforcing a ‘culture of peace’ under the guise of neutrality, ensuring for instance that maps of historic Palestine are not displayed in UNRWA schools. A ‘curriculum review team’ combs through Palestinian public school textbooks each semester, flagging content it or the Agency’s lawyers deems inconsistent with amorphous notions of UN values or UN positions.

As one of those lawyers, I participated in interminable conversations with UNRWA management at various levels on the meaning of UN values and UN positions. Do UN values include self-determination? Are the Palestinian people allowed to maintain a national narrative and political programme in their pursuit of self-determination? By ceding to its donors’ demands to meddle with this narrative, is UNRWA not being used to erode Palestinian claims for self-determination through forced historical amnesia in its schools? But at the end of the day, the Agency did as the donors demanded – or rather, the donors demanded what the cottage industry of UNRWA watchdog groups demanded of them.

As I wrote last month, ‘delegitimising UNRWA is the predicate to reassigning responsibility for the welfare of Palestinians to “legitimate” international organisations, meaning those which will disperse aid without regard to Palestine refugee status.’ That is now happening. Even before the Congressional funding ban, the United States had redirected aid for Gaza from UNRWA to the World Food Programme (WFP). The European Union has conditioned future funding for UNRWA on an expansion of the Agency’s investigations and ethics departments, an EU ‘system audit’ of the Agency’s internal controls, and other such measures. That’s good news if you’re an out-of-work humanitarian professional, less so if you’re a Palestinian refugee who relies on the education, health care, and social services provided by the Agency, which invariably will be cut further to fund this swollen bureaucracy.

If UNRWA survives this current existential crisis, it will emerge a greatly diminished organisation. Its proponents must stop hoping against hope for more funding from the UN regular budget, for the United States to act in its strategic interest as it pertains to Israel and the Palestinians, or for the Europeans truly to chart their own path on that question. UNRWA employs roughly 300 international staff and 30,000 Palestinian staff (over 90 percent of whom are refugees themselves), a ratio unprecedented in the UN system. No amount of management reforms, audits, or monitoring will stop Israel from objecting that UNRWA has ‘gone native’, nor Western donors from countenancing that objection by demanding that the Agency devote more its scare resources towards policing its staff and vetting its beneficiaries.

UNRWA’s future, if it is to have one, requires breaking free of this doom loop by reimagining its relationship with the non-Western world. The catastrophe unfolding in Gaza has clearly galvanized the latter. An unprecedented 54 states, plus the Organisation of Islamic Cooperation, Arab League and African Union, submitted written statements in the ongoing advisory proceedings before the International Court of Justice. Most called upon the Court to declare Israel’s prolonged occupation, settlement and annexation of Palestinian territory to be illegal and to recognise obligations erga omnes resulting from that unlawful situation.

Gone must be the days of non-Western states contributing far less than their means permit, not wanting to relieve Western donors of their responsibility for a crisis of the West’s making. Those donors (and the EU) which suspended funding to UNRWA amidst Israel’s attack on Gaza, including acts which the ICJ has found to be plausibly genocidal, have already abdicated that responsibility in the most unconscionable of circumstances. They have forfeited their moral right to intervene in the Agency’s affairs. UNRWA must now pursue the broad base of non-Western support needed to free itself from their diktats.

*

The Week on Verfassungsblog

NEUS TORBISCO CASALS and NICO KRISCH reflect on the Spanish amnesty for the Catalan independence movement, and argue why it is a victory for the rule of law. The authors argue that the acts now amnestied should have never been subject to criminal prosecution in the first place. They see the amnesty as a way for Spain to return to compliance with its obligations under European and international human rights law.

Is the European Union once again about to duck the challenge of constitutional reform? The European Parliament has made formal proposals to change the treaty from unanimity to QMV. The European Commission equivocates. The European Council simply sits on the dossier, looking for excuse after excuse. ANDREW DUFF explains why the idea to  use Article 49 TEU, the accession clause, instead of Article 48, neither helps Ukraine nor salvage the Union’s self-respect.

In case C-588/21 P, the CJEU dismantled a foundational axiom of the European Standardisation System: the paywall of harmonised standards. The Court confirmed that harmonised standards are an integral part of EU law, mandating their free accessibility. ALEXANDRU SOROIU argues that the Court’s decision imposes a proactive publication obligation and challenges the existing copyright protection afforded to harmonised standards.

The governance of professional football is facing turbulent times Following three verdicts on 21 December 2023 (ESL, RAFC and ISU), the pending Diarra case (C-650/22) – potentially sanctioning football governance – is already well underway. Hence, the validity of the FIFA transfer system, the bread and butter of daily football practice, is at stake. ROBBY HOUBEN explores the Diarra case from a competition law perspective.

