An Open Letter to the U.S. and Israel: You Can Rescue the Rule of Law From Laughter
(Paul Laverty was a member of the Jury at the Russell Tribunal on Palestine which heard expert testimony on the situation in Gaza following the 51 day onslaught during July and August of 2014. The emergency session of the Tribunal took place on the 24th of September 2014 in Brussels.)
c/o Sixteen Films, London.
7th of October 2014
Dear President Barack Obama, Prime Minister Benjamin Netanyahu of Israel, and President of the European Commission Mr Jose Manuel Barroso.
By some quirk of fate, because I write scripts, I found myself listening to eye witnesses. I feel duty bound to write to you to let you know what these eye witnesses reported to us, the jury, at the emergency session of the Russell Tribunal on Gaza in Brussels on the 24th of September 2014.
There is a long tradition of eyewitnesses reporting to the powerful. Bartolome De Las Casas and Padre Antonio Montesinos (the latter murdered) two radical priests from the 16th century reported to King Ferdinand and Queen Isabella of Spain about what they had seen with their own eyes; massacres and abuses of the Indians in what is now Latin America. They were the first voices of conscience raised against that Empire and Bartolome’s account is still in print 500 years later. Did they feel in their hearts it was a naive gesture?
I listened to these eyewitnesses alongside fellow jurors Mr Roger Waters of Pink Floyd, Vandana Shiva, the world renowned environmental thinker, Mr Ronald Kasrils, a former South African freedom fighter (President Obama, you would enjoy his stories of dodging assassins in London) who later became Minister for Intelligence Services in his country. Just shows you how political power can flip. I also had the good fortune to meet some of the world's most eminent lawyers including Michael Mansfield QC presently representing the wonderful Liverpool families at the Hilsborough enquiry, Mr John Dugard a widely respected jurist who was once on the UN commission of Human Rights, and former UN Special Rapporteur to the Occupied Territories Mr Richard Falk, more of whom later. I am sure you will know of the other jury members, the award winning novelist from Cairo Ahdaf Soueif, whose riveting accounts of revolution and counter revolution in Egypt gripped many of us, my own colleague and fellow film maker Ken Loach, Miguel Angel Estrella (imprisoned and tortured by the military dictatorship in Uruguay in 1977 and finally freed in 1980) classical pianist and UNESCO goodwill Ambassador, and the human rights activist, (now suffering death threats) who opposed torture in her country, Tunisia, Radhia Nasraoui.
But a few preliminary matters first. Why I am writing to you?
It is very simple. You three have the power and responsibility in your hands to change the lives of 1.8 million people in Gaza tomorrow. You can begin the long process of rescuing the rule of law from laughter.
Concerning the Russell Tribunal, a few basic points. As you know from the first rule of politics, follow the money, and you will always discover the essential character of any institution.
This emergency session of the Tribunal was all cobbled together by a combination of NGOs, grass-root organisations, trade unions, trusts and church groups who are all short of money. The reason this civic initiative came to fruition was due to in large part to dozens of volunteers making it possible.
Secondly it does not pretend to be a court of law. As Professor Richard Falksaid it is a "venue for truth telling." A place not to discover and test the truth as in a criminal court of law, but to document existing eye witness accounts, much of it already accepted in the public domain, and to place that testimony, with the aid of expert legal advice, in context, with present International law and draw conclusions. I can imagine that it is possible some inaccuracy seeps through, but the grand thrust of the presentations as we listened had the ring of witnesses sharing their lived experiences.
Yes, the Israeli Government was invited but declined to make any presentations.
The over-arching essential fact in international law as pertaining to Gaza, as Mr Michael Mansfield QC pointed out, is the reality that Gaza is an illegally "occupied territory" and as a consequence the people in Gaza have a right to resist the Israeli occupation in exactly the same way, and with as much legal legitimacy as the French Resistance had the right to oppose Nazi occupation during the second world war.Isn't that a stunning fact, which seems to have escaped nearly every news presenter and interviewer who framed stories on Gaza during the conflict? How effective this combination of news spinners, tugging the forelock to the powerful, and mediocre journalism (with many brave exceptions) has been to set the agenda, and set the parameters of a skewed “common sense”. As Mr Tim Llewellyn, a one time veteran BBC Middle East reporter, who knows the Corporation inside out said recently in a meeting in London, anyone who challenges the dominant narrative is soon put on the "naughty step".
