Printer FriendlyIsrael's Legal Immunity
From settlements to wall, assassinations to the Gaza flotilla, Michael Mansfield looks at the Russell Tribunal on Palestine.
Israel’s brazen policy of indiscriminate death and destruction in Gaza during operation Cast Lead in 2009 is well documented in the Goldstone report. The reaction of the UK authorities was barely more than a whisper and a momentary murmur. When a member of Hamas was assassinated in Dubai, the response was a gently raised diplomatic eyebrow. Once, however, the modus operandi of the murder was finally unravelled a minor storm broke out, not so much about the illegality of the murder, but about the fact that over half the gang employed by Mossad and authorised by the Israeli state used British passports. At some point at least 12 British citizens living in Israel had their passports cloned and photographs substituted. Even in the face of such a serious infringement the repercussions were merely symbolic. A senior Mossad agent in London was asked to leave. By the time you read this article there will be another agent in place and the whole incident will have become a dim and distant indiscretion.
This deliberate designation of legal immunity accorded to Israel by other states follows a depressingly repetitive pattern over the last 60 years. The UN passes resolution after resolution, the World Court ( ICJ ) passes a searing judgement on the illegality of the wall and its ramifications and the need for action, but not a single political finger is lifted to implement any sanction or remedy for the numerous and substantial violations.
Israel is so sure of its unassailable improprieties that Binjamin Netanyahu felt able to announce the development of further illegal settlements in East Jerusalem (1,600 homes) within 24-hours of the arrival of a US peace delegation led by Joe Biden in March 2010. At the same time, courageous attempts by individuals to redress this iniquity on behalf of Palestinian victims have been frustrated and undermined by government ministers, the very ministers who should have been taking action themselves.
Tzipi Livni was a member of the Israeli War Cabinet for Operation Cast Lead. In December 2009 Westminster Magistrates Court issued a warrant for her arrest on war crimes charges sought by Palestinian families. This is not something decided on a wing and a prayer. Her visit to London was duly cancelled, no doubt because of a tip-off. The British hierarchy was falling over itself to telephone profuse personal apologies to her – especially Gordon Brown and David Miliband. Meanwhile the Attorney General, Patricia Scotland, was in Israel characterising these legal initiatives as ‘lawfare’. If such unified and vociferous indignation could have been ventilated about Israel’s systemic rejection of international law maybe the peace process would be further down the road promoted by an ambassador with a map more credible than Tony Blair’s.
The ICJ’s Wall judgement is instructive and authoritative. Fourteen out of 15 senior and respected international judges delivered a clear and resounding opinion – ‘the construction of the wall and its associated regime are contrary to international law’ (para 142). They went on to examine the consequences of such violation. The most important was the obligation placed on all states to have a legal interest in the protection of basic human rights (erga omnes). Paramount amongst these for Palestinians is the right to self determination (paras 155- 6). Exactly what this means on the ground was spelt out in unequivocal terms (para 159):
‘Given the character and the importance of the rights and obligations involved, the Court is of the view that all states are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction. It is also for all states, while respecting the United Nations charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people’s right to self-determination is brought to an end. In addition, all the states parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 are under an obligation, while respecting the United Nations charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that convention.’
It was against this background that on 4th March 2009 in Brussels, the Russell Tribunal on Palestine was launched. Essentially this project is a citizens’ or people’s initiative supported by prominent international jurists. Bertrand Russell was the inspirational spirit behind the original concept. There have been two previous tribunals – the first on Vietnam 1966-67 and the second on Latin America in 1974-76.
The current one concerning Palestine (RTP) it is to hold hearings in five parts. The first part occurred in Barcelona on 1st-3rd March 2010. The second will take place in London towards the end of the year. Participants included Nobel Prize laureates, a former UN Secretary General, a former UN Undersecretary General, two former Heads of State, senior politicians and many representatives of civil society: writers, journalists, poets, actors, film directors, activists, scientists, professors, judges and lawyers. The whole process was opened by Stephane Hessel, French Ambassador and coauthor of the Universal Declaration on Human Rights.
