Speaking at the Balfour Project online 2-day conference “Israel/Palestine: in search of the rule of law” on 25/26 May 2021.
Click here to view the other speakers at the conference.
Michael Lynk:
And I think it is now my happy occasion to then turn our proceedings to a panel discussion, which I’m going to be moderating. And the four panelists we have chosen are absolutely stellar. All of them will have a great deal of add to our knowledge of this. And I’m going to give you a brief introduction to each of them and they are going to be able to fill in and provide much more detail to the application of international law.
So the first person I’m going to be asking to speak is Mr. Issam Younis, who is the Director of the Al-Mezan Center for Human Rights in Gaza. He is the Commissioner General of the Palestinian Dependent Commission for Human Rights and he is also the President of the Arab Network for National Human Rights Institutions. And I have dealt with Issam on many occasions and find him to simply be a stellar advocate for human rights.
The second person to speak will be Hagit Ofran who is the Director of Settlement Watch Project, attached to the Israeli Peace Now movement. And Hagit is the Director and she is widely recognised as Israel’s foremost expert on West Bank and East Jerusalem Settlements and she is responsible for monitoring, scrutinising, and analysing Israeli construction and planning of settlements in the West Bank.
Our third panelist today will be Ms. Sahar Francis, who has been since 2006 the Director General of the Ramallah based Addameer Prison Support and Human Rights Association. Which is a Palestinian NGO providing legal and advocacy support to Palestinian political prisoners in Israeli and Palestinian prisons.
And fourth we are going to be joined by Nada Kiswanson, who is a Swedish-Palestinian, should I also say Dutch, lawyer as well who specialises in International and Criminal Human Rights Law. And she has represented Palestinian human rights organisation Al-Haq and its partners for the past decade and various institutions such as the United Nations, the European Union as well as at the International Criminal Court. And I believe she is based in the Hague.
All four of these people have a very rich history of human rights advocacy and I’m sure the panel coming up is going to be something top drawer.
So Issam, can I ask you to start us off and show us, and please talk to us with respect to Gaza.
Issam Younis:
Thank you. Thank you so much Professor Lynk and let me first apologise in advance for any unstable connections that are from my side due to the cost of electricity now and the area that I live in. It’s almost 14 hours of cuts of electricity. So I’ll do my best to manage with that.
Well let me begin with thanking the Balfour Project for organising this important conference. I especially want to commend the organisers for their choice of the theme of this conference, measuring the distance between international law and the lived reality of the Palestinian territory. It would not be hyperbolic to say the distance is astronomical, allow me to illustrate.
For those who don’t know Gaza, Gaza is a very tiny slice alongside the Mediterranean Sea, 360 kilometers, with inhabitants of 2.2 million. 75 percent are refugees, 85 percent of these families are dependent on humanitarian aid provided by different aid agencies in Gaza.
Gaza has been for the last 15 consecutive years under a blockade and before I start my presentation, the blockade is not only a collective punishment that is outlawed under international law; there is a process of de-development as if you are taking Gaza and throw it back 60 or 70 years. By doing so, the Israeli occupation forces are sieging the future of a whole nation.
This is very inherent in the doctrine and the strategy that the Israeli government has worked on to transfer Palestinians from a nation to communities. That’s why the siege is important for Gaza, to isolate Gaza from the rest of the occupied territories and Gaza to live its own problems under the blockade: electricity, sewage system, access and in Jerusalem, the taxes that are illegally imposed, the Arnona and very discriminatory laws and building by census etc. The south of the West Bank, the settlements, the same thing also in the north of the West Bank.
So this is just the blockade in a nutshell and we could elaborate more to show how they have controlled the geography and the demography; the fragmentation that they tried their best to do. And the last 11 days has been proven to be a complete failure. The Palestinians have reunited on all levels on the two sides of the Green Line.
So it’s a complete failure, its very anthropological, very colonialist, very discriminatory and it did not last and will not last. Palestinians are a nation, they have rights and by the way our main struggle, our main cause is not a state. It is not acceptable to just summarise and just to link Palestinians only with the state. I mean Palestinians have rights and the whole struggle should be a rights-based approach, the right to self- determination and by default, the state will come and then the right to return.
It perpetrates violence in Gaza on a daily basis. You probably hear about the violence only when it escalates; namely in the full scale offensive in 2008-9, 2012, 2014 and the latest in May or during the Great March of Return protest. What the international media deprives you from hearing about is the stories of that violence, people’s lives, who they were, what those who passed away meant to their families.
During one of the long nights of Israel’s offensive in Gaza in 2014, Israeli Air Forces launched nine missiles at a house in Rafah City. At the time of the attack, my 75 year old father, my 53 year old step-mother, my brothers and their wives and children were sleeping in our family home right next to the one that was targeted. The nine missiles obliterated the targeted house, and damaged my family home, killing my father, step-mother and my four year old niece. My sisters-in-law and their children were all injured in the attack. The local media reported on the building. The international media only reported the increase in the death toll in Gaza. Human rights organisations like my own, documented the attack on the densely populated neighbourhood as one potentially violation of international humanitarian law and the rights of the victims and survivors.
But the survivors have not seen justice. No soldier, commander or government leader was held accountable for this potential war crime. There was no independent investigation, let alone prosecution. But even these terms sound stale and staged compared to what the experience meant to me.
The keyword in the occupied territory is accountability. Accountability is being intentionally thrown away, deleted from the order of the day and as long as the Israeli troops, the Israeli army is not accountable, we have warned and are still warning that the worst is yet to come.
During the Israel offensive in 2014, over 2000 Palestinians were killed. Throughout the course of those hostilities, 1066 people including 370 children were killed inside their homes, in similar situations to mine. Over 10,200 were wounded, more than 100,000 Palestinians were made homeless. Even these large figures did not trigger action by the international community, to active accountability mechanisms. I must know this failure to enforce international law was only in a petition on the failure to do so after Israel’s offensive in 2008, 2009 and 2012.
Will this failure persist? Yet again now after Israel has launched its offensive a few days ago between the 10th and 21st of May in Gaza, the Israeli military killed 253 Palestinians, including 66 children. Many of them in their homes, while they slept, without warning. All over Gaza for 12 days, entire families were huddled in hallways and living on kitchens floors, because those seemed like the safest places. But nowhere is safe in Gaza.
Usually in times of danger, people leave their homes and go for shelters or bunkers. There are none of these in Gaza. So when 150 war jets occupied the sky of Gaza, people just grabbed their hands, gathered in the kitchens if the safest place in the building.
The Israeli military destroyed 1800 homes and damaged upwards of 14,000 more. 23 hospitals and medical centres were completely or partially destroyed. The only sewage plant was made inoperable. The 12 story tower that housed Al-Jazeera and the Associate Press was blown to the ground, which meant that getting information out was made more difficult.
60,000 people were made homeless, many still living in appalling humanitarian conditions in makeshift shelters. Israel’s unlawful 14 years of collective punishment was heightened. Its devastating impacts on socio-economic culture and environmental rights for 2 million people in Gaza.
The offensive ends and Israel continues its daily forms of violence. These forms are even less visible to the outside world. There are the stories of soul-rending violations of economic, social, culture, civil and political rights that make life so much harder than it has to be.
In 2016, I was diagnosed with rectal cancer. Due to the Israeli government’s closure and blockade policy, which restricts the entry of medicines, medical equipment and healthcare expertise, as well as Israeli attacks on healthcare facilities.
