Dozens killed by Israeli forces in Gaza as US opens new Jerusalem embassy

Bel Trew, The Times Bel Trew, Jerusalem 
Over 60 Palestinians were killed and 2,700 injured when Israeli forces opened fire on protesters yesterday as the United States broke with decades of diplomatic precedent and opened an embassy in Jerusalem.

President Trump hailed the opening as a great day for Israel as clashes erupted between Palestinians and security forces on the Gaza border.

The Palestinian government accused Israel of carrying out a “terrible massacre” but the army insisted that Hamas, the militant Palestinian group, had been leading a “terrorist operation under the cover of masses of people”.

The Palestinian health ministry said that nine of the dead killed at the border fence were children and included a baby who died from inhaling tear gas. The demonstrators, some armed with catapults, hurled stones at Israeli security forces, who responded with volleys of tear gas, some dropped by drones, and bullets. Israel also launched air strikes inside Gaza at Hamas military targets.

A ceremony took place in Jerusalem to open the new embassy on the 70th anniversary of Israel’s founding. The move has been highly contentious because the Palestinian authorities claim east Jerusalem as their capital. Most countries, including European allies of the US, have kept their embassies in Tel Aviv. Britain, France and Germany boycotted the ceremony.

Binyamin Netanyahu, the Israeli prime minister, thanked Mr Trump, whose daughter Ivanka was at the event, for “having the courage” to move the embassy. Jared Kushner, Mr Trump’s son-in-law, who was also in Jerusalem, accused the protesters of provoking the violence.

Binyamin and Sara Netanyahu join Ivanka Trump and Jared Kushner at the embassy opening
Binyamin and Sara Netanyahu join Ivanka Trump and Jared Kushner at the embassy openingGETTY IMAGES

Raj Shah, a White House spokesman, said: “The responsibility for these tragic deaths rests squarely with Hamas. Hamas is intentionally and cynically provoking this response.”

In London, President Erdogan of Turkey accused Israel of state terrorism and genocide. Turkey recalled its ambassadors from Israel and the US.

Israel’s gas and gunfire stop Palestinians storming border
The deadliest day for Gaza in four years began with tens of thousands of people marching towards the Israeli border. Angered by the opening of the US embassy in Jerusalem, many of them set out to breach the border fence, despite grim warnings from the Israeli military to steer clear. In a matter of hours dozens were dead.

White tendrils from a barrage of tear gas canisters, some dropped from drones, pierced the plumes of black smoke from tyres set alight by Palestinians. Protesters gathering at five points along Gaza’s borders hurled stones at the Israeli troops. Some sent burning kites at the line of soldiers. Three Palestinians were reported to have been shot while planting a bomb.

“It felt like your lungs were being torn apart. They were using drones to drop the gas in the middle of the crowds. Each round would contain ten to 12 gas canisters,” said Ahmed Rezeq, 26, who was injured in the leg. “The shooting was direct, it was mostly live ammunition targeting limbs, legs, and knees. Many were hit by explosive bullets, so needed amputations.”

According to the health ministry in Gaza at least 59 people, nine of them under the age of 16 and including a baby, were killed and more than 2,700 injured, the worst day of violence since 2014. The ministry said 130 of the wounded were in a serious condition. Rallies also erupted throughout the Gaza strip, the West Bank and in Jerusalem.

Gaza’s hospitals put out urgent pleas for fresh supplies as doctors struggled to cope with waves of injured protesters being brought in. Human rights groups including Amnesty International condemned the excessive use of lethal weaponry as “abhorrent”. The Palestinians said 1,360 people had been injured by gunfire.

Mahmoud Abbas, the Palestinian president, declared three days of mourning. “The US is no longer a mediator in the Middle East,” he said. The new US embassy in Jerusalem was tantamount to “a new American settler outpost”, he added…


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War of principles: Can free speech exist?

After a week of waiting for America to take action, Egypt’s prosecutor-general on Wednesday announced it had issued arrest warrants for seven US-based Copts and an American pastor over the inflammatory film “Innocence of Muslims.”  The eight, which include the film’s alleged maker Nakoula Basseley Nakoula, face charges which could see them get the death penalty.