The dispute over the Act on Fixed-Term Employment Contracts in Academia continues: according to the Ministry of Education and Research, the Federal Government has reached an agreement and wishes for the bill to pass soon. SIMON PSCHORR believes the draft to be incompatible with both constitutional and European law. Politically, however, there might be a possibility to incorporate a collective agreement in the bill which could reconcile the different interests at play.

In a significant climate change decision, the New Zealand Supreme Court overturned the previous strike outs in the case of Michael John Smith in tort against seven major New Zealand companies in the dairy, energy, steel, mining and infrastructure sectors. CAROLINE FOSTER explains the background of the case and the role of tort law in mitigating New Zealand’s corporate greenhouse Gas emissions.

Enemies of the constitution should not be allowed in and out of the Bundestag. However, an anti-constitutional attitude by itself is currently not sufficient to deny access to Parliament. MATHIAS HONER has analyzed the criterion of reliability in this context.

The AfD is also the centre of attention in Karlsruhe; more specifically its unelected or re-elected parliamentary committee chairs. BENEDICT ERTELT reports on the first hearing before the Federal Constitutional Court, which touches upon the future of consensual parliamentarianism.

ANDRZEJ SCHULTZ and JAKUB SAWICKI look at the agenda of the new Polish government to reset the Constitutional Tribunal. Resetting the institution after the Law and Justice Party’s eight years in power is a Herculean task. However, the constitutional and political room for maneuver for the new government turns out to be quite limited. A very probable scenario is that the current constitutional court in Poland will in fact be delegitimized before a fresh start can take place within the existing constitutional order.

++++++++++Advertisement++++++++

Rechtsreferendar*in/ehrenamtliche*r Mitarbeiter*in gesucht

RAZ e.V. unterstützt unter anderem die Letzte Generation in ihren Verfahren und arbeitet derzeit an der Vorbereitung von Verfassungsbeschwerden. Hierfür suchen wir Unterstützung.

Zeitrahmen: mind. 3 Monate, 10-20 h/Woche (oder mehr), ab sofort

Arbeitsort: flexibel

Als junger Verein können wir leider aktuell keine Vergütung anbieten. (Es gibt nach Absprache die Möglichkeit, eine Ehrenamtspauschale oder Honorare zu bekommen.)

Melde dich bei Interesse unter: info@raz-ev.org

++++++++++++++++++++++++

Two texts are dedicated to the AI-based facial recognition software PimEyes. The software identified Daniela Klette, a suspected former RAF terrorist, who was recently arrested in Berlin Kreuzberg. MARC BOVERMANN, JOHANNA FINK and JAKOB MUTTER outline how PimEyes works. They explain to what extent the use of the software violates data protection law and discuss the resulting tensions with constitutional law. However, they conclude that evidence generated by individuals using PimEyes may be used by the police for investigations. CHRISTIAN THÖNNES too dwells on PimEyes. He examines difficulties arising with constitutional and European Union law and concludes that the use of PimEyes would lead to the inadmissibility of the obtained evidence.

The African continent is currently witnessing the creation of the largest regional free trade area in the world. The African Continental Free Trade Area represents a significant milestone in Africa’s socio-economic development. ROMY KLIMKE shows why this development is also significant in another respect: A recently adopted special Protocol on Women and Youth in Trade has the potential to blaze the trail for gender-transformative intra-African trade.

++++++++++Advertisement++++++++

In einer Kooperationsveranstaltung mit der GEW Thüringen gehen wir Szenarien und Strategien für den autoritär-populistischen Ernstfall in Schulen auf den Grund. In dem Workshop werden die Ergebnisse der Recherche des Thüringen-Projekts präsentiert und gemeinsam mit der Seminargruppe Möglichkeiten erarbeitet, Schulen und Lehrkräfte für politische Vereinnahmungsstrategien zu sensibilisieren und Resilienz aufzubauen. Hier geht es zur Anmeldung für die Termine im Mai und Juni 2024.

++++++++++++++++++++++++

And now on to our current Verfassungsblog Debate: Controversies over Methods in EU Law.

Methodological issues pervade contemporary debates in EU law. The multiple crises of the EU are leading EU law scholars to question their classical conception of EU law – a law of integration – and their relationship to the European institutions. VINCENT RÉVEILLÈRE launches a debate on controversies over methods in EU Law. JAN KOMÁREK provides some rather free-floating reflections on what it takes to become an EU law scholar today.

MASSIMO LA TORRE asks how we should approach the study of European law? LOÏC AZOULAI reconnects EU legal Studies to European Societies and argues in favour of a new “anti-transcendental” perspective. FRANCIS SNYDER sketches selected basic landmarks on the short history of Law in Context. He thereby shows how LIC created a real transnational academic community, despite obstacles of language, geography, and academic cultures. Does that mean that we are all “contextualists” now? AGUSTÍN JOSÉ MENÉNDEZ thinks not.

JOANA MENDES revisits the role of legal scholarship and highlights the pitfalls of comparison in building EU administrative law.