The blockade again is not only a collective punishment, there is a presence of de-development. De-development is quite clear on the different aspects of the life of the Gazan. Gazan’s healthcare sector has been de-developed to a stage where healthcare for cancer and critically ill patients is unavailable in Gaza.
My only option was to leave Gaza to get the urgent treatment I needed. Now, to leave Gaza, I need an Israeli exit permit. Through which Israel subjected me to a deliberate process of delay. As you may well know, when it comes to cancer and critical illnesses, each single day of delay counts against not only the chances of survival but also the hope for it.
Besides the physical pain, I suffered from extreme stress, as did my family and close ones along with me. Through this delay I had to reschedule my appointment at Augusta Victoria Hospital in Jerusalem before Israel would issue me the permit. But even in doing so Israel denied the chance to have all my family with me. They allowed only my wife. I was denied the family support any patient, especially cancer patients, need.
But this is not the only story. In 2020, Israel either rejected or delayed 31 percent of permit applications to leave Gaza for urgent medical treatment. A relatively high success rate compared to previous years, but still five patients including one woman and two children died after their hospital care was delayed. Their stories likely went unreported and the psychological violence that their families endured as well.
Even worse, there is again no accountability despite the chronic occurrence of these events. Despite the norms that are broken under international law, despite our careful advocacy at the international level in particular with European government.
However compelling these stories may be, the conditions get worse not better and the international community proceeded with its remarks of concern but no concrete actions and Israel’s sense of impunity deepens every time the international community fails to hold it to account. The clearest example is the last offensive earlier this month.
By the way in the year 2012, just to go in depth into what it means, the blockade that’s imposed over Gaza. In the year 2012, Haaretz newspaper published a summary of what the so called Red Line Document, that was disclosed by Israeli coordinator of government activities in the Palestinian territories. This document which was released in 2008 included the calculation of the minimum number of needed calories per person without reaching under-nutrition, as the result of the siege.
In this context, there was the calculation of the minimum number of needed calories of basic foodstuff for every respective age segment that were allowed to be entered into the Gaza Strip, as well as specifying the number of needed trucks for transporting the minimum quantities.
The calculation was 2279 calories per person per day, which includes 1836 grams of foodstuffs, which means equivalent to 25,755 tons for all the residents of the Gaza Strip. This means that only a certain number of trucks are allowed to enter, carrying the specified quantities of basic foodstuffs for Gaza’s residents as based on the calculation.
On May 16th offensive in Gaza, my family and I were putting plates on the table for lunch. The food was still hot and we were about to take our seats when we were informed that we must evacuate our home and leave the neighborhood. Israeli fighters were about to bombard a nearby building. My wife, children and I had our important documents in small bags. We rushed to them and left our home for a relative’s. Myy neighbors did the same, but my relative’s house was not considered safe. We were told again to evacuate and this time my family and I went to Shifa Hospital as if it’s the safest place in Gaza, because we thought it was the last safe place to go.
During my temporary displacement, I was on the phone with the news channel and I said the world is now treating international law as toilet paper. I said that a statement of support of Israel’s right to self-defence were being sent from many concerns of Europe and elsewhere.
I must reiterate the offensive is only one case of Israel’s protected by nations of international law. My organisation Al-Mezan Center for Human Rights had been documenting these violations since the organisation was established in the year 1999. Through the two decades as had been the case before, we saw Israel continue its span the distance between international law and lived realities for the population.
I know that I ran out of time, let me say, just to end with this. Let me say this, it was in the UK at Essex University where I obtained my qualification in Human Rights. I was among the first and few Palestinians to gain such a qualification. My studies there were funded by the British government, by your tax money, so that I could help improve the situation of human rights in Palestine. If the UK continues its inaction regarding Israel’s violations of human rights, it’s contradicting its own walls of supporting any study, wasting your tax money, sabotaging my and other human rights activist work and even worse becoming complicit in the suffering of Palestinians.
So I call on you, the citizens, to challenge that. Use your voter power, freedom of speech rights and conscious sense of human dignity and solidarity to help this decades long injustice. Thank you so much.
Michael Lynk:
Issam, thank you so much. You packed a lot into the 12 minutes. I’m now going to turn to Hagit Ofran.
Hagit Ofran:
Okay, thank you very much. I would like to talk a little bit about settlements and as you all know, and as Michael explained this is one of the biggest violations of the international law by Israel but it also another way of oppression and taking over Palestinian lands and preventing the possibility for future resolution of our conflict in future two state solutions. So this is why the issue of settlement is very, very important.
I would like to talk about trends that are all going on right now and for that I would like to share with you a few slides. In addition to continuous construction of settlements all the time I think what we are seeing today is a revolution in terms of the infrastructure. I put this map of the West Bank and you can see the main road, old road that goes from south to north going through the main cities, this was the road that also settlers used to take at the beginning of the occupation.
But then came the Oslo agreement and Israel withdrew from 40 percent of the West Bank, or at least was supposed to withdraw, and the main roads that were also used by settlers were now in the Palestinian Authority territory. And the government of Rabin that was supposed to go to peace, we had an initial agreement that was supposed to end the final status agreement by May ’99, for this interim time, decided to build bypass roads so that settlers will be able to bypass Bethlehem or to bypass Hebron or to bypass Ramallah or Nablus. It was billions of Shekels that Israel spent, but what it enabled was the development of the settlement. Because you can imagine that if settlers were to live in settlements south of Jerusalem in Gushatoen area. If they are traveling every day, commuting to Israel through Bethlehem and so it traffic jams but it is also the sense of fear to be in a Palestinian town.
So now they have a highway that bypasses all those problems. And with that infrastructure, they managed to bring the settlers today in the West Bank to be almost half a million or 460,000 settlers in addition to the East Jerusalem settlers.
What we see is that these roads are already packed. And in order to develop the settlements more they need to put more into infrastructure and that is what the government of Israel has been doing in the last few years. And it was under the radar and not too many people know about it but Israel put billions of Shekels to build new roads and that is a map that only put, on one map some of those roads that could be revolutionary in terms of the development of settlements.
I’m talking about the doubling of the Tanis road bypassing Bethlehem. I’m talking about Qalandia underpass, which is another route for settlers to drive into Israel without going through traffic jams of Jerusalem etc, etc.
I think it is something that we overlooked for many years.
I want also to focus on one of the roads that has now been promoted, and I hope we will be able to stop it. But the government is saying that it is planned for the Palestinians and it’s a road between al-Eizariyah and alZa’im. This is a map of the center of the West Bank, Jerusalem and the Ma’ale Adumim settlement in the end. Today all Palestinian traffic in West Bank, if they want to drive from Bethlehem to Ramallah, they need to bypass Jerusalem from the east and the road goes to al-Eizariyah and then they need to turn east near Ma’ale Adumim and then climb up to Ramallah.
Now what the government of Israel is planning is to make a shortcut that will allow them to go on this road in black, to go and bypass without the need to go through Ma’ale Adumim. So what’s the problem with that? The problem is that the planned road, as soon as it is going to be built, the old road for Palestinians will be blocked. And all this red area East of East Jerusalem, is going to be closed for Palestinians movement. And this is around two percent of the West Bank, that Israel is planning to close down for Palestinians. And the checkpoint today for settlers in Ma’ale Adumim will be removed, they will be free to go in and out and Israel will be able to claim that the Palestinians have their own transportational continuity rather than territorial continuity and to build in the heart of the West Bank another settlement like E1.
