00:00:00: The court didn't just say that Israel has to leave, it

00:00:02: also was asked

00:00:03: and answered

00:00:04: a question about Third

00:00:05: States responsibilities.

00:00:06: And there,

00:00:06: among other things, it said that Third States certainly shouldn't aid and

00:00:10: assist in creating

00:00:11: this reality, that they shouldn't recognize this reality as lawful, and that they should take actions so as not to have

00:00:20: a hand in maintaining

00:00:22: this illegal.

00:00:23: enterprise

00:00:24: or in entrenching it.

00:00:25: So for example, that would

00:00:27: mean

00:00:27: that you shouldn't in any way economically assist Israel to maintain its illegal

00:00:33: presence

00:00:33: in occupied Palestinian territories.

00:00:35: In fact, you should create economic incentives not to maintain that reality.

00:00:43: Welcome to a candid conversation on Palestine, Israel and Europe.

00:00:47: In this episode, Valeska Held, one of candidate's political officers, speaks with legal expert Dr.

00:00:53: Etan Diamond, who elaborates on the growing challenges faced by civil society and humanitarian actors in the Israeli-Palestinian context.

00:01:03: He also unpacks the often confused fields of human rights and humanitarian law and shows how the law is stretched to justify violations rather than protect civilians.

00:01:15: Eitan and Baleska clarify how these violations create legal obligations for third states, including EU member states.

00:01:36: I'm Valeska Heldt.

00:01:38: I'm a political officer at the Candid Foundation.

00:01:40: I'm implementing the APICON project mostly in the EU's Mediterranean countries.

00:01:45: So it's like Portugal, Spain, France, Greece, Cyprus.

00:01:51: Hi, Aitan.

00:01:52: Hi.

00:01:52: Thanks for

00:01:53: the invitation.

00:01:54: Thanks for being with us.

00:01:56: So you're an international lawyer specializing in international humanitarian law known as IHL and human rights law.

00:02:04: You're the manager and senior legal expert at the International Humanitarian Law Center, overseeing its work in the Israeli-Palestinian context.

00:02:13: You have previously worked, among many others, as a legal advisor for the delegation of the international comedy of the Red Cross, also known as ICRC in Israel, and the Occupy Territories, and as a researcher and legal advisor for the NGO, Bezalem.

00:02:34: So Eitan, we met a few months ago in Copenhagen, independently of both of us for our respective work.

00:02:45: And I was wondering if you could talk to us a little bit about the work that you're doing, specifically also when you're traveling in Europe, but also because you're based in Jerusalem.

00:02:58: So, yeah, so we traveled to European capitals to meet with the legal advisors that they have and other public officials in European capitals.

00:03:09: That wasn't really the initial model that we had for our work.

00:03:12: We were focused

00:03:12: on the context and worked with humanitarian actors

00:03:16: in the

00:03:16: context and diplomats.

00:03:19: But we felt and we also had indication from people that we were meeting, including diplomatic

00:03:24: representatives.

00:03:26: on the ground that it would

00:03:28: be important to meet with people in capital.

00:03:31: The reason for that is that we don't really have direct access with the main duty bearers in our context.

00:03:38: We don't meet with Israeli authorities formally.

00:03:41: So we have very little possibility to directly influence them.

00:03:45: And so we have to figure out ways to indirectly

00:03:47: influence them.

00:03:48: And one of those

00:03:48: is to speak to actors who hopefully

00:03:50: do carry

00:03:51: some influence over Israel and who would want to push for Israel to behave in a manner that accords with its obligations under international law.

00:04:02: And that makes

00:04:04: European states,

00:04:04: EU members, a prime kind of target for engagement.

00:04:09: And when it comes to Israel, certainly at the moment, it seems that the decisions are made at a high level.

00:04:14: So we can meet with diplomats on the ground.

00:04:16: They may or may not agree with us.

00:04:18: My sense is that they generally

00:04:20: share our views.

00:04:22: But if we want to actually change policies,

00:04:25: we have to try and speak

00:04:26: with people in more

00:04:27: senior positions or closer to the decision

00:04:29: makers.

00:04:29: So we've

00:04:30: been trying to do more and more of that.

00:04:34: Yeah, not with as much success as we'd like.

00:04:35: Again, I'm not sure we're not persuading people.

00:04:37: I think the issue is not so much that we have to

00:04:39: persuade fellow

00:04:42: appears amongst the lawyers, even those working for the

00:04:44: state.

