It is totally destroyed, and it looks like an earthquake has hit it! Terje Roed-Larsen, UN Envoy at Jenin Refugee Camp, 16 April 2002
Institutional Introductions?
In the past week, the world witnessed harrowing scenes of death and destruction at the Palestinian refugee camp of Jenin. Hence, the 15-nation body of the UN Security Council voted unanimously on 19 April 2002 to set up an international commission of enquiry that would ‘clarify the facts’ regarding what truly happened at the camp during the latest Israeli incursions into the West Bank. UNSC Resolution 1405 expressed concern at ‘the dire humanitarian situation’ of Palestinian civilians and emphasised the ‘urgency of access of medical and humanitarian organisations to the Palestinian civilian population’. Although Israel agreed to such a fact-finding commission for Jenin only, UN spokesperson Fred Eckhard expressed the hope that the enquiry would extend to all areas of the West Bank.
Earlier in the week, Labour Member of Parliament Ann Clwyd had also undertaken a fact-finding trip to Israel and Palestine in her capacity as member of the House of Commons Select Committee on International Development. Speaking on BBC television, she expressed her indignation at the Israeli practices and asked the European Union to abrogate its preferential trade agreement with Israel. And yesterday, Palestinian chief negotiator Saeb Erekat suggested that Israel had converted the Palestinian ‘Area A’ autonomous territories into ‘Area B’ landmasses under strict Israeli military control. He requested that the UN invoke Chapter 7 of its Charter
On 21 April 2002, Chris Patten, EU External Affairs Commissioner, appeared on ‘Breakfast with Frost’ and criticised the Israeli onslaught against Palestinian towns. He argued that PM Ariel Sharon had done Israel and the international world a huge disservice in its fight against terrorism. He censured the Israeli military campaign that had undermined the infrastructure of the Palestinian Authority, and questioned the logic of destroying for no plausible reason Palestinian Ministries such as those of Education, Land Registration and Finance. However, he added that the EU could not be expected to foot the bill [again] for the re-construction of the Palestinian edifice until Israel stopped its incursions and only following an independent assessment of the situation.
Humanitarian Introductions?
Political statements and positions aside, what does international humanitarian law have to say on this matter? Is there evidence that Israel has breached both the Geneva Conventions and international law? As some people have suggested, could PM Ariel Sharon and other Israeli commanders face possible prosecution in The Hague for alleged war crimes?
Antonela Notari, spokeswoman for the International Committee of the Red Cross in Geneva, stated in an article in the Guardian on 17 April 2002 that ‘it is the responsibility of those fighting a war to look after the well being of civilians’. She added that ‘Israel has failed on this count on a massive scale in the West Bank as a whole. Nineteen days of curfew and siege have deprived one million Palestinians of access to medical care, food and drinking water. Israeli tanks trundled over water mains, and ploughed through electricity and telephone wires, depriving most neighbourhoods of basic services’. She added that ‘the bodies had been left to rot in homes and streets for days, and the wounded to bleed to death, because the Israeli army banned ambulances from entering the battle zones’. She added that there were also wide-spread accounts that the army regularly seized male civilians of all ages from their homes and used them as human shields by coercing them to walk ahead of soldiers as they searched Palestinian homes in camps and towns.
According to Kathleen Cavanaugh, professor of international humanitarian law at the National University of Ireland, Israel did not give civilians the chance to evacuate their homes ahead of heavy bombardment by tanks and helicopter gunships. In her opinion, occupying forces have a clear obligation to protect the lives of civilians and do nothing to endanger their lives. Failing to allow an evacuation violates international law, as does putting them at risk.
In fact, there are already many testimonies and claims by Palestinian refugees that the Israeli army had buried some of the dead under a pile of twisted metal and re-inforced concrete. An Amnesty International team, headed by experts in forensic pathology, will now examine those allegations in addition to other claims that the Israeli army did not give adequate time for civilians to evacuate their houses before they were shelled and in some cases flattened down. However, one must add that international law remains somewhat vague on the destruction of homes in combat zones.
On 19 April 2002, the Financial Times published an article by Barbara Stocking, director of the British charity Oxfam that runs a number of developmental programmes in the Middle East. Stocking affirmed that some of the Israeli actions in the Palestinian territories ‘have undermined international humanitarian law, setting dangerous precedents for the protection of millions of civilians in other conflicts’ such as in Sudan. She focused specifically on ‘the deliberate damage to water supplies’ that left tens of thousands of Palestinian civilians in the West Bank without running water. She made a distinction between combatants and civilians, although she also argued that the laws governing war require armies to afford some protection to combatants by treating them humanely and giving them a fair trial.
Legal Introductions?
In his cyber-editorial dated 20 April 2002, Barnaby Mason, BBC Diplomatic Correspondent, affirmed that the Fourth Geneva Convention is the foremost instrument that should address the excesses that have been perpetrated in Jenin. Indeed, the Geneva Conventions of 1949 are considered as the cornerstones of international humanitarian law. They are the only globally accepted instruments for the protection of civilians in warfare, and its signatories today include the majority of UN members. Those legal instruments were the global response to the horrors of the Second World War, just as the Refugee Convention of 1951 was the response to the unprecedented flow of refugees that ensued.
More recently, the International War Crimes Tribunals have come into existence, and they were established specifically to investigate atrocities that occurred in the Balkans and in Rwanda. A parallel legal development is the International Criminal Court that has also been ratified but only comes into force on 1 July 2002. Although it cannot adjudicate retrospectively, and despite persistent American expostulations regarding its genesis and remit, its ratification has meant that it will have the power to investigate acts of genocide, crimes against humanity and war crimes.
Painful Introductions?
In the final analysis, I surmise that the Israeli military campaign will not be classed a war crime. Nor will the findings of the UN enquiry translate into any enforceable legal action. In one sense, this is due to the fact that the indiscriminate killings in Jenin do not easily fulfil all the criteria of international humanitarian law. Perhaps that is itself symptomatic of the fragility of the international community where political and legal considerations often diverge – even after 11 September 2001. But the psychopathology of the Palestinian masses has been punched by the cruelty of some of the Israeli practices, and what some independent observers have seen, heard or smelt cannot simply be expunged away.
I suggest that one likely legal avenue to investigate the Israeli military offensive could lie with the Israeli Supreme Court. This judicial organ is a robust and quite independent institution in Israel, and has in the past muddied many waters with judgements that were at times controversial and not always sympathetic to the Israeli political establishment. But given the severe polarisation within Israeli society, as much as the present Israeli political configuration, I think that such a step would be deemed unlikely and impractical – let alone forthcoming!
Looking back with sadness at tragedies such as those in Jenin or elsewhere in the West Bank, I think it behoves well for the protagonists in the Israeli-Palestinian conflict to recall one of FW Nietzsche’s statements. ‘Was mich nicht umbringt, macht mich stärker’ translates roughly as ‘That which does not kill me, makes me stronger’. For me, this is one of the painful ironies of two fierce nationalisms at war, where atrocities perpetrated by one party against the other only strengthen the determination of both parties for battle. Would it not be better if this conflict were resolved peaceably in accordance with the oft-stated principles of international legality that secure equal rights for both parties?
I just think what we are seeing here is a terrible human tragedy!
William Burns, US Assistant Secretary of State, 20 April 2002
(c) harry-bvH @ 22 April 2002
