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Israel on the way to the Hague?
War Crimes and Israel's security

Gush Shalom forum discussion
January 9, 2002, at the Tzavta Hall, Tel-Aviv


Dr. Yigal Shohat,
   Colonel (res.), Israeli Air Force
Dr. Eyal Gross,
   Faculty of Law, Tel Aviv University
Prof. Adi Ophir,
   Dept. of Philosophy, Tel-Aviv University
Brig. General (res.) Dov Tamari
Michael Tarazi, legal adviser to the
   PLO Negotiations Dept., Ramallah
Shulamit Aloni,
   former minister of eduation and Meretz Party leader
Haim Hanegbi

[Note: In several of the following speeches, the term "Black Flag" occurs. It is taken from the verdict Israeli Supreme Court which found guilty the perpetrators of the 1956 Qafr Qasem massacre, rejecting their plea of following orders and ruling that a soldier has the right and duty of refusing "A manifestly illegal order, on which the black flag of illegality flies". There is, however, no autoritative definition as to what may constitute such an order.]

Haim Hanegbi: I have no intention of competing with the speakers and making long speeches of my own. I would, however, like to start this evening with the reading of a few lines by Yehuda Amihai.

Of the three or four in the room
Always one is near the window

Has to see
The wrongdoing between the thorns
And the fires on the hill

And how people who left whole in the morning
Are brought home as a few small coins.

Yigal Shohat: I am here this evening because of a letter to the editor that I wrote in July. In that letter I did not speak of comprehensive conscientious objection. The truth is that I had not yet fully developed my opinion on the option of completely refusing service in the IDF.

I am in favor of the State of Israel, of the defense of its security, of defending its borders and, also, of the fight against local and international terrorism that threatens it. For this, an army is necessary. But, on the other hand, I cannot resign myself to the matter of course acceptance of the ongoing occupation. The fact that one generation of soldiers after another serve this occupation actually provides the changing governments with the power to hold onto the territories and the settlements and to oppress the Palestinian population. Therefore I find myself in a major dilemma, which I have solved for myself, at least temporarily, by opposing military service in the occupied territories rather than a comprehensive refusal to serve.

I know there is some hypocrisy in this. A soldier who works at the General Staff offices in Tel Aviv, doing administrative duties, can do more harm than a soldier at a checkpoint in the territories. Still, I think that refusal to serve in the Occupied Territories has a sharper political and moral message. It states that you are willing to protect your country and fight for it, but are not willing to oppress another nation over an extended period of time, an act with negative security effectiveness for the State of Israel. In actual fact, military service in the Occupied Territories harms the security of Israel and serves only the security of the settlers. I think there is general agreement on this point.

With regard to pilots, combat pilots, helicopter pilots, all pilots, they cannot just refuse to serve beyond the Green Line [pre-'67 border]. Pilots do not serve at the location in which they are stationed. They must decide anew each day, sometimes each hour, what they can and cannot do from a moral and legal perspective.

I am not naive. I know that any pilot who refuses once or twice to bomb Nablus or Ramallah will soon end his career - and it is a career indeed. Flying is a way of life and a profession. It is never merely a term of service, as a conscript or reservist, to be quickly done with and return home safely. Therefore, when discussing pilots, I am in favor of expanding the concept "Black Flag".

In my opinion, pilots must carefully examine the orders they receive, ask many questions about the objective and refuse to undertake any order that appears illegal to them. In practice, I fear that they are not at all concerned about such issues. Rather, they compete amongst themselves for the next assignment of assassinating someobody in the main street of Nablus or dropping a bomb on a building in Ramallah. They probably come back pleased if they hit their target, even if somewhat regretful if civilians are killed. I remember these feelings myself. People want to excel at their jobs and they want "action". That is why they became combat pilots in the first place.

I think that F-16 pilots should refuse to bomb Palestinian cities. They should think how such an attack would affect a city they lived in. Imagine that Arafat would decide to send a fighter plane to destroy the Police Headquarters on Dizengoff Street [in Tel-Aviv]. Imagine that Arafat had a fighter plane with which to do it, and he came to the conclusion that he could thereby convince Sharon to leave the territories. Would we accept bombings from the sky in the middle of our cities as a legitimate means of warfare? Hardly, since even this morning's strike against an IDF outpost on the Gaza Strip border is considered in Israel to be "terrorism".

I can imagine how Ramallah must have looked when an F-16 bombed its police headquarters. I'm not even referring to the people who were killed there - cooks from Gaza, rather than fighters. I am speaking of the bombing of a densely populated city. I am speaking of assassination in the main street by missiles fired from a helicopter, when three bystanders are killed. This cannot be described as "collateral damage"; it cannot be claimed that there was no intention to harm civilians. When a plane bombs a populated city, civilian casualties must be taken into account. Even when the bombs are supposed to be precisely targeted. Therefore, this is a premeditated killing of civilians. A war crime.

