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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 humbling of Theresa May

The Prime Minister has lost all authority. The Tories will remove her as soon as they feel the time is right.

Being politicians of unsentimental, ruthless realism, the Conservatives did not linger in the grief stage of their collective disaster after the general election. Disbelief, too, was commendably brief.

Currently, their priority is to impose some sort of order on themselves. This is the necessary prelude to the wholesale change that most see as the next phase in their attempt at recovery, which they all know is essential to their career prospects – and believe is vital to a country whose alternative prime minister is Jeremy Corbyn.

For that reason, talk of Theresa May enduring as Prime Minister until the end of the Brexit negotiations in two years’ time is the preserve of just a few wishful thinkers. Some sort of calm is being established but the party is far from settled or united; there is a widespread conviction that it cannot be so under the present leader.

Elements of the great change have been executed, as Nick Timothy and Fiona Hill, May’s former advisers, will testify.

However, this is only beginning, as shown by the debate in the media about how long May can survive in Downing Street. There is dissatisfaction about elements of her recent reshuffle, but it is quieted because few believe that some of the more contentious appointments or reappointments will last more than a matter of months. Her colleagues are also alarmed by the meal she has made of doing what was supposed to be a straightforward deal with the DUP.

The climate in the party at the moment is one in which everything – jobs, policies and, of course, the leadership – will soon be up for grabs. Debate over “hard” and “soft” Brexits is illusory: anyone who wants to be Conservative leader will need to respect the view of the party in the country, which is that Britain must leave the single market and the customs union to regain control of trade policy and borders. That is one reason why the prospects of David Davis, the Brexit Secretary, are being talked up.

Some of May’s MPs, for all their hard-mindedness about the future, speak of feeling “poleaxed” since the general election. Even before the result changed everything, there was dismay about the bad national campaign; but that, it was felt, could be discussed in a leisurely post-mortem.

Now, instead, it has undermined faith in May’s leadership and credibility. “The social care disaster was key to our defeat,” an MP told me. “It wasn’t just that the policy damaged our core vote, it was the amateurishness of the U-turn.” A more seasoned colleague noted that “it was the first election I’ve fought where we succeeded in pissing off every section of our core vote”.

The limited ministerial reshuffle was inevitable given May’s lack of authority, and summed up her untenability beyond the short term. Most of her few important changes were deeply ill judged: notably the sacking of the skills and apprenticeships minister Robert Halfon, the MP for Harlow in Essex, and a rare Tory with a direct line to the working class; and the Brexit minister David Jones, whose job had hardly begun and whose boss, Davis, was not consulted.

George Bridges, another Brexit minister, who resigned, apparently did so because he felt May had undermined the government’s position in the negotiations so badly, by failing to win the election comprehensively, that he could not face going on.

Much has been made of how Philip Hammond, the Chancellor, was marginalised and briefed against, yet reappointed. Patrick McLoughlin, the party chairman, suffered similarly. Conservative Central Office was largely shut out from the catastrophic campaign, though no one got round to briefing against McLoughlin, who kept his head down – unheard-of conduct by a party chairman in an election.

As a political force, Central Office is for now more or less impotent. It has lost the knack of arguing the case for Conservatism. MPs are increasingly worried that their party is so introspective that it just can’t deal with the way Corbyn is spinning his defeat. “An ugly mood is growing,” one said, “because militant leftism is going unchallenged.” That cannot change until May has gone and the party machine is revived and re-inspired.

***

Nobody in the party wants a general election: but most want a leadership election, and minds are concentrated on how to achieve the latter without precipitating the former. One angry and disillusioned ex-minister told me that “if there were an obvious candidate she’d be shitting herself. But most of us have realised Boris is a wanker, DD isn’t a great communicator and is a bit up himself, Hammond has no charisma, and Amber [Rudd] has a majority of 346.”

On Monday a group of senior ex-ministers met at Westminster to discuss next steps. It was agreed that, with the Brexit talks under way, the most important thing in the interests of restoring order was securing the vote on the Queen’s Speech. Then, May having done her duty and steadied the proverbial ship, the party would manage her dignified and calm evacuation from Downing Street.

Those who agree on this do not always agree on the timing. However, few can make the leap of imagination required to see her addressing the party conference in October, unless to say “Thank you and goodnight” and to initiate a leadership contest. Many would like her out long before then. The only reason they don’t want it this side of securing the Queen’s Speech is that the result, as one put it, would be “chaos”, with a leadership contest resembling “a circular firing squad”.

That metaphor is popular among Tories these days. Others use it to describe the ­apportioning of blame after the election. As well as Timothy and Hill, Lynton Crosby has sustained severe wounds that may prevent the Tories from automatically requesting his services again.

Following the Brexit referendum and Zac Goldsmith’s nasty campaign for the London mayoralty, Crosby has acquired the habit of losing. And then there was Ben Gummer, blamed not only for the social care debacle, but also for upsetting fishermen with a vaguely couched fisheries policy. These failings are becoming ancient history – and the future, not the past, is now the urgent matter – yet some Conservatives still seethe about them despite trying to move on.

“I haven’t heard anyone say she should stay – except Damian Green,” a former minister observed, referring to the new First Secretary of State. Green was at Oxford with May and seems to have earned his job because he is one of her rare friends in high politics. He is regarded as sharing her general lack of conviction.