So that is a very dangerous development that I think we should all look into. another very important development of recent years is those new farm settlements, agriculture farms. There was very little investment with very few people, the settlers are taking over huge amounts of land. They established 40 of them already in the last few years. And they control huge amounts of lands, and they go out with their sheep and whatever, Palestinian wants to go close, they will kick them out, threaten them or call the army to do it. And this way they took over a lot of land. So it’s another very problematic development that is going on.
I wanted also to take advantage of the time that I have, in order to speak about things that are happening now in Jerusalem. I think it is connected to many of the things that Michael Lynk talked about. This is a map of the Old City area, and you can see that all the brown areas are the Palestinian neighborhoods around the Old City. And the red dots are settlements that Israeli settlers managed to take. It’s houses that they built or actually they managed to take over Palestinian houses and bring in settlers instead in many, many ways. And as you all heard, in recent weeks, in Sheik Jarrah we have a huge settlement coming up and in Batin Alhawa, it’s the same story. And I wanted us to understand a little bit what is at stake and what is happening and how it works or how it looks like.
This is settlement in the heart of the Palestinian neighborhood, its one house with A flag and guards on top of it. And whenever a settler child goes to school, he is escorted by a guard that is funded by the Israeli taxpayer. This picture was taken in Batin Alhawa in Silwan, south of the Old City. This is the widest street in Batin Alhawa. All the people you see in the picture are under the current immediate threat of being evicted, all of them have court cases ongoing, with piles of papers that settlers are suing them out.
This is a picture of Batin Alhawa. Almost all of the houses you see are under threat, the settlers managed to take these three homes and others are pending. This is about 700 people. Here Sheikh Jarrah, you see all the blue houses that are already taken by settlers, and the reds are ones that are in court pending, waiting for the final decision of the court.
Here is how it looks like today, the Sheikh Jarrah area and the settlers, what they want to do, is to take over all this area, knock down the houses as soon as they complete the eviction, or the displacement of the Palestinians here and to build 300 units for settlers.
I think it’s the first time that Israel is going to have a mass displacement of Palestinians since ’67. We took a lot of land off Palestinians. In East Jerusalem, 1/3 of the land was confiscated for public use and then settlements were built on it. But we never took the land and kick out the Palestinians from their house in order to build our settlements, not in large scale, we had a house here or there. Now we are talking about 2-300 people in Sheikh Jarrah and 700 people in Silwan. What is the best news of that? It is the discriminatory law, and for that we need to go in two minutes back to ’48.
As you know in 1948, there was a war here. All the red dots that you see in this map are Palestinian villages and towns that were left behind, the Palestinians were forced out. And Israel decided by law that we will make use of all these property for the benefit of Israel and the land was confiscated and they cannot return or take back their properties.
In Jerusalem that same, we had Palestinians neighborhoods that were evicted, about 35,000 Palestinians were kicked out and a very small community of Jews in Sheik Jarrah and the Old City, around 2000 Jews, also lost their properties in that war. And they all got alternative housing in Jerusalem and citizenship in Israel, while the Palestinians, had no place to go and became refugees.
Israel annexed East Jerusalem and made it officially part of Israel in 1967, and decided a few years later to legislate a law that says that Jews can return to their houses that they lost in ’48. So this is what the settlers are doing; they manage to take possession of the original owners from before ’48. And then to sue the Palestinians out based on the ownership for before ’48 while Palestinians of course cannot do that in West Jerusalem or in Israel at large. So we see the discrimination very, very clearly. And we can start to understand why this eruption of violence started now in such a strong manner.
Also, I wanted to also say, it is not a legal matter, although the government is saying it is a legal matter between two sides that are fighting over ownership, it’s a political matter that is done through legal means. And the legal means are discriminatory and the government can stop it and I would like to give you the two ways the government can stop it.
Right now the court asked the attorney-general to give his opinion in the issue of those cases, of eviction in Sheikh Jarrah and in Batin Alhawa, and the government is now supposed to give its answer. And if the government is to say it’s fine to evict or displace hundreds of people and replace them with settlers, then it is the official policy of the Israeli government. But if they take another stand the courts will surely agree to prevent the evictions.
And another way is to confiscate the land from the settlers. If we were able to confiscate 23,000 dunams from Palestinians and give it to settlers, or to Israelis, we can confiscate 25 dunams from settlers and give it to Palestinians.
And I think the whole discourse of rights by the international law is very relevant to ensure or secure the rights of housing of those Palestinians who were living there for decades. And in good faith they went into those houses, they never stole, they are not squatters, and they are supposed to be allowed to stay in their homes, while the original owners, the settlers manage to take over, they can be compensated.
Michael Lynk:
Thank you so much. I was just looking at the chat box to look at all of the superlatives that are coming in for your presentation on the maps. So well done. I’ll now turn it over to Sahar, all yours.
Sahar Francis:
Hello and allow me first to thank the organisers for such an interesting panel. And to thank you, Professor Lynk for the legal introduction, because honestly this is the theory that our discussions and interventions would fit in to perfectly in how to really give the picture of how Israel as a state were manipulating and using international law and all legal means in order to oppress more, to keep the control over the Palestinians for decades and decades.
And it is a very short time in order to brief about the subject of the Palestinian children under the military system and in general the imprisonment and how actually the Israeli occupation were using imprisonment in order to keep this control and oppression against Palestinians in a legal way. And how they justified all the practices, like torture and other grave violations against prisoners and detainees in the name of the law and by a legal system, the military system of course, that was immediately implemented after the occupation.
So just to summarise what was going on lately in the last month and a half, since the 13th of April, when all the demonstrations and the clashes started in the middle of Ramadan, inside East Jerusalem and Sheik Jarrah and then spread into inside Israel to the West Bank and of course in them time of the war in Gaza. In this period, Israel arrested more than 2,650 Palestinians. In East Jerusalem alone it was around 550 Palestinians. Of course all these figures include children. Until now we don’t have a very accurate statistic about how many of those were just children.
Inside ‘48, just in the last two days there were intensive campaigns of mass arrests, 250 were arrested for so far in the last two days. And of course there is a decision by the state to submit charges against all these detainees based on the claim that they were attacking police or violent in the demonstrations and all charges are covered with the ideological argument that it was motivated by racist and ideological means.
Where we can find that even in these mass arrests, there is discrimination because we also have Israeli-Jewish extremists. Sometimes settlers who were coming to inside Israel in the cities like Haifa, Lydd, Ramle and other cities and also attacking Palestinians. The level of arrests within the Israeli-Jews of course is not on the same level.
In these mass arrests, there is lots of violence, there are lots of attacks and we are documenting tons of cases of people that are being injured while being arrested because the police would use lots of violence. In some cases people were hospitalised because of these injuries and including children. Most of the children that were arrested and brutally attacked in these campaigns were released after a couple of hours or within a couple of days without being charged. But of course, under conditions to be under house arrest sometimes. Or paying very high bills.
Of course in this period, the level of administrative detention arresting, and this is of course a British heritage, use of administrative detention; there was a significant increase in issuing administrative detention orders in the West Bank and in East Jerusalem. There were four cases in East Jerusalem. Because usually they don’t use administrative detention very often in East Jerusalem, but this round four people were sent for administrative detention.
In the West Bank, 84 people were arrested under administrative detention, including two children. So currently there are four children held under administrative detention; later I would explain more about the policy of administrative detention against children, specifically mentioning the case against Amal Nakhleh, the Palestinian boy whose detention was extended for the second time under administrative detention.
