Weekend Pondering on Me, My Life, My New Book and My Letter to the IDF Spokesperson’s Office

It’s the WE. That means it is time for some egocentric pondering again, just like last week. And I think I will continue with the same topic I pondered apart from me, myself and I – the IDF Spokesman’s Office.

Yes, I couldn’t stop thinking of what I expect of others and what I expect of myself. I mused over obligations towards the state and the people one belongs to. I reflected on what I could offer (in terms of degrees, talents, gifts etc.) and what I am ready to give.

To make a long story short, in the end I sat down and wrote a note to the author of the JPost article Sam Ser, asking him to forward an attached letter to the IDF Spokesperson’s Office offering my work. Two days later – as I had not received any notice if my original email had reached its addressee or not – I searched the net for a more direct way to bring forward my matter and emailed the letter again to the IDF Spokesperson’s Office address as mentioned on its WordPress page.

Better that I did that, as just this evening, a week after I had sent the first email to Sam Ser at JPost, the mailerdamon of the newspaper informed me that it failed to deliver my message permanently. It took it a whole week of trial and error, a week in that I thought my message had long be read, to come up with the solution that the email address might not work!

Well, as I haven’t heard anything of the fate of my second email (what happened to the good, old habit of written receipts?) I now fear of course that this message as well still circulates in the orbit, is lost in the universe or vegetates aimlessly in a junk mail filter.

I don’t know what exactly I expected. But I never imagined how hard it could be to subscribe for a job with the army. Universe, please respond!

On a more pleasant note – it feels good to find one’s name as an author on amazon.com. It is still only the announcement that the book will be available soon. But one can ask for an email alert for the moment “Eines Koenigs Kinder” will be available for ordering. And I have my paper backed copy of the book already and bragged with it Friday on work.

The Principle of Universal Jurisdiction, Israel and Gaza

I remember going to summer camp from my first summer break after grade one of elementary school to the summer break 1989 shortly before the breakdown of the GDR when I was 13. Our summer break lasted eight weeks alone, plus three weeks of winter break, Christmas break, spring break, autumn break… – no parents have so many leave days. And the participation in summer camps and ‘Ferienspielen’ (activities comparable to those in summer camp just that the kids slept at home) was desired by the government as it left much more room for pedagogical influence, read: agitation, than regular school. 

There were summer camps with bungalows. But usually, we lived in tents of eight. Cleanness/ tidiness and discipline were made to a competitive game with daily tent checks and deduction of points for violations of the camp rules like the non-observance of curfew. The best tent crew would be awarded with a certificate or a little price at one of the obligatory flag ceremonies. It might sound rigid but surprisingly my summer camp memories are overall positive also because political ideas and educational measures were wrapped appropriately for children. 

Apart from the group competition in the matters of tidiness and discipline and various flag ceremonies there were other standards belonging to a typical East German summer camp experience. Spooky midnight walks, sports meetings, visits of a nearby agricultural production cooperative or plant… 

One day was always dedicated to the Neptune ceremony with maritime costumes we made ourselves from creped paper and a special baptism ceremony of about one of each group (usually the cheekiest, the loudspeaker, the pain in the neck of the group leader etc.). S/He was first caught by Neptune’s bloodhounds and was then forced to drink something nasty before s/he was dipped into the lake. It’s amazing but I’ve never been one of those picked for baptism. It’s not that I’ve changed so much since then – I’ve always been a lovely but insufferable know-it-all with a big mouth. I guess this is due to a gene defect suffered by all those born in Berlin. But I was always spared the honor as I was again and again chosen to impersonate Neptune’s daughter, the Princess. Something I personally think even more astonishing as I’ve never seen me as a beauty. 

Anyway, I digress again and you still don’t know what this article will be about as it is not (only) about East German summer camps. But another must of any summer camp was the Day of Cheka (important military and security arm of the Bolshevik communist government that policed labor camps, ran the Gulag system, conducted requisitions of food, liquidated political opponents, put down peasant rebellions, riots by workers, and mutinies in the Red Army – activities any kid should be of course proud of [Can you see the sarcasm drip here?]) The day was observed with activities and competitions of paramilitary background like hikes through the woods with maps and compasses for orientation. We had to find hidden checkpoints and accomplish different tasks including quizzes, shooting with air rifles, first aid with materials available in nature and in our clothing and guessing of distances. 

Last but not least no summer camp could end without a day dedicated to culture. Each group had to rehearse a program during camp with songs, poems, sketches, dances or the like. It was just another competition. And it was usually at the day we all had to present our results to the rest of the camp that a mock trial was held as well. The defendant was “Imperialism” – most of the times a potbellied Uncle Sam figure with top hat, greasy hair and smirk on his face. Witnesses for the prosecution were hungry, exploited, war-damaged children and mothers from all around the world while there were never any witnesses for the defense. It was a highly political spectacle with a predetermined denouement. 

What made me think of my summer camp days these days? Definitely not the weather, as we once again experience a very changeable, but mostly rainy and cold period here in Berlin. Actually, my memories of the mock trials were sparked by a recent article in the German weekly ‘Der Spiegel’ filed under foreign affairs and called ‘Feldzug der Anwälte’ (Campaign of the Lawyers) by Juliane von Mittelstaedt. 

In the article she tells the story of Ijad al-Alami. He is head of the legal department of Gaza City based Palestinian Center for Human Rights (PCHR). And he is the man who files the biggest flood of lawsuits against Israel ever be seen. He claims that he and his team have documented 936 cases of crimes against humanity or war crimes during the recent Gaza operation. Mittelstaedt reports that he dreams of the one perfect case he will win before he retires. 

He sounds like a hard working man with a mission. And as it is, his work is completely legitimate. Israel warrants Palestinians the right to be heard as a constitutional state should do. And a constitutional state has to be able to live with the fact that it is held to its own laws as even the state authority is not above the law. 