Older activists recall how the party, in 1974, clung loyally to Ted Heath after he lost one election, and even after he lost a second. Now, deference is over. Most Tory activists, appalled by the handling of the campaign, want change. They would, however, like a contest: annoyed at not having been consulted last time, they intend not to be left silent again.

That view is largely reflected at Westminster, though a few MPs believe a coronation wouldn’t be a problem, “as we don’t want a public examination of the entrails for weeks on end when we need to be shown to be running the country effectively”. Most MPs disagree with that, seeing where a coronation got them last time.

With the summer recess coming up, at least the public’s attention would not be on Westminster if the contest took place mostly during that time: hence the feeling that, once the Queen’s Speech is dealt with, May should announce her intention to leave, in order to have a successor in place before the conference season. It is then up to the party to design a timetable that compresses the hustings between the final two candidates into as short a time as compatible with the democratic process, to get the new leader in place swiftly.

Some letters requesting a contest are said to have reached Graham Brady, the chairman of the 1922 Committee of backbenchers. One MP told me with great authority that there were eight; another, with equal certainty, said 12. Forty-eight are needed to trigger the procedure. However, engineering such a contest is not how most Tories would like to proceed. “She has had an international humiliation,” a former cabinet minister said, “and it is transparently ghastly for her. Then came the [Grenfell Tower] fire. There is no sense our rubbing it in. I suspect she knows she has to go. We admire her for staying around and clearing up the mess in a way Cameron didn’t. But she is a stopgap.”

MPs believe, with some justification, that the last thing most voters want is another general election, so caution is paramount. None doubts that the best outcome for all concerned would be for May to leave without being pushed.

Her tin-eared response to the Grenfell disaster shocked colleagues with its amateurishness and disconnection. “I’m sure she’s very upset by Grenfell,” someone who has known her since Oxford said. “But she is incapable of showing empathy. She has no bridge to the rest of the world other than Philip.” Another, referring to the controversial remark that torpedoed Andrea Leadsom’s leadership ambitions last year, said: “You would get shot for saying it, but not having had children hasn’t helped her when it comes to relating to people. Leadsom was right.”

***

May was quicker off the mark on Monday, issuing a statement condemning the appalling attack at Finsbury Park Mosque swiftly after it occurred, and going there shortly afterwards to meet community leaders. No one could fault her assurance that Muslims must enjoy the same protection under the law as everyone else, or the speed and sincerity with which it was made. She is learning what leadership entails, but too late.

Her administration has become unlucky. This happened to John Major, but, as in his case, the bad luck is partly down to bad decisions; and the bad luck that comes out of the blue simply piles in on top of everything else. Grenfell Tower, lethal and heartbreaking for its victims and their families, was merely more bad luck for the Prime Minister because of her slow-witted response and failure – presumably because shorn of her closest advisers – to do the right thing, and to do it quickly.

But then it turned out that her new chief of staff, Gavin Barwell, had in his previous incarnation as a housing minister received a report on improving fire safety in tower blocks and done nothing about it. That is either more bad luck, or it shows May has dismal judgement in the quality of people she appoints to her close circle. Form suggests the latter.

The idea aired last weekend, that May had “ten days to prove herself”, was a minority view. For most of her colleagues it is too late. It was typical of Boris Johnson’s dwindling band of cheerleaders that they should broadcast a story supporting Davis as an “interim” leader: “interim” until Johnson’s credibility has recovered sufficiently for him to have another pop at the job he covets so much.

They also sought to create the impression that Davis is on manoeuvres, which he resolutely is not. Davis has been around long enough to know that if he wants to succeed May – and his friends believe he does – he cannot be seen to do anything to destabilise her further. It is a lesson lost on Johnson’s camp, whose tactics have damaged their man even more than he was already.

Andrew Mitchell, the former international development secretary and a close ally of Davis, told the Guardian: “. . . it is simply untrue that he is doing anything other
than focusing on his incredibly important brief and giving loyal support to the Prime Minister. Anyone suggesting otherwise is freelancing.” That summed up the contempt Davis’s camp has for Johnson, and it will last long beyond any leadership race.

There is a sense that, in the present febrile climate, whoever is the next leader must be highly experienced. Davis qualifies; so does Hammond, who before his present job was foreign secretary and defence secretary, and who has belatedly displayed a mind of his own since May was hobbled. Hugo Swire, a minister of state under Hammond in the Foreign Office, said of him: “He’s got bottom. He was very good to work for. He is an homme sérieux. I liked him very much and he would calm things down.”

But, as yet, there is no contest. Calls for calm have prevailed, not least thanks to Graham Brady’s steady stewardship of the 1922 Committee, and his success in convincing the more hot-headed of his colleagues to hold their fire. Yet MPs say the 1922 is not what it was 20 years ago: ministers have become used to taking it less seriously.

However, many MPs expect Brady, at a time of their choosing, to go to Downing Street and deliver the poison pill to Theresa May if she is slow to go. Some who know her fear she might take no notice. If she were to play it that way, her end would be unpleasant. As the old saying goes, there is the easy way, and there is the hard way. Remarkably few of her colleagues want to go the hard way but, like everything else in the Tory party at the moment, that could change.

Simon Heffer is a journalist, author and political commentator, who has worked for long stretches at the Daily Telegraph and the Daily Mail. He has written biographies of Thomas Carlyle, Ralph Vaughan Williams and Enoch Powell, and reviews and writes on politics for the New Statesman

This article first appeared in the 22 June 2017 issue of the New Statesman, The zombie PM

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