During last week’s protests and street fights outside the American embassy in Cairo, protesters expressed frustration at the US for seemingly “doing nothing.”

“I don’t understand why Obama can’t at the very least, apologise for it,” Ali Mahmoud, a Salafist academic from Fayoum said, “Members of his own staff were killed – people have died. It should be banned; the director brought to justice.”

Friday saw yet another day of violent anti-West protests with 13 dead in Pakistan, as fresh demonstrations kicked off across the Muslim world in response to offensive cartoons of the Prophet Mohammed published in French weekly Charlie Hebdo.

The resounding question in Egypt and across the region is why protect such pointless and slanderous media that has resulted in the needless deaths of close to 50 people.

Calls to reassess free speech legislation

Egypt’s Hisham Qandil government demanded last Wednesday that the filmmaker of “The Innocence of Muslims” be prosecuted under international law criminalising actions which cause sectarian strife.

As cracks showed in Egypt-American relations, President Mohamed Morsi himself demanded the US put in place “legal measures.”

The Obama administration, in carefully worded statements, condemned the film. US Secretary of State Hilary Clinton went a little further, saying she thought it was “disgusting.”

Washington, however, refused to offer an apology for the video. They refrained from stating that making this kind of material was wrong or announcing they would be prosecuting the filmmaker for it.

America’s silence coupled with the increasingly violent reactions to the film, sparked a global debate about whether the US, which is protected by arguably the world’s most free and open freedom of speech legislation, should put greater restrictions on what they allow to reach the public sphere.

Underlying this debate is how material is classified under ever changing and complex US and international laws.

Commentators contend there is some rationale to the US either altering its own laws or bending to international law, which includes provisos such as “hate speech” which is not criminalised under American law.

The fluidity of free speech

Tamer Nagy Mahmoud, an Egyptian attorney practicing in Washington DC, explained that the First Amendment of the US Constitution protects freedom of expression from any sort of government interference, with a few limited exceptions. Nothing is set in stone, he added, the exceptions are mostly derived from case law not from the constitutional language itself.

Some commentators debated whether “The Innocence of Muslims” was an example of “hate speech” as it, arguably, provoked people to take violent action against US missions in Egypt, Libya, Tunisia and Sudan among others.

The legal definition of “hate speech”, however, differs between countries.

Instead of “hate speech”, in the US expression can only be prosecuted if “it is intended and likely to produce imminent violence or lawless action,” Nagi explains, “Theoretically in America you can have groups like the Klu Klux Klan spewing the most hateful language but unless it fills this criteria, you can’t stop them.”

The emphasis in US law is on the immediacy and the likelihood of the reaction to the footage. In this case, it would have been hard to predict that this particular clip would have inspired such a reaction, such as the deaths of four US diplomats in Libya.

German US attorney-at-law David Mueller* who lectures on freedom of speech, explains to Ahram Online, “You cannot make something retroactively criminal. If, at the time the film is made, it is legal, you cannot declare it illegal later.

“Even if serious harm is done, you cannot punish retrospectively – you can ask yourself whether the irresponsible individual could be stopped in the future but still you can’t undo what has already been done.”

Material can also be banned if it is classified as “obscene” in the US, meaning if it “appeals to average person’s interest in sexuality, is patently offensive by the community standards and lacks serious artistic, scientific or political value,” Nagy continues.

The fact that “The Innocence of Muslims” is, in terms of copyright, a creative work (however poor), raises further problems for those calling for an embargo.

Creative expression and defamation

“Art, humour and satire are always covered,” Mueller explains, “you may not agree with the film but the US does not judge for bad taste.” In fact, you can get away with a lot more if the expression occurs in an artistic context.

Groups, unsuccessfully, have attempted to get the 1987 photographic work “Piss Christ” showing a crucifix immersed in urine and “The Holy Virgin Mary”, which depicted close-ups of female genitalia from porn magazines, banned. Even Jesus wearing a nappy during the 2003 “Jerry Springer – the Opera” was not sufficient enough to have the film taken off the BBC schedule. The artistic nature of the material protected them under international law.

The eight facing arrest in Egypt are being charged with spreading false information among other accusations. It could be argued that the video defames Egyptian Muslims, who are portrayed as raging mobs burning Christian homes and the Prophet himself, who is painted as a womanizer, homosexual and child abuser.

