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Crying out for justice

As the latest inquiry into Israel’s war on Gaza hears the harrowing testimonies of Palestinian survi

On 28 June, the UN mission investigating alleged war crimes committed during Israel’s assault on the Gaza Strip in January began public hearings in the coastal territory. The testimony of witnesses who had seen relatives killed and property destroyed in the war, which Israel codenamed Operation Cast Lead, was screened in a local hall and broadcast live on some TV channels in the Middle East. A plan to webcast the proceedings failed, for technical reasons, but a video will be made available on the website of the UN High Commissioner for Human Rights (www.ohchr.org), and another round of hearings will be held in Geneva on 6 and 7 July. “The purpose of the public hearings in Gaza and Geneva is to show the faces and broadcast the voices of victims – all of the victims,” the chair of the mission, Justice Richard Goldstone, said last week.

The emphasis is significant, because when the panel was established by the UN Human Rights Council in January, it was asked to investigate only the conduct of Israeli forces – a remit that, according to Tom Porteous, London director of Human Rights Watch, was “wrong in principle, and politically wrong”. The allegations that Israel was violating the rules of war began to surface in the first days of the offensive – it was accused of shelling civilian areas, using banned weapons such as white phosphorus, and attacking medical facilities and other non-military targets. But Hamas and other Palestinian factions were also accused of war crimes. The operation was intended to stop Palestinian militants firing rockets at towns in southern Israel – according to Amnesty International, around 15 Israeli civilians were killed by rockets fired from Gaza between June 2004 and December 2008, and another three were killed in the barrage that continued throughout the three weeks of the war. Hamas has also been accused of other human rights abuses and violations of international law, including deploying fighters in civilian homes, firing rockets from bases close to civilian areas, and conducting punitive attacks against its internal rivals.

When Goldstone was appointed chair of the inquiry in April, he made it plain that he intended to look at the ­actions of all parties, but its reputation for impartiality had already been damaged: Israel dismissed it as a “masquerade”, and refused to co-operate. Goldstone and his colleagues intended to visit towns in southern Israel to investigate the effect of Palestinian rocket fire, but were not allowed to enter the country.

Donatella Rovera, Amnesty International’s researcher in Israel and the occupied territories, suggests that this doesn’t matter greatly: Goldstone and his colleagues were able to enter the Gaza Strip through Egypt, and the territory will provide the most important focus for both parts of their work. “The situation in southern Israel is very clear, whereas the situation in Gaza isn’t,” Rovera says. The inquiry’s task is to establish which of Israel’s attacks on targets in Gaza were legitimate under the rules of law, and which were not, whereas there is no question about the status of Palestinian attacks on southern Israel: indiscriminate rocket fire against civilian targets is inherently unlawful, and identifying those responsible will not be difficult, as the Palestinian militants claim credit for their actions.

Goldstone’s inquiry is the second the UN has established into the war, in which as many as 1,400 Palestinians were killed. The first had an even more limited remit: to investigate nine incidents in which UN property was attacked, including the shelling of the al-Fakhura school in the Jabaliya refugee camp on 6 January, the day after the school opened as a shelter for civilians. The UN estimated that around 40 people were killed in this single assault. Israel said its troops were responding to fire from militants near the school, but the inquiry found no firing from within the compound or its immediate vicinity. Of the nine incidents investigated, the inquiry found Israel responsible in seven cases, Hamas “or another Palestinian actor” responsible in one, and failed to establish responsibility in another.

Porteous says the 30-page summary of the report provides “compelling evidence that the Israel Defence Forces violated the laws of war during their military operations around UN installations in Gaza”. The UN secretary general Ban Ki-moon has requested $10.4m (£6.2m) compensation from Israel for damage caused to UN property, but Porteous regrets that he distanced himself from the report’s findings: “There was a clear need for a broader and more comprehensive investigation into allegations of violations of the rules of war, by both sides.”

Goldstone’s inquiry will report in September, but since it is not backed by the Security Council, it is unlikely to lead to any further action. “We think Goldstone will come up with recommendations, but if the report hits a political brick wall, it might be necessary to take the investigation to a higher level,” Porteous says. He has called on the UN secretary general and all states that “profess to care about the vital importance of upholding the rule of law in international ­affairs” to lend their weight to the campaign to bring suspected war criminals to trial.

