A law unto itself

A Palestinian amid what remains of his house after an Israeli air strike on November 15.-MAHMUD HAMS/AFP

Israel continues to target civilians, flouting international law and conventions, because the world has repeatedly failed to censure it for its transgressions.

HOURS after the Israeli armed forces unleashed their Operation Pillar of Defence against the 1.6 million Palestinians in Gaza on November 14, the Arab bloc in the United Nations sought an emergency session of the Security Council. On behalf of the stateless Palestinians, the Moroccans and the Egyptians prepared a draft statement condemning the violence and calling for a de-escalation. Before the Security Council could act, however, the U.S. Ambassador to the U.N., Susan Rice, indicated that the U.S. would not countenance any statement or resolution. She dangled the veto before the Security Council and blocked any action. The bombing continued for eight more days until November 21, ending only with immense pressure from regional powers such as Egypt, Qatar and Turkey.

Gaza is a narrow strip of land carved out as a refugee camp in the 1940s for the Palestinians evicted from their homes in what would become the state of Israel. A fragile society, Gaza has an economy that is under Israeli blockade and a political process that is ensnared by a Western and Israeli allergy to Hamas, which won the elections in 2006. Israel has now gone to war thrice with Gaza to punish the people for voting for Hamas, as Israeli Ambassador to the U.S., Michael Oren, put it to CNN on November 16. Each time (2006, 2009, 2012) Israel used disproportionate force against the Palestinians, and each time the U.N. instituted some kind of an investigation of the war. But, as in the U.N. chamber in November, the U.S. has blocked every chance for due process for the Palestinians. It is no wonder that a frustrated people, with few legitimate political avenues for justice, turn to violence to amplify their grievances.

Targeting civilians

Knowing full well the grammar of these bombardments and their investigations, during the war (November 16), 12 human rights groups, led by the Palestinian Centre for Human Rights, urged the U.N. Human Rights Council (UN-HRC) to urgently convene a Special Session to address the bombardment and to begin a process towards an inquiry. During the last large-scale offensive on the Gaza Strip, their statement noted, civilians paid the price of political inaction. We must not allow history to repeat itself. The groups referred to the 2009 Cast Lead offensive by Israel and to the UN-HRCs Goldstone report, whose findings revealed evidence of malfeasance that seemed to require further criminal investigation. It did not go anywhere, largely because of U.S. pressure. Shortly after the ceasefire (November 23), the Council of Palestinian Human Rights Organisations asked the U.N. to undertake an investigation of this episode to underline the illegality of such action. The failure of the international community to categorically condemn and ensure accountability for previous well-documented violations, including those included in the [Goldstone report], they argued, has indirectly sanctioned Israels attacks against civilians during the recent eight-day-long military offensive.

In late November, the head of the Office of the U.N. High Commissioner for Human Rights in the Occupied Palestinian Territory, Matthias Behnke, told me that no U.N. action was on the horizon. The UN-HRC has so far not decided to convene a special session, so it is not clear at this stage if a special fact-finding mission or commission or inquiry will take place. UN-HRC High Commissioner Navi Pillay will present her annual report on Palestine to the Security Council in March, when she will summarise the findings of Behnkes office. Unless the member states call for some action, none will be forthcoming.

During the offensive, Navi Pillay had indicated several times her concern over the violence against civilians. Her spokesperson, Rupert Colville, said on November 20 that she deplores the attacks that seemed to target civilian areas and she cautioned Israel about its commitments to obligations under international human rights and humanitarian laws. Even though Israel is not a signatory to the Geneva Conventions, custom decrees that it abide by its provisions, and international bodies are enjoined (by Article 146) to investigate and prosecute even non-signatories for violations of the Conventions. The U.N. archives are littered with reports that censure Israels government for using armed force against civilians. A 2006 U.N. Commission of Inquiry on the Israeli invasion of Lebanon noted a significant pattern of excessive, indiscriminate and disproportionate use of force by the [Israeli armed forces] against Lebanese civilians and civilian objects and that Israels armies failed to distinguish civilians from combatants and civilian objects from military targets. The 2009 Goldstone report on Israels Cast Lead offensive in Gaza saw the military strategy as a deliberately disproportionate attack designed to punish, humiliate and terrorise a civilian population. Goldstones report referred to the Dahiya Doctrine, which was enunciated by Israels General Gadi Eisenkott: What happened in the Dahiya quarter of Beirut in 2006 will happen in every village from which Israel is fired on. We will apply disproportionate force on it and cause great damage and destruction there. From our standpoint, these are not civilian villages, they are military bases. This is not a recommendation. This is a plan. And it has been approved.