Defamation in the US can only be proven if the action was done “with actual malice and knowledge of falsehood”, Nagy explains, which, some might argue, fits the film’s content.

Nevertheless, in both European and US courts of law, only individuals not classes of people can file damages to personal reputation, Mueller further explained.

In other words, Egypt’s 80 million Muslims cannot sue the filmmaker for collectively damaging their reputation under US law.

Neither is it possible to file a defamation lawsuit on behalf of someone else. Consequently the only figure who would be able to effectively file a suit against the film would be the Prophet Mohammed himself.

A threat to national security

The final, and perhaps most widely discussed, impetus to restrict expression concerns  national security – a point many commentators have raised in the wake of the ongoing violence, particularly now that French diplomatic buildings could face a similar beating.

Temple University international law professor Peter Spiro pointed out on legal blog Opinio Juris, for “structural and functional reasons” it does not make a lot of sense to allow the irresponsible act of an individual seriously compromise national foreign relations, or threaten the safety of hundreds.

How democratic is it, he argued, if the “peace of the Whole [is] left to the disposal of the Part?”

Speaking to Ahram Online, Spiro elaborated.

“There are contexts in which constitutional rights have been circumscribed in the face of foreign relations imperatives,” he explains, “Yes it’s a ‘slippery slope’ but you can say that about pretty much any constraint on speech.”

As it stands, even with protesters launching rocket-propel grenades at the US mission in Libya, the American government cannot act.

For the Obama administration to seek a court-sanctioned prior restraint on a form of public expression, “it must be an expression which would surely result in direct, immediate and irreparable harm to the national security of the United States,” Nagy says, “for example, if a newspaper were to print US military plans for a war that is about to start.”

Nagy speculates that it would be hard for the litigators to prove the violence was so imminent as a result of the “Innocence of Muslim” clips.

Is free speech culturally specific?

The ongoing video debacle has shed light on the cultural relativity of the free speech debate. As Mueller illustrates, “under German law, the filmmaker could arguably be prosecuted, as there is a German clause saying that ‘bashing a religious group or belief is punishable under criminal law.'”

In addition, under German Police Law, the authorities could prevent the film from being shown in the street, Muller adds.

Germany’s dark history of the Holocaust has meant that certain restrictions, not present in US law, apply, even if it appears to contradict universal ethics of freedom of speech.

For example Adolf Hitler’s Mein Kampf cannot be published in Germany, “as the government believes it will incite people, this is a very Germanic view and is only understandable in the context of German history,” Mueller explains.

Some groups have been campaigning to have the treatise published with a contextual commentary, as this would better match Germany’s overall attitudes towards freedom of expression. However, as it stands, the authorities have banned the book from physically entering the country and being accessed online.

Problems occur when these differences in legislation and legal definitions clash.

Egyptian legal stance on freedom of speech

In Egypt, the bottom line is that the video would be illegal. “Although Egypt’s 1971 Constitution protects freedom of expression generally – the articles are subject to law,” Nagy explains.

On the long (and fairly vague) list of banned activities enshrined in Egypt’s penal code is “insulting a religion or ethnic group” and “anything that is inconsistent with public morals.”

There is legal precedent of groups successfully suing a foreigner because the action is deemed to be illegal in the country of the litigator, Mueller says, however, they have to prove there was “minimal contact.”

“To bring a foreigner to an Egyptian court there needs to be some kind of contact between the person who is sued and the venue where he is sued (Egypt) – the fact that the film was made in the US makes this very difficult.”  Mueller explains.

Proving this contact is where it becomes hazy. Even if the film is clearly targeted towards Egyptians, Mueller continues, the director would have had to have deliberately bought the clip to Egypt or for example, publically screened it on Egyptian soil to prove that it affected people here.

However, should the filmmaker, who is an Egyptian Copt living in southern California, still retain his Egyptian citizenship, Nagy adds, then despite being based abroad and committing a legal act in his host country, he remains generally under the jurisdiction of Egyptian law here.

Morsi’s move and the web

The internet further complicates the matter.  Legislation is inherently tied to geographical boundaries: you must obey the laws of the territory you are in.The online world is an unfettered, unregulated, territorially unbound global meeting place where contradicting legislation and ideas meet and clash.