And yes, the Tribunal would accept that indiscriminate rocket attack by resistance fighters against Israeli civilians, 7 of whom died, is a crime against international law.
So why have the Tribunal at all?
As I listened to some of the best legal minds of our day cite the law, interpret the statutes, explain the context and give legal opinions I could not but help imagine science fiction stories of alternative parallel realities. Yes, international law and legal obligations exist, but they are as solid to the people of Gaza as the morning mist. Either your country, President Obama, vetoes investigations and prosecutions via the Security Council, or your country Mr Netanyahu, if a decision or resolution is made by UN bodies, as for instance the infamous decision by the International Court of Justice (by a majority 14-1) condemning the wall running through “occupied Palestinian Territory”, just ignores them, swatted away like harmless flies or you, President Baroso, seem determined to acquiesce alongside powerful friends. In particular President Obama, and President Barroso, isn't a disgrace you put such pressure on the Palestinian President Mahmoud Abbas not to sign up to the International Criminal Court which would open up further legal possibilities, but that you have threatened to cut off aid if he does?
The simple fact is this. International law exists on paper, but it is only ever implemented when it suits the powerful. Mind the gap; the Grand Canyon of Hypocrisy, obvious to the poor, the angry and marginalised, and it is left to this makeshift civic response, this underfunded ad hoc Peoples' Tribunal, to try and cast a little spider web of hope from one side of the canyon to the other, from the rule of law on one side to its far distant implementation for all, on the other.
So that is why we had the Tribunal, the only public forum where we can draw attention to this festering sore, just as Bertrand Russell did all these years ago with the first Tribunal on Vietnam and from whom this initiative draws inspiration. Bertrand Russell wrote on the 13th of November 1966 “May this tribunal prevent the crime of silence”.
As we entered the Albert Hall in the centre of Brussels there was a quiet dignified crowd of some 500 who waited patiently for the witnesses to give their testimony. For the record Mr Netanyahu, there were no wide eyed racist anti-Semites in evidence. There was a broad selection of the local population stretching from students to many elderly retired men and women who were appalled by what they had witnessed on TV during this summer. It struck me as the type of audience with which I am now very familiar, who in years gone by would have been stunned and moved by the most frightening footage I have ever seen, Alan Resnais's documentary, scripted by concentration camp survivor Jean Cayrol, called Night and Fog shot in 1955 in Auschwitz. I would recommend it to everyone.
In those first tense moments of the morning as we nervously took our seats, and I for one felt like an impostor in a situation well beyond my competence, (do you powerful men ever feel like that?) I found my mind drifting off to a character I recently had the good fortune to stumble across and I want to introduce you to him. His name was AdomnÃ¡n. He was once the 9th Abbot of Iona, the famous holy island just off the West Coast of Scotland, where Saint Columbus built his first monastery. As I looked out to the crowd of 500 in the hall I imagined 500 AdomnÃ¡ns. AdomnÃ¡n was a man moved by a deep compassion for the innocent in time of warfare. He was appalled by the suffering of women and children in particular. So, along with the best legal minds of the day, he summoned a Synod in the year 697. Yes, one thousand three hundred and seventeen years ago, long before the notion of a nation state even existed. He got together a gathering of the most powerful men, 91 Kings, Bishops, Chiefs and Abbots - a Whos´s Who of the most influential of the day, and by some miracle he goaded them to travel to a place called Birr in what would now be County Offaly in Ireland. And in 697, yes, 1,317 years ago, they not only formulated the "Lex Innocentium" that is, they articulated and wrote down laws to protect women, children, and the clergy who were unarmed during war, but he somehow got these 91 men to guarantee the law, and set out fines and penalties to those who broke the law. These leaders agreed that the "Lex Innocentium" would be binding in their territories. In other words, they formulated binding international law which they guaranteed to enforce which would protect the innocent. A magnificent example of decency and organisation that seems hidden from history.
As we shuffled to our seats on the 24th of September 2014, at the heart of civilised Europe, a mere stones throw from the European Commission HQ, I wondered if AdomnÃ¡n had as much difficulty implementing the Lex Innocentium 1,317 ago, as we do today with the Geneva Conventions?
