Those who would like to have some knowledge on the Israeli-Palestine conflict can take a look at the Paper that I presented at Makindye Court Martial to UPDF Men on the Prospects of International Humanitarian Law in Gaza region. Courtesy of International Committee of the Red Cross PROSPECTS OF INTERNATIONAL HUMANITARIAN LAW IN THE ISRAELI- PALESTINIAN CONFLICT Ladies and Gentlemen It is a great humility and humbling experience to present to you this paper on the prospects of International Humanitarian Law in Gaza strip. This is one of the most troubled regions of the world. It has been described by some as one of the problems that the world does not have a solution for. I want to put emphasis on the extent to which international humanitarian law has been respected and how those that violate it have been brought to justice. It is amazing how the world has handled the Israeli-Palestinian crisis. Since time immemorial, people have lost their lives, properties destroyed and the space ruined but the world has kept a blind eye on this commotion. Truth has not been told about what actually is the problem and this is why the problems of this turbulent region are yet to be solved and surely anyone in the current era who would claim to bring truth on this region would be deceiving the world. International humanitarian law is primarily concerned with serving the basic humanitarian interests of people affected by armed conflict. Whether displaced, under siege or occupation, facing attacks from a regular army or rebel groups, in detention or held hostage, all people under such conditions are in absolute need of protection. Desperate violations of IHL have been committed by either side but no stringent measures have been put in place to deter the parties from violating the law of the war which in most cases affect the common man. It follows then that the humiliation and inhuman acts that people are subjected to in Palestine are likely to remain in place unless something tangible is done to avert the situation. The conflict between Palestinian Arabs and Israelis Jews is a modern phenomenon, which began around the turn of the 20th century. The views of the opposing sides are generally much polarized and many historical events continue to be the subject of argument, which can be very objectionable for anyone who is just beginning to find out about the issues. In a way, we could talk about there being an ‘Israeli narrative’ and a ‘Palestinian narrative’ – representing the different perspectives on the conflict. Palestinian claims to the land. The Palestinians’ claims to the land are based on continuous residence of the country for centuries and the fact that they were the majority. They reject the idea that the kingdom in the biblical time can be the basis of a modern claim, they do not believe that they should leave their homes and land to compensate the Jews for the atrocities that were committed against them by the Europeans. But this is not the real case because where did the Jews stay before going to Europe and scattering in the whole world? It was of course in the Middle East perhaps in Palestine where they ran away from religious persecutions during the Jihad process of Islamic conversion. The Jewish claims to the land. The Jewish claims to the land are based on the biblical promise of Abraham and his descendants and on the fact that this was the historical site of the Kingdom of Israel which was destroyed by the Roman Empire. They see a home land for the Jews as the only refuge for them from Europe’s anti-Semitism. The beginning of the problem was the Israelites claims that Palestine was a land without people for a people without land after they were humiliated by Hitler. This has triggered tensions that we see today due to ignoring the humanity of Palestinians who occupied the land by that time. Israelites have continued with this attitude up to date. It is therefore too hard if not impossible to emphasize who is right or wrong, for instance it would be hard to justify the biblical claim of Israel when some thinkers today have come up to question the authenticity of the Bible especially with the oppression it put to women but what cannot be disputed is that Jews had a home which is neither Europe nor any other part of the world but the Middle East. The Palestine Arabs also cannot justify their overstaying in the land as the most exclusive reason but since they inherited that land from their parents they have also a point to stress and perhaps they also have nowhere to go but to live in the same place. What is a fact is that at the heart of this conflict is politics centered around the land claims which if it is to be solved historical claims though matter but must be given little attention and search for how the two contending groups can be convinced to stay together or even separately but in harmony. This is because the current claims of both groups to the land of Palestine are so hard to substantiate and it is also not possible to dispute them and thus the conflict should be handled as a modern phenomenon that need solutions that are not based exclusively on the past claims Ladies and Gentlemen Due to violations of IHL by both parties in this conflict, there is reason to worry that the ICRC itself has made numerous attempts to bring about reconciliation and fruitful negotiations but all the efforts have ended up futile. In that event, the ICRC has turned to public engagement, civil society and academia to see whether there could be something distinguishable for the people in that part of the world but surely with nothing valid to mention. The following could be and are actually considered violations of International Humanitarian Law (IHL) in the Gaza region and the whole occupied region of Palestine. Prolonged occupation of Israel has been accompanied with acts contrary to IHL rules regarding any military and paramilitary occupation of any conquered area in military operations. It is now nearly fifty years of occupation since The 6 days war of 1967 when Israel humiliated the whole of the Arab region, captured and Occupied Palestinian major territories of the West Bank, East Jerusalem, and the Gaza Strip. In the occupied area the applicable legal framework is the law of belligerent