The Security Council’s decision to refer alleged war crimes in Sudan to the International Criminal Court (ICC) in The Hague has led to the indictment of President Omar al-Bashir of Sudan, but the model will not work in the case of Gaza. In March, the Palestinian Authority recognised the ICC in an attempt to clear the way for a full investigation into alleged war crimes, yet it is not clear whether it can do so since it is not a state, and Israel is not a signatory to the court’s founding charter.

“It’s extremely unlikely that anything will happen in the next few months,” Rovera says. She explains that the emphasis is on collecting and preserving evidence that might be used in the future. This week, Amnesty published a major report on Operation Cast Lead, called 22 Days of Death and Destruction, which concluded that much of the destruction was “wanton” and said that “children playing on the roofs of their homes or in the street . . . were killed in broad daylight” by highly accurate missiles launched by helicopter and unmanned drones. Human Rights Watch also released a report exploring six incidents in which 29 civilians were killed by drone-launched missiles.

Rovera’s assertion that “you have to take the long view” is borne out by a case currently going through the Spanish courts. On 29 January, less than two weeks after Operation Cast Lead came to an end, Spain’s national court announced that it would hear a case concerning events in the territory six and a half years earlier. At midnight on 22 July 2002, an Israeli F16 fighter jet dropped a 985kg bomb on an apartment building in the al-Daraj district of Gaza City. The target was Salah Shehade, thought to be the leader of the Ezzedeen al-Qassam Brigades, the military wing of Hamas. Shehade was killed, along with his guard, his wife and daughter, and 12 other civilians. Last June, the Palestinian Centre for Human Rights (PCHR), which is based in Gaza, filed suit in Spain on behalf of six Palestinians who survived the attack. The case depended on evidence that the seven Israeli officials cited knew that civilians might be killed in the attack, and still decided to proceed. The al-Daraj bombing was part of a policy of “widespread and systematic attacks against a civilian population”, the PCHR said, and as such it constituted both a crime against humanity and a breach of the Geneva Conventions.

Israel appealed against the decision to hear the al-Daraj case in Spain. Officials sent a 400-page document to the Spanish legal team, stating that the operation was subject to proceedings in Israel, and therefore the Spanish court should have declined to exercise jurisdiction, but on 4 May a Spanish judge announced that the case would continue. “The Spanish court rejected the claim that Israel had adequately investigated the crime,” says Raji Sourani, director of the PCHR.

Sourani stresses that the decision’s significance is not limited to the al-Daraj case: “The court also ruled that, in view of the status of Gaza as occupied territory – that is, not part of Israel – Spanish criminal law does not accord Israel primary jurisdiction over suspected Israeli war criminals.” Instead, the court affirmed the principle of universal jurisdiction, which states that torture, war crimes and crimes against humanity are so serious that they may be tried in any country, regardless of where they were committed.

Universal jurisdiction has been used in other cases, most notably that of General Pinochet, the former Chilean dictator, who was arrested in London in October 1998 after an international warrant was issued by a Spanish judge. Pinochet was kept under house arrest until March 2000, when the then home secretary, Jack Straw, released him on grounds of ill health. Pinochet returned to Chile, yet he did not entirely escape justice – there were renewed attempts to prosecute him in Chile, and by the time of his death in 2006, he had been implicated in more than 300 criminal charges.

The International Federation for Human Rights has calculated that 75 complaints have been filed or prosecutions opened on the basis of universal jurisdiction in European courts since 2006, and five offenders have been convicted. The first successful prosecution in the UK was in July 2005, when the Afghan militia leader Faryadi Zardad was convicted of acts of torture and hostage-taking in Afghanistan in the 1990s, and sentenced to 20 years in prison. Heads of state enjoy immunity from prosecution, so complaints filed against George W Bush and Robert Mugabe have not been investigated, and Human Rights Watch says that immunity seems to be extended to every sitting minister of foreign governments: in February 2004, for example, a London court rejected an application for an arrest warrant against Israel’s defence minister, Shaul Mofaz.

