Beyond the Pale? Israel, Gaza & International Law with Former UN General Assembly President – Jan Kavan (Show Transcript)
On Monday 24th May Mark Seddon was in conversation with Jan Kavan for a live show with Palestine Deep Dive.
Jan is a former President of the UN General Assembly and former Czech Foreign Minister.
They discuss the international legal implications for Benjamin Netanyahu and others who authorised air strikes that killed & maimed civilians in Gaza.
Below is the extended show transcript of their conversation.
Mark Seddon: So we have a special opportunity to explore what a lot of people are extremely concerned about. And that is a conflict and the parameters of a conflict. A conflict where a major military power has effectively been using munitions in areas that it either controls or it occupies. This isn’t the first time of course. And we are looking at the situation in Gaza. And there is a ceasefire at last but after days of heavy fighting in which a lot of civilians have died, mostly Palestinians. The way that this has been presented very much in the media is as a battle of equals, well I think that it is quite clear that anyone can see that it hasn’t been a battle of equals, and that actually if Israel is an occupying power, which it is, under international law, it has special responsibilities to those it occupies. So Jan thank you very very much for joining us from Prague today, it is great to see you. I just wondered if I could begin by looking at the origins of this latest round of fighting. We’re not going to go all the way back to the foundation of Israel, or the Balfour Declaration, the division and the historical basis for much of this. But the way in which the conflict has been reported has been very much as though Hamas missiles have been aimed at Israel and Israel has responded. Whereas in fact what we do know is that there was a reaction building up for quite some time against forcible evictions in occupied East Jerusalem. We saw the demonstrations and we saw the response. Jan if I just might begin with your vantage point, and your knowledge of how the United Nations works, could you just basically outline the legal situation that governs Israel’s occupation of East Jerusalem and the West Bank and also its containment of Gaza? What does international law require Israel to do and not to do?
“As I have been many times whilst reporting the Palestinian cause, accused of anti-semitism and similar absurdities, so let me just make clear that my father comes from a family where for several centuries there were only Jews, his mother and most of his relatives died in Auschwitz.”
Jan Kavan: Thank you Mark for inviting me. It’s a very sensitive and difficult subject, but I will try to tackle it. However, at least give my own experience of responding critically to these situations on the media and in public, let me first of all add a few sentences. As I have been many times whilst reporting the Palestinian cause, accused of anti-semitism and similar absurdities, so let me just make clear that my father comes from a family where for several centuries there were only Jews, his mother and most of his relatives died in Auschwitz. He and his brother who escaped from Auschwitz fought in the Czechoslovak armies both in the East and in the West, and my father in the early fifties was sentenced to 25 years imprisonment amongst other things for trumped up charges of Zionism so I have been most of my life convinced that the struggle for anti-semitism as an integral part of the struggle against all forms of racism. However now to your question. Yes you are the right, the latest struggle between Gaza and Israel in fact started when Israeli court ruled that sixteen Palestinian families should be evicted in the Sheikh Jarrah quarter in East Jerusalem and people protested obviously and a few days after that about 70,000 Palestinians came to the Al Aqsa mosque and there was a nasty clash with the Israeli police. So to cut a story short: Hamas, which controls Gaza, gave a kind of ultimatum to Israel, that they should stop the evictions, respect peace in East Jerusalem and if they don’t do that, they will start firing rockets at Israel. Which, from the various responses it seems that the Israeli government didn’t quite believe it. However, {Hamas} fulfilled its promise and started firing some rockets at Israel. Israel responded, and you had 11 days of what you correctly called, a battle of highly unequal two sides.
