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Crying out for justice

As the latest inquiry into Israel’s war on Gaza hears the harrowing testimonies of Palestinian survi

On 28 June, the UN mission investigating alleged war crimes committed during Israel’s assault on the Gaza Strip in January began public hearings in the coastal territory. The testimony of witnesses who had seen relatives killed and property destroyed in the war, which Israel codenamed Operation Cast Lead, was screened in a local hall and broadcast live on some TV channels in the Middle East. A plan to webcast the proceedings failed, for technical reasons, but a video will be made available on the website of the UN High Commissioner for Human Rights (www.ohchr.org), and another round of hearings will be held in Geneva on 6 and 7 July. “The purpose of the public hearings in Gaza and Geneva is to show the faces and broadcast the voices of victims – all of the victims,” the chair of the mission, Justice Richard Goldstone, said last week.

The emphasis is significant, because when the panel was established by the UN Human Rights Council in January, it was asked to investigate only the conduct of Israeli forces – a remit that, according to Tom Porteous, London director of Human Rights Watch, was “wrong in principle, and politically wrong”. The allegations that Israel was violating the rules of war began to surface in the first days of the offensive – it was accused of shelling civilian areas, using banned weapons such as white phosphorus, and attacking medical facilities and other non-military targets. But Hamas and other Palestinian factions were also accused of war crimes. The operation was intended to stop Palestinian militants firing rockets at towns in southern Israel – according to Amnesty International, around 15 Israeli civilians were killed by rockets fired from Gaza between June 2004 and December 2008, and another three were killed in the barrage that continued throughout the three weeks of the war. Hamas has also been accused of other human rights abuses and violations of international law, including deploying fighters in civilian homes, firing rockets from bases close to civilian areas, and conducting punitive attacks against its internal rivals.

When Goldstone was appointed chair of the inquiry in April, he made it plain that he intended to look at the ­actions of all parties, but its reputation for impartiality had already been damaged: Israel dismissed it as a “masquerade”, and refused to co-operate. Goldstone and his colleagues intended to visit towns in southern Israel to investigate the effect of Palestinian rocket fire, but were not allowed to enter the country.

Donatella Rovera, Amnesty International’s researcher in Israel and the occupied territories, suggests that this doesn’t matter greatly: Goldstone and his colleagues were able to enter the Gaza Strip through Egypt, and the territory will provide the most important focus for both parts of their work. “The situation in southern Israel is very clear, whereas the situation in Gaza isn’t,” Rovera says. The inquiry’s task is to establish which of Israel’s attacks on targets in Gaza were legitimate under the rules of law, and which were not, whereas there is no question about the status of Palestinian attacks on southern Israel: indiscriminate rocket fire against civilian targets is inherently unlawful, and identifying those responsible will not be difficult, as the Palestinian militants claim credit for their actions.

Goldstone’s inquiry is the second the UN has established into the war, in which as many as 1,400 Palestinians were killed. The first had an even more limited remit: to investigate nine incidents in which UN property was attacked, including the shelling of the al-Fakhura school in the Jabaliya refugee camp on 6 January, the day after the school opened as a shelter for civilians. The UN estimated that around 40 people were killed in this single assault. Israel said its troops were responding to fire from militants near the school, but the inquiry found no firing from within the compound or its immediate vicinity. Of the nine incidents investigated, the inquiry found Israel responsible in seven cases, Hamas “or another Palestinian actor” responsible in one, and failed to establish responsibility in another.

Porteous says the 30-page summary of the report provides “compelling evidence that the Israel Defence Forces violated the laws of war during their military operations around UN installations in Gaza”. The UN secretary general Ban Ki-moon has requested $10.4m (£6.2m) compensation from Israel for damage caused to UN property, but Porteous regrets that he distanced himself from the report’s findings: “There was a clear need for a broader and more comprehensive investigation into allegations of violations of the rules of war, by both sides.”

Goldstone’s inquiry will report in September, but since it is not backed by the Security Council, it is unlikely to lead to any further action. “We think Goldstone will come up with recommendations, but if the report hits a political brick wall, it might be necessary to take the investigation to a higher level,” Porteous says. He has called on the UN secretary general and all states that “profess to care about the vital importance of upholding the rule of law in international ­affairs” to lend their weight to the campaign to bring suspected war criminals to trial.