The provision reflects that universal jurisdiction cases are conducted in the face of considerable international pressure: “European countries don’t want to get into a fight with Israel and the US,” Rovera observes. In 1993, Belgium passed universal jurisdiction legislation for “grave breaches of international humanitarian law”, later amended to include crimes against humanity and genocide: Carla Ferstman, the director of Redress, which seeks reparation for survivors of torture, says it was “universal jurisdiction of the purest kind”, as it allowed prosecutions irrespective of where the crime took place or whether the perpetrator was in the country. It also allowed people who had no connection with Belgium to bring a case, which resulted in what Ferstman calls “forum shopping”. A flood of lawsuits, including an attempt to prosecute Ariel Sharon for his role in the massacre of Palestinian refugees in the camps of Sabra and Shatila during the Israeli invasion of Lebanon in 1982, led to revisions of the law in 2003.

Britain has also considered revising its legislation. In 2005, the PCHR filed a lawsuit in the UK against Doron Almog, head of the Israeli army southern command between 2000 and 2003, for committing grave breaches of the Fourth Geneva Convention. When he arrived at Heathrow, the British-Israeli lawyer Daniel Machover, who was part of the team that brought the al-Daraj suit in Spain, attempted to arrest him on a warrant issued by a magistrate. Almog heard about the warrant and refused to leave his plane. He escaped arrest by flying back to Israel. There are differing reports of what happened next: some say that Tony Blair attempted to bring the system under political control by ensuring that only the attorney general could issue warrants for the arrest of individuals like Almog, but others say the Blair government refused a request from the government of Israel to make the change.

The government is now considering what most human rights activists consider an improvement to the UK law: following the high court’s recent decision to release four Rwandan men suspected of genocide who were held in the UK since 2006, because of fears that they might not get a fair trial, it may introduce an amendment that would allow courts to try cases where genocide had allegedly been committed elsewhere in the world. An announcement is expected imminently, though Ferstman fears that the changes will not include provisions to try cases of war crimes or crimes against humanity.

Spain is the last European country that can hear cases where the victims are not Spanish nationals, or the perpetrator is not present in the country, but its law is also under review. “I intend to appeal to the Spanish foreign minister, the Spanish minister of defence and, if need be, the Spanish prime minister, who is a colleague of mine in the Socialist International, to override the decision,” said the Israeli defence minister, Ehud Barak, on the day the Spanish court announced it would proceed with the al-Daraj case. On 19 May, the Spanish parliament passed a resolution calling on the government to modify its universal jurisdiction mechanisms, so that cases may only be pursued if they involve Spanish victims or if the accused is on Spanish soil.

Various NGOs, including the PCHR, are mobilising resistance to the change. Had Sourani been allowed to leave the Gaza Strip, he would have given the keynote speech at a conference entitled “In Defence of Universal Jurisdiction”, held in Madrid last week. “Entire peoples cannot be consigned to the rule of the jungle for the sake of political expediency,” he said in a speech delivered on his behalf. Ferstman acknowledges that it is unfair for certain countries to have to bear the brunt of universal jurisdiction cases, though she believes that the solution is for other countries to broaden their laws, rather than for Spain and Belgium to narrow theirs.

The PCHR is now planning to expand the al-Daraj suit to include other cases of crimes against humanity perpetrated during Operation Cast Lead, though Sourani would not comment on reports that the PCHR has assembled 936 cases, and is preparing to present evidence in 13. In any case, he insists that universal jurisdiction is not merely a Palestinian issue: when Israel kidnapped Adolf Eichmann, one of the principal architects of the Holocaust, and tried and executed him, it was acting according to the same principles. “Universal jurisdiction is an essential legal tool when national courts are unwilling or unable to investigate or prosecute those accused of international crimes, and it provides a means of judicial remedy to victims throughout the world who suffer at the hands of oppressive regimes,” Sourani says. “It’s an essential component in upholding the rule of law.”

Edward Platt, a contributing writer of the NS, is completing a book about the West Bank city of Hebron. Newstatesman.com will link to a video of the Gaza hearings as soon as it is released

Related Content: Edward Platt Q&A

This article first appeared in the 06 July 2009 issue of the New Statesman, HOWZAT!

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The New Times: Brexit, globalisation, the crisis in Labour and the future of the left

With essays by David Miliband, Paul Mason, John Harris, Lisa Nandy, Vince Cable and more.