Currently in total there are around 160 minors, Palestinian juveniles arrested in the Israeli prisons. Of course all of them are held in prisons inside Israel. The only prison that is located physically in the West Bank is Ofer but Israel treats it as part of Jerusalem area, so they impose on the families to get security permits in order to be able to reach Ofer. This is by itself transferring the detainees into the state is violation of international law. But if we review all the policies and the laws that these children would be subjected to, it’s either the civil system inside that is applicable in East Jerusalem for those who live in Jerusalem or the military system that applies on the West Bank.
I will not will cover what is going on in the ‘48 areas, maybe we can leave it for the Q & A, but in order to highlight the discriminatory practices, even in the system itself. Of course there is a huge difference between the military courts and the civil courts and it should be highlighted that Israel so far up until 2012, were not implementing any protections for Palestinian children in the military justice system. Even defining a child up to that year was 16 years old and not 18 years old. Although in 2010, they invented the military court for juveniles. But this court definitely is not respecting all the measures that the international treaty, the convention for the protection of the children, is talking about.
So lots of rights actually are not respected and violate the international standards of a fair trial. Juveniles could be interrogated in Arabic but in some cases the confession is written in Hebrew or even if it is written in Arabic, there is no obligation when it is considered a security case to photograph the interrogation session, which means we don’t know what is going on in the interrogation with these juveniles in real time. According to the Israel criminal code, it’s a must that you cannot interrogate a child overnight, you can not interrogate a child without the presence of one of its parents, you have to take pictures and audio or video tape of the interrogation and so on. There were court decisions, even in security cases against Jewish settlers boys, those who were involved in the case of the burning the Dawabsheh family, that the court decided to cancel the confessions because of the use of torture.
This has never happened in the case of Palestinian juveniles, of course the opposite. The Israeli military courts or the military governor by changing the laws. Or even inside Israel. Wen they changed Israeli criminal code in relation to some of the crimes in the case, because of the case of Ahmad Manasra. Because Ahmad Manasra was arrested and charged with the charge of attempt of killing and he was less than 14, and because according to the Israeli law he wasn’t supposed to be kept in detention until the end of the trial. So, because of his case, the whole law was changed in order to give this opportunity that they can keep a Palestinian child in detention until the end of the trial. Later on he was convicted and sentenced to 12 years and a half.
There are lots of examples from the legal system that we can bring to argue about this discrimination policy. But I would also give some attention to the real conditions of these children held under detention in the Israeli prisons. As I said that are all inside the state of Israeli and in the last year and a half, even more because of the spread of the COVID of course all these children were banned family visits because of the Coronavirus spread andeven now, when the situation in Israel is much better, families from the West Bank, because they didn’t get the vaccine, they are not allowed to be entering to visit their children.
And we, Palestinian and Israeli NGOs, we had to petition the Israeli high court in order to guarantee a phone call for the Palestinian children to be able to call their families instead of the family visits. So one a month or every two weeks, the Palestinian children would get, because usually Palestinian prisoners are not allowed to get phone calls while under detention in the Israeli prisons. So the exception was just made for the Palestinian juveniles.
Of course now all the juveniles, in these days face lots of harassment, collective punishments when it comes to restrictions on their ability to go out for recreation, because there are claims that they were committing violations for the prison rules. The health conditions inside their cells, like in the Damon Prison for example; this prison is very old and the building itself is not suitable for being a prison having children and it was supposed to be shut down but they keep using it as a prison.
Of course there is no special education, no special rehabilitation offered for these children. Imprisonment would be the most used sentence. This is also a violation and this discriminatory policy if we compare it with the Israeli system, where rehabilitation and psychological, social support would be the most common practice by the courts and not the real custodial imprisonment.
In the last couple of days, we reported, as I said very severe attacks and harassment against some of the children and three actually in the last couple of weeks were sent administrative detention but Amal Nakhleh, the Palestinian boy from Ramallah, he is 17 years old, was arrested in the beginning of the year, in January. And he was sent for administrative detention. The uniqueness in the case of Amal, is that Amal suffers from a very serious illness. And he is under a very serious threat. Amal has a problem in hi, myasthenia gravis its called and this has caused his immune system to be very weak. And any effect by any virus could be a very serious threat to his life. Especially after the COVID spread. And still Amal was sent for, at the beginning, six months administrative detention, because they claimed they had secret information against him. We were expecting after reducing the order to be four months, that he would be released.
Hhe was arrested in November 2020, charged with throwing stones. And then we managed to release him because of health conditions under bail until the end of the trial. So two months after he was rearrested and sent for administrative detention, so currently his is under administrative detention and at the same time he is facing a trial.
I would end that just by saying that the issue of the prisoners and all the associated practices on the level of torture, and other violations, that some of them are definitely arbitrary detention, transfer amounts to war crimes. So besides the legal work that the international organisations or local Palestinian and Israeli organisations are doing, I think there is a chance, especially now after all what we were getting through in the last month, that we have to put more pressure, diplomatic pressure and public pressure, on the state of Israel in order to really seek the accountability that we need in order to make them respect their responsibilities under international law and stop all these violations. Definitely stopping the occupation, like after hearing Professor Lynk and his analysis of this prolonged occupation, I don’t think that we can allow this occupation to continue.
And definitely with what Hagit was describing about the land control and the current eviction of hundreds of Palestinians, this is another Nakba, and this is what caused all the latest demonstrations. Thank you.
Michael Lynk:
Thank you Sahar, very much for that. A great overview of a very tough topic to want to listen to. I now turn to Nada.
Nada Kiswanson:
Thank you Michael and thank you to the Balfour Project for organising this important conference. I’m invited to present on accountability and I will do so in my capacity as legal council for Palestinian victims before the International Court. I will focus in my presentation on the recent escalation of violence, guarantees of non-discrimination in the application of the law, and the UK’s position on the situation in Palestine at the International Criminal Court.
In recent weeks, people in governments from every corner of the world have witnessed the subjugation of Palestinians. It appears from the information available to us, that the bombing of the locked in Palestinian population in the Gaza Strip violated cardinal rules of the laws of armed conflict; such as different rules of precaution, proportionality and distinction between civilians and combatants.
Customary international law which is binding on Israel and Palestinian armed groups, prohibits attacks that result on incidental loss of civilian life and damage to civilian objects where it is excessive to the concrete and direct military advantage anticipated. Such concrete and direct military advantage has not been offered by Israel for its attacks on, for example, multi-story residential buildings, one of which housed international media offices of the Associated Press and Al-Jazeera.
The bombing of the Gaza Strip was preceded by raids on the Al-Aqsa Mosque compound and the attempted forced eviction of refugee families from their homes in East Jerusalem. The attempted displacement of Palestinians from Sheikh Jarrah which coincided with Nakba Day brought back painful memories of the mass expulsion of Palestinian in 1948 and 1967.
The escalation of violence that grabbed the world’s attention, in the recent weeks, compels many to revise the narrative of an even-handed conflict and a dispute over borders, a narrative that has been feed to people in Europe over several generations. It also reinvigorated calls for accountability. UN Special Rapporteur Lynk recently described accountability in a report to the United Nations as quote ‘the institutional check on the exercise of public and private power on behalf of the common good, and an indispensable component of the rule of law’.
And as illuminated in that report, accountability encompasses countermeasures, such as financial sanctions and armed embargoes. For the hundreds of Palestinians that I have had the privilege to represent in a recent proceeding before the International Criminal Court, the term accountability means just retribution, truth telling and reparation. For them it is a matter of holding perpetrators criminally responsible for war crimes and crimes against humanity, crimes that the international community have agreed are heinous and therefore concern every state and must be punished.