The Security Council’s decision to refer alleged war crimes in Sudan to the International Criminal Court (ICC) in The Hague has led to the indictment of President Omar al-Bashir of Sudan, but the model will not work in the case of Gaza. In March, the Palestinian Authority recognised the ICC in an attempt to clear the way for a full investigation into alleged war crimes, yet it is not clear whether it can do so since it is not a state, and Israel is not a signatory to the court’s founding charter.

“It’s extremely unlikely that anything will happen in the next few months,” Rovera says. She explains that the emphasis is on collecting and preserving evidence that might be used in the future. This week, Amnesty published a major report on Operation Cast Lead, called 22 Days of Death and Destruction, which concluded that much of the destruction was “wanton” and said that “children playing on the roofs of their homes or in the street . . . were killed in broad daylight” by highly accurate missiles launched by helicopter and unmanned drones. Human Rights Watch also released a report exploring six incidents in which 29 civilians were killed by drone-launched missiles.

Rovera’s assertion that “you have to take the long view” is borne out by a case currently going through the Spanish courts. On 29 January, less than two weeks after Operation Cast Lead came to an end, Spain’s national court announced that it would hear a case concerning events in the territory six and a half years earlier. At midnight on 22 July 2002, an Israeli F16 fighter jet dropped a 985kg bomb on an apartment building in the al-Daraj district of Gaza City. The target was Salah Shehade, thought to be the leader of the Ezzedeen al-Qassam Brigades, the military wing of Hamas. Shehade was killed, along with his guard, his wife and daughter, and 12 other civilians. Last June, the Palestinian Centre for Human Rights (PCHR), which is based in Gaza, filed suit in Spain on behalf of six Palestinians who survived the attack. The case depended on evidence that the seven Israeli officials cited knew that civilians might be killed in the attack, and still decided to proceed. The al-Daraj bombing was part of a policy of “widespread and systematic attacks against a civilian population”, the PCHR said, and as such it constituted both a crime against humanity and a breach of the Geneva Conventions.

Israel appealed against the decision to hear the al-Daraj case in Spain. Officials sent a 400-page document to the Spanish legal team, stating that the operation was subject to proceedings in Israel, and therefore the Spanish court should have declined to exercise jurisdiction, but on 4 May a Spanish judge announced that the case would continue. “The Spanish court rejected the claim that Israel had adequately investigated the crime,” says Raji Sourani, director of the PCHR.

Sourani stresses that the decision’s significance is not limited to the al-Daraj case: “The court also ruled that, in view of the status of Gaza as occupied territory – that is, not part of Israel – Spanish criminal law does not accord Israel primary jurisdiction over suspected Israeli war criminals.” Instead, the court affirmed the principle of universal jurisdiction, which states that torture, war crimes and crimes against humanity are so serious that they may be tried in any country, regardless of where they were committed.

Universal jurisdiction has been used in other cases, most notably that of General Pinochet, the former Chilean dictator, who was arrested in London in October 1998 after an international warrant was issued by a Spanish judge. Pinochet was kept under house arrest until March 2000, when the then home secretary, Jack Straw, released him on grounds of ill health. Pinochet returned to Chile, yet he did not entirely escape justice – there were renewed attempts to prosecute him in Chile, and by the time of his death in 2006, he had been implicated in more than 300 criminal charges.

The International Federation for Human Rights has calculated that 75 complaints have been filed or prosecutions opened on the basis of universal jurisdiction in European courts since 2006, and five offenders have been convicted. The first successful prosecution in the UK was in July 2005, when the Afghan militia leader Faryadi Zardad was convicted of acts of torture and hostage-taking in Afghanistan in the 1990s, and sentenced to 20 years in prison. Heads of state enjoy immunity from prosecution, so complaints filed against George W Bush and Robert Mugabe have not been investigated, and Human Rights Watch says that immunity seems to be extended to every sitting minister of foreign governments: in February 2004, for example, a London court rejected an application for an arrest warrant against Israel’s defence minister, Shaul Mofaz.