We have seen in the past few months what "smart bombs" can do, both here and in Afghanistan. I don't think the objective is important enough for us to pay such a price, especially as we are not confronting an army but, rather, civilians. Especially when our cause is unjust. Very unjust. In my view, the main objective of this fight is not legitimate, as the occupation is not legitimate. And the lesser objective, destroying the police building in order to pressure Arafat to stop terrorrism, is not legitimate either. Nor did I accept [in 1986] the legitimacy of the "Grapes of Wrath" campaign, which aimed at chasing away Lebanese villagers by bombing them and thereby pressuring the Lebanese government to fight Hezbollah.

But pilots are not the only ones involved in war crimes. Possibly, I think, the pilots are ultimately less involved than others. Every bulldozer driver should refuse an order to demolish houses so as to create "a clear field of fire" for the IDF. This week I read the interview [in Ha'aretz] with Brigadier General Dov Zadka , head of the military government's civil administration. I read about the authorizations he gives for the destruction of Palestinian plantations and orchards and his complaints about how the officers on the ground becomes hyperactive and uproot twice the authorized number of trees.

But what authority does he have to authorize anything of the kind, on whatever scale? I am amazed every time I think of a person who gets up in the morning to do a day's job of this kind. We are not speaking of a boy just conscripted, but of a general with many years' experience and training. What does he say to himself at the end of each day? Today I authorized the destruction of 50 acres of strawberry fields? For what purpose? For the security of the State? I see that General Zadka is now concerned that he might eventually get to the War Crimes Tribunal at The Hague, as well he might. So, he is aware of what he is doing and of the implications. How can one be aware and still go on committing such deeds?

I think that the destruction of civilian homes, just because they obstruct the sharpshooters' field of vision, is an immoral action by definition. I am not a lawyer and I don't know what is legal and what isn't, but I shouimagine that it is also illegal. I know that the question about when a black flag is waving above a certain order is entirely personal. It is impossible to wait until a court pronounces an action to be illegal. One should not wait, because then the action has already taken place - as in the case of Ehud Yatom [Israeli security service operative who obeyed an order to kill two Palestinian prisoners in 1984]. There are people who never see black flags, even when it is about the murder of a bound Arab. There are people who see black flags only when they get old, like me. When I was a young pilot I did not question my orders, I did as I was told.

I am in favor of a broader usage of the concept "black flag" which means a refusal to obey a manifestly illegal order. But I know that neither conscripts not career soldiers will often use it. When you are inside, you see things differently. I think that even standing at a checkpoint in the Occupied Territories and selecting which person will get to the hospital and who not, which woman will get to the maternity ward and which one will be delayed and give birth right there at the checkpoint, is a manifestly illegal job. Therefore, I think that anyone called to serve at these checkpoints should refuse, even at the price of being prosecuted. It would be good if the issue of this "selection" at the checkpoints would be examined by a court.

I think that those who refuse to do military service in the Territories should not be content with merely going to prison - they should make efforts to get to a civilian court of law so that the issue be examined and publicized. They should take their refusal to the High Court of Justice. They should state that the commands which were issued to them are illegal. The ones who go quietly to prison have no real impact. The army must not be allowed to place checkpoints at will and prevent people from living their lives, going to work, going to the doctor. We must not accept this situation as if it were Heavenly ordained. This is a collective punishment of civilians. It is illegal according to the Geneva Convention.

I think it is shameful that so few refuse to serve in the territories, but I find it difficult to reprimand anyone, as I myself did not refuse when I should have.

Almost twenty years ago I visited Professor Isaiah Leibowitz. He asked me then, in 1983, why was it that 500 officers could not be found who would refuse to serve in the Occupied Territories. In his opinion, 500 such officers would have put an immediate end to the occupation. I think he was right.

Soon it will no longer be possible to speak about the occupation, since our presence in the Territories over such a protracted period has created a new situation. People who were conscripts in the Territories come back during their reserve duty, and their children return to the same place. The new generation does not even know any Palestinians because of the prolonged closures, and the territories come to resemble Lebanon. An attitude of Apartheid towards the Palestinians is passed on from generation to generation. This is true not only for the settlers but for all of us. If there were no violent incidents, we would not even remember that there are any Palestinians.

I can't say whether all the military actions I participated in when I was an active combat pilot were legal or moral. I assume not. Friends from that period, who bombed targets along with me, accuse me that I made the decision to become morally sensitive too late. That it is no big deal to talk about conscientious objection when it no longer has anything to do with me, when I would not be the one to go behind bars. They say I kept my silence as long as I was still concerned about promotion on the ranks of the IDF, but now that I have nothing to lose, I suddenly become a hero.

To this I respond: It is true that I attained political and moral maturity very late. But I can also say that, on the whole, the targets bombed were military. That when I did bomb in civilian areas it was in the context of an all-out war, when there were planes and tanks and soldiers fighting on both sides and it was entirely unclear who would emerge the winner. In the wars I was in, we usually had the feeling that Israel was in an inferior position, that we were fighting for our lives and our home.

Insofar as the Territories and this military fight against the Palestinians are concerned, I don't see any armies confronting each other. And as far as the present war is concerned, I don't even know which side I am on - as certainly I am not on the side of the settlers. What I see is an occupied population with a few hundreds of rifles and mortars trying to get us to leave, and we are refusing since we invested a few pennies in unnecessary settlements.