But before I mention the witnesses we did hear, can I make a special mention of some we did not. Two of the three witnesses who live and work in Gaza permanently were not allowed to leave and travel to Brussels to give their evidence. Was that the doing of Israel or Egypt, or collaboration between both? The first is Raji Sourani the highly esteemed human rights activist, (who received the Robert F Kennedy Memorial Award for Human Rights, a former Amnesty Prisoner of Conscience, and much more besides) who co-founded the Palestinian Centre for Human Rights in Gaza. And the second was Ashraf Mashharawi, a prize winning Palestinian film maker, who lives and works in Gaza. In fact, the only witness who actually made it, only got out because he had dual nationality and another passport.
I did manage to speak directly to Raji Sourani several years ago, and what he told me is ingrained in my mind. He told me that those who control the checkpoints into Gaza were purposefully not allowing enough chemicals into Gaza to purify the water to an acceptable and safe level. "They are poisoning us slowly" he said. I wonder what Raji might have said this time. Eye witnesses can be upsetting.
In the year 697 there were no ambulance drivers. I wish you could have heard the evidence of Doctor Mohammed Abou Arab, a Palestinian surgeon based in Norway who went to volunteer in Gaza during the crisis. He told us of his colleague Mohammad, an ambulance worker, dressed in his medical uniform, driving in a marked ambulance, and how he was shot dead on the 25th of July. By coincidence I met Doctor Mohammed at the airport. This quiet modest man told me of their gruelling 18 hour shifts and desperate attempts to save the continuous line of savagely injured patients. He told me of the heroic work of Palestinian health workers risking their lives, who despite the shortages of medicines, improvised in the most imaginative fashion to bring as much relief as they could to the agonised.
Mads Gilbert, a Norwegian surgeon, also gave evidence in the most stunning fashion. This man had an electric presence, and along with his expertly prepared statistics, he spoke and showed photographs of his patients. I wondered how a man can keep calm in the midst of so many ripped bodies, life hanging by the thread of his instantaneous judgements. No video link will do justice to the testimony of a man who has picked out shrapnel from a child’s neck. In addition, 83 health personnel were injured and 21 health workers died. 17 out of the 32 hospitals were damaged and 6 were closed down. 45 primary health centres were damaged and 17 had to be closed. On top of all this Gaza had to deal with over 10,000 war casualties. Statistics never do justice to the particular. He showed us a photograph a young boy buried to the neck in debris, squeezed between smashed concrete pillars, who by some miracle was dug out alive. The photograph of a double amputee or burned children with raw flesh instead of skin, was almost too much to stomach. I saw one of my fellow jurors cry as Mads explained his work. Roger Waters commented after it felt like a descent into hell. Ken Loach asked Mads if there was any evidence he saw or heard concerning resistance fighters using medical facilities to fight and he said there was none that he knew of. And if there had been, he and his fellow medics would have demanded they leave. Could the strikes against the medics, marked ambulances, hospitals or medical centres be accidents in the midst of chaos? He did not believe this and was of the opinion, because of the scale and intensity, they were deliberate and systematic, and in any event, he asked, how could it be accidental if the Israeli army itself boasted their targeting was 90 % accurate. Prime Minister Netanyahu, can you clarify?
Mads Gilbert showed us a letter he and his fellow surgeons addressed to Ban Ki Moon General Secretary of the United Nations at the height of the bombing begging for a safe corridor to be created between the hospitals and the border to ferry out the thousands of injured they could not treat properly. It was never answered. Shame on you Mr Ban Ki Moon.
The only Palestinian living in Gaza who managed to come to Brussels (because he has two passports, including a Dutch one) was award winning (Martha Gellhorn Prize 2009) journalist Mohammed Omer who told us of summary executions by the Israelis of civilians including a 64 year old man. We heard more testimony of Palestinian civilians who spoke Hebrew being picked out specifically for summary execution.
But I want to draw special attention to the testimony of one man in particular -Eran Efrati. Eran is a former sergeant in the Israeli army. He was one of the first to expose the use of white phosphorous in operation Cast Lead from 2008. In this present operation he gathered more testimonies from soldiers of summary execution by snipers. I bumped into Eran during a tea break and asked him how difficult it was to give evidence. He comes from a military family in Israel who have now cut him off totally and his only family connection is with a brother who lives outside the country. I found myself wondering about his personal safety in Israel and what might happen to him in the future. A brave man. President Obama, President Barroso, at least the wrath you would face from sticking to principle would only be political.