Palestinian victims are rightfully unapologetic in their call for justice. They seek what others take for granted, namely the non-discriminatory application of the law. If you were robbed of your belongings, kicked out of your home and strangers took it over, your initial response would rightly be to contact the police and see the culprit apprehended and tired and for your home to be restored. If your siblings were murdered, you would not rest until the murder was put behind bars. And if police tortured and detained your children, you would sue the state and demand a change of laws and overhaul of police procedures.
The United Kingdom is a founding member of the International Criminal Court. It espouses human rights, justice and the rule of law. But these commitments ring hollow when applied selectively and the United Kingdom stance on the ICC Investigation in Palestine, shows that the United Kingdom makes an exception for Palestinians.
The prosecutor of the International Criminal Court is an independent and objective authority, mandated by states, including the United Kingdom through the Rome Statute to, “establish the truth.” The prosecutor concluded in 2019 that there exists a reasonable basis to believe that Rome Statute crimes have been committed on the occupied Palestinian territory. And the prosecutor pointed to acts and conduct of the Israeli army, the State of Israel and Palestinian armed groups.
We have just had the privilege to hear from the ground accounts of such acts including the unlawful transfer of settlers, land appropriation and wilful killing. And in February of this year ICC judges confirmed that the court may exercise jurisdiction over crimes committed in the West Bank including East Jerusalem and the Gaza Strip.
In response to this decision the British Prime Minister Boris Johnson wrote in a letter in April that the United Kingdom aims to bring positive change to the court. And referred in this context to the appointment of two British nationals to the positions of ICC judge and ICC prosecutor. And said that their appointment will, “help serve reform.”
The letter does not explain what positive change the UK seeks nor the meaning of reform that its UK nationals will contribute to. But the Prime Minister’s statements were followed with a declaration that the United Kingdom opposes the ICC investigation into war crimes in Palestine. And that this investigation gives the impression of being a partial and prejudicial attack on a friend and ally of the UK.
The letter by Boris Johnson on behalf of the UK Government is cause for serious concern. It suggests that the United Kingdom doesn’t respect the principles of prosecutorial and judicial independence. It exposes the UK’s discriminatory approach to the law when it comes to Palestine. And it smells of exceptionalism. It gives no attention to the fact that the prosecutor and the pre-trial chamber have upheld the court’s legal text and acted in accordance with its mandate without fear or favour.
It is incumbent on the prosecutor and judges under the Rome Statute to apply and interpret the law in accordance with human rights and without any adverse distinction on grounds such as gender, age, race, color, religion, national, ethnic, racial, social origin or any other status. International humanitarian law, human rights law, the International Criminal Court, that recognise equal treatment under the law, are conscious of the dangers of the discriminatory application of the law.
It is a simple truth that injustice anywhere is injustice everywhere.
If paths to justice are closed off, if we deprive Palestinians of the opportunity to seek judicial and peaceful resolution and remedy because of their identity and the identity of the perpetrator, then we’re undermining the greater concept of justice and human rights.
A selective approach to accountability in the context of the occupation of Palestine also bolsters an already existing situation of apartheid along racial and religious lines.
Human Rights Watch’s new report on apartheid and persecution of Palestinians provides a meticulous legal analysis for those interested. Human Rights Watch conclude in their report that Israel, “methodically privilege Jewish Israelis and repress Palestinians.”
We must remember that Palestinians have already been denied remedy through the Israeli justice system. The UN Committee on the Elimination of Racial Discrimination found in a decision last month that Israel’s judicial system is, “illegitimate, futile, unavailable, ineffective and insufficient.”
The Rome Statute provide a wide array of opportunities for both state parties and non-state parties to challenge decisions by the judges and the prosecutor. No one has challenged the latest decision on an investigation in Palestine. It is the strict obligation of the United Kingdom to respect the judicial disputes resolution mechanisms set out in the Rome Statute. And as a party to the Rome Statute the United Kingdom has no choice but to cooperate with the court even if it disagrees with it. In addition to respecting and cooperating with the International Criminal Court, the United Kingdom remains under a legal duty to actively pursue perpetrators of grave breaches of the Geneva Convention and ensure that those grave breaches are brought to an end.
When the ICC prosecutor confirmed the initiation of an investigation in the situation of Palestine this year, she stressed that our central concern must be to the victims, both Palestinian and Israeli. I can not agree more. In making victims a central concern and by upholding the rule of law, the United Kingdom will protect and respect the dignity of the victims as well as the dignity of the United Kingdom itself.
Thank you very much for this opportunity.
Michael Lynk:
Thank you very much for that. I’m going to call all four of the panelists back in. I have one or two questions I want to pose to all of you. And then I’m going to start going through some of the many, many questions that have been forwarded on to me asked by our audience. And a lot of these questions are thoughtful, rich in both historical knowledge or legal knowledge. And I’ll put them to you.
But I’m wondering if I can use as a segue what Nada has just talked about. Nada’s emphasis obviously has been on accountability or the lack of it. If you don’t mind, I’m going to read something that I have in one of my most recent reports. And I’m then going to turn to each of you, perhaps in the order in which you’ve spoken, to react to this with respect to international law and accountability.
A year ago I said: “No occupation in the modern world has been conducted with the international community so alert to its many grave breaches of international law, so knowledgeable about the occupier’s obvious and well-signaled intent to annex and establish permanent sovereignty, so well-informed about the scale of suffering and dispossession endured by the protected population under occupation, and yet so unwilling to act upon the overwhelming evidence before it to use a tangible and plentiful legal and political tools at its disposal to end the injustice.”
If I can ask each of you starting with Issam. How is it that we have an occupation… I don’t think there’s an occupation or conflict in the world where there’s been so much legal attention and so much legal pronouncement on what is going on, yet so little follow through in terms of translating those declarations and proclamations of law into meaningful activity?
Issam Younis:
Thank you, thank you so much. I think first the problem is not with the information. You, Mr. Lynk, rightly put it, it’s not not having access to what’s going on. No one would claim that he or she did not know what happened in the occupied territories.
For example, the last three decades international law has been sacrificed under the pretext of give peace a change. I think we are in the era of the harvest of sins where international law was intentionally, not only put aside, but has been smashed by force and by the way that power has been employed.
And I think everyone has tolerated what’s going on. No one wants to move a step forward, to reconsider the re-engagement with this part of the world. We have to be the victims of the victims of the Second World War. Everyone is happy with that.
For example Gaza, Gaza all the years long has been transferred to be a humanitarian case. Definitely, the humanitarian crisis is very deep, but it’s human made, it’s not an earthquake with Gaza. It’s because of the system, the regime of the blockade that was imposed over Gaza. It’s a collective punishment. How they reacted to this by sending more money, they love to play the role of the donor. No one wants to play any pressure to put an end to this. And for us Palestinians, to be honest, justice is a human act. And we accepted what civilized nations have accepted and we refuse what they refuse.
The ICC is just one example. The minute we approach the ICC… and the ICC is not an end by itself by the way…As Nada reported, the Israeli justice system when it comes to the Palestinians, to the victims… no access, no way to pursue justice through the system. Then where to go?
Imagine someone’s home was destroyed in 2008 and then when he reconstructed it was again re-destroyed in 2012 and a family member was killed in 2014 and then justice has not yet been achieved, no reparation whatsoever. The legal centre is occupied. And the occupying power is not free hand to use whatever it thinks it can use.
It’s the moment of the truth… either or… Either the international peace and security will dramatically jeopardise by this what Israel is doing. And let me be frank and end with this, I think it’s the moment where Israel should be liberated from itself.
