Video and Edited Transcript
Nadia Ben-Youssef and Brad Parker
Transcript No. 430 (16 April 2015)
Zeina Azzam:
Israel’s military assault on Gaza in the summer of 2014 resulted in the death of over 2000 Palestinians, a quarter of whom were children. This was the sixth Israeli military offensive in the last eight years. In fact, since the year 2000, Israeli forces have killed over 1,900 Palestinian children alone. This is a full generation of young Palestinians who’ve been enduring occupation, economic blockades and the horrific experiences of war. We often wonder how the world allows such oppression to keep repeating itself. Our speakers today are intensely involved in current international efforts calling for justice and accountability, and for the end of the impunity that Israel seems to enjoy. We are very fortunate to have with us Nadia Ben-Youssef and Brad Parker, who’ve been most recently working with the United Nations’ Independent Commission of Inquiry on the 2014 Gaza War. They will explain and give us an update on this Commission of Inquiry. They will also discuss child’s rights and other violations, and talk about the challenges of international advocacy strategies that call for Israel’s accountability for its military offensive in Gaza and its devastating consequences.
Nadia Ben-Youssef is a lawyer and human rights advocate, serving as the first USA Representative for Adalah – The Legal Center for Arab Minority Rights in Israel. Her work aims to raise awareness of the institutional discrimination against Palestinian citizens in Israel as well as promote compliance with international human rights and humanitarian law. After four years in the Negev in southern Israel leading Adalah’s international advocacy efforts on behalf of the Bedouin community, she is now developing Adalah’s U.S. advocacy strategy to shape American discourse and influence American policy and practice towards a human rights-based approach in Israel/Palestine. Nadia holds a BA in Sociology from Princeton University and a J.D. from Boston College Law School.
Adalah – The Legal Center for Arab Minority Rights in Israel is a legal center and independent human rights organization based in Israel. Established in 1996, Adalah uses Israeli legal channels to protect and promote the rights of Palestinian Arab citizens of Israel, who make up 20 percent of the population, as well as Palestinian residents of the Occupied Palestinian Territory. The organization regularly brings cases to the Israeli Supreme Court and also engages in international advocacy at the UN, EU, and recently, in the United States.
Brad Parker is a staff attorney and international advocacy officer at Defense for Children International Palestine (DCIP). He specializes in issues of juvenile justice and grave violations against children during armed conflict, and leads DCIP’s legal advocacy efforts on Palestinian children’s rights. Parker regularly writes and speaks on the situation of Palestinian children in the Occupied Palestinian Territory, particularly issues involving detention, ill-treatment and torture of child detainees within the Israeli military detention system, and violations of international humanitarian law and international human rights law. He leads DCIP’s U.S. Program and is a graduate of the University of Vermont, and received his J.D. from the City University of New York School of Law.
His organization, Defense for Children International Palestine is an independent, local Palestinian child rights organization based in Ramallah, dedicated to defending and promoting the rights of children living in the West Bank, including East Jerusalem, and the Gaza Strip. For over 20 years, DCI-Palestine has investigated, documented and pursued accountability for grave human rights violations against children; held Israeli and Palestinian authorities accountable to universal human rights principles; and advocated at the international and national levels to advance access to justice and protection for children. DCI-Palestine also provides direct legal aid to children in distress.
Welcome again.
Brad Parker:
Thank you for welcoming us into your space. It’s nice that you all are here to talk with us. Welcome, everybody who’s watching on the internet.
What we’re trying to do today is to talk about some of our work and put it into context of things you may understand, things you may know from following the situation in Israel / Palestine recently over the past year, and really try to focus in on where we go from here, both [as] Americans, attorneys, as a child’s rights advocate, [and] as a discrimination expert. What do we do as individuals and how do we move things forward?
I’ll start talking a little bit about the context of violations, particularly focused on children’s rights in Gaza over the last several years [and] the repeated military offences that have taken place, then move into a few specific cases from the most recent offensive. Then we’ll talk a little about the investigations, domestic accountability measures that exist in some form. Nadia will speak about that and then I’ll come back and speak about international accountability mechanisms, some of the strategies we’re using as a local Palestinian human rights organization on the international level and what we think of the recent developments over the past few months.