The provision reflects that universal jurisdiction cases are conducted in the face of considerable international pressure: “European countries don’t want to get into a fight with Israel and the US,” Rovera observes. In 1993, Belgium passed universal jurisdiction legislation for “grave breaches of international humanitarian law”, later amended to include crimes against humanity and genocide: Carla Ferstman, the director of Redress, which seeks reparation for survivors of torture, says it was “universal jurisdiction of the purest kind”, as it allowed prosecutions irrespective of where the crime took place or whether the perpetrator was in the country. It also allowed people who had no connection with Belgium to bring a case, which resulted in what Ferstman calls “forum shopping”. A flood of lawsuits, including an attempt to prosecute Ariel Sharon for his role in the massacre of Palestinian refugees in the camps of Sabra and Shatila during the Israeli invasion of Lebanon in 1982, led to revisions of the law in 2003.

Britain has also considered revising its legislation. In 2005, the PCHR filed a lawsuit in the UK against Doron Almog, head of the Israeli army southern command between 2000 and 2003, for committing grave breaches of the Fourth Geneva Convention. When he arrived at Heathrow, the British-Israeli lawyer Daniel Machover, who was part of the team that brought the al-Daraj suit in Spain, attempted to arrest him on a warrant issued by a magistrate. Almog heard about the warrant and refused to leave his plane. He escaped arrest by flying back to Israel. There are differing reports of what happened next: some say that Tony Blair attempted to bring the system under political control by ensuring that only the attorney general could issue warrants for the arrest of individuals like Almog, but others say the Blair government refused a request from the government of Israel to make the change.

The government is now considering what most human rights activists consider an improvement to the UK law: following the high court’s recent decision to release four Rwandan men suspected of genocide who were held in the UK since 2006, because of fears that they might not get a fair trial, it may introduce an amendment that would allow courts to try cases where genocide had allegedly been committed elsewhere in the world. An announcement is expected imminently, though Ferstman fears that the changes will not include provisions to try cases of war crimes or crimes against humanity.

Spain is the last European country that can hear cases where the victims are not Spanish nationals, or the perpetrator is not present in the country, but its law is also under review. “I intend to appeal to the Spanish foreign minister, the Spanish minister of defence and, if need be, the Spanish prime minister, who is a colleague of mine in the Socialist International, to override the decision,” said the Israeli defence minister, Ehud Barak, on the day the Spanish court announced it would proceed with the al-Daraj case. On 19 May, the Spanish parliament passed a resolution calling on the government to modify its universal jurisdiction mechanisms, so that cases may only be pursued if they involve Spanish victims or if the accused is on Spanish soil.

Various NGOs, including the PCHR, are mobilising resistance to the change. Had Sourani been allowed to leave the Gaza Strip, he would have given the keynote speech at a conference entitled “In Defence of Universal Jurisdiction”, held in Madrid last week. “Entire peoples cannot be consigned to the rule of the jungle for the sake of political expediency,” he said in a speech delivered on his behalf. Ferstman acknowledges that it is unfair for certain countries to have to bear the brunt of universal jurisdiction cases, though she believes that the solution is for other countries to broaden their laws, rather than for Spain and Belgium to narrow theirs.

The PCHR is now planning to expand the al-Daraj suit to include other cases of crimes against humanity perpetrated during Operation Cast Lead, though Sourani would not comment on reports that the PCHR has assembled 936 cases, and is preparing to present evidence in 13. In any case, he insists that universal jurisdiction is not merely a Palestinian issue: when Israel kidnapped Adolf Eichmann, one of the principal architects of the Holocaust, and tried and executed him, it was acting according to the same principles. “Universal jurisdiction is an essential legal tool when national courts are unwilling or unable to investigate or prosecute those accused of international crimes, and it provides a means of judicial remedy to victims throughout the world who suffer at the hands of oppressive regimes,” Sourani says. “It’s an essential component in upholding the rule of law.”

Edward Platt, a contributing writer of the NS, is completing a book about the West Bank city of Hebron. Newstatesman.com will link to a video of the Gaza hearings as soon as it is released

Related Content: Edward Platt Q&A

This article first appeared in the 06 July 2009 issue of the New Statesman, HOWZAT!

