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Can Israel Claim Self-Defense Against the Territory It Occupies? Int’l Jurist John Dugard Says No

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With close to 1,900 dead from Israel’s month-long assault on Gaza, Human Rights Watch is calling on Palestinian President Mahmoud Abbas to seek International Criminal Court jurisdiction over potential war crimes committed on and from Palestinian territory. HRW says both Israeli forces and Palestinian militants committed war crimes. We are joined by HRW Executive Director Kenneth Roth and John Dugard, former U.N. special rapporteur on human rights in the Palestinian territories and emeritus professor of international law at the University of Leiden in the Netherlands. “Given the fact that Gaza is an occupied territory, it means that Israel’s present assault is simply a way of enforcing the continuation of the occupation,” says Dugard, “and the response of the Palestinian militants should be seen as the response of an occupied people that wishes to resist the occupation.”

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This is a rush transcript. Copy may not be in its final form.

NERMEEN SHAIKH: We continue our discussion about possible war crimes in Gaza. Palestinian Foreign Minister Riyad al-Maliki said Tuesday his administration was making efforts to have Palestine become a member of the International Criminal Court, a legal step that would grant the court jurisdiction over alleged crimes in the territory.

RIYAD AL-MALIKI: Yes, I did meet the prosecutor. For us, it was very important just, you know, to get acquainted with the work of the ICC and what is really being required for Palestine to get access to, to put its signature to the Rome Statute and to become member of the ICC, because what has really happened recently against the Palestinian people in Gaza, atrocities committed by Israel, required immediate reaction from us. And so, here we are, you know, ready to ask questions, to be prepared for the next step.

AMY GOODMAN: Joining us from The Hague is John Dugard, the former U.N. special rapporteur on human rights in the Palestinian territories, now emeritus professor of international law at the University of Leiden in the Netherlands. His recent essay for Al Jazeera America is headlined “Debunking Israel’s Self-Defense Argument.” Still with us in Washington, D.C., Kenneth Roth, executive director of Human Rights Watch.

John Dugard, as the ceasefire talks begin in Cairo right now, and the tally is done of the wounded, of the dead, looks like close to 1,900 Palestinians have been killed, thousands have been wounded, 10,000 homes destroyed, 5,000 that have been severely—the houses have been severely damaged. Can you talk about the whole issue of the International Criminal Court?

JOHN DUGARD: Well, Ken Roth has explained the basis for jurisdiction. Palestine is not a party to the Rome Statute. And in order to become a full member of the court, it would have to become a party to the Rome Statute. It can, however, make a declaration accepting the jurisdiction of the court for crimes committed in Gaza at a particular time, and that has not yet been done in recent times since the General Assembly recognized Palestine as a state. But I think it’s important to realize that in 2009, following Operation Cast Lead, Palestine did submit a declaration referring all international crimes committed in Palestine to the International Criminal Court, and that was rejected early in 2012 because at that stage Palestine was not recognized as a state. But later in 2012, the General Assembly did recognize Palestine as a state.

So my position is that it is possible for the prosecutor of the International Criminal Court to exercise jurisdiction, to initiate an investigation already, without any more due. And this is confirmed by the fact that in the last few weeks the minister of justice and the deputy minister of justice of Palestine have submitted documents to the International Criminal Court indicating that, as far as they are concerned, the 2009 declaration is still valid. So, I must confess that I hold the prosecutor of the International Criminal Court partly responsible for the fact that no proceedings have been initiated against Israel and Hamas before the International Criminal Court.

NERMEEN SHAIKH: John Dugard, you have also made comparisons between apartheid South Africa and the situation in the occupied Palestinian territories. Could you elaborate on what you think the similarities are?

JOHN DUGARD: Well, if I look at the situation in Palestine, which I know very well as former special rapporteur, if I look at it as a former South African, then I see very similar circumstances prevailing in Palestine as prevailed in South Africa during apartheid. But I think it’s also important to look at the situation in terms of the 1973 United Nations Convention on the Suppression of Apartheid, which defines apartheid and which applies it to situations beyond southern Africa. And essentially, it requires three conditions: first of all, that there should be two groups. Here, there are clearly two groups: the Palestinians and the Israelis. Secondly, that the governing group should commit inhumane acts against the subject group. And that clearly is happening in the occupied Palestinian territory. Israel has subjected the Palestinians to all sorts of inhumane acts. And then, thirdly, this should be done with the intention of maintaining the domination. And one can draw that inference from the presence of settlers in the West Bank, because today one has some 600,000 settlers in the West Bank who actually constitute a colonial enterprise. And as with all colonies, the colonial peoples—or, the colonial power subjects the colonized people to domination. And so, if one looks at these three conditions, I think it’s clear that, in terms of the 1973 Convention on Apartheid, Israel’s policies and practices in the occupied Palestinian territory are tantamount to apartheid.