So far, so good. But the article goes on and Mittelstaedt states that al-Alami dreams of an international tribunal for Gaza that he will provide with his evidence and that his dream might soon come true, at least partly thanks to dozens of lawyers in Norway, UK, New Zealand, Spain and the Netherlands preparing Gaza lawsuits in their countries. They base their conviction to be right to do so on the principle of Universal Jurisdiction, a very questionable and problematic principle of international law. 

Universal jurisdiction or universality principle is a doctrine whereby states claim criminal jurisdiction over persons whose alleged crimes were so horrible that they can be considered crimes committed against all, namely core crimes like war crimes, crimes against humanity, genocide (and aggressions). In these cases the state claims criminal jurisdiction over the indicted person even though the alleged crimes were committed outside the boundaries of the prosecuting state and regardless of nationality, country of residence, or any other relation of the indicted person with the prosecuting country. 

The principle found its way into German law for example with the Völkerstrafgesetzbuch that was created in 2002 to bring German criminal law in accordance with the Rome Statute of the International Criminal Court that Germany had ratified. However, § 153c and f of the German Criminal Procedural Code limits the prosecution of crimes committed outside German jurisdiction, by implementation of a subsidiarity clause and by awarding the Federal Prosecutor a wide discretion of when to open a case via universal jurisdiction, if the offender is not of German nationality. Therefore so far, none of the cases brought to the attention of the Federal Prosecutor has made it to a German court room. 

This is different in Spain e.g. where currently several cases based on universal jurisdiction are pending including one involving Israeli nationals. And this is where al-Alami places his hopes as well. As Spanish lawmakers just try to limit Spanish jurisdiction to cases involving at least a Spanish element the Palestinian lawyer even dug out a case of a client with relatives in Spain. 

However, as legitimate as the efforts to bring core crimes to justice are, the legality of the application of the principle of universal jurisdiction as freely as e.g. Spain does is at least disputable. As H. Kissinger said in his 2001 article ‘The Pitfalls of Universal Jurisdiction’: “The danger lies in pushing the effort to the extremes that risk substituting the tyranny of judges for that of governments; historically, the dictatorship of the virtuous has often led to inquisitions and even witch-hunts.” 

The principle of universal jurisdiction stand in a diametrically opposed relationship to state sovereignty. State sovereignty is one of the basic principles of international law and one affirmed by the UN Charter. As it constitutes the beginning and the end of any self-conception of a state any application of a principle limiting state sovereignty needs to be well founded. 

Supporters of universal jurisdiction argue therefore that the principle is erga omnes obligation, an obligation owed by states towards the community of states as a whole that exists because of the universal and undeniable interest in the perpetuation of critical rights and the prevention of their breach. That erga omnes obligations exist was recognized by the ICJ in the Barcelona Traction decision. Another argument brought up is that the principle is part of jus cogens, so to say another fundamental principle of international law which is accepted by the international community of states as a norm from which no derogation is ever permitted. 

The problem here is that the states of the international community have used their state sovereignty to formulate a treaty that regulates the application of universal jurisdiction – the already mentioned Rome Statute of the International Criminal Court. The accession to the Statute is up to the decision of any country. And the Statute even includes a provision under which non-members, crimes on their territory or by their nationals can be prosecuted by the ICC (this involves the Security Council). The provision has been used to start an investigation of the genocide happening in Darfur. Before that ad hoc tribunals have been set up to deal with the mentioned crimes in Ex-Yugoslavia and Ruanda. 

All these rules and actions have been put under the proviso that the state in question can’t provide for the due handling of the criminal prosecution of the crimes itself. This proviso is reflected in the subsidarity clause of § 153c and f of the German Criminal Procedural Code. It is expression of the recognition of the preponderance of state sovereignty. 

In the consequence one has to admit that the arguments exhibited wont work anymore that well since the Rome Statute became effective. And so it is that the pending cases and already announced new cases rather sound like politically driven show cases to stigmatize an opponent or enemy. Those filing the actions, even though they might act with the best intentions, play on the firm belief of the majority in the constitutional institutions of the democratic world to the advantage of the few who think themselves outside and above of any legal system (in the case I am talking about I mean those of Hamas involved in terroristic acts and the utilization of the population of Gaza). 

This is by far not in the range of the spirit and purpose of the Rome Statute, any national criminal law applying international law or the principle of universal jurisdiction. There political interests prevail, the system of global justice turns into a system of global revenge and any case conducted in this spirit is not any better than the mock trials of my summer camp time.

European Elections – Go and Vote!

This year democracy is on Berlin’s curriculum for its inhabitants. While we headed to the ballot boxes in April to decide in a referendum on religion in our schools, hosted the Federal Convention for the election of the next German President last Saturday and will head to the ballot boxes in autumn again to cast our votes for the next German government, we are asked to decide on the composition of the next European Parliament next weekend. 

Personally, I think any election – notwithstanding if it is ‘only’ a referendum on the federal level or the ‘world-shaking’ election of the US president – important enough to spare some time to execute the right to vote if I am eligible. But many are more selective in their choice for a choice. Apparent unimportant matters fall so by the wayside. Now, how about the election of the European Parliament? Unimportant or not? 

The European parliament is the only directly elected supranational institution of the world. It represents around 500 million Europeans. Since 1979 they are asked to vote every five years in general, direct, free and secret elections (Art. 190 Treaty of the European Union). The European election 2009 will take place June 4 – 7. 

Though the constituency is large what speaks for a broadly based legitimization of the parliament, the European parliament does not participate decisively in the formation of the executive like most national European parliaments do. The president of the European Commission is appointed by the heads of the member states. The parliament only confirms him. Hence, a clear contrast between parliamentary party and oppositional party is missing (what can be of advantage since MPs can work with experience and persuasiveness more independently than in national parliaments where they are usually subject to whip/ parliamentary party discipline). Furthermore, the parliament is also not allowed to initiate legislation. This is a right reserved to the European Commission. 