00:04:45: It's more the political echelon where the calculations are not necessarily based on

00:04:50: the law.

00:04:51: Right.

00:04:52: Yeah, we'll go more into detail about this But I was wondering so and when you're back home in Jerusalem, New York, so you live in Tel Aviv, right?

00:05:03: What what does your work entail over there?

00:05:07: Yeah So, I mean basically what we try to do as an IHL center is to

00:05:12: produce as reliable

00:05:13: and comprehensive an account as possible of the violations that are occurring in the context with a view to somehow bring about corrective action, to bring the parties to actually abide by their obligations.

00:05:27: I mean, to be honest, that sometimes feels like a vain aspiration in the context where that's so rife with violations.

00:05:34: But we do believe that it's really important

00:05:36: to

00:05:36: keep an eye on these issues and to keep awareness.

00:05:41: of various audiences about these violations that

00:05:44: we're witnessing

00:05:45: and also to have some kind of pressure on the authorities so that when they commit violations, at least there's some kind of counter

00:05:53: pressure for them to correct course.

00:05:55: In order to do that, we invest a lot of time in

00:05:59: research, first of all.

00:06:00: So we don't actually ourselves collect the data

00:06:03: from the ground.

00:06:04: There are lots of actors

00:06:05: that do

00:06:06: that in our context.

00:06:08: It's becoming increasingly difficult to do that.

00:06:09: Perhaps that's something we can discuss.

00:06:11: But there is still a lot of information out there.

00:06:15: What we do

00:06:16: is to reflect on this information through the prism of international law, particularly international humanitarian law, the

00:06:22: laws of war.

00:06:23: And to assess

00:06:25: whether this conduct abides by the law, it's unfortunately... dozens in many, many cases.

00:06:32: There's so

00:06:33: many, the list

00:06:34: of violations

00:06:34: that we're witnessing is very long.

00:06:36: So we try to analyze those violations.

00:06:38: And then once we've done that, we engage in awareness raising, for example, the kind of meetings that I was describing

00:06:46: before

00:06:47: at Vokasi with the various circles, I suppose you could call it humanitarian diplomacy that we try to

00:06:53: do,

00:06:54: all with a view to create pressure to abide by the law.

00:06:59: And we also, one other thing that we do is capacity building, we call it.

00:07:02: So we try to increase knowledge and understanding of the law

00:07:07: amongst key stakeholders.

00:07:08: So that would include human rights defenders, humanitarian actors

00:07:11: in the context, journalists,

00:07:14: that's something we're doing more now, and diplomats.

00:07:17: And to be honest, we've been aiming at diplomats very heavily recently,

00:07:22: just in the

00:07:23: hope that this

00:07:23: will somehow

00:07:25: kind of trickle through to decision makers.

00:07:28: Okay.

00:07:30: Yeah, because I was also wondering when I was preparing for the podcast, if your colleagues on the ground or maybe also in the who are based in the West Bank or if they're facing especially because of the kind of work that you're doing if they're facing restrictions or backlash also because you've been very outspoken also through various media channels.

00:07:56: In my case personally, I'm an Israeli national, so for the time being there's still a hope that I can speak out in Israel.

00:08:08: Without too much risk although I'm not sure that's going to be the case.

00:08:11: looking ahead There's some political changes on the horizon in Israel already unfolding which are

00:08:16: making many

00:08:17: of us I think perhaps twice about what we

00:08:21: say.

00:08:21: Are you also referring

00:08:23: to the NGO Billers?

00:08:24: Yeah, so I can break it down in a moment.

00:08:26: So perhaps I'll try and sort of survey the various restrictions, because you didn't ask about me, you were asking about my Palestinian colleagues.

00:08:33: And certainly they face

00:08:34: and have been facing for a long time.

00:08:36: It's not just my

00:08:36: colleagues, it's across the board

00:08:38: with civil society, the various means of kind of repression.

00:08:45: that actors who work to expose,

00:08:47: to document

00:08:48: violations are facing.

00:08:50: That

00:08:50: includes journalists.

00:08:52: The number of journalists that have been killed in Gaza in particular is really alarming.

00:08:58: But also humanitarian actors and human rights defenders.

00:09:01: There's a whole set of

00:09:02: hurdles

00:09:02: that have been created to make the work more difficult.

00:09:06: So what we face as an international organization are, first of all,

00:09:10: restrictions

00:09:11: in access.