Child’s rights, Palestinian child’s rights, it’s not in a good situation and that is kind of the biggest understatement I could say. Palestinian children, since the beginning of the occupation, have really been forced to bear the brunt of a lot of the discrimination, a lot of the violence, a lot of the military offensives that have occurred throughout the West Bank, including East Jerusalem and Gaza. Recently, the more high profile violence is obviously in Gaza. Palestinian children throughout the Occupied Palestinian Territories are subject to violence, are subject to oppression, human rights violations related to the occupation. The occupation is the frame for these violations. The occupation allows for these violations to take place. They create the infrastructure, the military infrastructure, the military weapons, the military personnel. They interact with these kids throughout the West Bank, East Jerusalem and in Gaza.
So when we talk about the occupation, the other part of it is the systematic impunity that goes with it. The lack of accountability and the failure of not just the Israeli authorities to investigate allegations of war crimes, human rights violations, child rights violations but the international community’s failure as well. And that’s something we’ll talk about towards the end. I think the occupation allows this to continue and the impunity allows this to continue.
Gaza currently is in its eighth year of an Israeli imposed blockade. We have guests here that can talk in detail about the humanitarian aspects and what they mean, not just for children but for men, women, children, everybody living in Gaza. I won’t focus on reconstruction. I won’t focus on the humanitarian aspect so much because I really want to focus on the specific violations that are tied to the accountability measures at the international level that we’ll try to narrow in on today.
But generally, the population in Gaza is extremely young. Around 40 percent to 43 percent of the entire population is under the age of fourteen. Less than 50 percent to 52 percent is under the age of 18. Since 2006, there have been six military offensives on Gaza. There have been three major ones, Operation Cast Lead, in December of 2008 to January 2009, you can say is the most recent upsurge in widespread devastation through a military offensive on Gaza. There are 353 children that were killed in attacks on Gaza. That was a 22-day offensive. November 2012 was the second major Israeli military operation on Gaza, called Operation Pillar of Defense. It lasted for just eight days. I think 33 or 34 children were killed. And following Cast Lead, which I think everyone sort of knows of, at least in the U.S, there was an upsurge in organizing and awareness around Palestinian rights because of what was being seen on the news from the Israeli military violence in Gaza. [In] November 2012, you saw a little bit more. There was more awareness and more people talking about it, but still there was a real lack of leadership to address – not only violations, but the root causes of the violations which go back to the closure of Gaza.
[On] the humanitarian crisis in Gaza: I’m going to talk about the most recent offensive. It’s hard to get past the context of the impunity that just continues year after year. Cast Lead was something new in the sense that the violations were so widespread: the targeting of residential neighborhoods, civilian homes. Really anything that can be a target. The result of that is that children are killed in their homes. They’re killed in their neighborhoods, with their families. In the most recent military offensive in July and August of 2014, this was overwhelmingly the case. Operation Protective Edge, which was the Israeli name given to the operation, killed 547 children. So Cast Lead sort of set the high water mark for the level of violence, the types of violence. Last summer was really unprecedented levels. You have numerous different types of weapons. You have kids killed in their homes, from 2,000 pound war plane bombs, to entire families. On July 20th, the Abu Jame’ family – a bomb dropped on their home, 27 members of the family were killed including 18 children. That happened throughout Gaza. There was no safe place for children. One of the key trends that we’ve pulled out of our documentation, and I’ll share, (we’ve just published a new report and it’s available on our website dci-palestine.org), in it, it goes through the child fatalities that occurred during Operation Protective Edge. What we’ve pulled out from there is we have 547 children killed as a total, 535 were killed as a direct result of Israeli attacks, 225 kids were killed in airstrikes and 164 kids were killed in drone strikes. The increasing use of drones in Gaza is something that is extremely troubling. You have drones being used in a highly urban setting with extreme technical capacities to identify targets and yet you still have children out in the open, four five years old, during daylight hours being directly struck with weaponized drones. These are international humanitarian law violations. A key piece in attacks in Gaza, and in conducting military operations generally, [is that] civilians cannot be targeted. Aside from the issue of homes belonging to suspected Hamas members per se, we have cases of children being directly targeted. I think the key emblematic case, which was a very high profile case last summer, was the case of the four boys that were killed on Gaza beach. There were four boys playing soccer and there was an initial strike. They targeted a building where one of the boys was fetching his soccer ball. The strike hit and killed the first child, then the other boys ran down the beach towards a nearby cafeteria or hotel and they were struck again with a second strike. The four of them were killed; four other kids were seriously injured. We have dozens of these cases where there is no military activity in the area and often there are no adults visible or in the area, yet there are drone strikes and there are artillery shelling. This is military conduct that violates international law and international humanitarian law, which amount to war crimes.
