Tag Archives: israel

Human Rights After Gaza

This is the annual human rights lecture at the Las Casas Institute in Oxford that I gave on 2 May 2024


The Context

Approximately 1,400 Israelis and other nationals were killed on and after 7 October 2023, according to figures reported by the United Nations Office for the Coordination of Humanitarian Affairs (OCHA), most of them civilians, including multiple members of the same family, women and numerous children. Some 224 hostages were seized, including at least one person with a disability, women, children, elderly people and Israeli soldiers.

In response, Israel ‘declared war’ on Hamas. Since then, the Israeli army has dropped thousands of US-made 2000-pound bombs on Gaza, one of the most densely populated places on Earth, home to 2.1 million Palestinians, of whom approximately half are children, and the majority of whom are refugees from villages and towns now within Israel. At least 34,000 Palestinians have been killed thus far and over 70,000 injured in Gaza. Seventy percent of recorded deaths have been women and children. Human rights groups including Amnesty International have recorded multiple instances of ‘entire families [being] wiped out in Israeli attacks even after they sought refuge in areas promoted as safe and with no prior warning from Israeli authorities’. Groups of starving Palestinian civilians waiting for food aid have been killed, as have those supplying the aid. Strikes on UNRWA facilities have led to the deaths of 400 people seeking shelter under the UN flag. At least 165 employees of the United Nations Relief and Works Agency (‘UNRWA’) have been killed as well as multiple journalists and leaders of Gaza’s now destroyed university sector. As I write, the bombing of northern and central Gaza has been resumed and the Israeli Defence Forces appear readied for an assault on southern Gaza where the vast majority of displaced Palestinians are now huddled.

The wilful violation of multiple human rights here is remarkable, with the remarks I have just made barely scratching the surface. What of the world’s main human rights cheerleaders? The US government continues to support this Israeli campaign of retributive violence with vast amounts of military aid and (at the United Nations) continued political cover. The European Union and most of its national leaders maintain their close links with Israel while doing nothing that might prevent or even merely inhibit or delay the ongoing destruction. The Parliamentary Assembly of that beacon of human rights hope, the Council of Europe, unquestioningly retains Israel as an Observer State, enjoying all sorts of favours within the organisation and able to choose which bits of its work in which to involve itself and which not (like, of course, human rights). The Council of Europe believes, it would seem, that the State ‘accepts the principles of democracy. the rule of law and the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms’, the condition for the award of such a favoured status. But then Israel is happily appearing in the Eurovision Song Contest in Malmo on 7-11 May, and is participating in European football competitions and are now in Horizon Europe, ‘joining hands for a better future’ as the Mission of Israel to the EU and NATO put it in October 2022. Imagine if this were the Hutus in Rwanda, or the Yugoslavia of Milosevic, or – to pick a recent example not even arguably engaged in genocide – Putin’s Russia.

Human Rights Origins

How can the idea of human rights retain its current shape in light of what has been happening? To know where our subject is headed it is important to know where it has come from. The story is less unambiguous, more conflicted, less Whiggish, and more entwined with imperialism than we might suppose or want. Starting points reveal perspective and mine is to be found right here, in this Institute, in the person after whom it is called. As your website puts it, ‘Bartolomé de las Casas OP was a sixteenth-century business entrepreneur in the Spanish Empire who, when confronted by the suffering of indigenous peoples, became a Dominican friar and began to campaign as an opponent of genocide in the “new world” and a vocal advocate for human rights.’ Launching this Institute sixteen years ago I called him, not hyperbolically I hope, the ‘founder of human rights’.

In the centuries since de las Casas, and following him in spirit, human rights have been a way of getting the powerful to see people (the poor, persons with disabilities, indigenous peoples, the colonised) whom it does not otherwise notice, as humans. This is the original ‘consciousness-raising’ that I believe is the essence of human rights – a forced broadening of our understanding of what it means to be human, with all that it is hoped follows from this newly achieved empathy. Human rights adds entitlement to this compassion, asserting a right to the life chances which it was thought previously depended solely on kindness or charity from the privileged.