“…the latest struggle between Gaza and Israel in fact started when Israeli court ruled that sixteen Palestinian families should be evicted in the Sheikh Jarrah quarter in East Jerusalem…”
Before I go to the battle itself, as you asked about international law, as you yourself made clear, Israel as an occupying power, has to obey the law which makes clear that the protected population has to be protected against forcible transfer of it under Article 49 of the Fourth Geneva Convention. And this is what Israel has been doing, not just now but in fact for years. I looked it up just last year, about over 12,000 settlements were created in violation of both the UN Charter and the 1998 Rome Statute of the ICC. So it has to be also clear, as you know yourself, that the UN Resolution 2334 which makes clear that settlement activities should be ceased has been also violated by these activities particularly recent in East Jerusalem. So even before the actual battle started, international law has been violated by these evictions in East Jerusalem.
“So even before the actual battle started, international law has been violated by these evictions in East Jerusalem.”
Then of course, I do agree on one hand that Hamas fires rockets indiscriminately against Israel, primarily because they are not capable technologically of targeting any aims in Israel. Their technology is not comparable at all to the most sophisticated equipment which Israel has. So in a sense, firing rockets indiscriminately at Israel which could hit civilians is also a war crime. However, I don’t think it is quite comparable to the terrible destruction which Israel inflicted on Gaza. It’s slightly less than in 2014 but it’s still absolutely devastating when hospitals are destroyed, water supplies destroyed, electricity has been damaged, the sewage system has been wrecked, in fact the infrastructure is so damaged that it will take years to improve or to repair. Not comparable at all to the damage caused by the rockets in Israel. So, that to me is also a clear violation of international law. Because let me remind you as you say, the law makes clear that harm to civilians must be proportionate to the military advantage derived from any attack. And this is clearly has not happened here. It is not proportionate at all. Despite what Israel claims, many buildings, about one thousand buildings, have been destroyed, but many of them cannot be described as military targets at all. Including ice cream factory, residential buildings, some Israeli officials claim that in the large Gazan residential building where whole families have been killed, there was a suspicion that one Hamas official lived, which is to me an absurd justification. So the harm done to the civilians has not been proportionate and that is another violation of international law.
Mark Seddon: Jan if I may just come in there, we can discuss Gaza in a little more detail in a minute but if I can just return to East Jerusalem and also to the West Bank, where you were talking the court orders effectively evicting sixteen families, it’s either six or sixteen families. The question is, do you know what legal rights Israeli courts would have in East Jerusalem? I thought that East Jerusalem, was officially actually governed separately, supposedly through the United Nations? So actually an Israeli court shouldn’t really have jurisdiction in East Jerusalem?
Jan Kavan: Well that is correct, however Israeli courts ignore that. And have been treating East Jerusalem as part of what they would call “unified Jerusalem”. Which they still argue is their capital, or they would like it treated as their capital. And in fact I think it’s extraordinary that some states including members states of the United Nations, have accepted this argument and transferred their embassies from Tel Aviv to Jerusalem, including the United States and in terms of certain officials, even my own country has done that, that is in violation of international law. As you correctly said, East Jerusalem is not acknowledged as part of Israel. However, the Israeli courts do regularly rule over a number of issues in East Jerusalem, including the eviction I mentioned in Sheikh Jarrah, which the Israelis argue is an order from Israeli court, which they were just implementing by evicting these people from their homes and trying to create way for new Israeli settlers, some of them imported from abroad. That they were simply implementing a court order from Israeli court. But in my opinion, that is contrary to the official UN acknowledged status of East Jerusalem, this is of course a result of the 1967 war, where Israel occupied a large part of the West Bank and Jerusalem. And since then, Israel has been trying to evict as many Palestinian families from East Jerusalem and replace them with Israelis in a way of creating the Judaization of Jerusalem and therefore confronting the international community eventually with a fait accompli, that in fact the whole of Israel is occupied by Israelis who reside there. That in my opinion is a gradual step-by-step violation of the official status of East Jerusalem.