History now for decades, aggression for decades. Those on the ground, rep offices, international organisations, I mean representative offices, they know and they report back. When we are in Brussels for example, the people there say, “no, it’s the capitals, the problem is the capitals.” And when we are in the capitals they say, “No, no, no, it’s Brussels.”
It’s too much. And we’re fed up with this. And I think it’s the moment of truth. Either to change this reality or the worst is yet to come. We said that a couple of months ago that the worst is yet to come. And we are in the eye of the storm. And again, we’re alarming the UK and its diplomatics, foreign ministries. The worst definitely is coming. If Israel feels that it’s immune, above the law, moral superior and others provide legal and political cover. You are not doing any good for Israel by tolerating war crimes and crimes against humanity. It’s the time to put an end to this. And I think it’s time to protect civilians on either sides. Civilians should be protected, this is international law.
Thank you.
Michael Lynk:
Thank you Issam. You remind me of what John Kennedy said in 1961, where he said, “He who makes peaceful reform impossible makes violent revolution inevitable.”
Hagit, I wonder if I can now turn to you with respect to that question, particularly in the context of settlements. As we’ve said, there’s probably no greater international consensus than the fact that the Israeli settlements are profoundly illegal under international law. Yet very little is done to be able to curb their existence, let alone their growth.
Hagit Ofran:
So I think international law is only one tool to affect the world. We have political tools, we have public opinion issues, we have violence unfortunately also mobilising people to do things not always in a positive way. But law is only one way. And even in regular law the very existence of a law system is not preventing the crime. So it’s one tool.
And also we should remember only now we do we get to a real investigation against the Israeli occupation. So maybe it will give some fruits to this occupation. I think we should use all the tools that are available. For instance, we are trying in Peace Now in Israel to affect public opinion, to try to persuade Israelis that we should end the occupation.
And I think our biggest problem today is the despair. And it also goes to the international law because I think people are so much despaired of our conflict and say, “Oh, it will never be resolved.” And whenever I speak about two state solution, “Oh, it’s dead already. And in Israel discourse the Palestinians will never agree. And Palestinian discourse the Israelis with never agree. And so why even bother?” And so people read the reports, they know what’s happening, but they don’t feel that there is any urgency to do something because it seems so hard and so dead.
But at the same time, Israelis, we’re the occupiers but I think the majority of the Israelis don’t want to be the occupiers. And although the settlers have so much power and support in Israel, the majority of Israelis don’t care about settlements, never visited the settlement, don’t look at it at all. But our problem is that we are trapped in this psychology of conflict that it’s us or them. And if they score points, we need to score back. And if it’s bad for them, it must be good for us. And all this psychology which is very, very hard to undo. But I’m sure that as soon as there is leadership in Israel that will say, “Okay, enough. We are out of the occupation. We are ending it. We’re going to have a peace agreement with the Palestinians.” I’m sure the majority of Israelis will support it and will say, “I was always against this occupation.” This is why I’m still optimistic.
The problem is people say, “It’s not that we don’t see the light at the end of the tunnel, we don’t see the tunnel.” So I’m trying to keep the light on and I hope that sometime, maybe soon, we will find ourselves in the tunnel.
Michael Lynk:
Thank you for that. Sahar, I wonder if you can talk about the issue of the gap between international law and accountability with respect to the work you do with prisoners and with children.
Sahar Francis:
I think the issue of prisoners reflects perfectly the hypocrisy at the international level when it comes to the political will and the political decisions of states to implement international law and to use this tool. Because I think when all the states in the UN agreed about these rules and standards at the international level, whether the Fourth Geneva Convention or all the international human rights treaties, they were really willing to make the world look better.
But when we see how they react when there’s a case of a Palestinian prisoner and they start to argue, “but this is terrorism.” So for me it’s really very frustrating as a lawyer and a human rights defender that wants to seek accountability for torture for arbitrary detention for prisoners who dies out of health neglect and so on.
Also in the international level it seems that there’s no interest for the states to act because it’s not affecting them directly, I mean their interests, in the way that pushes them to make decisions and to take steps. As it is not effecting the Israelis inside the state of Israel in a way that it causes them to go out against their own government to put an end to this occupation. Because I don’t think that it’s a problem of information, neither the Israelis neither the international community can claim that, “we don’t know.” They know. They don’t want to act.
And again, I think all that happened in the international arena after September 11th and all these arguments for the United States and the development of the war against terror, I think it undermined the discussion over the Palestinian cause and self-determination and most of the international standards in relation to the right of people to go against colonialism and apartheid and to seek self-determination. And this is why they are tolerating at the international level this treatment with the prisoners including with children because they consider them as terrorist people and not people that are fighting for their self-determination.
Not all the 5000 Palestinian prisoners that currently are sitting in the prisons are associated with serious activities that is affecting the security of the occupying forces in a way that it justifies arresting them and prosecuting them for international law violations.
The majority of these prisoners are arrested because they were students active in the university, human rights defenders, political leaders, civil society organisers, even workers in human rights organisations. All of the human rights organisations now are under attack and facing a smear campaign because of our legal work in order to seek accountability via the international tools that are available for the rest of the world in the international UN system.
Michael Lynk:
Thank you Sahar. Nada, if I can turn to you. Accountability is actually your topic. How would you address the question of why is there such a large gap between the detailed and thick rights international laws guarantees, particularly in this conflict, and the lack of accountability and the prevalence of impunity.
Nada Kiswanson:
I think the problem is very much the Achilles heel of international law which is the lack of enforcement mechanisms. In international law, for it to be respected, states need to be willing to act in accordance with its words, to do as it says. And in relation to Palestine/Israel, unfortunately there is unwillingness to step up and ensure that states and individuals responsible are held to account. Even at the International Criminal Court it also depends on domestic mechanisms, domestic authorities to arrest and extradite individuals that have been indicted.
And so the problem is quite crucial and quite large and it relates to the way in which international function, not only in relation to Palestine but in the general, what international law is in the world order today.
Michael Lynk:
Hagit, if I can start with you. There’s a question one of the listeners has asked, they want you to explain the 1970 law which allows Israeli Jews to be able to claim their pre-1948 properties. And they want you to explain in the context of the 1950 law the absentee property law which forbids Palestinians who lost property in the 1940 war to be able to do the same.
Hagit Ofran:
Well, the law is not saying Jews are allowed, Palestinians are not allowed. We have a more sophisticated way to do it. In 1950, the definition was properties that their owners are in enemy countries. Now, for instance, if you are owning a house in Jerusalem but living in America, like a Jewish American, you can continue to have possession of it. However, if you live in Syria or in Jordan or in any Arab country which were considered enemy countries, you are an absentee. That was the way it was defined.
And in 1970, the law was only valid in East Jerusalem. It’s a law that was meant to arrange a few issues of the newly annexed territory to Israel, which is East Jerusalem. And it says that properties that were under the control of the Jordanian custodian of enemy property will be released to the original owners.
Now, only Jews had such properties. The Palestinians in East Jerusalem never lost their properties under the Jordanian time. And this is how it was done, so the discrimination is not said by words but is very, very clear.
Michael Lynk:
Thanks for that. Issam, if I can ask you a question that’s been posed. What are the current condition in Gaza, in the aftermath of this bloody violence? And what are the immediate humanitarian challenges facing Palestinians in Gaza?
Issam Younis:
Well, as you know Gaza is under a very severe, unprecedented blockade for 14 years in a row. It’s unprecedented since 1967. With very serious dynamics on the different aspects of daily life. And imagine a situation under this blockade, Gaza has witnessed four offenses. The recent one which lasted for 11 days, I think the intention of the conduct of hostilities, their conduct of war, was very much intentional to inflict more destruction on the community.