I am familiar with all the arguments against conscientious objecting. First of all it is said that in a democracy it is up to the elected government to determine what is and what isn't a legitimate objective. I disagree. Particularly in a democracy it is the right and the responsibility of every citizen to object to illegitimate kinds of fighting. In totalitarian regimes, refusers and objectors are shot. Here, they just go to prison for a short while. It is in a democracy that one has the opportunity not to follow the herd.

The second argument is that more humanistically-minded people should become soldiers and stand at the checkpoints in order to ameliorate the Palestinians' situation, and that they should not be left to the mercy of the right-wing fanatics. But I doubt this importance which is placed on the individual soldier at the checkpoint, because with time everybody becomes indifferent to the daily suffering. I think that the individual soldier has the most weight when he refuses to serve.

The third argument is that if each one chooses which orders to obey and which not, then when the time comes the settlers and their supporters will refuse to take part in evacuating settlements. On this I just say that it is fine with me. Soldiers who are settlers themselves will refuse to evacuate settlements, and we will do it in their place. I, for example, would have refused to drive a bulldozer destroying the house of a Palestinian family; a settler would refuse to evacuate a settler family. Fine with me. The most important is that IDF soldiers keep their humanity and that they feel moral dilemmas.

In my view, all of the IDF actions are approaching the red line of the black flag. I am not able to state in detail what is legal and what is a war crime. At a time when the Americans kill 7000 people in order to catch one man, it is difficult to talk about morality in war.

Since the Palestinian authority was created after the Oslo Agreements, we started treating it as a state though it is not. This makes it easier for us to attack it with weapons which are intended for fighting against armies, such as tanks and fighter planes. I think we have already crossed some kind of fundamental watershed. I am very much afraid that in the not too far future we are going to bomb also the Arab citizens of Israel, as we have already shot at them during the October 2000 demonstrations. The day will come when the Air Force bombs Umm-El-Fahm, just as Saddam Hussein bombed his own Kurdish citizens. I don't know if the pilots will refuse that order, either. Somebody will convince them that it is logical and vital, that the bombs are smart, that they are only bombing the Town Hall, the Islamic Movement. They will become convinced that they are not going to hurt innocents. I can't see the big difference between this and the bombing of Ramallah.

Haim Hanegbi: Before handing the floor to the next speaker, I would like to quote a concrete case of a war crime, the operational order for an Israeli miltary unit which undertook a cross-border raid on October 1953, and which only came to light forty years later. On September 9, 1994, Ha'aretz published the photo of the original document, in the commander's handwriting: "Objective: to attack the village of Kibiya, occupy it and cause maximal damage to life and property." last six words are underlined. The order is signed by Major Ariel Sharon, Commander of Special Forces Unit 101.

Dr. Eyal Gross: First, I would like to congratulate Yigal Shohat for the important and moving things he said here. If it was up to me, these words would appear on the front pages of all the papers.

Recently, I was invited to speak on the subject of war crimes in many and varied forums: The Holocaust Memorial Council, The Council for Peace and Security [dovish ex-generals and senior officers], the Bar Association. The interest in this subject is the result of rapid changes in international attitudes to it.

I would like to explain what is taking place, what is going on in the international courts and what is meant when people utter the magic word "The Hague". In recent years, there is an enormous intensification of a tendency which is far from new in itself: the definition of universal offences, for which a person may be tried wherever they had been committed. In general, law is territorial. If I stole in Israel, only an Israeli court may judge - unless I stole from a citizen of another country. But there had always been some exceptions. A well-known universal offence, established already for centuries, is piracy. In the absence of a universal court, a pirate may be judged by the courts of any country, even one whose ships he never robbed.

Nowdays, there are two tendencies: empowering the courts of individual countries to judge those accused of universal offences, and the creation of specific international tribunals. A prominent recent case was the Pinochet Affair. Spain asked Britain to extradite Pinochet so that he could stand trial in Spain for torture offences which were not committed on Spanish soil . The House of Lords ruled that he may indeed be extradited. In the end he escaped extradition, after the British Government decided that his health is too frail. (Upon the ex-dictator's return to his homeland, the Chilean air seems to have worked wonders and his health improved overnight?) Still, the important precedent established by the House of Lords stands: a person may be extradited for universal offences, and having been Head of State at the time does not give immunity.

Belgian law makes it possible to prosecute for violations of the Fourth Geneva Convention, which deals with protection of civilians in time of war and specifically civilians living under occupation. First to be judged under this law were citizens of Rwanda, which aroused some discomfort, since Rwanda is an ex-colony of Belgium.

(The same can be said of Spain and Chile, though that is older history; it is to be hoped that the assumption of jurisdiction with regard to universal offences will not develop in the direction of ex-colonial powers claiming jurisdiction over citizens of ex-colonies.)

It is under this Belgian law that the present law case against Sharon is taking place in Bruxelles. The Belgian law is clear on the issue of immunity - i.e. the lack of one, despite Sharon's being a Prime Minister. The issue which is hotly debated, also in Belgium, is retroactive jurisdiction over offences committed before it was enacted.

It should be mentioned that the prime international precedent on this issue was created in Israel - specifically, in the Eichmann Trial.