Mark Seddon: Jan on this, I mean this is a slightly separate matter but of course what we have witnessed over the last few weeks is not only what’s been happening in Gaza and East Jerusalem but within Israel proper itself around Lod and other Israeli-Palestinian towns and cities where there’s a mixed residency. Not everybody fled in 1948, a large number of Palestinians – some 20% of Israel’s population is Palestinian. It's not against international law necessarily for what apparently the New York Times is reporting today is a plan effectively to push forward for Israel’s mixed towns to make them more Jewish, the process that you have just been outlining that has been underway in East Jerusalem has also been underway or is underway says the New York Times and others in Israel proper itself. So it does look from that and from what you have been saying that there is a whole process that is underway. But I am just wondering if I can move on perhaps to Gaza, because we have talked about international law, there is an official formal complaint, a demand that has gone into the International Criminal Court prosecutor, Fatou Bensouda, and that has come from the Reporters Without Borders. Reporters Without Borders have said that they believe Israel has actually been in direct violation of Resolution 2222 (2015), which is to essentially protect journalists under the Geneva Conventions and also under the Rome Statute, and you’ve just mentioned when you were talking about what happened in Gaza what had also, the number of buildings that were hit that did not contain people that could be attached to Hamas or who could be accused of being combatants, including journalists, I think a number of news agencies including Associated Press and Al Jazeera had their offices blown up.
What a lot of people want to know is, if a complaint is made like that and a demand for an investigation, what happens? And we already know that the International Criminal Court is investigating alleged war crimes from a previous military incursion into Gaza by Israel. But people would like to know is, what happens? What happens when other counties especially such as the United States which does not recognise the International Criminal Court, or Britain which does but which condemns the investigation, what happens to these investigations if responsible, supposedly responsible, global powers say we don’t really pay much regard to it?
Jan Kavan: This is unfortunately a correct description, what you just said. I think the ICC is doing a very good job and it is investigating correctly. Not only this one but other similar complaints. But as you know, ICC came to a very unpleasant conclusions, about Israel, and in some documents it has described the persecution and discrimination of Palestinians on its territory as apartheid, which is a very strong word. But it is used also by some Israeli human rights organisations like B’tselem and more recently, surprisingly to me, after many years, even in a document issued by the Human Rights Watch, called ‘A Threshold Crossed’, where similar tough terminology was used similar to the ones used by the ICC. And before I go further, what you described by journalists is absolutely correct, the high rise building, where offices of Associated Press and Al Jazeera were {…} bombed, but it’s only one publicised example in fact the Gazans claim that 23 offices of international and Arab media have been destroyed during the ten day, eleven day bombing, so journalists have been I would say a target which indicates that Israel is unhappy about the publicity. Especially publicity by journalists who are actually stationed in Gaza, and can supply visual and other material about the consequences of the bombing. But going back to your question about the ICC. Unfortunately, the ICC will eventually upheld the complaint and given their past record I believe they will probably find Israel guilty. However, Israel is not recognising ICC, and in the past it criticised the conclusions, they were not very much published in Israel maybe with the exception of Haaretz, therefore although I think it will help the international recognition of what is happening in the area in practice I don’t think ICC has the power of forcing Israel to amend its actions, I think Israel will continue to ignore the ICC conclusions in fact some Palestinians who are of course very happy about what ICC does but they say that the Israelis treat ICC almost as it was a Palestinian court which of course it is not, and therefore as I said the practical impact of the ICC conclusions is limited.
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Mark Seddon: Do you think that there is a possibility, further down then line, one day, that those who have if the International Criminal Court does find them in breach of international law, do you think there is a possibility that one day Prime Minister Benjamin Netanyahu and others in his administration could face justice?