NERMEEN SHAIKH: And John Dugard, how do you respond to Israel’s argument that in fact it was attacking Gaza only in self-defense? Your article, of course, is titled “Debunking Israel’s Self-Defense Argument.” So could you lay out what you say there?

JOHN DUGARD: Well, it’s very important for Israel that it should portray itself as the victim in the present conflict. And President Obama and both houses of Congress have endorsed the view that Israel acts in self-defense. But as I see the situation, it is very different. Gaza is an occupied territory. It’s part of the occupied Palestinian territory. The fact that Israel has withdrawn its ground troops, or had before the present incursion, does not mean that it is no longer the occupying power, because it has always retained control, effective control, over the territory of Gaza. That’s the test in international law: effective control. Israel controls Gaza by means of the land crossings, by controlling the air space and the sea space, and by carrying out repeated incursions into the territory.

So given the fact that Gaza is an occupied territory, it means that Israel’s present assault on Gaza is simply a way of enforcing the continuation of the occupation, and the response of the Palestinian militants should be seen as the response of an occupied people that wishes to resist the occupation. It has taken this resistance into Israel itself, but it still remains resistance. And I think it would be very helpful to see the occupation of Gaza in the same context as one might see, for instance, the occupation of, shall we say, Netherlands during the Second World War by Germany. It’s an occupied territory, and if Israel uses force against the occupied territory, it’s not acting in self-defense. It’s acting as an occupying power.

AMY GOODMAN: The United Nations’ senior human rights official said last week she believed Israel was deliberately defying international law in its military offensive in Gaza. This is Navi Pillay.

NAVI PILLAY: [For the past weeks I’ve been looking at the] previous fact-finding missions. So, they’re all out there. Same kinds of attacks are occurring now on homes, schools, hospital, U.N. premises. None of this appears to me to be accidental. There’s been clear warnings issued to Israel by these very eminent commissions of inquiry, plus follow-up commissions of inquiry, and therefore I would say that they appear to be defying, deliberate defiance of obligations that international law imposes on Israel.

AMY GOODMAN: And I want to return to remarks made by Secretary of State John Kerry, who was speaking on the BBC with Zeinab Badawi on Tuesday.

SECRETARY OF STATE JOHN KERRY: We fully support Israel’s right to defend itself and the fact that it was under attack by rockets, by tunnels, and it had to take action against Hamas. Hamas has behaved in the most unbelievably shocking manner of engaging in this activity. And yes, there has been horrible collateral damage as a result of that, which is why the United States worked very, very hard with our partners in the region, with Israel, with Egyptians, with the Palestinian Authority, with President Abbas, to try to move towards a ceasefire.

AMY GOODMAN: Ken Roth, if you could respond to both, to what John Kerry, to what President Obama says, the U.S. position on what’s happened in Gaza, as well as the United Nations’ position?

KENNETH ROTH: Yeah, well, I mean, John Kerry deliberately stresses the self-defense argument, which John Dugard just now was talking about, as well. And, you know, you can argue forever whether this was self-defense against the rocket attacks or whether it was upholding the siege of Gaza. And rather than get into that, it sort of doesn’t matter, because whether Israel was the aggressor or the defender, it has a duty to comply with the Geneva Conventions, the laws of war designed to spare civilians as much as possible the hazards of conflict. And that’s what Navi Pillay, the U.N. high commissioner for human rights, was talking about, because you can be fighting in self-defense and still committing war crimes, which is one way to characterize what Israel was doing, because merely trying to prevent the rocket attacks doesn’t justify deliberately targeting civilian structures, using methods of warfare that are indiscriminate, targeting militants when there are many, many civilians around so there will be disproportionate costs to civilians. These are all war crimes, and it doesn’t matter if ultimately you were fighting in self-defense. You can still commit war crimes. That’s what the Geneva Conventions are about. They’re kind of neutral as to who was right or wrong in the ultimate sense of aggressor or defender. They just look at how you fight the war. And both Hamas and Israel are fighting the war in blatant violations of the Geneva Conventions.