Taking this in consideration one could start to doubt the raison d’être of the parliament and the need of its legitimization by the European population. One could think that here a democratic right of say is simulated that doesn’t exist. Yet, that is not the case. The European Parliament fulfills crucial functions in the process of legislation, it has control over the budget and checks on the European Commission (once the Treaty of Lisbon will be in effect these tasks will be of even more importance as the rights of the parliament here will be enlarged). Therefore, the European Parliament is counted as one of the five most important institutions of the EU. 

For a more detailed look into the rights of the parliament let’s start with the last. The European Parliament exercises control over the European Commission and the Council of the European Union. It has the right to establish committees of inquiry and to file suits at the European Court of Justice even in areas there Commission and Council have the say and the parliament’s rights are only limited. And the parliament has a say in the appointment of commissioners though the right is shaped as such that the parliament can only approve or disapprove of the commission as a whole. 

Together with the Council of the EU the European Parliament forms the budget board of the EU. While the Commission proposes a certain budget, the Council and the Parliament decide on it. The Council has the last say when it comes to revenues. But the Parliament is the master of the expenditures. (40% of the expenditures are designated for agricultural matters. They are called obligatory expenditures and are subject to a right of last decision of the Council. This is until the Treaty of Lisbon will be effective. When the parliament will be master of 100% of the expenditures.) 

The right to decide on how to spend the incoming money and the right to exercise control are already powerful tools in the hand of the parliament if used rightly. However, even more important are the rights in the legislative process. 

According to the Treaty of the European Union the principles of subsidiarity and proportionality are applied in legislation. The principle of subsidiarity means that the EU is only allowed to come up with actions that are necessary because actions of individuals or member-state governments alone will not achieve the same impact and because an European approach would be of more benefit for all. Such an action is proportional when the intended goal can’t be reached better otherwise and when the advantages of a conjoint approach outweigh the disadvantages. 

This sounds very limiting but the member states of the EU call for “unity in diversity” and “an ever closer union”. The economies are rather intrinsically tied, the monetary union implemented. This makes it rather difficult in most matters to decline the necessity of conjoint, consistent and uniform actions. And so it is e.g. that about two third of all laws passed in German parliament are implementations of European legal acts or at least based on European legal initiatives. 

For all intents and purposes it is really Europe that rules us already. It is just not yet in the minds of the people – unfortunately. Since, considering the large impact Europe has on national politics the rights of the parliament are not yet far-reaching enough. As the way back is not really an option anymore the Treaty of Lisbon needs to take effect asap as it broadens the rights of the only directly legitimized institution of the EU, the parliament. 

So far, since the Treaty of Nice the co-decision procedure is in effect in most political fields (Art. 251). It means that Council and Parliament are equal partners in the legislation. Directives, regulations and rulings are read two times in both institutions while both sides can submit changes to the legal text. If disagreements can’t be eliminated during this process a third reading in a mediation committee needs to bring along agreement. 

I said ‘most political fields’. This excludes the common agriculture policy (until Lisbon) and the common competition policy there the parliament needs only be listened to, the common foreign and security policy and the co-operation in the field of justice and criminal law (until Lisbon) that are strongly coined by intergovernmental work and the common trade policy, in that the parliament has no say at all. Everything else from economy over monetary issues, structural advancement, social questions to culture and education (I just mention Bologna) can be influenced by the parliament.

So, is the upcoming election important enough to spare the time needed next weekend to head to the ballot box? If you care to participate in a decision about where we all are heading to in Europe during the next five years you should better start looking for your polling card now. Go and vote, and not just because it’s how democracies work.

Israel PR, an JPost Article and Thoughts about Me

Just this morning – I had breakfast with my mother – we talked about Israeli PR and how I miss other balanced but supportive voices on pages like wordpress, ireport or opinion pages of newspapers and political magazines like ‘Der Spiegel’. I can’t help it but I am of the opinion that at the end of the day it makes a difference even for a state what image it has. Self-complacency a la ‘Mir san Mir’ is an egomania not even Bavaria Munich can afford anymore (Congratulations to VfL Wolfsburg for winning the German National Soccer Championship today!). And in the new media, the wide open space of free expression and free formation of opinion on the internet, clear voiced and fact based argumentation in favor of Israel is in the clear minority. This is at least what I can conclude from my experiences so far. 

It is a surprising coincidence that just after this little breakfast talk I sat down to skim through the news and stumbled while doing so over a very recommendable article at JPost about how the IDF tries to succeed in the fight for public opinion. The article reports about the IDF Spokesman’s Office in charge of everything related to relations with the press. They even mention blogs and such though only as things they check to evaluate the success of their efforts. 

It’s an interesting and fascinating job with highly intellectual colleagues they describe – one even I could like as they apparently do in parts what I demand.  

You might expect an ‘if’ or ‘but’ here and I will place it any second. I just thought I could let the sentence act upon me for a little longer as I am just in the process of checking my possibilities of moving to Israel.   

Why? I encountered the questions quite often since I started to voice my plans. The ordinary German just can’t imagine why one would develop the wish to leave the security and predictability of the European center. However, I think it is quite easy. I lived as German in Germany and abroad. But with naming me Aviva my parents unconsciously saw to it that the Israeli part in me will never slip to the background. I encountered people who rather saw the Israeli in me than the German. I own my German law degree to my interest in the region and its politics. I blog about Israel and deal with it in my art. Just recently I even published my first book based on an idea I’ve never had if I wasn’t an Israeli. But so far I write my judgments and opinions with an outside perspective. I just wish to know now what it is like to live an Israeli life in Israel. 