A precedent of retroactive jurisdiction was established when the Israeli courts assumed the right to judge a person for acts committed long before the Israeli "Law for Exacting Justice Upon the Nazis and their Collaborators" was enacted, indeed before Israel itself was created. The Belgians (and many others) rely upon the Israeli verdicts in the Eichmann Trial, in particular that of the Supreme Court. (There is a significant difference between the two courts which Eichmann faced: the Jerusalem District Court, which condemned him in the first place, emphasized the Jewish aspect, i.e. Eichmann's victims being mainly Jewish and the right of Israel as a Jewish state to judge him; the Supreme Court, in rejecting Eichmann's appeal, emphasized on the contrary the universal aspect - the right and duty of any state to punish the perpetrators of genocide, whether or not that state had any direct connection to the case.).

You may say: how can you make such a comparison? Well, I am not comparing Sharon to Eichmann; still, from the judicial point of view, the Eichmann trial remains the most prominent relevant international precedent, and it was created by Israel. Israel was also an active participant in the creation of universal jurisdiction by enacting its "Law on the Crime of Genocide" under which any perpetrator of genocide - say, from Rwanda - could have been judged by an Israeli court, without Israel having any direct relation to the case.

Now, for the other track - specific international war crime tribunals. The first known case was that of the Nuremberg Trials. That was, however, a very specific court, set up to judge the members of a specific regime in a specific country, and rather controversial in nature. After it ended its assigned task and disbanded, there were decades without any such court, until the 1990's when the UN security Council set up the special War Crimes Courts for Rwanda and the former Yugoslavia.

That was followed by the conference at Rome which culminated in the decision to set up a permanent International War Crimes Court, to be located in The Hague. This court, which has not yet been established, should be sharply differentiated from the International Court in the Hague, which exists already for nearly a century at the same location. At that court, only states can sue each other, individuals have no standing there, and of states only ones which accepted the court's authority are subject to its rulings. The permanent War Crimes International Court is due to be established at the Hague when at least sixty states have signed and ratified the Rome Treaty which establishes it. This number nears completion. For their part, Israel and the US have signed but not ratified the treaty. The US made clear its objection: it would not ratify unless it is made sure that none of its citizens would ever be prosecuted by the court.

The Rome Treaty sets out the offences which the court is empowered to judge: the crime of Genocide; Crimes Against Humanity, which include widespread or systematic damage to civilian population by such ways as murder, extermination, torture, expulsion, rape or apartheid; and War Crimes which include severe violations of the Fourth Geneva Convention, among them the killing of civilians and the destruction of property not needed for immediate military needs. This also includes the transfer of population from the occupying power's own territory into the occupied territory, that is the creation of settlements. Because of that article, Israel did not agree to ratify the treaty. Another offence which the court is empowered to judge is the crime of agression, but that will not come into force until an agreed definition of "aggression" is achieved, a complicated legal issue.

With the International War Crimes Court, unlike the cases I mentioned earlier, it has been specified that there will be no retroactive jurisdiction - i.e., the court will only rule on offences committed after the court was created.

The main issue is how will the court operate once it is created, and who may be judged by it. Three categories are set out. First, citizens of states which ratified the treaty can be judged by the court. Secondly, those accused of offences committed in the territory of state which ratified it can be judged, even if their own country did not ratify; for example, if Lebanon ratified it, Israelis can be judged for offences on Lebanese soil. (The territories of the Palestinian Authority, which is not a state, are a far more complicated issue.) A third possibility is that the UN Security Council is empowered to decide on the prosecution of a particular person for particular offences; that, of course, is subject to the normal operating procedures of the Security Council and the veto power of its Permanent Members.

A further limitation on the Interantional Court ithat it has no power to intervene if a state decides to conduct a sincere investigation of allegations against one of its citizens - even if at the end of such a sincere investigation the state decides not to prosecute that citizen in its own courts.

For the time being, until the court is formed at The Hague, there is the ongoing prosecution of those accused of war crimes at ordinary courts of specific states. Such are the ongoing legal suit against Sharon in Belgium, and the failed attempt to prosecute Karmi Gilon in Denmark. In fact, these two cases are both problematic, due to the issue of immunity - acting Head of Government's immunity in the first case, diplomatic immunity in the other. A far easier case would be, for example, if instead of Karmi Gilon somebody would start proceedings against a former head of the Israeli Security Service who came to Denmark on his private business and had no diplomatic immunity. If there is something which really frightens this kind of people, it is the possibility that they will not be able to travel abroad.

And meanwhile, except for all the issues of International Law, we should remember the Israeli law's own important definition of a Manifestly Illegal Order, "on which the black flag of illegality flies". In my view, an order to torture a prisoner, to destroy a civilian home etc. are such manifestly illegal orders. Therefore, a call to disobey such an order is a call to keep the law against those who whould break it. A soldier sitting in a bulldozer and refusing the order to demolish a home deserves the full support of civil and human rights organizations. Personally, as chair of the Judicial Committee of ACRI (Assoc. for Civil Rights in Israel), I would certainly propose that the association take up the legal and public defense of such a refusing soldier.

Dov Tamari: What I want to say is not necessarily in contradiction with what the preceding speakers said, but I would like to introduce a different way of looking at it: the difference between the old wars and the new wars.