occupation. This consists of the rules enshrined in the 1907 Hague Regulations, the Fourth Geneva Convention, and customary IHL. Respect for the mentioned rules have been given little regard when it comes to what Israel is doing to the area it occupied. The rationale for this law is to prevent military endeavors that aim to make permanent changes to occupied territory; to force people to leave their homes; or to unlawfully seize land and resources from communities. In fact all the above prohibitions have been violated by Israel in the area it has occupied for almost half century and the international community has either ignored or failed to take meaningful action. Another key feature of the occupation is the West Bank Barrier, which also violate IHL depriving the Palestinian people of their normal economic and social connections, and hindering their access to jobs, fields, schools, health-care centers, and places of worship. This is seriously clipping freedom of movement in certain areas of the West Bank and even in connections to other parts of the world because in this region though one may possess a Visa but you still need permission from Israel authorities before leaving the country. This is what prompted the International Court of Justice in its advisory opinion in 2004 to state that the West Bank Barrier contravenes several of Israel’s international legal obligations, including rules of IHL. Until to date is still occupying the area, Israel rejects the establishment of a Palestinian state, insisting that Palestinians should be incorporated into the existing Arab states which in the eyes of the many looks an impossible dream. Though widespread criticisms have come out to condemn the West Bank Barrier, nothing substantial has been done to save the people affected by the Barrier especially the Palestinian Arabs. This is perhaps the value attached to it by some strong nations predominantly USA and European countries where this started during Bush administration and usually President Bush used to call it a measure against terrorism; In his own words asking President Abbas ‘Mr. President what do you think of the West bank barrier? don’t you think it is a protection against terrorism’. You can imagine how ridiculous this question is especially to the president whose people cannot access basic needs and they have nothing to do with the freedom of movement due to the same Barrier. Following the Palestinian upgrade by the United Nations General Assembly (UNGA), Israeli Prime Minister Netanyahu responded by approving the construction of 3,000 units in the West Bank and East Jerusalem (both are occupied territory). Settlement activity in occupied territory can constitute a grave breach of the Fourth Geneva Convention of 1949 and a war crime under the Rome Statute. In a proposed extension of the West Bank barrier by 3000 meters in the year 2007 which attracted a lot of condemnation; In response to widespread criticism from European States and the United States, Netanyahu stated that “Israel will continue to stand by its vital interests, even in the face of international pressure, and there will be no change in the decision that was made.” This argument is an attempt to stress that war crimes can be justified in the pretext of national interests which in actual sense is unacceptable under international law. It has also become apparent that Palestinians have resorted to construction of underground tunnels between Egypt and Gaza to transfer goods that are not accepted by the Israel authorities due to the blockade and overall control of the boarders entering and exiting Gaza area and generally the whole region of Palestine, many lives have been lost but still this is the only way to replace the buildings destroyed during constant bombardment between Israel and Palestine and the available means to get basic needs for normal life. Ladies and Gentlemen With regard to chastisement of crimes committed by Israel in the conflict, it was made clear in the referral from the Comoros to the ICC regarding the bombardment of the ship that carried humanitarian assistance to Gaza, it was noted that there is no political will to allow for independent and impartial investigations and prosecutions to take place relating to crimes committed by Israel soldiers in Gaza. This of course emanates from the fact that (i) given the turmoil history of Israel since its creation, the Israel Defence Forces (IDF) is highly praised as an important arm of the state for the significant role it plays in the defense of the country, and (ii) it could very well be that individuals at the highest stratums of power in Israel may ultimately be found responsible for authorizing the raid and the commission of the crimes which ensued (knowingly or ought to have known). On these aspects alone, the Court cannot reasonably rely on the Israeli authorities to willingly or genuinely carry out comprehensive, independent and impartial investigations and prosecution of crimes committed as a result of the flotilla raid. This alone means that prosecution of crimes committed in this turmoil region cannot be complimented by Israel as required by Article 17 of the Rome Statute of the ICC. The situation in Palestine is not of a different nature as regards prosecution of those who violate IHL in Gaza and thus cannot be exemplary to be based on because it would be contrary to what public reason would suggest to emphasize that Palestinian authorities can positively cooperate to bring to justice those who have committed atrocities on Israel citizens since this has not been publicly witnessed since the conflict began. The above conduct by both states defeats the connotation of the law especially international law as it was noted in the Nuremberg Tribunal aptly that “crimes against international law are committed by men, not abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” Prosecution represents an important form of legal protection. By punishing perpetrators, the notion that international crimes are crimes not just against individuals, groups and states, but against all of humankind, is taken seriously. Holding individuals accountable is the central purpose of prosecuting international crimes and would ultimately help in the respect for IHL. According