A convenient code

The jargon of the rules of war (Proportionality, Distinction) befuddles the Israeli war planners. They are in a bind. What is one to do when one goes to war against an occupied people who have no army, no visible targets? What do the rules of war say about occupied civilians, whose right to resist and to act against their occupation is also enshrined in the Geneva Conventions (Article 44.3 of Additional Protocol I)? Israels Code of Conduct, drafted by Professor Asa Kasher and Major General Amos Yadlin, tries to skirt established customs, paint the Palestinian resistance as terrorist and therefore enshrine the Dahiya Doctrine as a legitimate mode of warfare against the Palestinians. It is a logic familiar to the language of the War on Terror articulated by the Bush administration after 2001.

U.N. insiders in Geneva tell me that there is no stomach at the UN-HRC to undertake an investigation of the November offensive by Israel. They are burned by the experience of the Goldstone report. When Navi Pillay impanelled a commission in 2009, she chose the eminent South African jurist Richard Goldstone as its chair. The commission came under pressure before it had even finished its investigation. When it presented its report in September, the U.S. and Israel went to work in the U.N. to block any action on it. Ambassador Susan Rice told Israeli Foreign Minister Avigdor Lieberman that she had organised a blocking coalition to prevent action on Goldstones report. She met with the International Criminal Courts Sang-Hyun Song to inform him that the U.S. would see his actions on the report as a test for the ICC. Susan Rice saw U.N. Secretary-General Ban Ki-moon and told him that he needed to write a strong cover letter [for the report] that made it clear that no further action was needed. Two years later, Susan Rice told the U.S. Congress about her actions regarding the report: What we want to see is for it to disappear. The U.S. and Israeli position was that since Israel is a democracy, it is capable of doing its own investigation of allegations of war crimes. U.S. diplomat Michael Posner went to the UN-HRC in late September 2009 to inform the members that the U.S. was confident that Israel, as a democracy with a well-established commitment to the rule of law, has the institutions and ability to carry out robust investigations into these allegations. What Posner did not mention was that in 2005, the New York-based Human Rights Watch (HRW) had released a report called Promoting Impunity: The Israeli Militarys Failure to Investigate Wrongdoing, which noted that Israeli democratic institutions had failed in their obligations and had fallen in thrall to the Israeli security states justifications for its mistreatment of the Palestinian population. In 2009, HRWs Sarah Leah Whitson noted: The failure of the U.S. and European states to endorse the Goldstone report sent a terrible message that serious laws-of-war violations by allied states would be tolerated. It is little wonder that the 2012 offensive resembled in great part the 2009 one, which had been censured by Goldstone but not by the international community.

It has by now been seen as a clich that Hamas is an organisation of hate which refuses to endorse the right of Israel to exist. What is less discussed, but which came up in the Goldstone report, is that Israel does not recognise the Palestinian right to exist (including a refusal to allow it to gain U.N. credentials) and that Israeli state officials routinely use hateful and dangerous rhetoric when it comes to the Palestinians. Many of those quoted in the 2009 Goldstone report returned in 2012 to make similar statements:Major Avital Leibovich: Anything affiliated with Hamas is a legitimate target (2009); Colonel Avital Leibovich: We obviously knew there were journalists in the building, so we did not attack other floors in the building. But my advice to journalists visiting Gaza is to stay away from any Hamas position, site or post for their own safety (2012)Deputy Prime Minister Eli Yishai: It should be possible to destroy Gaza, so that they will understand not to mess with us (2009); We must blow Gaza back to the Middle Ages, destroying all the infrastructure, including roads and water (2012).

With no accountability for the 2009 war, there was no change in the behaviour in 2012. The clichs of massive violence had become mundane. In 2009, a regional council official in Eshkol told the International Crisis Group: Our forces should flatten Gaza into a parking lot, destroy them. This imagery returned in a more brazen manner in 2012. Kadima Party leader, and son of former Prime Minister Ariel Sharon, Gilad Sharon wrote in The Jerusalem Post (November 18): We need to flatten entire neighbourhoods in Gaza. Flatten all of Gaza. The Americans didnt stop with Hiroshimathe Japanese werent surrendering fast enough, so they hit Nagasaki, too. There was no condemnation of this statement, either from Washington or from Tel Aviv.

Behind the scenes in 2009, the U.S. promised the Palestinian Authority leadership in the West Bank that if it backed off from calling for an investigation of the Gaza war, the U.S. would help it towards a peace agreement with Israel. U.S. Envoy George Mitchell and General James Jones saw the Palestinian negotiator Saeb Erakat to inform him of this deal, which the Palestinians accepted. When the Palestinian Authority went cold on the Goldstone report, the UN-HRC was given political cover to bury it. Noura Erakat, who lobbied the member states of the U.N. on behalf of the Council of Palestinian Human Rights Organisations, remembers that it was the global Palestinian protest that forced the Palestinian Authority to reverse its course and thereafter the Goldstone report languished in the UN-HRCs Geneva office and then in the UNHQ in New York where it needed political will to make its recommendations actionable. I do not think the UN-HRC will impanel a commission to investigate the current offensive, she told me. The Goldstone Commission required a tremendous amount of political energy that ultimately fizzled out due to competing political interests.