00:09:12: We had

00:09:13: On my team, a few of the lawyers are expatriates.

00:09:16: They come from other countries and ordinarily would be working in Jerusalem with us.

00:09:21: And I have a colleague who's

00:09:23: based in Bethlehem who would

00:09:24: ordinarily be coming into Jerusalem every day to work.

00:09:28: The challenge that we've been facing since the beginning of the war is that Israel has been withholding visas for foreign workers working with INGOs, with international

00:09:40: organizations.

00:09:41: And it's been withholding permits for many Palestinian workers.

00:09:44: So in order for my colleague from Bethlehem to come into Jerusalem, even though our office is in occupied East

00:09:50: Jerusalem, she needs a permit

00:09:51: from the Israeli authorities.

00:09:52: She has

00:09:53: to go through a checkpoint.

00:09:54: Your office is in East Jerusalem.

00:09:54: Yeah.

00:09:57: under international that's part of the Palestinian territory but Palestinians from other parts of the West Bank

00:10:02: still need

00:10:02: a permit to get through and that

00:10:03: isn't provided.

00:10:04: so that's one colleague

00:10:06: who can't come to

00:10:06: the office.

00:10:07: then

00:10:07: my colleagues

00:10:08: from other countries

00:10:09: can't

00:10:09: come into the country.

00:10:10: they can come as

00:10:10: tourists for

00:10:11: a couple of weeks but then They have to explain why they're there and they have to leave.

00:10:15: So they haven't

00:10:16: been there.

00:10:17: So we have an office in East Jerusalem.

00:10:19: You mentioned before that I live in Tel Aviv.

00:10:20: I've been working from Tel Aviv and my colleagues

00:10:22: have been

00:10:22: working from... We've been working a bit like we did in the pandemic.

00:10:26: So we have a kind of fictional office that we can't access.

00:10:31: In our case, that's a difficulty, but it's not fatal to the work.

00:10:37: But there are many

00:10:38: actors

00:10:39: who do different kinds of... of activities,

00:10:42: they provide

00:10:42: humanitarian

00:10:43: services on the ground.

00:10:44: So

00:10:44: you need someone who has, I don't know, medical expertise or an engineer who's an expert on water facilities.

00:10:52: People like that

00:10:53: whose services are crucial

00:10:55: are not being allowed in, and that's really creating an obstruction

00:10:58: for organizations

00:10:58: to be able to work.

00:11:00: So that's one set of limitations.

00:11:02: I mean, I don't want to exhaust the whole podcast just running through all of these, but I will just say that there are also some more

00:11:08: threatening

00:11:11: initiatives from Israel on the horizon, and actually also from the

00:11:14: US.

00:11:15: So part of that is to criminalize

00:11:18: efforts to promote international

00:11:20: criminal justice.

00:11:21: We've seen from the US

00:11:22: there's a presidential order that criminalizes

00:11:26: engagement

00:11:28: with the ICC, the International Criminal Court,

00:11:30: and they've already taken steps against certain individuals

00:11:32: and organizations,

00:11:33: including

00:11:34: Palestinian

00:11:35: human rights organizations.

00:11:37: In Israel, there's also an initiative to criminalize cooperation with the ICC.

00:11:42: that would apply to all of us, all these various, so certainly for Palestinians, but also

00:11:46: for Israeli

00:11:47: organizations and individuals and for internationals.

00:11:50: The penalty in the bull that's been proposed

00:11:52: for cooperation is up to five years

00:11:55: imprisonment.

00:11:57: And if you disclose

00:11:58: information

00:11:59: that's confidential, that

00:12:00: could be a life sentence.

00:12:01: So that has a kind of chilling effect that isn't enforced

00:12:03: yet.

00:12:04: But that's one thing.

00:12:06: Another initiative is to impose taxation

00:12:10: on the donations that Israeli organizations receive from foreign donors.

00:12:15: Most of the human rights organizations are supported

00:12:17: by states,

00:12:19: including I think by Germany in some cases.

00:12:21: And the proposal

00:12:22: is to impose

00:12:23: an eighty percent tax

00:12:24: on,

00:12:25: this is a model that we've seen

00:12:28: promoted in Eastern Europe in various places.

00:12:30: So yeah, yeah, so they've adopted this and It's basically to suffocate these organizations.

00:12:36: They'll cut off their sources of income and make it impossible for them to operate.

00:12:41: With Palestinian

00:12:42: human rights organizations, the steps have been more severe.