An offensive video posted in America can easily reach the computer screen of an Egyptian in Egypt and have a direct effect on the viewer, which is a form of contact. As a result, courts across the world, Nagy explains, are constantly re-defining and qualifying legal language in regard to online content.

The film, however, would be banned in Egypt under Egyptian law, Nagy adds. The Egyptian executive branch “has the power to ban any publication or work of art that is coming from abroad from being circulated or from entering Egypt.”  An example is Rushdie’s contentious novel, The Satanic Verses.

This means, President Morsi and his cabinet have the power to ensure the inflammatory movie is neither physically available nor accessible online in Egypt: an option Morsi has not explored despite calling on the US to “take decisive action.”

Google and YouTube in Egypt corroborated this fact to Ahram Online: “where we have launched YouTube locally and we are notified that a video is illegal in that country, we will restrict access to it after a thorough review.”

“YouTube… in Egypt, it does have its own domain, ” Google affirms, explaining that this means that provided it could be proved that the clip is illegal under Egyptian law (which it is) YouTube and Google would make it impossible for anyone to access the video from an Egyptian IP address.

Google International themselves are under no obligation to restrict access in America as the “Innocence of Muslims” is “clearly within our Community Guidelines” which regulates the website. The guidelines list specific criteria (such as hate speech or sexually explicit content) the YouTube community use to flag a video. A “flagged” clip is consequently reviewed and if it breaks the regulations, taken down.

Despite this, Google went beyond its own guidelines to restrict access to the clips in the countries where it is illegal “such as India and Indonesia as well as Libya and Egypt.”

It temporarily blocked the original trailer and exact duplicates in Egypt due to the “very difficult situation” in the country not because the Egyptian government requested that they do.

This throws a very different light on recent events, as it is in fact up to Egypt’s president, in this instance, to ban the film, which Morsi has as yet not done.

In America, it is a lot harder to remove the video from the Internet. One of the actors, American Cindy Lee Garcia who claims the script she saw referenced neither Muslims or Prophet Mohammed, lost her lawsuit Thursday when the judge rejected a request to force YouTube to take down the trailer. YouTube has also separately refused to take it down.

Redefining approaches to free speech

Freedom of speech legislation is vague in its complexities. Merely classifying statements of expression is hard enough let alone prosecuting those responsible.

The ability to disseminate material with ease across international borders via the internet without knowledge or control over who accesses it, only confounds the issue.

The internet has become a forum for the war of principles, highlighting the cultural relativity of freedom. When these etymological battles reach the streets and violence erupts, the need to react to the consequences of the inflammatory material can result in countries backtracking on principles.

As Spiro comments, “There is the risk of ‘heckler’s veto’… the violence and instability on the other side of the balance is obviously serious and immediate.”

When news broke Charlie Hebdo had printed the inflammatory cartoons, the French Foreign Ministry announced, Wednesday, it would close embassies and schools in 20 countries worldwide, preempting the hostile reaction America had recently suffered.

The French government, in order to protect the initial expression of freedom by allowing the publication of anti-Islam images, has now had to, hypocritically, rein in expression by banning protests about both the film and the caricatures.

As countries bandy court cases and law suits across borders, is the answer to localise the internet to restrict these interactions? Alternatively, do you create global catch-alls to trammel up the consequences of “offensive” speech in general? Or ultimately are we condemned to reactively bow to the heckler’s veto, forever?

*The interviewee’s name has been changed due to the sensitivity of the subject

The Trial: NGO staffers speak up about political dogfight


Behind the ongoing NGO trial case is a political spat between the US administration and the former Egyptian government, say defendants speaking out for the first time

The fate of Egypt’s civil society remains hung in the balance as the Egyptian government struggles to redraft controversial NGO legislation and civic associations await the verdict of the foreign NGO trial, which was recently adjourned for the tenth time.

Forty-three employees from five international NGOs are facing jail sentences for being part of unregistered organisations and hence received illegal funding.

The case bought to international attention Egypt’s civic association laws, among some of the most restrictive in the world according to global monitor the International Centre for NGO Law.