Suffocation of Palestine

Refusing to allow a Palestinian state to emerge on its borders, the Israeli government has sought to encage Gaza and to encroach into the West Bank. A recent U.N. report on Gaza, Gaza in 2020: A Liveable Place? (August 2012), shows that its already impoverished population is worse off than they were in the 1990, with the main reason being the blockade of the Gaza Strip. Israel does not allow this small territory to have free access to goods and services, which, the Palestinian Ministry of National Economy estimates, costs its residents about $1.9 billion annually in unrealised growth. In addition, the frequent bombardment of Gaza demolishes its infrastructure. The Cast Lead damage was estimated at a minimum to be $250 million (the statistics of destruction are hard to bear: 35,750 cattle, sheep and goats killed; one million chickens killed; 600,000 tonnes of toxic rubble; $25 million damage to universities, and so on). The Palestine Chamber of Commerce estimates that the current offensive will cost the Strip $300 million.

Children have a hard time under conditions of occupation. In the West Bank, where the Israeli forces have a much more intimate relationship with the population, arrests of children are routine. The U.N. reports that Israel arrests about 700 children a year and holds about 12 per cent of them in solitary confinement.

Things are hard in Gaza as well. Since the plurality of the population is children, and since civilians were mainly among the 140 or so Palestinians killed and the 1,200 or so injured, it was to be expected that most of them would be children. UNICEFs Catherine Weibel reports that these wars are devastating to the psychological well-being of the children. UNICEFs Communication Officer in Gaza, Sajy Elmughanni, says: My one-year-old son, Kamal, has not been the same since the air strikes started. He used to be a happy baby, but now he sits and stares blankly. It makes me feel powerless. UNICEF and the U.Ns agency in Gaza, the United Nations Relief and Works Agency (UNRWA), compile information and provide services, but their work is the most elementary band-aid. There is nothing they can do to change the context in which Gaza suffocates.

Earlier this summer, the UN-HRC impanelled a fact-finding mission (FFM) to look into the Israeli settlements in the West Bank. By international law, an occupying power is not permitted to encroach upon the land of those who are under occupation (Fourth Geneva Convention of 1949). A raft of U.N. resolutions have pointed this out to the Israeli government, which has nonetheless thumbed its nose at the U.N. The mandate of this FFM, chaired by the French jurist Christine Chanet, was to investigate the settlement activity and to report on the impact of these settlements on the rights of the Palestinians. In February 2011, the U.S. had threatened to veto a Security Council resolution on the settlement activity. In January 2012, the Israeli government formed its own commission, headed by Judge Edmond Levy, to investigate settlement activity. Levys report, released in July, a few days after the FFM was set up, endorsed the Israeli government policy of settlement building and thereby eliminated Israels obligations to international law. When the FFM sought to enter occupied Palestinian territory, the Israeli government refused it entry.

A week before the recent military offensive in Gaza, the FFM concluded its work, with Judge Chanet noting: We continue to regret that we were not granted access to the Occupied Palestinian Territory and Israel in order to carry out further work. The FFMs work has been stalled. Meanwhile, Israeli settlers went to work attacking Palestinian olive groves at harvest time. The U.N.s envoy Robert Serry told the press: Israel must live up to its commitments under international law to protect Palestinians and their property in the occupied territory so that the olive harvesta crucial component of Palestinian livelihoods and the Palestinian economycan proceed unhindered and in peace. His comment went unheeded.

Rashid Khalidi, the Edward Said Professor of Arab Studies at Columbia University (New York), told me that the U.N. lives in abject fear of the U.S. and its Israeli friends, and the backlash from both will be fierce if it tries to do anything. This fear has meant that the U.N. will not act to rein in the impunity with which the occupation of Palestinian territory continues. No wonder that Richard Falk, the U.N. Special Rapporteur on Palestinian Human Rights, told me that since the U.N. would not act, a report will have to come from civil society or possibly the Arab League. Maybe someone of Archbishop Desmond Tutus or Jimmy Carters stature could be persuaded to head an inquiry of this kind. Tutu and Carter are part of a group called The Elders, whose mission to the region concluded a few weeks before this current offensive. The Elders reported that Israel seems to have given up on the two-state solution. Carter wrote: There is no doubt that [Israeli Prime Minister Benjamin] Netanyahu has decided on the Greater Israel option, to create one Jewish state between the Jordan river and the Mediterranean Sea although 20 per cent of the citizens now inside Israel are Christians and Muslims. If Carter is right, and if the U.S. disallows any criticism of Israel, it is likely that the political process for Palestinian self-determination is at an end. All that remains is the Occupation and more violence.