00:12:45: So some of them have been

00:12:45: declared terrorist organizations

00:12:48: because they have an affiliation to political entities in Palestinian society that have been labeled

00:12:54: as terrorists.

00:12:55: And so they are not allowed to operate.

00:12:58: this is just a sample.

00:12:59: there are more of these kinds of measures but in general we're having this kind of

00:13:02: shrinking both

00:13:03: of civic space and humanitarian

00:13:06: space.

00:13:07: At just one last point on that the shrinking of humanitarian

00:13:09: space in the case

00:13:10: of Gaza has been really tragic because humanitarian

00:13:15: actors that provide services there that

00:13:17: are really life-saving and crucially

00:13:20: needed are being prevented from

00:13:22: being able to

00:13:22: to operate.

00:13:26: Yeah, so on that very positive note, I wanted to touch upon quickly on your trajectory also, because you didn't start off as a lawyer in international humanitarian law specifically.

00:13:45: Can you tell us a little bit about what made you go into that field,

00:13:50: particularly

00:13:52: as an Israeli national, maybe like?

00:13:54: That's something that from the outside seems an interesting path to go because it's it's a difficult one, especially in that the setting you're working in.

00:14:03: Yeah, it's becoming difficult.

00:14:04: Yeah.

00:14:04: So for me, as you said, actually, I didn't think that I would be doing this.

00:14:08: I studied international law when I was studying law and it was.

00:14:11: This boring course

00:14:12: that I didn't dream would be what I pursued subsequently.

00:14:16: We had a teacher who was

00:14:19: quite a conservative.

00:14:20: This was in Israel at the Hebrew University.

00:14:23: He was quite conservative and so he chose to teach us international

00:14:26: law in a way that

00:14:26: didn't connect

00:14:27: at all to the political reality.

00:14:29: It didn't seem like anything would possibly

00:14:31: interest me.

00:14:32: And

00:14:32: this was in the nineteen nineties.

00:14:34: I'm kind of dating myself here.

00:14:36: So the nineteen nineties were relatively optimistic time.

00:14:40: For me personally, I'm South African originally.

00:14:42: So there was this optimism of the end

00:14:45: of the Cold War.

00:14:47: In South Africa, apartheid had come to a close.

00:14:49: There were peace negotiations in Israel.

00:14:52: And at least from the perspective of Israelis, it looked very positive at the time, the Oslo Accords.

00:14:57: So I was studying law.

00:14:59: I finished in just before the Second Intifada erupted.

00:15:03: It didn't occur to me that, I mean, I was expecting there'd be peace any moment now.

00:15:07: And I studied commercial law

00:15:08: and thought that that was what I'd be doing.

00:15:12: And then just as I came out of law school, the Second Intifada erupted.

00:15:17: In fact, I had been called up for reserve

00:15:19: duty.

00:15:21: You know, in Israel, we have to do, I had served in the military and I was called up for reserve duty.

00:15:26: My service had been during these

00:15:27: kind of peace years, so I hadn't actually

00:15:29: ever been

00:15:30: into the

00:15:30: territories as a soldier.

00:15:31: I hadn't come across these

00:15:32: sort of,

00:15:33: at least not firsthand, across

00:15:35: disturbing

00:15:37: kind of engagements with Palestinians.

00:15:39: This was after the First Intifada.

00:15:41: But when the Second Intifada erupted, it was a shock, really.

00:15:46: And it unfolded

00:15:47: in stages,

00:15:49: but eventually... There came a point where I decided that I have to

00:15:57: refocus

00:15:58: what I'm doing.

00:15:58: I became so troubled by what I was

00:16:00: witnessing.

00:16:01: So, I mean, there were two

00:16:02: decisions

00:16:03: that came from that.

00:16:03: The one

00:16:04: was to join this

00:16:05: movement of

00:16:06: refugees, as they're called in Israel, so to refuse to serve

00:16:09: initially in the occupied territories and subsequently in the military at all.

00:16:15: And

00:16:15: then to

00:16:15: study international...

00:16:18: I soon discovered

00:16:19: that the relevant area was the

00:16:20: laws

00:16:20: of war, international humanitarian law.

00:16:23: And I went to the UK, I studied that at the LSE and came back and joined B'tzelem.

00:16:28: And that was sort of the beginning of the trajectory that sort of brought me to this point.

