More Israeli War Crimes? Former UN General Assembly President – Jan Kavan – On Recent Events in Gaza and Occupied East Jerusalem
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 a selection of highlights from the extended transcript which can be read here.
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?
Jan Kavan: 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.
“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.”
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.”
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.
“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.
“That in my opinion is a gradual step-by-step violation of the official status of East Jerusalem.”
Mark Seddon: 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 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.
“Unfortunately, the ICC will eventually upheld the complaint, given their past record I believe they will probably find Israel guilty.”
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.
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.
