International law professor Kevin Jon Heller discusses the report of the UN Human Rights Council, which says Israel must be held accountable for war crimes committed against unarmed civilians and that Israeli courts do not hold them accountable
MARC STEINER: Welcome to The Real News Network. I’m Marc Steiner. It’s great to have you all with us once again.
The United Nations Independent Commission of Inquiry on the protests that took place in the occupied Palestinian territory presented its findings last week, and it found there was a disproportionate and unlawful use of force against defenseless civilians in the Gaza Strip during the Great March of Return, those demonstrations. The commission focused only on the events that took place in 2018, though many of those demonstrations are still taking place in 2019. Let’s hear one of the authors of the report, Sara Hossain, as she summarizes the findings of the report in her own words.
The commission found that not only were there no justification for the killing of 189 protesters, while injuring over 6,000 people, during the Great March of Return protests, the Israeli soldiers committed violations of international human rights and humanitarian law. Some of these violations may constitute war crimes or crimes against humanity, and must be immediately investigated by the Israeli authorities, said the chair of the commission, Santiago Canton of Argentina. The report also mentions that four Israeli soldiers were injured at the site of the demonstrations, on top of all that.
This when the United States now have withdrawn from the Human Rights Council, which has direct relation to this organization that found this report. So joining us to sift through the complexities of all this is Professor Kevin Jon Heller, who is an associate professor of public international law at the University of Amsterdam. He’s professor of law at the Australian National University, and an academic member of the Downing Street Chambers. His most recent book is The Nuremberg Military Tribunals and the Origins of Criminal Law by Oxford University Press. Kevin Jon Heller, welcome. Good to have you with us here on The Real News.
KEVIN JON HELLER: Thank you for having me.
MARC STEINER: So the Israeli government claims that the soldiers deployed at the separation fence between Israel proper and Gaza. The action was taken to protect Israel from terrorists at the border. And so the question is, I think–I mean, what kind of operation is the Israeli army or any army allowed to conduct to prevent Palestinians, in this case, from crossing the fence, as they said? And what procedure is expected by international law when soldiers use live ammunition against unarmed protesters? Could you parse that out a bit for us?
KEVIN JON HELLER: Well, I mean, in the abstract, of course Israel is allowed to use a certain amount of force to protect its borders. But that doesn’t give them an unlimited right to use force against anybody that it so chooses. And if you look at the actual findings of the Commission of Inquiry, it’s quite clear that the actions of the protesters didn’t come even close to the kinds of threat to Israel that would justify using, really, any force, much less the kind of lethal force that we saw, you know, again and again and again during the protests.
MARC STEINER: So I mean, it would have been–would Israel have been justified, let’s say, if people crossed the border, and started storming through Israel, as they would put it? Would that justify what happened, if people were unarmed? I mean, where is the line drawn?
KEVIN JON HELLER: Well, I mean, it’s a very complicated legal question. But in general, a state is only allowed to use lethal force if, in fact, there is an imminent threat to life on their side. So you know, if, in fact, a protester was threatening the life of an Israeli soldier or an Israeli civilian, of course in that situation the use of lethal force would be legally permissible. But merely crossing the border, we have a solution for that. It’s called arresting them, and charging them with trespassing, say, or some other kind of crime, and putting them in jail. It’s not shooting them and it’s not killing them.
MARC STEINER: So Israel, as well as the United States, withdrew from the UN Human Rights Council. And I’m curious how this affected the work of the council. I mean, do you think that this might have changed the way the council did things? That it liberated the council to take a clearer stance on being accused of Israel’s war crimes? Does it undermine the legitimacy of the Council? I mean, again, part of the complexity here. And can Israel now just ignore the report?
KEVIN JON HELLER: Well, that’s also a very complicated question. You know, it certainly complicates the work of the Human Rights Council, that the U.S. has withdrawn from it. But the U.S. has been hostile to the Council for a very long time. Israel has been very hostile to the Council for a very long time. I mean, Israel kind of constantly takes the position that the council is systematically biased against Israel. And you know, the Council has spent quite a bit of time investigating Israel. It’s perfectly legitimate to ask whether the Council should be spending its time and energies elsewhere.