A jury panel of eight members has been brought together to adjudicate during the five parts. They are Mairead Corrigan Maguire, Nobel Peace Laureate 1976, Northern Ireland; Gisele Halimi, lawyer, former Ambassador to UNESCO, France; Ronald Kasrils, writer and activist, member of Mandela’s government, South Africa; Jose Antonio Martin Pallin, emeritus judge, Chamber II, Supreme Court, Spain; Cynthia Mckinney, former member of the US Congress and 2008 Green Party presidential candidate; Alberto San Juan, actor and activist, Spain; Aminata Traore, author and former Minister Culture of Mali; and myself.
In Barcelona the hearings were divided into sessions presided over by the jury during which witnesses, both expert and lay, gave evidence and were questioned by the panel. In order to expedite proceedings and concentrate attention on key issues, witnesses were asked to submit reports or statements in advance. At the end the jury deliberated upon its verdict and completed a report containing its conclusions.
The focus was not so much the obvious and well recognised violations by Israel but the complicity of others in these violations and most importantly what can be done to end the pattern of immunity. To this end six different areas of concern were identified: the right to self determination; settlements and the plundering of natural resources; the annexation of East Jerusalem; the blockade and invasion of Gaza; the construction of the wall; and the European Union/Israel Association agreement.
The jury examined the role of the EU with regard to each of these, and having received testimony from a wide range of witnesses, the most poignant of which came from humanitarian aid workers and activists on the front line as well as a military member of the UN Goldstone mission, it reached unanimous conclusions about the breaches by the EU and its member states of specific rules of international law.
In consequence the tribunal called on the EU and its member states to fulfil its obligations forthwith:
• to implement the EU Parliament resolution requiring the suspension of the EU/Israel Association agreement;
• to implement the UN fact-finding mission report on Gaza with regard to the collection of evidence and the exercise of universal jurisdiction against Israeli and Palestinian suspects;
• to repeal any requirements in any member state that a suspect must be a resident of that member state or any impediments to the compliance with the duty to prosecute or extradite all suspected war criminals sought out by the member states;
• to ensure that universal jurisdiction laws and procedures are made as effective as possible in practice; and
• to make no regressive changes that would blunt the effect of existing universal jurisdiction laws. The RTP also called on individuals, groups and organisations to take all avenues open to them to achieve compliance by EU member states and the EU of their obligations:
• by the use of universal jurisdiction over individual criminal suspects, domestic civil proceedings against individual governments and all their departments or agencies and private companies.
• It is the intention of the RTP to commission and or encourage others to commission research into which countries and jurisdictions these matters can most effectively be pursued.
• Finally the RTP endorsed existing legal actions and campaigns in the context of BDS (Boycott Divestment Sanctions) within the EU and globally.
A full version of the report can be accessed on the RTP website – www.russelltribunalon palestine.com
The second part in London will examine international corporate complicity in Israel’s ongoing illegal occupation of Palestinian land; control of and exploitation of natural resources and crops; and domination of trade and infrastructure. It will aim to equip groups and individuals with the tools to take action against companies involved in Israel’s human rights abuses against the Palestinian people by identifying the relevant commercial enterprises and the most effective avenues for legal redress.
Any assistance would be much appreciated by the coordinator Frank Barat who can be contacted at the following e-mail: russelltribunaluk @googlemail.com
Postscript
Since writing this article its central point has been amply demonstrated once more by the murderous Israeli attack on the humanitarian aid flotilla, and by the stunning failure of European governments (especially the UK) to take any protective measures. On 20th May I wrote to the Deputy Prime Minister (see The Guardian website) in the light of his protestations about the Gaza blockade (The Guardian, 22nd December 2009), predicting this fatal outcome unless something was said or done immediately. The customary and conspicuous silence ensued. A bevy of coalition politicians can rush to Afghanistan but not to the assistance of peace activists. So much for the rule of law.