These violations have happened before. The scale and intensity seems to be increasing. When I’ve mentioned drone strikes, we’ve seen the increasing use of drones for surveillance capabilities. In November 2012 we saw an increased use of drones for targeting individuals, homes, etc. [The number of] 164 kids killed in drone strikes during the 50-day offensive last summer is unprecedented. So when we challenge a strike and say that “this is a violation of humanitarian law, possibly a war crime”, the one challenge that we receive back is that “we have such high level of technical capability [that] we can locate targets, we can identify those targets, we know what they are.” It doesn’t work and it doesn’t correspond with the information we have. The only way to reconcile those drone technologies with the facts that we document as an organization and that other organizations document, is that there is direct targeting of children. There’s really no way around it. Yet there’s still structural impunity for these violations.
I’ll turn it over, to talk briefly about the domestic piece and then we’ll come back and talk about a little bit more on how these violations play out on the international level.
Nadia Ben-Youssef:
Thanks so much, Brad, and thank you to The Jerusalem Fund and Palestine Center for hosting us. It’s actually quite difficult to start after that, Brad, and as I was writing down those figures, this is new information about the drone strikes, about the children who were killed in homes. The numbers are disturbing to say the least. As much as we become a bit desensitized to it, it’s important to hold not just the number necessarily, but the lives that we’re talking about. I think that’s critical for human rights advocates to keep in mind: these are lives. We can reduce them to numbers but in some way that feels very crude and difficult.
I will speak a bit about what we’re trying to do as lawyers, as a human rights organization and where we’ve come in the last six years. As Zeina and Brad both said, there have been six offensives since the siege and since the closure: three in the last six years. We have colleagues in Gaza who have twins who are seven years old – and this is the third military offensive that they’ve seen in their lives, and I think that’s really important.
I’m going to talk a bit about international efforts to secure accountability but primarily what Adalah does which is, as a legal center based in Israel, we use domestic legal channels, we’re using the Israeli legal mechanism that exists. We are trying – even though we know from experience that accountability is very difficult to achieve – to expose the flaws in the system that, in the end, advocacy takes on, communities take on. So we’ll discuss the failures of mechanisms of accountability. I can speak a bit too about where we are in regards to the Commission Inquiry internationally and Brad will take us into that direction. As we walk through the efforts that we’ve made as a legal center engaging with the international community, I’m also interested in your feedback and the very legitimate question of “why we are engaging”. Why continue to engage when you know accountability, domestically, is not possible?
I want to speak briefly about what’s happened over the last six years and how we’ve engaged in the lessons that we’ve learned. After Operation Cast Lead there was something that was called The Goldstone Commission, a fact-finding mechanism that came out of the UN Human Rights Council. The Goldstone Commission concluded that there were serious doubts about the willingness to carry out investigations in accordance with international law. They said in fact it looks inherently discriminatory – the blocking of the pursuit of justice for Palestinians. What’s more interesting, there was a follow-up mission to Goldstone where they were looking at flaws in the system and if there was a change after Goldstone. We told you there were serious doubts: what did Israel do about that? This follow-up mechanism, which is actually led by Mary McGowan-Davis (who is now leading the Commission of Inquiry on Gaza and a Supreme Court justice from New York) said that “the demonstrated practice of opening only a small percentage investigations casts doubt on the impartiality of the system.” What does that mean? We were speaking with colleagues from UNRWA about this too, that in Operation Cast Lead four hundred incidents were examined, fifty-two were investigated, there were three indictments. You heard the figures from Brad, particularly with regard to children: 1,400 people were killed, 353 children were killed in Operation Cast Lead – three indictments. The most severe punishment was for credit card theft. The most severe punishment was for credit card theft. When the follow-up mechanism for Goldstone looked at this, they said “something is wrong.” There was a recent article in Haaretz where the military advocate general and chief prosecutor of the military answered this critique and said “we don’t look at statistics: we don’t look at those figures, they are meaningless to us. If we do the investigation, that’s fine – we don’t buy this idea that out of 1,400 people who were killed three indictments and the most severe punishment is credit card theft; we don’t think that matters.” The international community, and I think all of us, would say that it does.