Jan Kavan: I would say that I hope so, but I am not very optimistic that it will happen in the foreseeable future. In fact ironically, as you know one of the results of the recent battle between Hamas and Israel is that it strengthens the government of Netanyahu, before 7th of May, it looked that he will lose power and in fact the opposition was just about to form an alternative government and down the road he could even be convicted by Israeli court of corruption, so it looked for some time, that this is the final end of many years of Bibi’s stay in power. However, the result of these battles is that the one hand Netanyahu is back in the power, the opposition obviously cannot include amount of Knesset members which supported the Arab unified list, therefore they cannot get the 61 necessary Knesset MPs. And thus, Netanyahu in my opinion will almost certainly continue in power, unfortunately. On the other hand in fact to be fair the battles also strengthened politically Hamas, in comparison Fatah in the Palestinian Authority. Therefore if the elections which were planned in May, which Abbas under Israeli pressure cancelled recently, if those elections would had taken place, in my opinion just now Hamas would score a resounding victory, despite as I said the devastating destruction in Gaza, politically, it helped on one hand Hamas and on the other hand Netanyahu. And Netanyahu is definitely committed to ignore ICC or the other NGOs you mentioned and will continue with ignoring the rights of Palestinians to self-determination etc. In my opinion of course despite the fact that it is even more distant possibility, in my opinion in long term only a two state solution which in fact I was interested to note even US President Biden mentioned recently that it is still on the table, I think it’s less and less visible on the table, but in the long term comparing with all the other alternatives it seems to me that it is the only possibility we should work for. A sovereign, democratic, independent and viable Palestinian state to exist alongside Israel, securing it pre-1967 borders. That I still believe the international community including the UN should fight for. But the current Netanyahu’s government is definitely not interested in permitting that, it would have to come under much greater international pressure, in particular from the United States.
“Therefore if the elections which were planned in May, which Abbas under Israeli pressure cancelled recently, if those elections would had taken place, in my opinion just now Hamas would score a resounding victory…”
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Mark Seddon: What was interesting as a development was the pressure that was building up in the Democratic Party and outside, pressure on president Biden to actually become rather more involved than he wanted to. So it would appear that at some stage in the past few days, President Biden has told Netanyahu there has to be a ceasefire and he needs to stop. That seems to be well informed speculation, information possibly too, that Biden intervened in such a way. So do you think, looking more politically rather than looking at international law that there are moves afoot within the United States for a change, that actually the Democratic Party is changing in composition and in its demographics and this sort of 100% support for Israel which usually is the case is beginning to fracture?
Jan Kavan: No I very much believe so and in fact I am convinced that the (…) behind the scenes that the president Biden’s US pressure contributed to the ceasefire, obviously the (…) was negotiated primarily by the Egyptians, with help of Qatar and some others, but if it wasn’t for US pressure it wouldn’t happen, and in fact it seems that all the information says that there was a certain discrepancy between what the US president has publicly announced and what he actually said to Netanyahu in telephone conversations where he was much tougher and made it very clear that the United States wants an aerial ceasefire which then took place. So I would agree with you on that in my opinion, I think this is the result of a slowly changing situation in the US and particularly within the Democratic Party, the left has not won the elections, I would have liked for example Bernie Sanders to be now in the White House, but the left in the Democratic Party is now much stronger, than it was for example in 2014 when there was the latest big war between Hamas and Israel. And some of the speeches I have read and heard making the congress by some Democratic Party representatives including the four left wingers were very very tough. And it seems to me that President Biden realised that he cannot any longer ignore this kind of pressure from within his own party, and I hope this will continue and I hope that more American Democratic politicians will join in this pressure because as you know I am a great fan of the United Nations but in reality if there is any power which would compel the Israeli government to change its course it is not the UN but the US. And here I hope that the pressure from the progressives as they call themselves or the left of the Democratic Party on Biden will continue and that we will see some change. I hope it will not follow the example of president Obama, I mean when Obama started as president he made some fantastic speeches in Cairo as you remember, when he acknowledged the Palestinian right to self determination, made it very clear that the dream about independent sovereign Jewish state cannot be implemented unless Palestinians enjoy self-determination and their own sovereign state. Later he watered down, or at least under pressure from his surroundings as Kissinger or (…) made it clear. I hope that Biden will not experience the similar protest and just to contrary that this is beginning of a tougher attitude to Bibi’s government will in fact rather than be diminished will be increased because that is the only hope.
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Audience question: Would an ICC judgement not permit sanctions on external visits of Israeli politicians. In other words, would this prevent Israeli politicians from travelling elsewhere in the world. And if that was the case, that would certainly be another small victory for the Palestinians, wouldn’t it?