The infamous Law 84 of 2002 dictates that all NGOs must be registered with Egypt’s ministries, who have the right to monitor activity and funding, and to dissolve them. Administrative mistakes are punishable in criminal courts.

Many NGOs in Egypt remain unlicensed, often as a means of avoiding government control. If the 43 are found guilty, this would set a crippling precedent that could result in a mass crackdown.

While a new draft law — in its third incarnation since last year’s 18-day uprising — reportedly relaxes the government stranglehold on local NGOs, the situation for foreign NGOs remains unchanged.

This development does not bode well for the 43 in the dock.

Largely forgotten by international media after all but two of the international defendants were smuggled out of the country in April 2012 and cameras were banned from the court room, those involved are now willing to speak up about what really happened.

The case, they say, was always political.

Egyptian backlash at US “soft power”

“It was a fight between two countries, America and Egypt, and the defendants are in the middle,” says Sarwat Abdel-Shahid, lawyer for the National Democratic Institute (NDI), one of the US NGOs whose employees are on trial.

“The trigger was the disputed $150 million of USAID and whether any of this money should have been spent on democracy programmes,” explains a source close to the case who wished to remain anonymous. The US had previously withheld this money, the source continued, as Egypt failed to fulfil specific criteria.

Within a week of Mubarak’s ouster, US Secretary of State Hillary Clinton announced a multi-million dollar grant, some of which would go to NGOs promoting “democracy and good governance.”

A 2004 communiqué between former Secretary of State Colin Powel and tthen Egyptian Foreign Minister Ahmed Abul-Gheit affirmed that the US government could fund chosen local and international NGOs directly.

Consequently, USAID bypassed the Egyptian government, confirming to Ahram Online that it “fully distributed” $65 million to civil society organisations (including unregistered groups) in April 2011.

The millions of dollars of funding enraged then Minister of International Cooperation Fayza Abul-Naga, explains Abdel-Shahid, “who wanted the money to go directly to the ministry and be distributed as it wished.”

In August 2011, Abul-Naga and the Ministry of Justice launched a “fact-finding mission” into unlicensed foreign-funded civil society organisations. State security warned that these groups could be charged with high treason.

“It was much bigger than the government thought it would ever be,” recalls Hafsa Halawa, a British-Egyptian NDI programme assistant, who is currently facing trial.

Within hours of 17 NGO offices being raided in December last year, photos were broadcast across international news channels.

“They stripped us bare five days before the elections, during which we worked,” adds Robert Becker, the only American NGO employee who stayed in Egypt to face trial.

The same government that had shut down their offices, Becker explains, gave NDI accreditation to monitor the parliamentary elections a week later.

During the second round of elections in mid-January, the employees were called in for questioning.

“I was interrogated for hours about events that took place in 2006, when I arrived in the country for the first time in July 2011, ” explains Becker.

Halawa says that she was asked “whether I thought the US had violated the Camp David Accords by giving out the $65 million package.”

Meanwhile, Rawda Ali, another NDI programme assistant, was questioned about the “destruction our organisation had caused to the Egyptian economy.”

On 6 February, the employees described finding out they were on a list of 43 individuals facing trial from a televised press conference.

“In my 21 years of being a judge I have never seen anything like this before,” comments Abdel-Shahid about the unorthodox public announcement. None of the defendants had been informed of the charges against them before it was said on air.

“[On TV] the prosecutor called us spies, said we were working for foreign governments to spread chaos,” explains Ali. “Mostafa Bakri called for our execution.”

Their names, passport numbers, addresses and telephone numbers were then put online.

Criminally indicted, the foreigners leave

It became clear that the organisations themselves were not on trial: the employees faced felony charges as individuals. Even though, Abdel-Shahid explains, being “unlicensed” is an administrative error which under Egyptian law should be a “misdemeanour.”

“It was a technical argument. The NGO Law carries a maximum jail sentence of three months and a LE1000 fine for employees, or six months if you set up the organisation,” added the source. “They looked hard into the penal code and manipulated it.”

Many of the organisations whose employees are still in the dock were functioning for years under the watchful eye of relevant Egyptian ministries.

NDI employees told Ahram Online how they had been applying for registration since 2006 and had a letter from the Ministry of Foreign Affairs, who they frequently contacted, approving their documents.