The evidence was almost overwhelming, from the figures given by one time Irish Col Desmond Travers, a military expert who told us that over 700 tons of ordinance, 14 times the amount dropped during the previous attack in Cast Lead, from carpet bombs to god knows what, much of it full of depleted uranium, and how it had a devastating effect on built up areas. Toxicity now too will be a deadly legacy for years to come. Desmond reminded us of the tragedy in Faluja, Iraq, where babies born to this day, ten years after the conflict, are born with horrendous birth defects. From Col Desmond Traver's 700 tons, Paul Mason the well respected journalist from C 4 news whose marvellous reports from Gaza made such an impression (giving evidence in a personal capacity) produced a little plastic bag full of shrapnel he had picked up from tank shells for us to examine. He was of the opinion that it was the massive use of tank shells in heavily built up areas which caused much of the horrific damage to the civilian population. These chunky fragments of jagged metal, heavy to the touch, were just like those extracted from a child shown to us in a photo by surgeon Mads Gilbert. In Paul´s written evidence too he wrote about the use of drones from the sky. "Many drone strikes are a form of extrajudicial killing of non combatants."
The footage presented by Martin Lejeune a young German journalist who lived in one house along with another 72 homeless civilians demonstrated the massive devastation to the Gaza infrastructure. He estimated that perhaps up to 70% of Gaza industrial capacity was destroyed including the only power station, the largest mosques and the most popular tv station. Agricultural areas too were decimated, as well as many of the cows, whose owner insisted did not have an opinion one way or another on Hamas. The numbers of those who have lost their homes is in the hundreds of thousands and his video footage of mass devastation left the hall hushed. Prime Minister Netanyahu, let me ask you a direct question. As one of the most sophisticated armies in the world, with drone cameras recording every meter of Gaza (all triangulated and filmed as Paul Mason pointed out) can you tell me if you really meant to bomb the one sweet factory in Gaza? Or was this the ultimate cruelty to the children of this open prison?
Which brings me to the evidence of Ivan Karakashian, co-ordinator of Defense for Children International-Palestine. The number of children killed was at least 490, and I missed the number of injured. But it was a shock to learn how young teenagers were used as human shields by the army. One youngster (we saw his recorded interview) was forced to strip off, interrogated, whipped with barbed wire, and made to stay with soldiers for five days and used as a human shield. He was of course traumatized. But what struck deepest as I listened to the evidence was that an 8 year old child today in Gaza has now lived through 4 wars. I have a seven year old son, but the leap of imagination to even guess how a child might be after those traumas is beyond me. I have forgotten the number orphaned. Ivan estimated that around 370,000 children now require psychological assistance. How many delicate little connections in tiny minds will be destroyed forever? How many nightmares will not end as light comes? How many sobs can one chest contain? And what has that sewn down through future generations? If just one in a hundred grows with so much hate in his heart, and so much hopelessness in his soul, what will that person be capable off in the future?
I am wilting here as I remember the evidence of independent Canadian journalist David Sheen now living in Israel. Perhaps this was the most terrifying of all. David presented example after example of the call to murder of Palestinians on Israeli social media. We can cringe at the anonymous morons who inhabit the internet and spew hatred, but what is going on in your country Prime Minister Netanyahu when senior politicians and leading religious figures call for mass murder. We heard outrageous quotes from the now deceased rabbi Ovadia Yosef who can hardly be a marginal figure if 800,000 turned up for his funeral. I quote Israeli legislator Ayelet Shaked´s widely reported article, July 2014, posting with approval an article by one time advisor to you Mr Netanyahu, Mr Uri Elitzur, who wrote “What is so horrifying about understanding that the entire Palestinian people is the enemy” and arguing for the destruction of "its elderly and its women, its cities and its villages, its property and its infrastructure" and stating that the "mothers of terrorists" should be destroyed, "as should the physical homes in which they raised the snakes." This young legislator is a senior figure in the Jewish Home party which is part of the Government coalition.
But what is even more chilling is the open letter addressed to you Prime Minister Netanyahu on the 1st of August 2014 from your own Deputy Speaker, from your own Parliament, from your own Likud party, Mr Moshe Feiglin.
He states “What is required now is that we internalize the fact that Oslo is finished, that this is our country, our country exclusively, including Gaza. There are no two states, and there are no two peoples. There is only one state for one people.”