The old wars, the wars of the Nineteenth Century and a large part of the Twentieth, such as the two World Wars and many other wars, were wars of a state against a state, an army against an army. Wars whose aim, on both sides, is to defend the state, to use the state apparatus in order to achieve as fully as possible the interests of the state. But in the past decades there has been a significant change, a considerable decrease in the number of wars of this kind and a corresponding increase in the other kind of war - "The small war", which is what "Guerrilla" originally meant though that term has accumulated a lot of other meanings and connotations.

This is the small, marginalized "sister" of the conventional "Big war". Theoreticians such as Clausewitz ignored the other kind of war, perhaps because it did not fit into the neat categories of their German idealism. A symmetrical theoretical structure was built up to describe and analyze war. It is not necessarily symmetrical in terms of the two sides' strength - wars are possible between two armies which are vastly disparate in numbers and strength. Even in such cases, however, the two states and two armies share the same basic logic. Those who think and act in terms of that logic are unable to comprehend what takes place in an a-symmetric conflict, a conflict between a state and a non-state entity - an elusive state without a visible presence, as opposed to the conspicuous presence of a conventional army; a decentralized entity, fighting for ethnic survival, or sometimes for a religious-cultural one, as in the case of Bin Laden.

The very current concept "terrorist infrastructure" doesn't have a clear meaning. In 1982, it included schools and charitable associations in the refugee camps . Later, mosques were included as well. The fact is that the "terrorist infrastructure" is composed of people, a lot of people. If you want to destroy that "infrastructure" you have to start killing people en masse, and if you don't want to do that you just have to give up the idea.

The present laws of war do not fit the situation of a non-symmetrical war. It is doubtful whether they could be made to fit, either. There is a gap between the Western perception of war, and the perception of this other, elusive and nomadic, war. What does not fit the logic of the "Big War" is just criminalised and lumped together under the label "terrorism" which is wholly inadequate.

Near us there is a Palestinian entity - and I deliberately say "entity", not "authority". When you examine it, you do see a formal Authority which behaves like a state, which has a cabinet, a parliament and an army. But beside it there is an elusive entity, whether you call that entity Hamas, Jihad or Tanzim. A changeable entity, without fixed rules, bent on killing as a main purpose - but also with the ability to stop the killing on occasion, with a high capacity for learning.

All these are one entity. Not that it is a conspiracy, that Arafat is having secret meetings with the Hamas people to plan everything, as it is sometimes portrayed. It is just that the Palestinian concept of struggle is different from ours, a different culture of struggle which we insist upon interpreting in our own terms, with the result that we consistently reach wrong conclusions. That is why Sharon's famous concept of "seven days of quiet" is wholly wrong. The same for the idea of "A Palestinian theory of stages" - if it was correct, the Palestinians would have created a state under the offer of Barak and used it as a springboard for the next "stage".

We encounter this problematic situation again and again, since 1967. We have a binary way of thinking which demands a clear "yes" or "no" which forever elude us. "War requires an agreement to end it". "Taking the offensive creates deterrance". When there is shooting there is no talking, no negotiations under fire". "If we give in at one spot there will be a domino effect".

Our policy is wholy responsive. There are processes of learning. We want to see a solution tomorrow. The time has come to consider how to live in a situation without a solution. I don't want to speak of optimism or pessimism. It is just that I don't see a solution or an agreement in the offing, except learning to live with this situation for many more years.

My perception of the situation started on one specific night, the night between August 7 and 8, 1970, when the cease fire came into effect between us and the Egyptians [ending the three-year "War of Attrition" along the Suez Canal].

Since 1967, Israel missed all opportunities. Immediately after the Territories came into our hands we could have created a Palestinian state, even imposed its creation. Later, the proposal for Palestinian Autonomy in Camp David, Begin and Saddat's Camp David, was deliberately emasculated and came to nothing. Then implementation of Oslo was made conditional upon numerous stages of confidence-building, and in practice confidence was destroyed rather than built.

Erasing the Green Line pulled the Palestinians westwards, rather than pushing them eastwards. The settlements were designed to push the Palestinians out, towards the east, that is the whole logic of their creation. In fact, however, the occupation pushed the Palestinians westwards, to take up menial jobs within the Green Line and also carry out attacks there.

We are in fact coming back to the time when Mapam's kibbutz movement spoke of a bi-national state. If you don't want that you need a border. A border is the only reference between states. You can't have a situation in which on side of the border there is a state and on the other side there isn't.

We didn't make peace with Hizbullah in Lebanon, still, there is a clear border between us and Lebanon, the reference was to "where is the border." Israel has a tendency to think in terms of lines, not borders. Armistice lines, ceasefire lines. We have ignored the concept of border until we achieved a clear border with Egypt and Jordan, but we didn't apply it in other places.

Adi Ophir: The Israeli Army is involved in war crimes- on this, I think, we are all agreed here. The question is, in what tribunals is it possible to judge the perpetrators. Some tribunals already exist, and others may be formed in the future. There is also the possiblity of creating simulated tribunals, which can at least put some of them before the court of public opinion. And there are NGO's whose task is to document, to collect evidence, to point out the guilty.