But how to get people unaffected by oppression to listen to this surely unwelcome message, to see what they would prefer to avoid? De las Casas was no marginalised figure himself; he was a propagandist of genius with (as we would put it today) access to and influence on those in circles of imperial power. His propagandic genius was to turn the Spanish empire’s own doctrine of morality against itself, revealing injustices that had previously been ignored. In the late 19th century, the Anglo-Irish diplomat Roger Casement did the same thing, reporting on imperial violence and dehumanisation from Congo, Peru and, eventually, from his own country, Ireland. The British lauded him when he was reported on Belgian or Spanish-led atrocities, but when he turned the same anti-imperial ethic towards the British Empire, his fate was sealed. In an echo of what we see today among the leaders of the US and the EU, the powers that be often condemn violence by other imperial forces but remain in a state of denial about the violence caused by their actions or that of their allies.

The centrality of the term ‘human rights’ drew a huge lift from its adoption as a core part of the United Nations, newly established in the immediate aftermath of the Second World War. This was when human rights started getting defined as particular obligations, things that states were obliged not to do (torture; kill the innocent; commit genocide; restrict civil liberties) but also actions that they had to take (shelter their people; feed and hydrate them) if their citizens were to have the chance to lead decent lives. As had happened with the campaigns against slavery and crimes of war, law crept in, ‘declarations of intent’ first of all (the Universal Declaration of Human Rights) but then growing via the internationally agreed covenants of 1966 and the various protocols that followed, together with many other agreements promoting the interests of the previously unnoticed, into something grander and more ambitious than had previously been achieved. Here was the de las Casas de nous jours, the bully pulpit for the marginalised to which all states had promised to listen.

But the nagging human rights question remained: how could the powerful absorb the obligations of human rights in this way without compromising their own (often imperial) positions, without damaging the inequality and injustice upon which their prosperity so often depended, both at home and abroad? Human rights victories have never been complete: slavery was replaced by entirely legalised indentured service and international humanitarian law had weak to non-existent enforcement mechanisms.

There has been a duplicity to human rights ever since they arrived on this global stage, a whiff of hypocrisy. From the outset, the UN promised never to question what the countries signing up to its Charter did at home – domestic autonomy was a guaranteed trump card. Stalin’s Soviet Union was in at the start and Mao’s China was a key member through the last years of that leader’s life. The 1948 UN declaration was all (deliberately) fine words, safely inoculated against any possible enforcement and so easy to support: none voted against. When the European Convention on Human Rights went further down the legally enforcement route, in 1950, the colonies were carefully left out if the signatories so desired, or submerged in emergency get-out clauses if they were not. The Charter of the UN and its various human rights treaties were successfully concluded precisely because they came without proper judicial oversight. But this sort of hypocrisy is not to be entirely deplored: it has a value. It creates space for the cohort of UN special representatives and rapporteurs to tour the world doing their good human rights work, like latter day missionaries of the de las Casas sort, waving not the bible but the UN charter in front of their national audiences and demanding they live by the human rights book to which they have all promised to adhere. Shame can produce change even without a court order.

Law’s Empire

This brings me to one arena of human rights protection that has managed to secure more robust enforcement than those that have relied for their power on mere shaming. This is international criminal law. Things have changed somewhat since the 1909 case of the radical Indian nationalist Vinayak Damodar Savarkar. He published an article in Britain praising an assassination of a Raj official as an act of patriotism. He was arrested and detained in the UK; while being shipped back to India as a prisoner, he escaped at Marseilles, claiming a right as a political prisoner to sanctuary, something that was clearly established in the domestic law of the UK, and wider international law. Yet, the British got him back with the assistance of unwitting local police. The matter came before the Permanent Court of Arbitration at the Hague two years later, which refused to return Savarkar to France. There had been an ‘irregularity’ it was true but no rule of international law demanded such mistakes be rectified. The five decision-makers in the case were British, French, Norwegian, Dutch and Belgian.