In a section called “defining the tasks” he calls for the “conquest of the entire Gaza strip, and the annihilation of all fighting forces and their supporters.” Given that the fighters have wide public support, and that Hamas won the election, this would mean death on a massive scale.
Another of his calls was to “turn Gaza into Jaffa, a flourishing Israeli city with a minimum number of hostile civilians.”
And there were many more examples, all easily found on the net.
Expert witnesses explained to us that the above amounts to the crime of incitement to genocide in terms of international law.
This is not mere posturing. Many of the witnesses have a genuine fear of genocide "next time round." Paul Mason too picked up on a chilling "genocide narrative" in both communities, but it is clear which side has the potential and the military might to carry it out.
Genocide is a possibility on the horizon, please take notice, President, Prime Minister and President. Genocide. I am reminded of the evidence of Doctor Paul Behrens, an expert on genocide who teaches at the University of Edinburgh. He made an important point. Genocide is often confused in the public mind with massacres on a grand scale like the Holocaust or the Armenian tragedies. But according to the Genocide Convention of 1948 genocide has no minimum threshold. In one of its terms genocide is committed when "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part". Michael Mansfield QC was of the opinion that the "mens rea" or intention to destroy could be inferred from the intensity and pattern of the attacks, and at least there was the necessity of an investigation into this possible crime but this was not included in the final decision of the Tribunal. But the Tribunal did issue a serious warning, “It is recognised that in a situation where patterns of crimes against humanity are perpetrated with such impunity, and where direct and public incitement to genocide is manifest throughout society, it is conceivable that individuals or the state may choose to exploit conditions in order to perpetrate the crime of genocide”.
Prime Minister Netanyahu, we have seen clear incitement to genocide, but can you tell us if some of your colleagues are now planning genocide? If your Deputy Speaker can propose the above in public, what are your colleagues planning in private? Why will you not respect the Genocide Convention and prosecute the Deputy Leader to the Knesset, Mr Moshe Feiglin? Now, to Mr Richard Falk. The devil is in the detail. Richard Falk is Professor Emeritus of International law at Princeton University and much more besides. He was on the jury of the Tribunal and did not give evidence. I sat beside him for a quick lunch break. Between 2008 and 2014 Mr Falk was appointed as UN Special Rapporteur on Human rights to Occupied Palestine. In other words, he was appointed with the authority of the international community through its preeminent institution the United Nations to one of the world´s most important long running disputes. When Mr Falk arrived in Israel to carry out his important mission in May 2008 he obviously did not expect the red carpet treatment. But even the biggest cynic in the world could not have guessed what would happen next. On touch down Mr Richard Falk, UN Special Rapporteur on Human rights was arrested, thrown in prison, spent the night with other prisoners in a cell, and was deported the following morning. He told me that this order came directly from the Foreign Minister of the Israeli Government because they did not agree with his appointment. Such confidence in the puppet master who pays the bills, and guards their backs.
When the West preaches about barbarism in this chaotic world, and respect for rule of law, let us remember Mr Richard Falk and this poison example of grand impunity.
President Obama, Mr John Dugard, another renowned law professor and former United Nations Special Rapporteur told the Tribunal that the United States “supplies the most up to date tanks, fighter jets, helicopters and missile systems in addition to funding the Israel’s Iron Dome defence system. From 2008 to 2018 the United States is set to provide 30 billion dollars to Israel in military resistance” which he estimates works out at around 8.5 million dollars every day. In these circumstances, after a detailed examination of the law he questions US complicity in war crimes. He concludes “Undoubtedly the United States has a case to meet”.
President Obama, you must be aware that the public are not fools, and that your unconditional support for Israel undercuts every public announcement you make.
President Barroso, how can you defend sanctions against Russia, but give full cooperation on trade matters to the State of Israel? And your aid to burying the Goldstone report on previous abuses is not forgotten.
Let me end with my old friend AdomnÃ¡n, the 9th Abbot of Iona. Here is my favourite section of the Lex Innocentium from 1,317 years ago. "It is the same payment (fine for the crime) for someone who does the injury, and for the one who looks on and does not protect the victim with all his might".
The 9th Abbot of Iona did not have much sympathy for the idle bystander, and I suspect he did not recognise the distinction between violator and collaborator.