Under this informal agreement, the NDI trained the majority of Egypt’s political parties ahead of parliamentary elections.

The head of the Supreme Electoral Commission and Court of Cassation, who had lauded the NDI for their work, Halawa says, announced in February that the 43 accused were not permitted to leave the country as they were all facing criminal charges. In response, the US government threatened to withdraw all economic aid.

The same judge then briefly reversed the felony charges, allowing the travel ban to be lifted for two days — long enough for a US government plane to evacuate all the internationals, bar one.

“On 2 March, the day after they had left, the judge threw us back into felony court … New court, new cage, new judge,” explains Halawa.

When asked how they felt about the departure of their international colleagues, there was an awkward silence. “Let’s just say I was surprised when I saw the video footage online of the plane leaving,” Halawa says carefully.

The exodus of the foreigners, who were mostly senior members of staff, had a significant impact on Robert, as he is now being charged as a manager not an employee, which could carry a heftier jail sentence.

“I wasn’t in charge. I had four bosses above me,” he told Ahram Online. “But I’m the most senior one left here in Egypt … I was just a political party trainer.”

The NDI fired Robert when he refused to leave the country.

“How dare we come to Egypt, operate and hire Egyptian staff, convince them it is a good organisation to work for and then abandon them?” he adds.

The NDI is still paying the salaries of their Egyptian employees; their bail money was covered by the USAID grant. However, after the foreigners left, “everyone was less worried.”

“I can honestly say since 26 January [2012] my direct boss has not been in touch.” Halawa explains. There have been emails and text messages, they add, but that is it.

Sham trial?

The prosecution witness statements and evidence submitted illustrate the real motive behind the charges.

“Abul-Naga gave a two hour historical testimony of Egypt-US relations over funding economic aid,” recalls Halawa. “She dug her own grave by admitting that it was all about the US Congress’s unilateral decision to move the money.”

Abul-Naga accused the defendants of allegedly colluding with opposition movements within the security forces to instigate the events of 25 January, Ali describes.

When the judge asked Abul-Naga, what her testimony had to do with the individuals on trial, she reportedly admitted to not knowing who they were or why they were there.

Hangover from former regime

The judge, however, has been fair, the employees and lawyers affirm. A change in leadership from military rule to a democratically-elected civilian president is also considered to be a positive sign.

“I think the motivations behind the case, are probably gone,” comments the source. “It was a political masquerade, an argument between a former Egyptian government and the current US administration.”

The source expects the outcome to either exonerate the Egyptians and charge the foreigners who refused to face trial, or acquit the 43 on the grounds that their work had the assent of the government.

However, the situation remains precarious.

Egypt’s new minster for international cooperation, Ashraf El-Araby, told Ahram Online that he believed that the NDI and IRI’s (International Republican Institute’s) registration applications were rejected by the ministry.

“When the two NGOs applied and they did not get a response, that clearly meant ‘No,'” El-Eraby concludes, potentially thwarting the defendants’ claims that they were unofficially registered as the government knew about their activities.

Another fear is the consequences of the “massive state media spy campaign which ran when this first broke,” Halawa explains. “A verdict of ‘not guilty’ could be interpreted as giving the US what they want.”

A brighter future for Egypt’s NGOs?

The outcome of this trial will significantly impact Egyptian civil society at a time when the legal definition of an NGO in Egypt and the issue of government control over civil society organisations continue to be battled out in the political arena.

Following the media witch-hunt, many organisations have kept a low profile, with some civil society groups putting vital foreign funding on hold, as they await the verdict.

Meanwhile, the fundamental issues that sparked the controversy have not been resolved.

Speaking to Ahram Online, USAID affirms that it “does not directly channel funding through the Ministry of International Cooperation or the Ministry of Foreign Affairs,” but rather operates its programmes and activities “through bilateral agreements with the government of Egypt.”

These agreements — and consequently not Egyptian law — “articulate how US government assistance is carried out in Egypt.”

This contradicts Minister Al-Araby’s statement to Ahram Online that the “American government understands our demand to halt transferring these funds to the unlicensed NGOs.”

The communication breakdown and fundamental difference in approach to aid could see US and Egyptian governments at loggerheads again. The question is, will more NGOs be caught in the crossfire?