AMY GOODMAN: President Obama, the Obama administration’s support for Israel, and the difference it would have made weeks ago if they had criticized Israel? You know, the story of this last weekend is, after the last Israeli attack on a U.N. shelter, the U.S. said, “Enough,” and as soon as the U.S. said, “Enough,” they stopped.

KENNETH ROTH: Yes, you know, exactly. I mean, that was a good illustration. You know, Israel says, “Oh, it’s all about human shields. We’re doing everything we can to avoid civilian casualties.” What happened in that case is there were three guys on a motorcycle whom Israel wanted to target. Now, it could have waited, you know, a minute, until they’d driven on a bit and there was no one else around, and attacked them there. No, they attacked them when they’re sitting outside of a U.N. school sheltering 3,000 displaced people. And surprise, surprise, many of those displaced people get injured and killed. So, at that point, the U.S. finally said, “We’ve had enough. This is outrageous.” They should have said that weeks ago, and that may have pushed Israel to stop these methods of warfare. But, you know, the reflex in Washington is to support Israel no matter what and to not talk about the way it’s fighting, just to talk about self-defense and to talk about the Hamas rocket attacks. And yes, you know, everybody wants to see the indiscriminate rocket attacks end, but that’s not justification for Israel itself, using these kind of indiscriminate means, killing so many hundreds and hundreds of civilians.

AMY GOODMAN: Could the U.S. be charged with war crimes, as well? I mean, in United States common law, felony murder, it’s both the person who commits the murder and the one who provides the gun. By Friday, when I don’t know how many people had been killed at that point, say, 1,400 Palestinians, the U.S. said they were resupplying Israel with ammunition.

KENNETH ROTH: Yeah. I mean, I wouldn’t hold your breath on a prosecution, but I do think you bring up a valid point, Amy, which is that the U.S., under U.S. law, should not be sending weapons when they’re going to be used to commit war crimes. And so, if U.S. wants to send, you know, the Iron Dome anti-missile defense to Israel, nobody’s going to quarrel with that. But to continue sending Israel the kind of weapons that it’s using to commit war crimes in Gaza should stop. And, you know, there is a precedent for this. I mean, even Ronald Reagan stopped sending cluster munitions to Israel when it was using them indiscriminately in Lebanon. But President Obama, you know, isn’t going to touch that

NERMEEN SHAIKH: Kenneth Roth, according to Human Rights Watch, are Hamas and Israel guilty of comparable or equivalent war crimes?

KENNETH ROTH: You know, I don’t get into equivalence. They’re both committing war crimes. I mean, Hamas’s war crime is to fire rockets which are incapable of being targeted at a military target. They’re launching them toward civilian areas like Tel Aviv. You know, that is the war crime of firing indiscriminately. Israel itself is committing the war crimes that I outlined: you know, deliberately targeting civilian structures; in some cases, deliberately targeting civilians; aiming at militants at moments when they’re surrounded by civilians, and you know that the civilian harm will be disproportionate; and using certain weapons, like heavy artillery, in densely populated areas, which are, like the Hamas rockets, incapable of being targeted only against militants or only against combatants.

AMY GOODMAN: John Dugard, we only have a minute. Your response?

JOHN DUGARD: Yes, I agree with Ken completely. I think it’s important to realize that under the Rome Statute, a state which assists, aids or abets a state in the commission of an international crime is also guilty. And I suspect that one of the reasons why the United States is opposed to Palestine joining the International Criminal Court is that inevitably its own complicity in these crimes will become an issue.

AMY GOODMAN: Well, we’re going to have to leave it there. I want to thank you both very much for being with us. Kenneth Roth, executive director of Human Rights Watch, we’ll link to your report, “Gaza: Israeli Soldiers Shoot and Kill Fleeing Civilians.” John Dugard, thanks for joining us from The Hague, former U.N. special rapporteur on human rights in the Palestinian territories, now at the University of Leiden in the Netherlands. This is Democracy Now! Back in a minute.

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