to Amnesty International, under this ongoing crisis commonly termed as ‘Protective Edge’ both Palestinian army and Israel forces have committed gross violations of IHL and therefore if something is to be done both sides must be investigated so that justice is served. This will ultimately be based on to bring peace in this bothered region. The international community is usually politicking around the issues in this region with the West supporting Israel and the Arab League vehemently supporting Palestine. Given the status quo, the turbulent situation in this region is not about to cease unless politicking and masquerading about the worries between Israel and Palestine is put aside and the search for a solution done in good faith people will continue dying, property destruction will not come to an end and instability shall remain possibly to the end of the world if it is there. The only attempt made to try and solve the crisis was the ‘The Oslo peace process’ which was not even realistic to bring better results between Palestinians and Israelites. These were the issues that mattered most to Palestinians which under the circumstances were neglected. The final negotiations came to an end in 2000. The failure of the peace process was blamed on the Palestinians who were accused of rejecting the Israelis’ generous offer. The international media repeated the claim that the Israelis had offered the Palestinians, 95, 97 or even 100% of the occupied West Bank, whereas what the ‘generous’ offer would have meant was: no territorial contiguity for the Palestinian state no control of its external borders, limited control of its own water resources no full Israeli withdrawal from occupied territory as required by international law, continued Israeli military control over large segments of the West Bank, the right of Israeli forces to be deployed in the Palestinian state at short notice, the continued presence of fortified Israeli settlements and Jewish-only roads in the heart of the ‘Palestinian state. In 2006, there were democratic elections in the Occupied Palestinian Territories. Surprisingly Hamas, an Islamic Party, won but since then, Israel and USA refused to recognize the government of Hamas because of its uncompromising position as regards the existence of Israel. This has created more tensions and turmoil in this region and a lot of people have lost their lives due to that opinion to date because Hamas was branded terrorist organization which must be forced into non-existence. No one wishes the other to survive and no one has been able to eliminate the other. Ladies and Gentlemen Though it is my firm belief that recourse to justice should never be compromised by political feasibility. The failure to uphold this inviolable requirement will not only pervert the cause of justice and weaken public confidence in the so called international courts and local courts but this also worsens the immense suffering of the victims of mass atrocities especially those in Gaza between Israelites and Palestinians at the moment. Western nations employ a double standard in dealing with human rights and humanitarian law. On one hand, they long for prosecution in Darfur, Uganda, Congo, Zimbabwe, Central African Republic, Cote de voire and Sri Lanka, but on the other hand, they are determined to protect Israel from scrutiny. Israel must, in the eyes of the West, be protected at all costs. This means that one cannot expect action from the UN or the EU. The responsibility is therefore on courts – the ICC and national courts – to ensure that justice is done. If this is the case then it defeats reason and probably inapplicable because we have seen ICC prosecutors from Moreno Ocampo and now Fatou Bensouda on many occasions stressing that if state cooperation and complementarity is not achieved and effective, then their work is in dilemma. In did, the dilemma of international courts and law is more less the same as the dilemma of the Israel Palestine conflict and for that matter a predicament cannot solve another predicament, because neither Israel nor Palestine are willing to cooperate with the ICC to bring concerned perpetrators of international crimes to justice. This is my worry because it is as if the norms of international Humanitarian law applicable to other states do not apply to Israel since Israel is now elevated to be above the law. Though it should also be noted that Palestine is also not holy and therefore has to carry some blame because her forces also violate IHL in one way or the other and no efforts to punish them have been witnessed. It is clear that serious crimes were and are being committed by the Israel Defense Forces (IDF)in its operations in Gaza. A number of independent reports including the Goldstone report to the Human Rights Council, the report of Independent Fact-Finding Committee on Gaza to the Arab League, the Martin Commission report to the UN Secretary General on attacks on UN premises, and reports by Human Rights Watch, Amnesty International, Physicians for Human Rights and the National Lawyers Guild, support the conclusion that war crimes and crimes against humanity were and they are still being committed by the IDF in its Operations. Though these reports base on exclusively condemning Israel it should also not be ignored that on the other hand Palestine forces especially the Hamas are not as holy as you may assume. One would ask, how possible would the punishment of Israelites and Palestinians be if up to date they are not parties to the ICC? It should be noted most if not all Members of Israel Defense Forces have dual citizenship either French, American, South African, British or other western country who are in most cases parties to the ICC. This would help the punishment of those countries by their citizens. When it comes to Palestine since they have expressed their interest to join and accept jurisdiction of the ICC since 2009, this would facilitate the progress of objectivity in search for solution to the quandaries of this region. Since both sides would fear the long arm of the law if only and only politics does not come in to disrupt the recourse to justice. Thank you very much.
Posted on: Sat, 27 Sep 2014 07:46:22 +0000
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