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The secret anti-capitalist history of McDonald’s

As a new film focuses on the real founder of McDonald’s, his grandson reveals the unlikely story behind his family’s long-lost restaurant.

One afternoon in about the year 1988, an 11-year-old boy was eating at McDonald’s with his family in the city of Manchester, New Hampshire. During the meal, he noticed a plaque on the wall bearing a man’s face and declaring him the founder of McDonald’s. These plaques were prevalent in McDonald’s restaurants across the US at the time. The face – gleaming with pride – belonged to Ray Kroc, a businessman and former travelling salesman long hailed as the creator of the fast food franchise.

Flickr/Phillip Pessar

But this wasn’t the man the young boy munching on fries expected to see. That man was in the restaurant alongside him. “I looked at my grandfather and said, ‘But I thought you were the founder?’” he recalls. “And that’s when, in the late Eighties, early Nineties, my grandfather went back on the [McDonald’s] Corporation to set the history straight.”

Jason McDonald French, now a 40-year-old registered nurse with four children, is the grandson of Dick McDonald – the real founder of McDonald’s. When he turned to his grandfather as a confused child all those years ago, he spurred him on to correct decades of misinformation about the mysterious McDonald’s history. A story now being brought to mainstream attention by a new film, The Founder.


Jason McDonald French

“They [McDonald’s Corporation] seemed to forget where the name actually did come from,” says McDonald French, speaking on the phone from his home just outside Springfield, Massachusetts.

His grandfather Dick was one half of the McDonald brothers, an entrepreneurial duo of restaurateurs who started out with a standard drive-in hotdog stand in California, 1937.

Dick's father, an Irish immigrant, worked in a shoe factory in New Hampshire. He and his brother made their success from scratch. They founded a unique burger restaurant in San Bernardino, around 50 miles east of where they had been flogging hotdogs. It would become the first McDonald’s restaurant.

Most takeout restaurants back then were drive-ins, where you would park, order food from your car, and wait for a “carhop” server to bring you your meal on a plate, with cutlery. The McDonald brothers noticed that this was a slow, disorganised process with pointless costly overheads.

So they invented fast food.

***

In 1948, they built what came to be known as the “speedy system” for a fast food kitchen from scratch. Dick was the inventor out of the two brothers - as well as the bespoke kitchen design, he came up with both the iconic giant yellow “M” and its nickname, the “Golden Arches”.

“My grandfather was an innovator, a man ahead of his time,” McDonald French tells me. “For someone who was [only] high school-educated to come up with the ideas and have the foresight to see where the food service business was going, is pretty remarkable.”


The McDonald brothers with a milkshake machine.

McDonald French is still amazed at his grandfather’s contraptions. “He was inventing machines to do this automated system, just off-the-cuff,” he recalls. “They were using heat lamps to keep food warm beforehand, before anyone had ever thought of such a thing. They customised their grills to whip the grease away to cook the burgers more efficiently. It was six-feet-long, which was just unheard of.”

Dick even custom-made ketchup and mustard dispensers – like metal fireplace bellows – to speed up the process of garnishing each burger. The brothers’ system, which also cut out waiting staff and the cost of buying and washing crockery and cutlery, brought customers hamburgers from grill to counter in 30 seconds.


The McDonald brothers as depicted in The Founder. Photo: The Founder

McDonald French recounts a story of the McDonald brothers working late into the night, drafting and redrafting a blueprint for the perfect speedy kitchen in chalk on their tennis court for hours. By 3am, when they finally had it all mapped out, they went to bed – deciding to put it all to paper the next day. The dry, desert climate of San Bernardino meant it hadn’t rained in months.

 “And, of course, it rained that night in San Bernardino – washed it all away. And they had to redo it all over again,” chuckles McDonald French.

In another hiccup when starting out, a swarm of flies attracted by the light descended on an evening event they put on to drum up interest in their restaurant, driving customers away.