What did I do so far? As I earned both of my degrees (law and pt) in Germany I need to find out about their recognition. I thought the recognition of the pt degree would be easier to achieve as the human body is quite similar all around the world. And so I contacted a very nice professor of TAU’s PT department who once again got me in touch with Israel’s Chief PT Mrs. Parag. So far she could only inform me that I have to take another exam and provided me with the necessary forms. As my Hebrew is currently only rudimentary developed the exam is not an immediate option. I need about half a year to a year time spend in the country to improve the language and I don’t plan to live off somebody during this time. Therefore, I now asked for the possibility of paid internships etc. and look for other options as well of course. 

So, now it is time to get back to the ‘but’s’. I guess I loved the job and the new challenge but I had to take a Meyer-Briggs based test once. And since then I have it certified in writing – I am highly intelligent but have an obvious problem with acceptance of authorities. This is no good precondition for a career in the army. Plus, I am 33 already. Another negative on my side if it was ever an option. Hence, I guess I will most probably stay a hobby PR agent and need to find another way to finance my year before I will hopefully be able to provide myself with pt work otherwise. But if you ever got so far reading my mumbo-jumbo you are a) my brother (hello Sven) or b) really patient and c) you should now read the recommended article. It’s much better than this.

60 years German Grundgesetz – What it did for the Germans and how a constitution could help Israel

It happened on May 23, 1949. Germany still wore a dress of ruins and rubbles. Many of the men fell in WWII or still served their terms as prisoners of war. It was mainly up to the women to clean up and reorganize life. And life was ruled by the allies. 

Yet, occupation is very costly in the long run, especially as Germany had always been an important factor in world economy and world trade. In addition to this in 1949 already, the front of the allies started to crumble. Harbingers of the upcoming Cold War made mischief in the rows of the allies. All in all in the eyes of the Western allies time was ripe to gradually hand back parts of political and economical responsibility in order to disburden themselves, give the Marshall Plan another stimulus after the monetary reform of 1948 and to position themselves for the upcoming, 40 years lasting confrontation with the Eastern Bloc.   

Therefore, the three Western allies USA, UK and France had tasked their charges with the penning of a constitution. At Herrenchiemsee and during the sessions of the Parlamentarischer Rat (parliamentary council, predecessor of today’s German Bundestag) they came up with something they called Grundgesetz (Basic Law). On May 23, 1949 the president and the vice presidents of the Parlamentarischer Rat executed and proclaimed the law in a ceremonial session. It became effective at the end of the same day. 

Since then 60 years have lapsed. The fathers and four mothers of the Grundgesetz were farsighted enough to draw up a wording of law and a system of checks and balances with the revolutionary idea of the ultimate instance for the check of constitutionality of laws and actions, the Bundesverfassungsgericht that was flexible enough to work in times of the economic miracle of the 50’s, the student unrests and the following politically motivated terrorism of the late 60’s and 70’s, the rise of extra-parliamentary opposition against nuclear armament of the 80’s. Even though it wasn’t planned like this it survived the process of Reunification of Germany in the 90’s and the ongoing integration of Germany in a supranational organization like the European Union. And it still works in times of global trade and global threats. 

However, there is something about the Grundgesetz that can’t be stressed enough in my opinion. The Grundgesetz has changed the Germans and it contains them. 

For a long time two things were deeply anchored in the minds of the Germans and for some they still constitute the truth. For one thing, Germans were obedient. In their understanding the state stood above the law. Hence, for them a constitution was just a coat that could be changed by the ones in charge if the rules wouldn’t fit their deeds anymore. Furthermore, Germans were supporters of the somewhat racist concept of a ‘Volksnation’ (people’s nation) as opposite to the idea of a citizens’ nation. A deep expression of this concept is the dissemination of membership in the nation and the associated granting of rights according to the rule of ius sanguine alone. 

The Grundgesetz counteracts both ideas. No other constitution I know of contains a clause comparable to the Eternity Clause of Article 79(3) GG: 

“Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles One and 20 shall be inadmissible.” 

Principles protected by this clause include:

-         Principle of democracy
-         Rule-of-Law-Principle
-         Principle of the welfare state
-         Republican form of government
-         Principle of federalism
-         Separations of power
-         Commitment of Jurisdiction, Legislation and Executive to the constitution and all law
-         Basic rights and basic liberties. 

Basic rights and basic liberties are not connected to the German nationality. Some of them are citizen rights whereas however the German citizenship can be obtained today not only by birth. All basic rights and basic liberties however are effusion of Article 1(1) GG: 

“Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.” 

The inclusion of the term human dignity at a prominent place into the Grundgesetz happened in the light of the dramatic neglect of the principle during Nazi times. The Bundesverfassungsgericht declared it the most important value assessment of the whole legal text. The term human dignity is expression of the idea that every human being has an equal value, equally worthy of protection. Human dignity can’t be obtained. It is simply there. But the right to respect of the human dignity can be violated. It is duty of all state authority to prevent such violations for everyone. 

For 60 years now the Grundgesetz and its organ, the Bundesverfassungsgericht, protect the principles and rights. It preaches equality of people and strength of cooperation against the background of historical and cultural conditions of Middle Europe. Thereby it is more than just a legal text. It is basis for a new and better understanding of concepts like state, citizenship, nationality, humanity and community. It acts integrative in a heterogenic society. In short, it is basis for a new self-conception of Germans what constitutes probably good news and a reason to celebrate. 

****************************** 

As I just talked about self-conception I cannot help but think of my other, constitution-less nation Israel. Time and again the call comes up that the Palestinians should accept Israel as a Jewish state/ state of the Jewish people as a precondition for negotiations. 

Apart from the fact that the recognition of a state constitutes no force and effect for the statehood according to International Law (a state is defined by three constitutional characteristics: state authority, state territory, body politic), the real question for me is: How about the self-conception of the Israelis? What is their understanding of concepts like state, citizenship, nationality, humanity and community? Or to put it freely adapted from R. D. Precht – Who are we? And if yes, how many? 