00:16:34: What I can say is

00:16:34: that the issues that I was bothered

00:16:36: by

00:16:36: at the time, I mean, now I know that some of the things that I was witnessing

00:16:41: were war crimes.

00:16:43: It didn't occur to me at all that I would be using

00:16:48: the concept of apartheid

00:16:49: for the context in which I was living in.

00:16:51: That came years later, took a long time to kind of,

00:16:54: especially

00:16:54: for someone from South Africa where that had a lot of meaning, but increasingly it became evident that the reality was one where that label

00:17:02: was fitting.

00:17:03: It never in my wildest, well nightmares really occurred to me, that genocide would be a label that would be debatable in the

00:17:10: context.

00:17:10: And for the last two years, increasingly,

00:17:12: I think now almost unavoidably, that's a a relevant label.

00:17:16: So it hasn't, the picture that was bleak

00:17:19: when I started doing this work has

00:17:20: become much darker in the years since.

00:17:24: Sorry, this is not being a very happy kind of conversation.

00:17:26: No, no, no.

00:17:28: I mean, unfortunately, when we're discussing these things, like it's, we've never had a positive note on this, I think, generally, I think, Well, we've been seeing in Europe, at least, and even though it's very little and very much too late, at least we're seeing a bit of movement on the European side.

00:17:52: And this is, I think, the only way to go right now.

00:17:58: But because we've been talking about international humanitarian law, and what I've been noticing also throughout our work at Epicon is that there is a little bit of confusion as to the very basic term of, so what does international humanitarian law versus international human rights law mean?

00:18:17: How do you differentiate these two bodies of law?

00:18:22: And specifically, how do they apply to the Israeli-Palestinian context?

00:18:28: And how does Israel in particular apply these two bodies of law?

00:18:33: Because We always hear, you know, Israel hasn't ratified, for example, the additional protocols to the Geneva Conventions.

00:18:41: And how does it then still, because if it says, if it creates exceptions to the law, then it already implies that it is somehow recognizing it or somehow

00:18:50: apply.

00:18:51: Yeah.

00:18:51: So there's quite a bit to unpack there.

00:18:52: Yeah, sorry.

00:18:54: It's not all that simple.

00:18:55: But first of all, perhaps with international humanitarian law, IHL and human rights law, So there's some debate about how these two bodies of law interact, but they're definitely separate

00:19:04: bodies of law.

00:19:06: The names

00:19:06: that we

00:19:07: use are a bit confusing.

00:19:09: I suppose one thing that they have in common

00:19:11: before I describe the differences

00:19:12: is that basically fundamentally

00:19:14: they're both

00:19:15: about safeguarding human dignity.

00:19:18: But IHL is a body of law

00:19:21: that applies specifically

00:19:22: in times of armed conflict.

00:19:24: In fact, it has another name.

00:19:26: So humanitarian actors speak about international humanitarian law because we want to emphasize the humanitarian purpose of the law.

00:19:33: But military lawyers speaking about the same body of law will speak about the law of armed conflict or

00:19:37: the laws of war.

00:19:39: And basically it's a body of law that regulates behavior in times of armed conflict

00:19:44: with the view

00:19:45: to minimize the human

00:19:46: suffering

00:19:47: that's caused in armed conflict.

00:19:48: But it's a body of law that was created by states who certainly weren't willing to accept constraints that don't allow

00:19:55: them to pursue their

00:19:56: legitimate military objectives.

00:19:58: So it's a very pragmatic body

00:20:00: of law that tries to create

00:20:01: a kind of balance between on the one side humanitarian considerations and on the other side military necessity.

00:20:08: And a lot of the debate

00:20:09: about this body of

00:20:09: law is really about how you balance these two values.

00:20:13: So what's supposed to be clear is that

00:20:16: when you cause harm

00:20:18: that doesn't serve a military need that goes beyond military necessity,

00:20:21: then that should be off limits.

00:20:24: So harming civilians, for example, should be off limits.

00:20:27: Destroying civilian property should be off limits.

00:20:29: It doesn't serve a purpose.

00:20:31: If you've captured someone, even an enemy

00:20:33: fighter who no longer poses a threat to you, you shouldn't harm them.

00:20:36: You should treat them humanely.

00:20:37: You can

00:20:38: give way

00:20:38: to humanitarian considerations because there's no military need to harm them.

00:20:43: So that's very basically that

00:20:44: body of law.

00:20:45: Human rights

00:20:46: law is a body of law that has a wider application.