An original McDonald's restaurant, as depicted in The Founder. Photo: The Founder

***

These turned out to be the least of their setbacks. As depicted in painful detail in John Lee Hancock’s film, Ray Kroc – then a milkshake machine salesman – took interest in their restaurant after they purchased six of his “multi-mixers”. It was then that the three men drew up a fateful contract. This signed Kroc as the franchising agent for McDonald’s, who was tasked with rolling out other McDonald’s restaurants (the McDonalds already had a handful of restaurants in their franchise). 

Kroc soon became frustrated at having little influence. He was bound by the McDonalds’ inflexibility and stubborn standards (they wouldn’t allow him to cut costs by purchasing powdered milkshake, for example). The film also suggests he was fed up with the lack of money he was making from the deal. In the end, he wriggled his way around the contract by setting up the property company “McDonald’s Corporation” and buying up the land on which the franchises were built.


Ray Kroc, as depicted in The Founder. Photo: The Founder

Kroc ended up buying McDonald’s in 1961, for $2.7m. He gave the brothers $1m each and agreeing to an annual royalty of half a per cent, which the McDonald family says they never received.

“My father told us about the handshake deal [for a stake in the company] and how Kroc had gone back on his word. That was very upsetting to my grandfather, and he never publicly spoke about it,” McDonald French says. “It’s probably billions of dollars. But if my grandfather was never upset about it enough to go after the Corporation, why would we?”

They lost the rights to their own name, and had to rebrand their original restaurant “The Big M”. It was soon put out of business by a McDonald’s that sprang up close by.


An original McDonald restaurant in Arizona. Photo: Flickr/George

Soon after that meal when the 11-year-old Jason saw Kroc smiling down from the plaque for the first time, he learned the true story of what had happened to his grandfather. “It’s upsetting to hear that your family member was kind of duped,” he says. “But my grandfather always had a great respect for the McDonald’s Corporation as a whole. He never badmouthed the Corporation publicly, because he just wasn’t that type of man.”

Today, McDonalds' corporate website acknowledges the McDonalds brothers as the founders of the original restaurant, and credits Kroc with expanding the franchise. The McDonald’s Corporation was not involved with the making of The Founder, which outlines this story. I have contacted it for a response to this story, but it does not wish to comment.

***

Dick McDonald’s principles jar with the modern connotations of McDonald’s – now a garish symbol of global capitalism. The film shows Dick’s attention to the quality of the food, and commitment to ethics. In one scene, he refuses a lucrative deal to advertise Coca Cola in stores. “It’s a concept that goes beyond our core beliefs,” he rants. “It’s distasteful . . . crass commercialism.”

Kroc, enraged, curses going into business with “a beatnik”.


Photo: The Founder

Dick’s grandson agrees that McDonald’s has strayed from his family’s values. He talks of his grandfather’s generosity and desire to share his wealth – the McDonald brothers gave their restaurant to its employees, and when Dick returned to New Hampshire after the sale, he used some of the money to buy new Cadillacs with air conditioning for his old friends back home.

“[McDonald’s] is definitely a symbol of capitalism, and it definitely sometimes has a negative connotation in society,” McDonald French says. “If it was still under what my grandfather had started, I imagine it would be more like In'N'Out Burger [a fast food chain in the US known for its ethical standards] is now, where they pay their employees very well, where they stick to the simple menu and the quality.”

He adds: “I don’t think it would’ve ever blossomed into this, doing salads and everything else. It would’ve stayed simple, had quality products that were great all the time.

“I believe that he [my grandfather] wasn’t too unhappy that he wasn’t involved with it anymore.”


The McDonald’s Museum, Ray Kroc’s first franchised restaurant in the chain. Photo: Wikimedia Commons

Despite his history, Dick still took his children and grandchildren to eat at McDonald’s together – “all the time” – as does Jason McDonald French with his own children now. He’s a cheeseburger enthusiast, while his seven-year-old youngest child loves the chicken nuggets. But there was always a supersize elephant in the room.

“My grandfather never really spoke of Ray Kroc,” he says. “That was always kind of a touchy subject. It wasn’t until years later that my father told us about how Kroc was not a very nice man. And it was the only one time I ever remember my grandfather talking about Kroc, when he said: ‘Boy, that guy really got me.’”

The Founder is in UK cinemas from today.

Anoosh Chakelian is senior writer at the New Statesman.