After Goldstone and after 2010 (if you remember, the Freedom Flotilla attempting to break the siege on Gaza and nine Turkish activists were killed), through international pressure, the Israeli government appointed the Turkel Commission to investigate, again, ways to improve investigative mechanisms. The conclusion of the Turkel report was that, in fact, everything is in conformity with international law but we recommend eighteen major changes in order to address some of the flaws, yet somehow still in compliance with international law. One of those suggestions was a fact-finding assessment mechanism (which I’ll speak about briefly) but it failed to recognize what I think is really important with regards to Israeli domestic mechanisms of accountability: the dual role played by the military advocate general. The military advocate general offers legal advice during the operation and is also responsible for deciding whether or not to investigate itself. It gives legal advice about the legitimacy of the target and it’s responsible for investigating itself. This is called a dual role in international criminal and humanitarian law;[and] this is very problematic. It deals with issues of independence and impartiality to properly investigate itself.
Turkel did not address that. They didn’t address when one should be investigating at all. What are the circumstances where you would investigate an allegation of a war crime? They were supposed to follow-up the investigation in October 2014: no follow-up. They were supposed to follow-up in December 2014: no follow-up. But Brad and I just came out of a long delegation at the UN, particularly around this Commission of Inquiry, which was supposed to give its report in March but is now going to deliver its report in June. As we were there, the biggest block we found in briefings with diplomatic missions was they said “We spoke with the Israelis. There is a new fact-finding assessment mechanism, and we know they are using that and investigating themselves, so come back later. We know this is being taken care of.” In fact, Israel is promoting this wildly, saying, “We have a fact-finding assessment mechanism, this is a new strategy that came out of Turkel. We listened to the international community. We want to make sure our investigations comply with international law.” This fact-finding assessment mechanism was established in September of 2014 right after the war.
One of the reasons why we continue to engage in this situation is because we are testing that mechanism. Adalah is engaging with that mechanism. During the war and in the immediate aftermath of the war, Adalah together with its Palestinian partners living in Gaza – al Mezan Centre for Human Rights, the Palestinian Center for Human Rights, al Haqq, DCI – we take those cases and we use the mechanisms that exist. We work with the military advocate general and I want to flag that it’s a different strategy than some of the Israeli human rights organizations. B’Tselem and Yesh Din made a very powerful and public statement during the war that said “We refuse to engage with the military advocate general because it’s whitewashing.” So why are Palestinian organizations still engaging? One [reason] is to test that – because in the international community, they’ll say “We have a new mechanism and maybe it’s working.”
And we can tell you that it’s not working. So Adalah submitted to the military advocate general eleven cases covering about twenty incidents. These are direct targeting of civilian homes. This is the targeting of schools and hospitals, civilian infrastructure, water electricity. We are following these particular cases together with our partners in Gaza. Two have been opened and, as Brad mentioned, I’m sure if you followed the war, you know which ones we’re talking about: the killing of the boys on Gaza Beach and the attacks on UNRWA schools. There was a ton of international attention on these two cases, so we expected those would be opened. Others that were closed: the bombing of the Iqware family – eight people including six children were killed in that attack, 25 injured. When we are engaging with the military advocate general and the fact-finding assessment mechanism they will say very abruptly this was used for a military purpose, for a military target. The level of transparency and information that advocates have, that victims have, as to why they were targeted is incredibly limited. The bombing of a journalist car 9 July 2014: eight journalists were killed. In the response to that case, the military advocate general said at some point during the day the car was used to deliver weapons. They closed the case of a targeting of a shelter for disabled women, closed cases targeting hospitals saying they were used for military purposes – these cases are being closed. The law is failing Palestinians.