Israel faces fundamental and trendsetting questions. With regard to foreign affairs she has to deal with the emergence of a parallel state, a for a long time in the retort slumbering twin. The process has to be accompanied by a normalization of relations to her Arab neighbors. 

At the home front the rifts run between secular and orthodox Jews and between settlers, hawks and doves. Integration stays a major problem in an immigration country. Majorities shift due to the development of population. Democracy and rule of law are sensible plantlets. And last but not least there stays the permanent question – how much Jewish religion and culture is enough to cultivate a Jewish character on the one hand but to preserve freedoms of the single individual on the other. 

While talking about Germany I said the Grundgesetz acts integrative in a heterogenic society. Perhaps a constitution could do the same for Israel. An eternity clause fashioned after the German model could help to protect not just basic liberties and rights of all but also basic principles of the state that would include the Jewish character of Israel. 

Hence, the request for an acceptance of Israel as a Jewish state/ state of the Jewish people should not be directed at sources outside the Israeli borders. The discussion should be led at home resulting in the use of the right of a sovereign people to give themselves a constitution. The discussion would help us to discover who we are and if yes, how many.

Steffi, I kept my promise

Steffani came as a patient with a painful back into the PT practice. She was in her forties, petit, her dark, short hair stood unruly into the air, her bright eyes were lighted by a mischievous glint, she laughed often and openly – in short, her presence was felt when she entered the room. Yet, just a glance at the skin of her back was enough and I knew that despite of her happy composure she was fighting a deathly enemy who doesn’t care for race, gender, age, monetary status or sexual preferences – cancer. 

This is now a little more than a year ago, perhaps even one and a half. She opened slowly; up to a point there our therapist – patient relation turned into friendship. We lived through happy phases in which our hopes were high for a complete recovery; we shared the disappointment when her doctor wouldn’t yet allow her to return into her teacher profession for the new school year; we coped with the relapse of a new metastasis in one of her rips and celebrated a new victory. The last message written by Steffi, telling me that she needed to be hospitalized because of pneumonia, reached me March 22… 

It was when her hopes for a return to school in 2008 were crushed by her doctor that I started to think about something else, another task, another challenge I could provide for her that could pull her from living in limbo and attach her back with life. I then wrote a story based on a little, but true incidence of my life from the nineties but set into the realities of global politics in autumn 2008, covering the Middle East conflict, world economic crisis and the high hopes burdened on Obama at the eve of the US presidential elections. On the spur of the moment I asked her – the teacher and literature lover – to revise it for me. 

After reading what I had written so far she was even more convinced of the project than I was. She knew what she did language-wise even though our time was cut short. But in the process of working with her it was of great help as well that she had never had reason before working with me to dive deeper into the political and economical matters the book touches. She could tell me what remained unclear to her and what needed more room for explanation. It was a learning process for both of us what made us equals. 

Perhaps because she knew of my insecurities and my shyness but perhaps she also sensed that her time on earth might end soon, she made me promise at one time that in any case I would go public with the story and let the world learn what she had learnt by reading. 

Well, Steffi, right now I am not able to tell you this in any other way, but I kept my promise yesterday. I published Eines Königs Kinder (One King’s Children) via BoD Books on Demand. 

As an explanation: 

One King’s Child is Lea. Lea Schreiber, creatively talented in many ways yet also withdrawn to her own world, accounts her inability to merchandise her art her biggest problem, perhaps only outdone by the lack of men in her life. This is until shortly before her 33^rd birthday she is ambushed on her way home in Berlin. Two strangers come to her rescue. They speak of CIA agents who chase her because her boyfriend, reputed to be a radical Islamic terrorist, is believed to be in the possession of evidence for illegal schemes inside the American intelligence service.  

Lea believes in a bad joke. Yet then, a name drops which puts the story in a complete different perspective – Aram. Due to AlAram Jamal, offspring of a leading Hamas family, the German-Israeli woman Lea is suddenly right in the middle of some of the currently most immanent problems of world politics, one usually takes a stand to only in front of ones TV set. Lea realizes that she needs to return to an impossible love in order to be able to go on with her life. 

In a gripping and captivating hunt, accompanied, supported and sometimes made livid with rage by the American David and the British Paul, Lea travels from Prague via Rome, Cairo, the Sinai, Jerusalem, Petra, Zurich back to Berlin in order to find foremost her animus Aram and the evidence for the alleged scheme inside the CIA. But even more so, she is finally forced to look at her life so far, to address both parts of her dual identity, to form an opinion on her nation and motherland Israel, on the conflict it is involved and on the partners in the conflict and to progress in her process of individuation. 

Thank you, Steffi, for your enthusiasm and support. I hope I did your work justice. I kept my promise. 

Aviva

Report about East Berlin in Autumn 1989 (Part 2)

This is a follow up to my cnn_ ireport article ‘Report about East Berlin in Autumn 1989’. I was truly overwhelmed by the interest it stirred and by the personal responses I found waiting for me in my mailbox. They reached me from all over the world. It made me

a)    perplex, as I never imagined the memories of a then mere teenager could be of any interest

b)    happy to know that so many people around the world are interested in the past hopefully so they can learn for the future

c)    think about the things we really gained by the happenings of autumn 1989.

 

If I had to name the achievements with only a few words I would tie myself down to freedom and choices.

 

But let me first put some things straight as I realized during my exchange year at South Carolina, USA that there are some misconceptions and generalizations concerning life in the Eastern Bloc. In the GDR I never endured hunger or ran around naked or in rags. The basic needs of life were always cared for. Compared to other places around the globe we were even able to afford luxury to some extend. I know from my own experiences gathered during a trip by car with my parents and my brother as self-caterer to what is today the Ukraine and Moldova in June 1986 (yes, this was the year of the nuclear accident at Chernobyl) – a trip that left deep marks on me even though I was only ten and wasn’t able to process all experiences or to put them into the greater context to the last – that we were privileged.