Once again the “new times” are associated with the ascendancy of the right. The financial crash of 2007-2008 – and the Great Recession and sovereign debt crises that were a consequence of it – were meant to have marked the end of an era of runaway “turbocapitalism”. It never came close to happening. The crash was a crisis of capitalism but not the crisis of capitalism. As Lenin observed, there is “no such thing as an absolutely hopeless situation” for capitalism, and so we discovered again. Instead, the greatest burden of the period of fiscal retrenchment that followed the crash was carried by the poorest in society, those most directly affected by austerity, and this in turn has contributed to a deepening distrust of elites and a wider crisis of governance.

Where are we now and in which direction are we heading?

Some of the contributors to this special issue believe that we have reached the end of the “neoliberal” era. I am more sceptical. In any event, the end of neoliberalism, however you define it, will not lead to a social-democratic revival: it looks as if, in many Western countries, we are entering an age in which centre-left parties cannot form ruling majorities, having leaked support to nationalists, populists and more radical alternatives.

Certainly the British Labour Party, riven by a war between its parliamentary representatives and much of its membership, is in a critical condition. At the same time, Jeremy Corbyn’s leadership has inspired a remarkable re-engagement with left-wing politics, even as his party slumps in the polls. His own views may seem frozen in time, but hundreds of thousands of people, many of them young graduates, have responded to his anti-austerity rhetoric, his candour and his shambolic, unspun style.

The EU referendum, in which as much as one-third of Labour supporters voted for Brexit, exposed another chasm in Labour – this time between educated metropolitan liberals and the more socially conservative white working class on whose loyalty the party has long depended. This no longer looks like a viable election-winning coalition, especially after the collapse of Labour in Scotland and the concomitant rise of nationalism in England.

In Marxism Today’s “New Times” issue of October 1988, Stuart Hall wrote: “The left seems not just displaced by Thatcherism, but disabled, flattened, becalmed by the very prospect of change; afraid of rooting itself in ‘the new’ and unable to make the leap of imagination required to engage the future.” Something similar could be said of the left today as it confronts Brexit, the disunities within the United Kingdom, and, in Theresa May, a prime minister who has indicated that she might be prepared to break with the orthodoxies of the past three decades.

The Labour leadership contest between Corbyn and Owen Smith was largely an exercise in nostalgia, both candidates seeking to revive policies that defined an era of mass production and working-class solidarity when Labour was strong. On matters such as immigration, digital disruption, the new gig economy or the power of networks, they had little to say. They proposed a politics of opposition – against austerity, against grammar schools. But what were they for? Neither man seemed capable of embracing the “leading edge of change” or of making the imaginative leap necessary to engage the future.

So is there a politics of the left that will allow us to ride with the currents of these turbulent “new times” and thus shape rather than be flattened by them? Over the next 34 pages 18 writers, offering many perspectives, attempt to answer this and related questions as they analyse the forces shaping a world in which power is shifting to the East, wars rage unchecked in the Middle East, refugees drown en masse in the Mediterranean, technology is outstripping our capacity to understand it, and globalisation begins to fragment.

— Jason Cowley, Editor 

Tom Kibasi on what the left fails to see

Philip Collins on why it's time for Labour to end its crisis

John Harris on why Labour is losing its heartland

Lisa Nandy on how Labour has been halted and hollowed out

David Runciman on networks and the digital revolution

John Gray on why the right, not the left, has grasped the new times

Mariana Mazzucato on why it's time for progressives to rethink capitalism

Robert Ford on why the left must reckon with the anger of those left behind

Ros Wynne-Jones on the people who need a Labour government most

Gary Gerstle on Corbyn, Sanders and the populist surge

Nick Pearce on why the left is haunted by the ghosts of the 1930s

Paul Mason on why the left must be ready to cause a commotion

Neal Lawson on what the new, 21st-century left needs now

Charles Leadbeater explains why we are all existentialists now

John Bew mourns the lost left

Marc Stears on why democracy is a long, hard, slow business

Vince Cable on how a financial crisis empowered the right

David Miliband on why the left needs to move forward, not back

This article first appeared in the 22 September 2016 issue of the New Statesman, The New Times