Times have largely changed since the days when the colonial powers could blithely determine the legality of their own actions. It is no longer as easy as it was to deploy international law in this explicitly partisan fashion. It has taken a while but the momentum has been away from colonial/neo-colonial control. After the Second World War the victorious allies found a way to describe their beaten opponents as war criminals – Nuremburg and Tokyo gave us the idea of prosecuting former leaders of places that had committed what we now called war crimes and crimes against humanity. These defeated opponents were arrested, tried and punished (often with death). Around the same time, a Convention of 1948 delivered an unequivocal condemnation of genocide, not creating a special court to prosecute wrongdoers but at least empowering the International Court of Justice, established the year before, to adjudicate on disputes between signatory states on any aspect of its terms. In the 1990s, a special UN tribunal was set up to try those guilty of particularly heinous crimes in the former Yugoslavia. The International Criminal Court for Rwanda followed, and then in 1998 a whole new regime was created to punish political leaders and others in a new court of law for commission of the ‘most serious crimes of international concern’, namely genocide, crimes against humanity, war crimes and aggression. Of course, just as with the Genocide Convention before it, states have to sign up before they can be bound by the International Criminal Court (‘ICC’), but many do and so are notionally bound by these international rules.

Law has a way of escaping its controlling roots. For all their fixing of the jurisdiction of the bodies overseeing operation of the European Convention on Human Rights, the British in the 1950s found themselves in an ugly dispute about their behaviour in Cyprus (with Greece taking the side of the at that point still colonised Cypriots). Subsequent cases involving Ireland followed with routine state violence against insurgents in Northern Ireland being condemned by no less a body than the European Court of Human Rights itself. Since then, the British authorities have been dogged by domestic as well as regional human rights litigation requiring compensation for those abused in past colonial conflicts in Africa or demanding investigation into contemporary abuses in modern day Iraq and Afghanistan. The Americans have also been drawn in, facing censure in cases brought under the now slightly legalised international human rights regime for abuses incurred in the war on terror, while its European allies have been similarly caught out for helping administer the black sites (where torture was rife) or assisting in the kidnapping of terrorist suspects from the streets of European urban centres. Not even a retired dictator can live out his life in safety any longer, as the Chilean dictator consistently supported by the United States General Pinochet discovered when he was arrested in a London hospital in 1998.

One of the most dramatic advances of recent decades in the international field has been how law, and its theoretical under-pinner ‘the rule of law’, has become more autonomous, more independent of the powers that first imagined them. The story that law now tells itself is of a body of work in search of its own legal truth, beholden to no-one, answering only to this or that foundational text that determines its remit. Laws last when the fashion that gave rise to them falls away. The grand language of past eras, of post-1945 human rights, of post-Cold War optimism about punishing human rights abusers, finds continued salience long after the confident idealism that gave birth to such initiatives has faded away. Much like the idea of equal humanity that de las Casas argued for, the ideal of the rule of law now has something of the quality of enabling the powerless and vulnerable to throw the morals of the powerful right back at them. To paraphrase the infamous tax avoiding millionaire Leona Helmsey, obedience to the law might once have been ‘for the little people’. No longer.

Israel and human rights

Returning to the case of Gaza, can the ideals of human rights embodied in law and embracing punitive action for egregious breaches offer support to the vulnerable, offer even justice? We shall soon find out.
I mentioned earlier Israel’s engagement with the Council of Europe. Israel has long been expert at the cherry-picking of its international obligations. But the state could hardly skip membership of the United Nations that gave birth to it and could hardly avoid too committing itself to the Genocide Convention, agreed as it was so soon after the Jewish people had suffered their own, terrible Holocaust.

This does not mean that the State supports the international community of course. Its attitude to the UN has been on crude display during the conflict in Gaza, condemning nearly all UN fact finding as at best ill-informed, at worst the work of anti-Semitic Hamas apologists. Israel has paid some $10 million dollars to the UN in compensation for damage done to its buildings in previous attacks on Gaza. Already in this short conflict over 150 UN employees have been killed, I think an unprecedented number. Belgium had its development agency building in Gaza destroyed by an Israeli attack, twenty-four hours after it had decided to continue to fund the United Nationals Relief Agency in Gaza, resisting pressure to follow the US, the UK, Germany, Canada and Japan and eleven other Member States in defunding the agency, removing some $450m from their balance sheet.


Why on earth withdraw support from the only plausible relief organisation operating in a territory whose civilian population was being subjected to unprecedented levels of bombing and destruction?