I mean, the next day when this is fair to be concluded, Gazans goes to the streets to see the horror, to see the huge and large-scaled destruction… then they are shocked and that’s it, finitio. It’s very, very serious and I think destruction was everywhere in the Gaza Strip.
Again, Gaza, the number of people is 2.2 million living is such very, very densely… the most over-populated area on earth. Before the recent offensive as I said 85% of the people are dependent on humanitarian aid that is provided by many of the humanitarian agencies. The number of people that were killed, I mean we presented the figures and 66 children. Families have been eliminated when they destroyed homes on top of those who were living there. So families have been just deleted from the civil registry, they are not anymore there. Babies, children, all… Al-Qolaq family and Abu al Ouf family, 33 family members were killed just when someone decided to bombard a very residential building in the heart of the very residential area in Gaza, in the Rimal area. The Rimal situation is very deteriorating, very devastating.
And today the Israelis allowed the four bodies of, the four bodies of those who died in hospitals, who were transferred to Israeli and Jerusalem and West Bank hospitals and then they were not allowed to return back to be buried in Gaza. But finally we succeeded in having them in Gaza.
Very severe restrictions on the movement. Electricity, as you know, with the destruction of the network and the station is almost collapsing. Yesterday we had some shipments of industrial diesel. We hope that the number of hours could be improved, now it’s only two to three hours per day in the whole Gaza Strip, otherwise it’s blackout everywhere.
And you already know the system, the infrastructure is very deteriorating, I’m talking about the health system. Gaza can not cope with the number of casualties, injuries… it’s too much. And in the middle of combating COVID-19. Again, it has nothing to do with security. One could here invoke many, many examples. And the situation is really very, very difficult and destruction is everywhere. And without elevating the crisis, immediately I think it would be very catastrophic.
Michael Lynk:
I can just ask a follow-up to Issam. You’ve mentioned COVID-19 and I saw several pieces yesterday which talked about the fear that in the next several weeks there may be a even further spike in the spread of COVID-19 because so many people, at least 70 000, were gathering in very densely packed shelters, many without masks and in very close proximity to one another. And as we know, I think less than 2% of the population in Gaza has received even their first dose of a vaccine. Among the people you’re dealing with, human rights defenders and health professionals, is this a fear that COVID-19, because of the war and the disruptions with respect to the vaccination, but also what it meant in terms of people sheltering together, may wind up causing a further spike in COVID-19?
Issam Younis:
These days, it’s a real fear and it’s really very risky at the moment. Due to this huge destruction and the offenses over Gaza, destruction was everywhere including by the way the only lab for COVID-19 tests that has been attacked and I think have been dramatically jeopardised, I don’t know to what extent it has been fixed but I think it’s the only one in Gaza. The Rimal clinic was hit and was affected by that. Now, many thousands are in UNRWA schools, they fleed their homes or their homes were destroyed. And they are just gathered in very inhumane conditions. So there is a real, real risk that it might re-spread the pandemic. And again the vaccination, Israel doesn’t feel under obligation as an occupying power to furnish protected civilians with the needed vaccines. But Gazans could buy it and then you engage with the Israelis to negotiate whether they would allow them or not through WHO or others. So the situation is very, very serious before the offensive. And now it has been intensified and there is real, real potential risk in this.
Michael Lynk:
Thank you for that. Sahar, if I can turn to you with one of the questions that has been posed. Is the legal administrative detentions that you’ve referred to, do they also extend to children? Are there children in administrative detention in the Israeli prisons either in the West Bank or in Israel itself?
Sahar Francis:
As I said, Palestinian children in the administrative detention, currently there’s four. And of course 2015 was the first time when Israel used administrative detention against children in East Jerusalem. They arrested five children then under administrative detention. I don’t think it was used inside Israel against children. And inside Israel so far there’s no one single administrative detainee currently. It could be used against Israelis but it’s restricted and it’s really used in a very, very limited way. You would find like one person sometimes and there’s lots of years that there’s no one. Although, in these last weeks the prime minister was threatening that maybe they should use administrative detention but still they didn’t use it so far. All the detainees that were arrested from inside Israel, whether Arabs or Jews, were not subjected for administrative detention. Administrative detention could be used in the West Bank and East Jerusalem against everyone, women, men, children, elderly, Palestinian legislative council members. Anyone could be subjected to administrative detention.
Michael Lynk:
Thanks for that. Nada, if I can turn to you. One of the areas where you developed an expertise on is on the International Criminal Court. And I think you’ve said before that international law is self-evident but it’s not self-enforcing. The only area it seems right now for judicial accountability for what’s going on in the occupied territories are the various complaints at the International Criminal Court. I wonder if you can tell us what the chances are of those proceeding and where they are right now. And I wonder if you can also talk about whether or not you think there’s a chance that what’s going on in the last month may be added to the files that are before the prosecutor.
Nada Kiswanson:
Yes, sure. So the preliminary examination in the situation in Palestine was opened in 2015. And it took the office of the prosecutor close to five years to conclude a preliminary examination. The preliminary examination is a process in which the office of the prosecutor determines whether the office has jurisdiction, the court has jurisdiction over crimes and whether or not certain acts amounted to crimes under the Rome Statute.
Now, in 2019, the office of the prosecutor concluded that there was a reasonable basis to believe that crimes had been committed on the Palestinian territories, but that the prosecution office wanted to be certain that there were no jurisdictional barriers to the office to exercise their mandate.
And so they asked for the views of the judges. And for more than a year, the issue as to whether or not the prosecutor may exercise jurisdiction, may open an investigation, let me put it that way, may open an investigation over the Palestinian territory was litigated. There were an unprecedented number of amicus, so-called friends of the court that put forward their views on this matter, as well as around a thousand victims and of course also the prosecutor and the State of Palestine.
Now, the State of Israel could have engaged in this process but chose not to do so directly. However, there were a number of organisations and leading figures that argued in favour of the court not having jurisdiction.
We’ve received this year the decision that really allows the prosecutor to proceed with an investigation, confidently, into crimes committed on the Palestinian territories. Now, the way that the International Court functions is that it allows jurisdiction over a territory regardless of the nationality of the individuals that committed the crime on that territory. So in this situation both Palestinians and Israelis can be held to account.
With respect to the recent escalation on violence, the prosecutor investigation goes back to 14 June 2014 if my memory serves me right. And there’s no end date. So technically the office of the prosecutor can stretch the investigation to cover recent events. And I believe that it is important that it does so. I think that it’s very pertinent here to mention that the prosecutor herself issued a statement when the escalation of violence was at its peak and warned and reminded everyone that an investigation is open and this matter is before her.
I think it is crucial that the court not only addresses past crimes but also looked at ongoing ones and future ones. And in doing so really applies the deterrent aspect of her mandate. Because, I believe, that the International Criminal Court is not only there to punish but also to prevent crimes from being committed. And it can only do so if it also looks forward.
Michael Lynk:
Thank you for that. I have two questions that had been asked at me and let me see if I can do this in an efficient way. One question asked, “Why has international law not been featured in the Middle East peace process? Is there a danger that the established universal rights will be eroded by preventing its use?”