 

That might have been because we in East Germany and especially in East Berlin lived in the showcase of the communistic/socialistic sphere. It might have been because we could easily compare our standard of living to that of the fellow Germans living on the other side of the Wall by watching their TV and listening to their radio broadcasts. There we could see that our world was less shiny and narrower and that we lacked the diversity but we had food to sate us, clothes to dress us and houses to provide us with shelter.

 

What we lacked were freedom and choices. The trip to the USSR I was talking about e.g. – it was a present to my brother’s Jugendweihe (roughly translated ‘youth dedication’, it was an obligatory pledge to socialism taken by all 14 year old students and was to displace conformation or in our case Bar Mitzvah). My parents couldn’t just decide to give it to him ‘to broaden the horizon of the newly adult ’, they had to apply for the trip over a year ahead and the odds were not that good they would really be allowed to take us onto this journey.

 

This is just one example. The borders around the country were closed to one side and hard to cross on the other. Yet that is not all.

 

Some of the things that changed due to the breakdown of the Wall might sound for many today like a matter of course. I love Pink, her music, her song lyric and the way she sticks to her principles. Today, I go out and buy her CD or go on the internet and download her songs. I might decide to buy some merchandising articles or even to travel somewhere to attend a concert. That’s all there is to it. Period. But it is not how it was. My Tour T-shirt I bought at her concert here in Berlin in March – if I would have ever been able to lay my hands onto something like this in GDR times I wouldn’t have been allowed to wear it publically, dare to school. And I can hardly imagine her music to be allowed to be sold officially.

 

OK, one can live without being officially allowed to buy Pink (if only hardly). But other restrictions to freedom and choices had a much deeper impact on society and on the people.

 

I don’t like the adulteration of Abitur (university-entrance diploma) today in Germany. However, the East German system was much more problematic. Only one or two pupils of each class were allowed to go on after the tenth year and take the Abitur without regard to the proficiency level of a class. This influenced plans for life of many who were not ready to commit themselves for longer than the usual one and a half year term in military service (for males), stemmed from a parents’ house not going conform with the government’s policy or that was religiously affiliated, happened not to be male and/or just happened to be the odd one out. The admission to university courses or vocational training was politically controlled as well as was the allocation of work places (everyone had work but the question was where and what kind) and housing space (dito).

 

If one came to the conclusion that life was unendurable under these conditions one had to apply for emigration to West Germany. It usually took years of spying, bullying, victimization and running the gauntlets before a decision was made. In case one stayed one had to realize that publically only one opinion was true and allowed – one along the lines of government’s policy. An article like this would have landed me in prison. But I guess I wouldn’t have had free access to the internet anyway – how would I as we did not even have a telephone at home.

 

Today, I can voice my thoughts, participate in the political process and in democracy, have the freedom to move to where I want to even if I want to leave the country, I can work on myself, grow and mature as I want. Nobody but me is responsible for my life.

 

I think that this is exactly the reason why many today ensnarl in nostalgia. Responsibility is a hard burden, especially when it is responsibility for one’s life. Freedom, democracy and choices are hard work. One has to use one’s brain and think and stand in for one’s decisions. It is so much easier to have someone else decide and cry ‘injustice’ afterwards as many try in democracy as well. But I wouldn’t want to change my brain for an easy, narrow life again. As Pink says: Oh, I’ve felt that fire and I, I’ve been burnt, but I wouldn’t trade the pain for what I’ve learnt.

Richard Goldstone promised a “law-based approach” – Gaza Op, UNHRC’s probe and International Law

On Friday May 8, 2009 the UN inquiry team installed by the UN Human Rights Council in January to investigate alleged war crimes during Operation Cast Lead held its first closed door meeting in Geneva. The team of four investigators is headed by the South African former UN war crime prosecutor Richard Goldstone. After the meeting Goldstone stressed that the investigators would take a “law-based approach” rather than a “political approach” for the report they are to prepare for the UN Human Rights Council.

 

As a start I would say such a law-based approach would be a refreshing improvement in dealings of the UN Human Rights Council that is mostly dominated by Muslim countries and their allies that abuse it for their ends. The most recent example of their understanding of the use of international organizations and their function for the world was the Council’s Durban II conference on racism in Geneva. The only thing that came to my mind to this was a modification of a German saying: They offered the stage for an exorbitant debate about the admittedly existing splinter in the eye of the other while they declined to see the plank in front of their own forehead.

 

Anyway, I refrained so far from going into to mud of the once well-meant Durban process. I should stick to this policy. I am much more intrigued by two other questions concerning Goldstone’s mission: I. What might such a “law-based approach” mean? II. Do the available legal rules today work when it comes to dealing with terrorism and guerilla-like warfare?

 

1. What might such a “law-based approach” mean?

 

For starters some clarification of terms: Formally, Law means the sum of all effective legal norms (written and unwritten). Legal norms again are rules of behavior for single individuals or of communities meant to organize the co-existence and to solve conflicts that can be enforced with organized compulsion.

 

National Law manages co-existence and conflict resolution within the borders of a state. Legal rules are determined by organs of legislature of the state and executed by its authorities. Setting rules and enforcing them are basic rights of a sovereign state. Other states or their organs must not interfere unless the state has submitted to contrary provisions of International or Supranational Law or its actions endanger world peace.

 

Private International Law has often a Public International Law background yet is no part of Public International Law but rather part of National Law. It identifies all national legal norms that define the law to be applied if a certain subject touches several national legal systems. National domestic authorities and courts are concerned with Private International Law once they have to deal with issues with a foreign element.

 

Supranational Law is an integrative part and a peculiarity of Public International Law. It is mostly used in connection with legal matters concerning the European Union since the Union’s in-between position between a state and a conventional international organization. Member states transfer traditional competences of sovereign states from a national level to the higher level of the Union. The subordinate organization is then able to make binding decisions for the affiliated states even when not all members agree.