On the basis of the above, we should not ask the abstract question if Israel is on the way to the Hague but a far more concrete one: why are we not doing more to ensure that concrete persons will get there, persons whose name and address and the details of their misdeeds are all well-known? For example, to build a dossier on [Defense Minster and Labor Party leader] Ben Eliezer? We all know what he has done, to what he bears responsibility. And more dossiers, as many as possible, for anybody who can be connected and held accountable to a specific deed. From generals on down to brigade commanders and battalion commanders and until brutal sergeants or corporals at checkpoints. Why can't B'Tzelem, for example, start compiling such dossiers?

It has an immediate nuisance value. Officers will hesitate whether or not to go abroad, will ask for legal advice. Moreover, making this demand will increase the process of internationalizing the conflict - a vital process since it seems that Israeli society is unable to extract itself from the abyss all by itself.

Of course, such a step also carries a price. First, talking of war crimes may have the effect of de-politicizing the discussion, placing the focus on the specific person and the specific order and ignores the more general background of the ongoing occupation. Secondly, if some group were to start compiling dossiers on specific persons and distributing them in the world, via the internet, to diplomatic missions etc., it would be a radicalization, a radicalization which would marginalize even further the group which would do it. As if we are not already marginalized and rejected.

Nevertheless, it should be done. We should remember the general context. Since the Intifada outbreak, in fact since the failure of Camp David, a new situation has developed. The occupation has gone into a new phase, the more so since the election of Sharon. The gap between de-facto and de-jure, which was there since Oslo, has disappeared. Between 1993 and 2000, de facto there was an ongoing occupation on the ground, in the realm of Palestinian daily life - but de-jure, in the agreements and political process, there was the assumption that the occupation is temporary, a situation which gives hope, a window looking on a better future. In February 2001, this window closed. There is at present no political dimension, no meaningful plans for any kind of political process. There is occupation, period - in spite of Peres' occasional performances and shows. Occupation de facto and occupation de jure, no gap.

One very important thing was left over from Oslo: temporariness. Nobody thinks this situation is or can be permanent. Everything is temporary: the closure is temporary, the siege is temporary, the issuing of documents is temporary. Everything is temporary, temporariness is the law. And this is terrible. Under cover of the temporariness the occupier can do anything, because it is an emergency. Under cover of temporariness there are many more war crimes. Under cover of temporariness, the society can be mobilized to close its eyes and ignore everything.

Because of this dynamic, the Palestinian side has no choice but to resist - a resistance which is legitimate within the common Zionist terms. If you place within the common terms of Zionist discourse the present situation of the Palestinians, and ask "what would you do in such a situation?" than all the implementers of the occupation would have said "In such a situation I would resist". As Barak once said "If I were born a Palestinian I would have become a terrorist". But of course, this equation is not usually made, it was rare even in the case of Barak. Usually, there is a complete or near complete blindness to the other side's situation, unwillingness to place yourself even for one moment in the other side's shoes.

This is the situation which creates the new regime of the occupation, making the Israeli society more nationalistic and at the same time formalizing an Apartheid regime inside Israel. Not only the traditional forms of discrimination towards the Palestinian citizens of Israel, with regard to land tenure, military service and the rights made dependent upon it, etc. There is an escalation in this process.

Here I just read that the Minister of the Interior does not want to grant Israeli citizenship to the spouses of Arab citizens, and that he wants to enact a ministerial decree which will make that legally possible. And there is the attempt to exclude the Arabs from the Knesset. The legal proceedings against KM Azmi Bishara are a concrete example of that. Yigal Shohat was right to speak about the possibility that the Air Force may once upon a time bomb Umm El Fahm.
If we are headed in the direction of an Apartheid regime, than our response should go much further than refusal to serve in the Territories. That would be a regime to which you can't be loyal. There is no loyalty towards an Apartheid regime!


Anybody who understands that occupation and Apartheidization are bound together cannot remain "an insider". You must turn to the outside. Therefore, the argument that speaking of the Hague and of International Law might isolate us is irreleavant. We should go in this direction, not only wave The Hague as a slogan but start building up the files for the future war crimes trials, whether or not they take place.

Michael Tarazi: I am a legal adviser for the Negotiations Affairs department in Ramallah. As a lawyer, I would like to talk of the Palestinians' problem with International Law - not with its text, but with its implementation. Most of the articles of International Law dealing with occupied territories should work in favor of the Palestinians, but in practice the occupation is alive and well.

In the course of negotiating with the Israelis, before Camp David, a member of the Palestinian negotiating team tried to raise the issue of the ever-expanding settlements, extremely damaging to the Palestinian population's confidence in the process and illegal under International Law. The Israeli negotiator simply ignored this query. We asked whether we were conducting negotiations within the framework of International Law, or on the basis of the relationship of forces on the ground. Our Israeli interlocutor at first continued to ignore this issue. Then, when we insisted upon an answer, he had a sudden outburst: "We will implement the Geneva convention only if we are forced to". Even before, it was clear to us that this was the Israeli policy. Still, to hear it stated with such brutal frankness was a shock. We understood that the high echelons of the Barak Government intended to conduct negotiations on the basis of the relationship of forces, rather than of International Law.