Jan Kavan: Yes that is true, and in fact some sanctions including the moves to ban import products which are produced in the occupied territories, and that kind of boycott in some countries is quite successful, but as we know it is not successful everywhere, it is not recognised for example by the United States, and therefore even if the ICC does impose some sanctions which are welcome, I am sure the United States which does not recognise ICC as you mentioned yourself earlier, sanctions imposed by ICC United States will continue to ignore. It is their best ally and partner both in terms of trade and in terms of supply of most technology to develop weapons, including the Iron Dome defence system etc. So I think unfortunately pragmatically speaking without a certain change of the US policy towards Israel, all these other sanctions are to be welcome, but they are more symbolic than real.
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Mark Seddon: On the whole, Jan, would you say that your are an optimist or a pessimist, and looking at what we have just gone through in the last two or three weeks. And particularly what people have gone through in Gaza and Israel, mainly in Gaza, do you think that situation remains the same, or do you think things are changing. Do you think there is a greater understanding of the situation in the Middle East and especially pertaining for the situation in Palestine. Where do you think we could be in 10–20 years time? Because clearly this constant round of fighting and war is not really getting anybody anywhere.
“…within the time scale you gave me of 10-20 years I do believe that the desire of the Gazans to end the blockade, end the occupation and get certain dignity and freedom for themselves will be implemented because as you say without moves towards that aim, you will have these battles renewed every time…”
Jan Kavan: No I agree with you. If you are giving me a timescale of 10-20 years which is quite a long time in the unfortunately, as I complained earlier you didn’t supply me with a crystal ball, so I have to make only some informed guesses. My hope is that in 10-20 years time we will have a two state solution and we will have a much more informed international public opinion on the situation there, and in fact, unfortunately I still think the devastation imposted on Gaza by the recent fighting is terrible which will take years and years to remedy. However, I also have to acknowledge that these battles led to a much better understanding of the international community of what this conflict is really about. So economically and in terms of human lives, 230 people dead, out of which 61 children, 36 women and economy and infrastructure destroyed on one hand. But politically paradoxically Hamas has gained, an international community is beginning to become much more aware than in the past of what the conflict is about. That to me is a source of hope. You asked me if I was an optimist of pessimist. I have in the past described myself as a cautious optimist. Sometimes I put more emphasis on the word cautious, sometimes on the word optimism, but cautious optimist means that within the time scale you gave me of 10-20 years I do believe that the desire of the Gazans to end the blockade, end the occupation and get certain dignity and freedom for themselves will be implemented because as you say without moves towards that aim, you will have these battles renewed every time. Last time was 2014, but we have had them before, so this is about the fourth war within a short time, and in fact the ceasefire does not contain any guarantees that it will not happen again. None of the conditions put forward either by Israel or by Hamas have been implemented or taken, the ceasefire is only end of shooting, that means all the problems that are on the table which caused the recent confrontation are still there and therefore it can happen again, unless the United States helped by the United Nations and other countries will begin to force a certain change.
Mark Seddon: Well finally you mentioned other countries there Jan, what about the European Union? Do you think the European Union can be taking a much stronger lead on this?
Jan Kavan: Yes, I do also. I mean in my opinion the European Union has in the past and recently adopted a much better perception and conclusions towards this conflict than the United States, it is unfortunate in my point of view as a supporter of the European Union, that the recent resolution was vetoed by Hungary, and only confirms and strengthens my conviction that these resolutions do not need to be unanimous but should be subject to a majority vote as one country vetoed it. (…) European Union including my own government which is fairly pro-Israeli and sometimes Austrian and Slovenian governments joined them, but the majority of EU members states are critical, very critical of the Israeli behaviour towards Palestinians including Gazans, and therefore I do believe that the European Union, were the atmosphere of criticism towards Israel was strengthened by the recent confrontation, I do believe that the European will play a more a decisive and stronger role than it did up until now. And with the help of the UN and other organisations it will help to increase pressure on the United States.