 

Public International Law is a supranational legal system regulating the relationships between international legal personalities on the basis of equality. Main difference between National and Public International Law is the absence of a central legislative organ in Public International Law. Public International Law is not imposed on states but rather presents a coordination system, even though there are tendencies towards a central law-making too.

 

Mr. Goldstone and his team will definitely not deal with Supranational Law, a term I only included in the above list to clarify its meaning. National Law and thereby Private International Law as part of it is not an option either as such an evaluation by the team would infringe the rights of the sovereign state(s) involved. In the end, all that’s left from the list is Public International Law.

 

Subjects of Public International Law are international legal personalities. International legal personalities are first and foremost states. A state is a political association with effective sovereignty over a geographical area and representing a population (Three Elements Theory by Jellinek: national territory, public authority, body politic/people). The recognition by other states as state is not necessary and has no constituting character at all.

 

Whereas Israel is indisputably a state under International Law with effective public authority over its territory and population the legal character of the Palestinians and the Gaza strip is in limbo.

 

In November 1947 the UN General Assembly adopted a resolution determining the partition of the then British mandatory territory into an Arab and a Jewish state. A Palestinian state should have been established alongside Israel in May 1948. However, an all-or-nothing policy adopted by the Arab side prevented the creation of a state at this stage of history.

 

In November 1988 the Palestinian National Council, legislative body of the PLO, proclaimed a State of Palestine. Up to today this state is recognized by about 100 countries. But as I said above this means in legal terms nothing as long as there are not all three elements of statehood fulfilled as well. The proposed state for the Palestinian people covers the territory of the West Bank and of Gaza though the exact borders are still matter of dispute. Hence, though we can speak of a people and a state territory full sovereignty over the covered geographical area is missing and so the State of Palestine is no state under International Law.

 

Consequentially, Palestine’s current status in the UN is that of a “non-member entity”, not that of a state. Therefore, traditionally Palestine is no subject of International Law. So, here we hit on a legal problem. Mr. Goldstone and his teams want to use a “law-based approach” to evaluate both sides of the conflict but we are running out of legal systems he could use.

 

However, I am pretty sure Mr. Goldstone has the intention to use International Law, explicitly the Law of War that comprises of the Jus ad bellum (law concerning acceptable justification to use armed forms) and Jus in bello (law concerning acceptable conduct in war). Politically, this is certainly what is asked for. Since politics and law in general and politics and International Law in particular can’t be seen apart from each other Mr. Goldstone might simply overlook the little flaw in his “law-based approach”.

 

1. Do the available legal rules today work when it comes to dealing with terrorism and guerilla-like warfare?

 

And so Mr. Goldstone and his team will check if the war conduct was governed by the principles of distinction, proportionality and military necessity/ minimum force.

 

Distinction: Acts of war should be directed towards enemy combatants, not towards non-combatants caught in circumstances they did not create.

 

Proportionality: An attack cannot be launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage.

 

Minimum force: An attack or action must be intended to help in the military defeat of the enemy, it must be an attack on a military objective, and the harm caused to civilians or civilian property must be proportional and not excessive in relation to the concrete and direct military advantage anticipated.

 

This sounds like a pretty clear checklist even though it sure leaves wiggle room. But what was once workable in traditional warfare when regular armies met, their members clearly distinguishable by their uniforms, reality today has changed.

 

Regular armies fight with high-tech weapons terrorists who are not less armed. They too know the international rules the armies and the countries behind them are bound to obey and they too know how to use them to their ends. They dress like civilians and they hide themselves and their arsenal in highly populated areas. Sometimes they even organize human shields made up from women and children. They know that the pictures of injured or dead will go around the world in no time and will produce an outcry.

 

It puts regular armies that act for subjects bound by International Law and that will need to answer the international opinion, international law and international press in one dilemma after another.

 

On the one hand, no country takes the step to engage in a war, especially one conducted with guerilla tactic by the opponent, easily. Other than that there needed to exist valid reasons to resort to the last resort to begin with, there had to be more – a situation that offered no other way out as one endangered the lives of so many and goals that seemed possible to achieve. 

 

On the other hand, if only one side keeps to the rules it’s hard to achieve anything. No state can be expected to endure attacks into infinity. But once it takes action it will be the international bogeyman that kills children and their mothers lightheartedly.

 

What to do? As realities have changed so perhaps the rules should be adjusted too. Earlier on, nobody would have imagined that International Law may ever affect multinational co-operations or internationally active NGOs. But due to the increase of global trade, environmental deterioration on a worldwide scale, awareness of human rights violations, rapid and vast increase in international transportation and a boom in global communication it does.

 

As International Law is an open coordination system based mainly on customary law an adjustment can happen. This must not mean that civilians, who are caught undeliberate on a theatre of war, are less protected or that human rights take a back seat. But measures need to be taken that rules and rights are not abused and sovereign people are not trapped in Catch 22. Mr. Goldstone and his team’s work done under a “law-based approach” could be a trigger. We will see if he keeps his promise and we will see there the journey will take us.

Citizenship, Deprivation of Citizenship and the Fact of an Ill-Received Gift

Humans are social beings. It’s in their nature as humans as lone wolves would have never made it through the early years of mankind. Belonging to a group was vital. A group offered security, access to food, fire and housing, communication and trust. M. Walzer notes that social membership is the first and most precious good we can give one another. 

Affiliation to a collective can be based on a group-concept or a territorial concept. While territorial concepts pool all those living or born in a certain area in one community, group-concepts determine inclusion or exclusion by means of biological affinity, certain characteristics of a person or a commitment to a certain religion/a political value system. 