When we took a look backwards, we realized that this had been the policy ever since the negotiations started in 1993. That was also reflected in the terminology that was spread out into the world. There was no longer talk of Occupied Territories but rather of "Disputed Territories" - that is, territories to which nobody has an inherent right, and whose fate was to be decided on the basis of the relationship of forces on the ground. They didn't make the distinction between East Jerusalem and West Jerusalem, just one "Jerusalem". Gilo is not considered a settlement, but a neighborhood. People who live there don't know at all that it is beyond the Green Line. How can people all over the world understand what the conflict here is about, when the very terms used are twisted and deliberately misleading.

The man across the negotiating table said that Israel would only behave according to the Geneva Convention if it is forced to. How can we Palestinians force Israel to do tha? This is connected with what Mr. Tamari said here, a matter of a state against a state. We are not a state.

We were forced to search for somebody who would enforce the Geneva Convention. This is not the first occupation in history. Rules were defined how to behave and how not to behave under conditions of occupation. The Geneva Convention was intended to control these rules.

Some Palestinians are angry with me when I say that the occupation itself is not illegal under International Law. But the destruction of houses is certainly illegal, and so are deportations, denial of the freedom of movement and torture. All that is definitely forbidden. So are, of course, the settlements. The Geneva Convention expressly forbids transferring the population of the Occupying Power into the Occupied Territory. That, as the text of the convention specifically states, is needed in order to prevent any possibility of the occupier being able "to threaten the existence as a race of the local population" as the convention put it. The State of Israel joined that convention; that was a condition for Israel's acceptance as member state of the UN in 1949. But Israel does not care about this signature, does not draw any practical conclusions.

International Law forbids the extension of borders by force. The legal borders are the borders of 1967. There is no difference between different parts of the Occupied Territory, The occupation does not begin beyond Ma'aleh Adumim. Ma'aleh Adumim is a settlement, and so are Gilo and French hill, which are often described as "neighborhoods of Jerusalem".

So, how is Interantional Law to be enforced? We went to the UN. We got hundreds of UN resolutions, thousands of them. What are they worth? We approached the states signatory to the Fourth Geneva Convention. We asked them to enforce the convention which they signed. They agree, they smile at us, pat our heads. But they continue to buy settlement products, they do not consider any kind of sanctions against Israel. Sanctions are a measure reserved for use against Arab and Muslim states, only.

This is like demanding of the rape victim to herself take care that the law will be enforced upon the rapist. If she had such power, probably she would not have been raped in the first place.

In the past decade, however, there are new developments in the realm of humanitarian international law. The main thing, from our point of view, is who can sue whom. The new Belgian law makes it possible to sue anybody who broke the Laws of War, regardless of who is the perpetrator and who is the victim. No more is the right to sue in international courts reserved to states only. Now, individuals can go there as well.

One of the appelants who presented the case against Sharon in Bruxelles is Suad Sarur, a woman who was raped during the Sabra and Shatila Massacre in 1982. She saw her parents and her five brothers being murdered. Then, three days later, she tried to leave the camp but was recognized by the soldiers who had raped her, and was thereupon raped again. The people who did this were the militiamen of the Lebanese Falange, Sharon's allies, the men which he introduced into the camps under Israeli military protection.

We, the Palestinian Authority, are required to act as a state, to implement all obligations of a state, though we only contol 18% of the territory, in thirteen disconnected enclaves. If we had tried to sue Sharon in Belgium, for what happened to this woman and to many others, we would have been accused of making a provocation and hurting the cause of peace, and the Americans would have backed Sharon on it. But now she can just go by herself to the Belgian court, together with 23 other Palestinians from Lebanon, survivors of the massacre.

And here in the Occupied Territories, Palestinian NGO's are taking action to activate International Law. They are collecting evidence, not only against Sharon and the heads of the IDF, not only against the soldiers in the checkpoints, but also against the settlers, against those who destroy property on the West Bank, against building contractors who build settlements and real estate agencies which make money out of it. Everything is being documented and written down. This will help us much more than the, to my opinion, very destructive terrorist acts.

Shulamit Aloni: I would like to continue from the point at which the last speaker ended. The violation of International Law goes on, day after day - with impunity. We just don't understand the limitations of power. We explain to the gentiles that the laws should not apply to us, and if they don't get the message it means that they are antisemites.

Golda Meir said that after the Eichmann Trial we have the right to do everything. During the Lebanon War Begin said that no one has the right to tell us what to do, definitely not those who bombed Dresden. He also made a very rude attack on the German Chancellor Schmidt, even though he knew perfectly well that Schmidt's grandfather was Jewish and that no blame attached to this family from the time of the Holocaust. One day after Begin made this statement came the worst bombing of Beirut. Because if everything is allowed, then indeed everything is allowed.

Our diplomats are trying to sell to the UN the version that the Territories are not at all occupied, despite the fact that we never annexed them but rather placed them under a military administration, which is the hallmark of an occupation. But Prof. Yehudah Blum, whose legalistic theories are declaimed whenever our diplomats speak at the UN, came up with the brilliant idea that we conquered these territories from an occupier, and therefore they are ours.