The answer takes us back not to the UN this time but to law and the Genocide Convention. An independent report commissioned on 5 February following Israeli allegations of UNRWA support for Hamas reported last month, and in the course of vindicating the Agency observed that Israel ‘had yet to provide supporting evidence’ of the allegations it had made. These allegations had apparently ‘surfaced’ (the report’s own word) in January. This ‘surfacing’ had happened at exactly the time that the International Court of Justice gave its preliminary ruling in the case alleging genocide brought by the Republic of South Africa. The Court ruling was on 26 January, and that was the day that UNRWA received the first allegations from Israeli officials regarding the alleged involvement of 12 UNRWA staff in the 7 October attack against Israel. On 28 January the New York Times ran its usual long and supportive story citing Israeli sources detailing the level of alleged complicity in its characteristically graphic terms.

Israel is expert at these contrived scandals, designed to divert. It was right to be worried about the South African case. The bar to prove genocidal intent is high but apparently oblivious of the international implications Israel appears determined to scale it. Why else embark on what looks very like a policy of forced starvation if that is not the case? Normally those accused of genocide hide from authority and when arrested disclaim all responsibility for the horrors of which they are accused. Israeli leaders have taken a different route, celebrating mass destruction, promising more, and relying on the guarantees of impunity they believe they continue to enjoy from Global North power. But are they missing the move away from US global hegemony and towards an independent rule of law to which I earlier referred?
Arrest is not something the ICJ can order. But the Chief Prosecutor at the ICC can do so. Naturally Israel did not sign up to the Rome Statute, but the fact that Palestine is now a Party means that their actions in Gaza expose them to action by the ICC: a ruling of the court handed down before 7 October 2023 confirms the possibility. And the ICC does not need genocide to act; mere war crimes and crimes against humanity will do. The principle behind the ICC is that of individual responsibility, right up to and including the leadership behind the crimes being alleged. The Russian leader Vladamir Putin has already been indicted. How can Benjamin Netanyahu not be, together with his senior political allies and the IDF leadership, as well as countless other lower level personnel whose apparent war crimes have been a source of pride to them, flaunted on social media? Warrants are indeed said to be imminent. The usual accusations of anti-Semitism have come from the Israeli prime minister; there are reports that he is terrified of what lies in store.

Human rights after Gaza

The future of our subject as a plausibly universal idea supported by sovereign powers may well depend on the ICC prosecutor Karim Khan. If warrants for the Israeli leadership are issued and Netanyahu and some of his senior political and military officers are arrested on a trip abroad or (more likely as has often been the case with African countries) handed over by successor regimes, then regardless of outcome the jurisdiction will have proved its worth. If the ICJ delivers a verdict condemning Israel’s conduct in Palestine and perhaps even castigates its conduct as genocidal, then as with an ICC outcome of the sort just referred to we can say that the system is not rigged to protect the powerful, that all are vulnerable, even those with the Global North resolutely on their side.

Even if neither of these happens, if law does not rise to the occasion, then other options remain. The performative power of the ICJ hearings, seen on television around the world, were persuasive even without a court order: the slow deliberate analysis of the South African team, all emotion bottled into a series of devastating phrases, up against the old guy losing his way in the papers and making little sense even when believing he was on top of his brief. The judges in their grand judicial gowns and ranged on one side of their grand table looked as the peoples of the world should look if we were to take a random selection of fifteen, all nationalities, all colours, all languages.

The shame of these proceedings should have been enough for Israel to draw breath. But shame – an essential part as I have said of the human rights repertoire – appears not to work with contemporary Israel. It, its leadership and its supporters around the world appear to have convinced themselves that none of what is happening is Israel’s fault – that Hamas are solely responsible, and anyway even if it is Israel’s responsibility it is anti-Semitic to call the country out in the way its critics do, that the suffering of their ancestors gives them a blank cheque today.

Tougher measures are required, and they are coming – from the bottom up. Israel’s artistic and cultural engagements with the outside world are coming under pressure, with organisers finding themselves forced to deny Israel participation or lose their events. Malmo next week should be a reminder of the days when apartheid South Africa saw its European sporting events disrupted, The extraordinary protests on US campuses shame those of us in Europe who collude in continuing to treat Israel as a normal academic partner: a recent book by Maya Wind (Towers of Ivory and Steel: How Israeli Universities Deny Palestinian Freedom) has demonstrated the collusion between the country’s universities and its increasingly barbaric occupations, of both Gaza and the West Bank. The churches, led by the estimable Pope Francis, are reaching across sectarian divides to build new alliances with their Muslim co-religionists. Disinvestment campaigns are taking off everywhere. Israel is at risk – a substantial risk in my opinion – of becoming a pariah State, its own actions disowned not only in the Global South, but across the whole of progressive opinion in the Global North too.
This is not a clash between South and North: it is between corrupted power and (to use proudly a hackneyed term) ‘the people’. We must celebrate social media for showing us what has been happening in real time. When the Lebanese Christian militias murdered (with IDF support) unknown numbers of Palestinian refugees in the camps of Sabra and Shatila after Israelss brutal siege of Beirut of 1982, no cameras recorded the massacre in real time. No longer.