But nevertheless, I mean, this is certainly a legitimate area of inquiry for the Council. And although they certainly didn’t get a lot of cooperation from Israel, there’s no real reason to believe that, you know, these three commissioners were biased against Israel, or that the commission of inquiry was setting out to make Israel look bad. This is an independent, international inquiry that’s subject to all of the same kind of procedural requirements that any Commission of Inquiry is subject to.
MARC STEINER: So what I’m really curious about, I think our viewers would be curious about, is just where this can go. I mean, and where this might take Israel in the international courts of justice that have to hear this. I mean, we have 6,000 people who were injured; 3,000 injured by fragments, 189 people were killed. There were, I think, 122 amputees. And I think a good number of them, 20 of those amputees, were children. So what is the legal recourse that Palestinians have against this aggression? And you know, they signed the Rome Convention of the International Criminal Court. So I mean, where could this really take all this? What could be the outcome of this?
KEVIN JON HELLER: Well, I mean, this is the unfortunate part of international law, that the rules are often quite clear, but the mechanisms for enforcing it tend to be underdeveloped. It’s a pretty horrific read. I think there’s no question, reading the report, that there are credible allegations, credible evidence that Israeli forces committed war crimes, committed crimes against humanity, just like you said in the introduction.
Where they can go to to have their rights vindicated is another story. The International Criminal Court is, in fact, conducting a preliminary examination into events in Gaza from about 2014 on. These latest killings and maimings, et cetera, are certainly within the court’s jurisdiction to investigate and prosecute. But they haven’t actually opened a formal investigation yet. This will probably make it more likely that they will. But we are a very long way away from the International Criminal Court getting actively involved, much less, you know, getting an Israeli soldier in its dock facing real war crimes or crimes against humanity charges.
MARC STEINER: So let’s explore that just for a moment, I mean, what we mean by prosecuted. How does a prosecution like this take place unless there’s kind of an international push, and people are forced to–are arrested, as took place in Liberia and other places, and sent to the Hague. I mean, so what’s the recourse here? How do you think this will play out?
KEVIN JON HELLER: I wouldn’t be particularly optimistic that there will be any accountability outside the court of public opinion for these kinds of crimes. The ICC is not a strong institution, as you quite rightly point out. Cooperation with the court is essential, and many states are not willing to cooperate. Certainly Israel is not willing to cooperate with the International Criminal Court. Israel wasn’t willing to cooperate with this Commission of Inquiry. So getting the evidence against an individual is one thing; actually getting the individual is another. If, in fact, the ICC identifies particular members of the Israeli military or particular members of the political apparatus that are responsible for these kinds of crimes, they may very well bring charges against them that may dissuade them from going on any vacations to the French Riviera. But clearly Israel is never going to hand over an Israeli citizen to the International Criminal Court. So it is difficult to see a scenario in which anyone responsible for these terrible crimes really ever does see the inside of a courtroom.
MARC STEINER: So in some ways, just to conclude, this could become a much more political issue. I mean, arrest warrants could be made for individual soldiers and military leaders. They could possibly be made for leaders in the Israeli government. They could be taken before the International Criminal Court in the Hague. But that’s because almost, in some ways, given the lack of power sometimes the international courts have, become more of a more of a kind of political push internationally than actually an a legal push. Am I wrong about that?
KEVIN JON HELLER: No, I think you’re absolutely right. Whatever consequences there will be for Israel really will be in the court of public opinion. It really will be, you know, their ability to do business with the European Union, with the United States. And I don’t think we should underestimate that. I mean, it’s not the same as actually putting someone in the dock and prosecuting them, and maybe putting them in jail for a long time. But there are costs to Israel reputationally, economically, et cetera, to kind of continually engage in these kinds of activities, and to kind of continually have those activities called to account by a credible investigative mechanism like the Commission of Inquiry.
MARC STEINER: Well, Professor Kevin Jon Heller, this has been an interesting conversation. I appreciate you taking the time with us today. Go enjoy your dinner, if that’s what you’re about to do. Thank you so much for joining us.
KEVIN JON HELLER: Thank you for having me.
MARC STEINER: And I’m Marc Steiner here for The Real News Network. Thank you all for joining us. Take care.