The Electronic Intifada 11 November 2005
Diane Butto at the conference “Palestine, Israel and the Law” (Victor Kattan)
— Ronnie Kasrils, South Africa’s Minister of Intelligence
On Saturday 22 October, hundreds of people from all over the United Kingdom descended on the Institute of Education in Logan Hall, Bedford Way, London, to discuss Israel, Palestine and the law. For six hours delegates sat and listened as politicians, lawyers and governmental advisors took to the podium in front a banner carrying the name of the event’s organizers, the “Palestine Solidarity Campaign”.
The situation in Palestine: Myth vs. Reality
First to speak was Dr. Mustafa Barghouti, a candidate in January’s presidential elections in Palestine. He had made the difficult journey to London through military barricades and airport security, just so he could update everyone present with the latest situation in the West Bank and Gaza.
Barghouti gave a Powerpoint presentation with photographs, maps and figures. He framed his talk by comparing “the myth and reality” of military occupation in Palestine. He said that the media were not presenting the British public with the full picture of what was happening in his homeland and that Israel’s withdrawal from Gaza was simply a “restructuring of the occupation”.
He reminded those present that less than two percent of Israel’s settlers (whose very presence is illegal) were removed during the “disengagement” from Gaza and that the bulk of the settlers remained in the West Bank, in and around occupied East Jerusalem. Although Israel evacuated 8,475 settlers from Gaza; 15,800 new settlers moved into the West Bank.
He said Gaza’s water resources are depleted and that Israel’s army controls the Rafah crossing and still has a presence within Gaza near Erez (a part of the northern Gaza Strip still occupied by Israel). Israel controls all the borders and uses pilotless drones to scan the area. Gaza is a virtual prison he said. Israel is also building a wall in Gaza, just like the one in the West Bank and he showed the audience a photograph to prove his point.
He reiterated his call for sanctions and divestment against Israel, which he called for at last year’s European Social Forum in Alexandra Palace.
The limitations of international law
Diana Buttu, a legal advisor to Palestine’s incumbent President Mahmoud Abbas had just stepped off the plane from a fruitless meeting with President George W. Bush in Washington DC. Sounding distinctly demoralized, she said that when she was young she thought that if only international law was applied then everything would be fine. She then realised that “the problem is international law itself”. There is no innate notion of international law: “The powerful get to develop, change and enforce the laws. This is the context in which the Palestinians find themselves”.
Buttu then gave the example of Israeli settlements (which violate per se paragraph 49 (6) of the IV Geneva Convention of 1949) to explain what she meant. This article provides that an occupying power may not transfer its people into the territory that it occupies. She said that although everyone knows that the settlements are illegal they do nothing practical to stop them. She then gave an example of the role of the US which first considered settlements “illegal”, then an “obstacle” to peace, then they were simply described as “problematic”, and finally she was told “they will eventually be dealt with”.
So for, Buttu, one of Palestine’s top legal advisors, international law has an inherent structural problem. The law itself becomes whittled down as the years go. As Buttu said: “Palestinians are the only people who have to negotiate themselves out of an occupation. We are forced to negotiate with our oppressor”.
She said “economic prosperity” is the new buzz word in Washington and that the occupation is very much being ignored. It seems that the Palestinians should forget, or simply accept the fact that they are living under military rule. The talk with the Americans was about economic development, building institutions etc. She feared that the “Palestinian problem” is going to be transferred into an economic problem”.
She concluded by suggesting that “we have to demand a change of the international legal structure itself”.
The power of universal jurisdiction
Daniel Machover then approached the podium to great applause. It was his law firm, Hickman and Rose solicitors that did the preparatory work with the Palestinian Centre for Human Rights in the Gaza Strip that led to an arrest warrant being issued by a British magistrate for the arrest of Israeli General Doron Almog for war crimes.
Almog escaped arrest at Heathrow airport by staying on the plane. He was apparently tipped off by the military attache from the Israeli Embassy who was able to pass through immigration and board the plane where he told Almog not to disembark. He then flew back to Israel. Machover said that the attache had perverted the cause of justice which is a serious crime in the UK. The British police had not made any contingencies to board the plane even though they could have done so.
The IV Geneva Convention of 1949 was incorporated into British law through the UK Geneva Conventions Act of 1957. This act provides for universal jurisdiction where someone commits a grave breach of that Convention.
Section 1 (1) enacts that: “any person, whatever his nationality, who, whether inside or outside the United Kingdom, commits, or aids, abets, or procures the commission by any other person of any such grave breaches … shall be guilty of an offence”.
Grave breaches of Geneva Convention IV include extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and unwantonly. The warrant against Almog was issued in relation to the destruction of 59 houses in the Rafah refugee camp on 10 January 2002. Machover listed Almog’s involvement in several other war crimes, but explained that the particular warrant issued by the magistrate was for the destruction of Palestinians homes in Rafah.
Machover said that “although you need the Attorney General’s consent (i.e. Lord Goldsmith who provided controversial advice to the British government saying that the invasion of Iraq had international law on its side), to bring such a case, a judge can issue an arrest warrant, application by police or victims and lawyers”. Machover and his team had presented “compelling evidence” to the magistrate, so much so, that by the following morning he issued the warrant for Almog’s arrest.
Much of the intellectual work on universal jurisdiction began many years ago due to the problem of impunity in Israel, a theme that veteran Israeli human rights lawyer, Lea Tsemel, would elaborate on.
Impunity in Israel for war crimes
Tsemel tackled the issue of house demolitions, collective punishment, torture and deportations which occur all too often in the occupied Palestinian territories at the hands of Israeli soldiers. She said that “there is an assumption that somehow if you are a lawyer you can change things. From my experience you cannot do more than what the masses can do”.
She then explained that when she started her career as a human rights lawyer in Israel in the 1970s “she lost case, after case, after case”. Private lawyers had to file hundreds of cases; Palestinian homes were destroyed on a massive scale without “military necessity”; ‘radical’ students were deported to Jordan and then to southern Lebanon after Israel invaded and occupied it. And again, Tsemel continued losing cases.
But then one day she won a case and the deportations stopped. This happened when Israel attempted to deport 400 people all at once. It attracted the attention of the media and gave Israel “bad publicity”. These days Israel just assassinates people, said Tsemel.
Something similar happened with torture in Israel and in 2002 she discovered that there is a secret prison operating inside Israel called “1391”. It operates inside a military camp where foreigners (i.e. non-Israelis) are tortured. So Tsemel petitioned the Supreme Court and demanded that the torture stop. It has been three years since she filed the petition and the court has still not given a decision.
Tsemel said that Israeli society is “overtly racist”. She said although Israelis don’t use “trains” to get rid of the Palestinians they use other means to encourage them to leave such as making marriage and immigration difficult between Palestinians in Israel and in the occupied territories.
She concluded her talk by saying that Israelis should be questioned in airports whenever they go abroad just like foreigners are questioned when they go to Israel. She suggested that immigration officers the world over should ask Israelis who enter their territory: “What did you do when you were in the army?”
Other participants in the conference included Geoffrey Bindman QC, Dr. Oren Ben-Dor, Dr. Iain Scobbie, Dr. Karma Nabulsi, Marwan Dalal, Judge Eugene Cotran, Michel Abdel Massih QC, Jeremy Corbin, Dr. Nabeel Kassis, Barry Camfield and Smadar Ben-Natan.
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