The fact-finding assessment mechanism and what we were reiterating in Geneva and what we’ve continued through European advocacy is that this mechanism is still within the hierarchy of the military. The way that it works is that the military advocate general receives the complaints and sends them to the fact-finding assessment mechanism and says “See if there’s an exceptional circumstance here”. And that’s an interesting legal/non-legal requirement – an “exceptional circumstance.” Then the fact-finding assessment mechanism goes back to the military advocate general to say “This is my recommendation” and more often than not, the case is closed. The fact-finding assessment mechanism, it must be reiterated, is not independent, is not impartial. It still fails to comply with international law despite what Israel is quite excited about.
I will also say two quick updates so that you are with us where we are. Domestically there have been two very important cases from the Israeli Supreme Court that are essentially shutting down the possibility of seeking accountability through the courts as well. In December 2014, the Supreme Court dismissed a petition and upheld the policy of preventing residents from Gaza who have submitted complaints to the Israeli military from entering Israel to attend their own court hearing. There are a number of requirements and regulations. For example there are high financial guarantees from $7,000 – $300,000 to guarantee that case. There’s obviously a very strict timeline when you can file. Most importantly is the siege, the closure of Gaza: it is impossible for people to enter into Israel to challenge the injuries and damages inflicted on them by the military. The court upheld those regulations and dismissed that case in December 2014, essentially closing the door for civil accountability. With criminal accountability you have a similar case in December 2011 where, after one of these offenses (actually in 2004 there was extensive damage to homes and demanding the opening of criminal investigations), the Supreme Court interestingly said “Intervention in the professional decisions of the chief military prosecutor is rare and should only occur in very exceptional circumstances.” The court is unwilling to intervene. Domestic legal mechanisms and legal avenues for accountability are closed. As Adalah continues to engage (and maybe we can speak about this later), we are very cognizant of the law itself as not the answer. The law itself is not the answer.
In the absence of political will, this will continue. Accountability will not be secured and repetition is insured. We were in Geneva and the best that we could get from our counterparts as we were discussing these violations was advice for the next war: “Here’s some advice for the next war; here’s how you should better prepare; this is how you can come back to us and maybe achieve a different result.” Beyond being an incredibly dehumanizing piece of advice, I think it also draws attention to our responsibility here and why the U.S. engagement is so important, why the international engagement is so important. I’ll leave that to Brad to discuss. Thank you.
Brad Parker:
So, I work for a local Palestinian human rights organization and we focus specifically on children’s rights. The domestic investigations and the domestic accountability measures fail without a doubt. So what do we do? The strategy, sadly, for the past decade has been [one of] Palestinian human rights organizations looking to [the] international community to validate, to investigate, and to hold perpetrators accountable. On the accountability front, things are pretty bleak. They’ve been bleak for a while and there has really been no accountability. And that’s part of the reason why you have these continuing military offensives that are shocking and should be shocking to everyone. But you have no leadership from the U.S. or from other powerful European states, and we constantly confront the unwillingness to move things forward. We’ll sit in meetings with representatives from powerful member states and they tell us that they just can’t do anything. And we look back at them, kind of exasperated, over and over again because they are the ones who can do something and it’s their job to do something. Universal Human Rights Law and International Humanitarian Law, that they’ve obligated themselves to, requires them to do something. But constantly, we’re up against these states refusing to hold people accountable. Let alone hold people accountable, [they refuse to] investigate or demand that there be credible independent investigations.
So right now, following Operation Protective Edge, there are a few new doors that have been cracked open, and so it feels like a shift in the accountability landscape. It’s probably not that hopeful, to be honest. It probably is not going to result in accountability. It’s definitely not going to result in comprehensive justice or accountability that would move things into a better situation where the military offensives, the oppression, or the discrimination that’s part of the occupation would be stopped. But there is an opportunity. So first, is the Commission of Inquiry on the Gaza conflict. It was set up by the Human Rights Council last July in a special session. They were tasked with looking into the International Humanitarian Law violations that occurred, related to the offensive on Gaza. Just briefly, it’s sort of been a rocky road for them. Aside from staffing and funding issues, one of the three commissioners resigned a few months ago, [and] that set them back a bit. The resignation happened in part, due to Israeli pressure and focus on working to delegitimize the mandate of the Commission of Inquiry.