And I certainly agree with the sentiment. Back in the summer of 1967, and this has become a familiar story for those who pay close attention to the Middle East conflict, shortly after the Six-Day War, shortly after the capture of the Sinai, the Golan, the West Bank, East Jerusalem and Gaza, the legal advisor to the foreign affairs minister, a well-know jurist, Theodor Meron, was asked to provide a legal opinion as to whether or not Israel could start building civilian settlements in these territories. And his advice was basically, “You can, but you got to be very careful and you’re probably going to have to invent reasons because they skirt international law.” And he said to the cabinet in his advice that Article 49 paragraph 6 of the Fourth Geneva Convention, which I’ve mentioned to you before in my presentation, forbids the placement of civilian settlements by the occupying power in the occupying territory. So his advice was given. The advice was ignored. The advice when he said you have to look for other, perhaps more covert, justifications tended to be followed.
And that I think is the stream right until today, it’s the common thread that runs throughout. Israel has recognised that the law is not on its side when it comes to annexation. It’s not on its side when it comes to building the settlements. It’s not on its side with respect to its refusal to apply the Fourth Geneva Convention, and in a range of other areas as well.
So when Israel has been induced to engage in various peace processes beginning with the Madrid/Oslo process in the early 1990s, it has argued and persuasively to the United States, which has been, I guess, the overseer of virtually all of these peace processes, that the issues to be discussed must be done in a general way and they must not be tied to international law. So there may be sometimes passing reference in any of these documents to Resolution 242 from November 1967 and perhaps to a few other general comments on law. But international law is not meant to be the centrality or the core framework of how these are to be done.
If that was the case, then Israel could not negotiate over East Jerusalem, it could not negotiate over the Golan Heights or the settlements. It would have to admit under international law all those actions were illegal. And would have to negotiate only on how quickly it should be ending the occupation and that the new borders of Israel would go back to the pre-1967 lines.
The fact that the United States allows Israel to be able to argue outside of the framework of international law, the fact that the US and to a lesser extent the international community allows all of these various interim agreements to be done without direct and singular reference to international law means in effect that the international community has been giving permission to Israel to wind up continuing with the occupation.
The second question I was asked was ,‘international law forbids de jure annexation of occupied territory. De jure means the formal, legal declaration. Which is what the Trump plan was promising. But he goes on to say that Israel has de facto, in actuality, annexed large parts of the West Bank through settlements. How does international law apply in those cases?’
And it’s very timely that you’re asking this question. Because we’ve been witnessing an extraordinary debate yesterday and today in the Irish Parliament, where there’s a resolution before the Irish Parliament saying that de facto annexation has the same illegality in international law as de jure annexation. And this in fact has been agreed to by the Irish foreign minister.
This is a major step among western countries. Ireland is to my knowledge the very first country to say de facto annexation is annexation and as illegal as the de jure annexation.
It’s a point that I have made. It’s a point that a number of human rights organisations have made over the last decade or so. And I’m pleased to see that a country like Ireland, which is consistently on many issues internationally, is punching above its weight and now of course has a rotating seat on the Security Council, is beginning to articulate this both in the hallways of the United Nations and also in the hallways in Brussels as well.
So let’s hope that that spark being offered by Ireland is going to start finding its way into EU policy and into UN resolutions as well. It seems to me that this makes the most uncommon of common sense that if an acquisitive occupying power is actually laying facts on the ground to try to make way for a future de jure annexation claim, it’s going to start by creating these illegal facts on the ground. And that itself is illegal.
So if we can begin to say, “Well, Israel didn’t claim a de jure annexation in the summer of 2020 as it had promised to. Therefore, we can all sit and take a deep breath and relax.” No. The fact that there are 250 plus settlements with 480 000 Israeli settlers in the occupied territory means in itself that there’s active annexation going on and that this occupation now has become indistinguishable from annexation.
Let me just ask a question which I’m going to invite any of you to want to address. The question is this: defenders of Israeli actions always cite security reasons for their actions. And they criticise those who talk about human rights in Israel’s violation of international law as ignoring these security needs. How does a human rights approach deal with this?
I’ll invite any or all of you to address that. I’m going to go with Sahar because she’s had the biggest smile on her face with respect to that. So do you want to go first, Sahar? And then I’ll invite others to add to what your answer is.
Sahar Francis:
Actually this was the magic word that Israeli cohorts, especially the Israeli high court, used for decades to justify the policies of the state violating the Palestinian rights in illegal manner, that security needs and the security arguments.
I would just give an example of the torture case, the Israeli high court famous decision of 1999 by Justice Aharon Barak was justifying that special techniques would be used against Palestinian prisoners, Palestinian detainees, torturing them in order to protect security under, what so far was called the ticking bomb scenario. Although Israel signed and ratified the convention against torture, it never was absolutely prohibited in the Israeli legal system. So by another way actually they legalised the use of torture in this way by using this term of security.
So how you can as a human rights organisation discuss this security need, when we are talking about torture and ill treatment that there’s no justification in the international law that developed in the international level, not a war situation, not any kind of justification of the use of torture. Why we should accept the fact that the State of Israel is trying to justify torture under the pretend of their security, to protect their security?
Issam Younis:
Yes. I think security, the term, sometimes makes you laugh. If you go back to the military orders that were enacted since 1967 until very recently when the Israelis redeployed from Gaza, you could find orders that are very, very silly, very funny, and have nothing to do with security. Banning some books, Shakespeare for example. Or planting some crops. Or the restrictions on the use of water. It has interference on the different aspects of the lives of the people.
Two things are important… and one of the examples in addition Sahar just mentioned, in one of the cases we approached the high court regarding a number of postgraduate students, female students, who wanted to pursue their post grad study at Bir Zeit University and they were denied. Coincidentally, one of the students whom we applied for was a director of one of the NGOs here in Gaza and she has a permit on her capacity as a director of organisation for some reason. And the court, the state, they could not claim that it’s on the basis of security. At the beginning they tried to say, “No, it’s security and banning students from Gaza to the West Bank is a security matter.” Then they said, “It would undermine our policy of separation between the West Bank and Gaza Strip.” As boldly as that. So easily could invoke security, easily could invoke this strategy.
And what also is very significant here, in addition to doctrine security pretext, is they’re trying to all the time to delete the borderline between what’s anti-Semitic and what’s anti-occupation. And all are frightened, if you criticise Israel for its practices or for example the blockade, which is a collective punishment, very clearcut, very clear example of how the collective punishment is inflicted on a whole community and a whole nation. And sometimes people who criticise,easily security could be invoked. You know you have the ghost in your borders, Hamas, easily. So people have to suffer.
Cancer patients should sometimes dance to pursue their treatment. While in Gaza, you can not treat cancer patients. No single radiotherapy in Gaza, which is a must in case of cancer. So how come security here could beswallowed, it has nothing to do… it’s more inflicting misery on the people. Many examples are there. And what’s happening in Jerusalem, Gaza, the West Bank as well.
Hagit Ofran:
I just want to say if I may that maybe one of the reasons that the security claim is so strong is that it’s not really manipulative. At least not in the psychology of the occupiers. Israelis really feel that all those measures, not to allow a sick person to pass through this street but through that street, is really an essential security issue and it’s genuine. And I think psychologically, it gives it a lot of strength. But at the same time I think we should not buy it, I mean you can not base everything on security excuses and do whatever you want. And maybe this is another reason why non-violent resistance could be very strong, because the excuse of security is becoming less powerful.
Nada Kiswanson:
I think we need to stop taking Israel’s claim for security at its face-value. International law provides very clear tests for when a state or an actor involved in hostilities may carry out force, and in what way they may conduct their hostilities. In the beginning of my presentation I spoke about the requirement, the cardinal principles, of international law, being the principles of precaution, distinction, for there to be a concrete military advantage to the bombing of civilians and civilian objects. We need to question the actions of Israel when it cries security. We need to test that claim against international law.
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