But social media carries its own risks, reflective of a wider hollowing out of a global audience’s capacity to focus on anything for any length of time. What happens when the killing finally stops, when the global community comes in to try to rebuild Gaza after Israel’s latest bout of destruction? Will the supporters of the Palestinians move on to their next cause, forgetting the passion they will have now spent and forsaking the cause that seemed so central just a short while before. Will some successor of Netanyahu receive the Nobel peace prize from an exhausted world, glad it has all stopped. Will Blinken join the late Dr Kissinger in such hallowed ranks?

The future of human rights depends on none of this happening. I have spent little time here on ordinary civil and political rights, and even less on the economic and social rights necessary to make a full life possible. These are utterly and in almost every way disregarded by Israel so far as Palestinians in the occupied territories are concerned (and also for many Palestinians within Israel). There is a reason why both of the UN human rights covenants of 1966 start with a people’s right to self-determination: without freedom human rights do not stand a chance.

The future of human rights depends on Israel being driven to recognise the need for a State of Palestine, and then to make the necessary changes to bring this about. For if large sections of a people can be destroyed with utter impunity by Global North military power, their culture destroyed, their lives eviscerated by deliberate destruction, if all this is possible, why should irregular asylum seekers not be next, and then asylum seekers proper, and then refugees and then – who knows? Martin Niemöller’s famous warning about for whom authoritarianism comes and in what order should be echoing in our ears, plausible more than ever since the 1930s, especially now at this time when a new, nasty brutalism is in the air.

Gaza

Israel’s attack on Gaza is its consolation prize for not being allowed bomb Iran: like a school bully denied the chance to attack another Form, it has picked on some small kids in the playground so as to satiate its anger. Is there any way that, out of the suffering of the inhabitants of Gaza, something positive can be forged? The key is President Obama, the new head teacher at whom the bully’s message is also aimed: will he cower like the vast majority of his predecessors, more concerned with lobby popularity than with moral purpose, or is there more to him than this? Let us assume Obama knows full well both how shameful is America’s association with Israel and how senseless is his nation’s collusion in such vast criminality. There are ways of marking this without making it explicit and thereby unleashing the pro-Israeli forces against him at too early a stage.

It is already clear that the new Administration desires to re-engage with the global community and to revive its commitment to international law: the ‘war on terror’ will be reconfigured and Guantanamo closed. A rededication of the US to law should also involve a more consensual approach to the UN in general and to Security Council business in particular, and this should include (for example) support for UN investigative missions to regions where egregious violations of human rights and breaches of the UN charter need to be investigated. It should entail signing up to the International Criminal Court – and urging its closest allies to do likewise. Done in this way, US engagement in the international human rights agenda would quickly lead to a re-empowerment of the various forces for good, the rapporteurs, special representatives, committees of experts and so on, that have languished on the margins for so long.

All of this reformist energy would then need to be backed by mechanisms linking US financial and military aid to the newly emerging international legal order, a fresh set of McBride principles of the sort that eventually forced South Africa racism to its knees. And economic and intellectual boycotts would also need to be framed so as to lie in wait for the worst offenders against the new dispensation. Since its application would be general, Obama could do all this without ever mentioning Israel, leaving the consequences to be worked through by various bureaucracies while the ‘phone calls and special pleas of Netanyahu or Livni or Barak or whoever it is go either unreturned or politely fended off with an easy ‘it is out of my hands’. When the screams of the special interests reach dangerous levels, the president may then judge it to be necessary to take the issue to the American people, to discuss openly whether Israel should have a special exemption from the civilised values to which every other true ally and the US itself will by then have signed up. That is not likely to be a debate which the Israeli leadership will especially want.

Dreadful though they are, it is just possible the killings in Gaza may prove to be the beginning of the death rattle of Israel’s disastrous plunge into militant Zionism.