So we found ourselves in March at the Human Rights Council, and the Commission of Inquiry was supposed to present the report. We probably can assume that there will be findings of International Humanitarian Law violations on a case by case basis, investigating the more high profile cases that are emblematic of the offensives overall. But it won’t be a comprehensive report. The commissioners asked for more time. It was granted, [and] now it’s postponed until June. What does that mean? We had lots of discussions about this – you know, “Should we support the additional time? Should we be critical of that additional postpone being granted? Should we come out against the commission strongly and say ‘you need to do this’? What are we doing?”
We essentially said, “We don’t know.” We know what they’re going to find, it doesn’t help to pressure them, let them do their work because we know what it is going to be. And it’s more important that it’s credible, that there is buy-in from member states and now we have time to work educating member states on why they need to actually be leaders and do something. Even if it’s just supporting the findings of this report. It’s been slow-going. We have a few more weeks, but it feels very much like the same story. The same thing is happening that was happening previously. Not only do violations continue in Gaza, but then you have this charade afterwards that continues as well. And the international community, in some ways, actively shielding Israeli officials and commanders from accountability or just not doing anything to stop it or address it.
I just want to address the International Criminal Court (ICC) issue really quick and then the U.S. role in a broader context. We’ve been hearing a long time from the Palestinian leadership that they’re going to the ICC. Palestinian organizations and Palestinian civil society, I think, was growing extremely impatient because at every turn, justice and accountability was denied for violations that are on-going and consistent. They flare up, yes, in military offensives, but really the occupation continues to devastate and oppress people. And there is a desire, even if it’s symbolic, to push forward and do something different. The ICC was always represented as the ‘last gas’ – the thing that we have in our pocket to use when we really need to, when the timing is right. So that’s done and we’re there. The State of Palestine submitted Article 12 (3) declaration to the ICC, so the ICC has started a preliminary examination into the situation of Palestine. That door is wide open. It’s moving forward and I think, the critique needs to be that it is not comprehensive, that it’s not going to address the conflict, it’s not very forward looking at all, and it doesn’t solve the root causes of the occupation. Yes, there may be accountability, there may be individual criminal responsibility for past violations but it’s not a tool that addresses the occupation, the future, the settlement industry and it’s not a silver bullet. But we’re pursuing it, we’re working with it, and hopefully we’ll have updates, but it really takes a movement. These legal tools, and Nadia mentioned it perfectly, really are nothing if they’re not connected to a movement.
DCI Palestine and Adalah – we are both representatives based in the U.S., particularly to conduct outreach, education, work with local organizations, local groups and individuals sometimes, organizing their families and communities to do something. It really takes a movement combined with lawyers, combined with media, combined with kind of everything you can muster to force our leaders to really do something different. Because the status quo, I think, is not working – it hasn’t worked. It’s been obvious to some of us for a long time. It’s not a secret and we know what is coming next if we don’t address this, which is repeated military offensives in Gaza and continued devastation of Palestinian lives throughout the occupied Palestinian territory. So we’ll stop and have some time for questions. Thank you.
Nadia Ben-Youssef is a lawyer and human rights advocate serving as the first USA Representative for Adalah – The Legal Center for Arab Minority Rights in Israel. Her work aims to raise awareness of the institutional discrimination against Palestinian citizens in Israel as well as promote compliance with international human rights and humanitarian law. After four years in the Negev in southern Israel leading Adalah’s international advocacy efforts on behalf of the Bedouin community, she is now developing Adalah’s U.S. advocacy strategy to shape American discourse and influence American policy and practice towards a human rights-based approach in Israel/Palestine. Nadia holds a BA in Sociology from Princeton University and a J.D. from Boston College Law School.
Brad Parker is a staff attorney and international advocacy officer at Defense for Children International Palestine (DCIP). He specializes in issues of juvenile justice and grave violations against children during armed conflict, and leads DCIP’s legal advocacy efforts on Palestinian children’s rights. Parker regularly writes and speaks on the situation of Palestinian children in the Occupied Palestinian Territory, particularly issues involving detention, ill treatment and torture of child detainees within the Israeli military detention system and violations of international humanitarian law and international human rights law. He leads DCIP’s U.S. Program and is a graduate of the University of Vermont and received his J.D. from the City University of New York School of Law.