The fact is that the West Bank had been transferred to Jordanian rule in the 1949 Armistice Agreements, with the full concurrence of all parties and under the auspices of the UN. And the Jordanians, unlike us, did not behave there as occupiers. They gave citizenship to the Palestinians, and the possibility of entering the Jordanian parliament and army.

Earlier, the Balfour Declaration and the League of Nations' mandate over Palestine, documents which are often cited on our side, did promise the creation of a Jewish National Home in this country - but this was made contingent on preserving the rights of the existing population, a reservation which is nowadays conveniently forgotten.

The new Israeli Ambassador to the UN sat down with me for two hours and tried to convince me that there is no occupation and the whole territory belongs to us. I told him that if you reject the map of the 1949 Armistice, which held until June 1967, then the logical conclusion is not that everything is ours. The logical conclusion then would be to go back to the partition plan of 1947, which we would like much less.

We did not sign any Human Rights Treaty. There is no regional treaty in our own region, and we did not join the European one. We want so much to be Europeans, we clamor for the right to join any possible European institution, but not where it comes to human rights, no sir! And we did not join the Treaty of Rome, we have no desire for it to be applicable to us.

Since 1995 we have ceased to be a democratic state. The law was enacted that if you don't recognize Israel as "The state of the Jewish People" you are not allowed to run for the Knesset. The victory of Kahane!

The settlements are illegal. Everybody knows they are. The first settlements had pretexts that they are needed for military and security purposes, and the Supreme Court collaborated with this pretence. When the settlement of Shilo was created, they claimed at first to be engaged in archaeological diggings? From settlement to new settlement their greed is growing, the crimes increase, land robbery in broad daylight.

Considering what is going on nowadays in the Territories, there should have been international observers coming in, to put a stop to this greed. But the observers will not come. They will not come because of the tactic of abusing the guilt feelings of the Western Christian World. When the proceedings against Sharon were instituted in Belgium, what was his reaction? "This is against me. This is against Israel, against the Jewish People, against all the generations of the Jewish People." So, he, Sharon, he is Israel. He is the Jewish People. He is all the generations of the Jewish people. He is sacrosanct. And if the Belgians still go on with prosecuting him, then it means that the Belgians are antisemites?

How much arrogance, how many techniques to avoid all laws! What was invested in these brutal estate owners, the Gaza Strip settlers who cultivate the land by the labor of imported migrant workers, could have easily solved the problems of the disabled who demand to have just a slightly higher allowance. The Ambassador of the US to Israel, who happens to be Jewish, said just that. And then, what did the settler Knesset Member say, our King of the Hill? The settler said that the ambassador is "a little Jew-boy".

The government has no plans how to restart or advance the peace process. Nothing is further from its real intentions. The US gives its backing, because in the US there are Jews and there are politics and electoral considerations. Therefore, there will probably be no international observers in the Territories, nor indictments of Israelis at the war crimes court.

Our public has become a collaborator. People are just parroting the government line. Once I heard on the radio a news item which I knew to be wrong. I called the news editor, and she told me: "I know, but that is what the bosses want me to broadcast".

The government is steadily escalating the situation, and Shimon Peres is inside, bearing his share in the collective responsibility for what is going on. Does the Labor Party not know what it means to be in the opposition? Peres says that if he were in the opposition he would have had to beg journalists for two lines on a back page. Uri Avnery had been in the Knesset and had been in the opposition - sometimes constituted the opposition, all by himself. If Peres had been on the outside, our situation would have been much easier, far easier for the many people who want to keep their humanity and not become collaborators.

I don't have many hopes from the International Court, because of that manipulation and the accusations of antisemitism. For example the Germans, with all their power in Europe, will never dare to confront the government of Israel on anything. Chancellor Kohl was Israel's senior representative at the gatherings of the European Union. All because of a feeling of guilt and apprehension which is being systematically and cynically manipulated.

It can change if we, the Israelis who believe in peace and justice, explain to the Europeans that what is happening now is worse than antisemitism. Every single Palestinian village or town has become a virtual detention camp. They are prevented from travelling, the roads are closed to them. The greed is increasing all the time. They are talking of demography, of a "demographic threat", in order to preapare the ground for a "Grand design" of conquest and deportation, like what Sharon tried to carry out in Lebanon. Benni Elon and Avigdor Liebermann, the extreme right ministers, speak about it openly. Sharon praises them, and speaks about "our right" to both banks of the Jordan River, and about the possible "generosity" he may show by "giving up" the eastern one. We have never really understood what it means to be a state of law, to adhere to laws and rules. Before 1948, our leaders thought it was praiseworthy to steal from the British, and such attitudes have a way of sinking deep in.

We citizens must organize to protest and raise our voice. Otherwise, we will end up as the world's pariahs, and we will deserve it. We here are a big part of the public. We can raise our voice in protest, we can stand with picket signs. The media would not be able to ignore us forever. We can't rely on the international community or the international courts. We can't, unless we ourselves call upon them to come and to ignore the emotional blackmail of being called antisemites. We must call a spade a spade. Our Government is committing war crimes. We must reiterate it again and again, as Cato the Elder repeated his admonition. Repeat it without flinching. The time has come to prepare the War Crimes Dossiers!

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haGalil onLine 29-01-2002

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