Most affiliation concepts up to today are based on group-concepts. In the beginning humans organized in families and tribes. Historically, the most popular and successful organizations are the big religions. They dominated political Europe and America up to the 19^th century. 

The territorial concepts of nationhood and citizenship are historically seen new concepts. Citizenship in the modern sense of the word did not develop until the French Revolution and the advent of republican thinking. Since then the state was not only seen as a certain territory or a personal assignment to an absolutistic monarchy but as an assembly of citizens. 

Humankind has survived millennia without the concepts of nationhood and citizenship. Perhaps, in the context of globalization the importance of these institutions will decline again. However, today state and citizenship are the prevailing institutions in our world. 

The two terms are closely connected. One might be able to imagine a citizenship independent of any sovereign state when one thinks of a world citizenship if one tries hard. Yet, just as a state will only be recognized as a state under International Law if it consists of three elements: state territory, public authority and public politic (citizens), citizenship is named by the German Bundesverfassungsgericht “the legal bond” between the state and the people. The International Court of Justice describes citizenship as “legal bond having at its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.” 

Citizenship is therefore more than just a legal status defined by civil, political and social rights. Citizenship features the right to participate in state sovereignty and public authority. Only through the citizens’ participation in the political process Lincoln’s word carry truth: government of the people, by the people and for the people. 

Furthermore, citizenship has a psychological dimension. Membership in a state creates social membership, the precious good mentioned in the first paragraph. It gives the citizens a sense of belonging and furnishes a source of identity in times there other social institutions like families brake up. 

With this said I want to go into a special questions concerning citizenship in the following: the loss or deprivation of citizenship. I have two very current reasons to pick up this topic.   

1. During the last election campaign in Israel the idea of a pledge for allegiance to be taken by Arab Israeli citizens came up. I guess that everyone who would fail to take such an oath would be deprived of his/her citizenship. 

2. Just the other day new Israeli Interior Minister Eli Yishai has announced he intends to begin proceedings to revoke the citizenship of four Arab citizens suspected of hostile activity against the State of Israel. 

For a start, it’s the right of any sovereign state to shape its own Citizenship Law. The state defines who its citizens are and on what criteria outsiders can join the club. It can establish reasons to revoke a citizenship and it can – always in the scope of its own legal/ constitutional system – establish rights and duties of its members. 

For instance, Israel declared that all her citizens are allowed to fully participate in the political system of Israel. This is only consequential as, just as I said above, citizenship features the right to participate in state authority. Full participation includes the right to vote and eligibility for office as well as freedom of opinion and the right to express it publically in any legal way one wishes. 

Freedom of opinion and the right to express it in particular are important in the light of the subject we are discussing. Being a citizen doesn’t mean to agree with everything the majority votes on or the current government does. The conflict of opinions is like the salt in the democratically cooked soup. It’s the beauty of democracy that today’s minorities can become tomorrow’s majorities and that governments can change peacefully. 

Just as Israel is a multi-ethical country, a colorful mosaic of Sabres and immigrants the political scene mirrors the plentitude of views based on different backgrounds. And just as Russian immigrants, ultra orthodox right wingers or left wing peace activists are allowed their opinion on the state they all live in Arab Israelis are allowed their opinion and the expression of it as well. 

Just because Arab Israelis are of different opinion they shouldn’t be object to collective suspicion. And a different dealing with them like the establishment of a need to take a pledge of allegiance would taste like discrimination on the basis of race – an absolute no go. 

However, any right has its limits just like the fist must not be pressed into another one’s face. Every citizen is not only granted rights but s/he has responsibilities and has to fulfill duties. They live in a framework of laws and regulations. Furthermore, democratic rights must not be used to eliminate democratic values or the state caring for them. 

If somebody violates these simple rules so that one can assume that this somebody wants to destroy the community created as a protected place and to furnish a source of identity this somebody will most probably also violate laws. (Any state that has not established provisions preventing its own destruction has done something wrong.) Such a breach of law would be prosecutable by authorities. Hence, it doesn’t really need another regulation like a discriminatory oath somebody up to destroying the system would take and breach without a wink of hesitation, does it? 

Israel has established a clear limit as to what is still acceptable for a citizen and what would disqualify someone to hold the Israeli citizenship. An Israeli citizen is obligated to abstain from assisting a country or an organization which is defined as an enemy of Israel. Such assistance may lead to deprivation of citizenship. This is the proceeding the Israeli Interior Minister is about to start. 

Imho, in a case like this – if proof has been gathered and weighted by an independent court in a constitutional process and judged as true – a deprivation of citizenship is right. The person doesn’t seek social membership, a common identity, a legal status or participation in the political system. The person asks for rights without being ready to give something. S/he even wants to harm the community s/he pretends to belong to in a grave way that endangers its survival. Thereby, the whole purpose of citizenship is undermined. The first and most precious good of belonging is not desired and that’s all that needs to be said.

M(a)y Days with Family and Friends

Once in a while it is important to stop work even though one loves it and celebrate life. May day and today are days like these. And so I interrupt the usual program to post some pictures.

My Brother and Me today at a Berlin Beach Bar

 My mother took this picture of my brother and me at a beach bar located between Berlin Central Station and the Chancellor’s Office at the river Spree. We spent all afternoon there enjoying the sun and looking good.

On the water somewhere between Berlin and Potsdam

the befriended boat owner and a friend of mine

The May Day I spent with my friends. Three of us met in the morning for a bike tour. Two more joined us for brunch at the restaurant my Hogwarts and Dante’s 9 Spheres of Paradiso series is exhibited right now in the context of the Kladow Art festival. While we sat in the sun one friend asked us if we would care for a boat ride. We did. At some time in the trip he asked me to take over the wheel and take control of the motor boat. Well, I have no licence and all. But it was so much fun and I think I did an ok job. I was happy. My friends were happy too. Just look at the other photos.

two others of my friends

my friend again and if you look closely you can find me in the pic as well