00:20:49: It applies in peace times and in times of armed conflict.

00:20:52: And the question is how you apply and I mean, I think people are more familiar with human rights.

00:20:57: So it's this notion that a state has certain obligations towards people under its control has to protect their life.

00:21:06: Basically, they're human dignity and that unfolds into a series of different types of rights.

00:21:11: The question is

00:21:12: how you respect human rights in

00:21:13: times of armed conflict.

00:21:15: So you have these two

00:21:15: bodies of law.

00:21:18: Some states,

00:21:19: unfortunately, Israel is among them, say human rights doesn't apply at all in times of armed conflict.

00:21:23: The US is another.

00:21:25: But in Europe, at least, the prevailing view,

00:21:29: and there's also jurisprudence

00:21:30: to support that, is that human rights continues to apply

00:21:33: alongside.

00:21:34: IHL in times

00:21:35: of armed conflict, except

00:21:37: the way you interpret

00:21:38: human rights is influenced by the reality of armed conflict.

00:21:41: So there's certain things you can expect the

00:21:43: state to do in peacetime that are not realistic to

00:21:46: expect in times of armed conflict.

00:21:48: So you still have to respect the rights of life.

00:21:50: You can't arbitrarily kill people and deprive them of their liberty.

00:21:54: But in situations

00:21:55: of armed conflict, you interpret human

00:21:57: rights law in light of the more specific

00:22:00: rules that exist

00:22:00: in IHL,

00:22:01: the body of law

00:22:02: that's designed to.

00:22:03: So It would mean that even while you respect human life,

00:22:06: there are certain people

00:22:07: you can intentionally kill, which would be an absolute taboo in peacetime.

00:22:10: But enemy fighters, for example, are people that, in an armed conflict,

00:22:15: you can kill.

00:22:15: That's

00:22:16: perhaps why the name humanitarian law is a bit questionable.

00:22:19: It's a body of law that allows destroying certain objects and intentionally killing certain people.

00:22:25: It's humanitarian because it doesn't allow you to kill everyone and destroy

00:22:28: everything

00:22:29: and the reason that it places constraints for humanitarian reasons on violence in in war.

00:22:35: There were more elements in your in your question Should I should I know?

00:22:39: I mean that's exactly what I was getting at.

00:22:41: so yeah, and then the next Part of this question is how does it apply specifically in the Israeli-Palestinian context?

00:22:50: I already hinted that human rights law is a topic of debate because Israel refutes

00:22:55: that

00:22:55: it's bound by human rights law.

00:22:58: That's particularly problematic because Israel occupies the Palestinian territory.

00:23:03: That's the consensus internationally.

00:23:05: that's been the position that's been recently also stated by the International Court of Justice.

00:23:12: That consensus internationally is questioned in Israel, but

00:23:17: when you have a situation

00:23:18: of occupation, international humanitarian law regulates the relationship between

00:23:23: the occupying power and the

00:23:25: local population.

00:23:26: A situation of occupation, perhaps I should explain, is defined as a situation where

00:23:30: a state acquires control

00:23:32: over

00:23:33: territory that it doesn't have sovereign claim over in the context of an

00:23:37: armed conflict or at least

00:23:38: without the consent

00:23:39: of

00:23:40: the rightful sovereign.

00:23:42: Israel has control over Palestinian territory

00:23:45: without the consent of the

00:23:46: sovereign,

00:23:47: which is the Palestinian people.

00:23:48: Consensus now is that

00:23:50: the rightful sovereign is the Palestinian

00:23:52: people, and that triggers a set of obligations under the law of occupation.

00:23:56: Traditionally, there's an understanding

00:23:58: that

00:23:58: human rights law is applying alongside the law of occupation, establishes important protections.

00:24:04: Israel doesn't accept those.

00:24:05: When it comes to the law of occupation itself, It has a very inconsistent

00:24:10: kind

00:24:10: of position.

00:24:12: There's some

00:24:12: aspects

00:24:13: of the law of occupation that are kind of convenient for an occupying power.

00:24:17: These were rules that were agreed upon, some of the rules of the law of occupation.

00:24:21: In the nineteenth century in Europe, when great powers and

00:24:25: smaller states

00:24:26: kind of negotiated how to, it was quite frequent that you'd have, I don't know, little Belgium finding itself under the control of another state.

00:24:33: I don't know why Belgium always is selected as the example.

00:24:35: But so they had to regulate the relationships between them.

00:24:39: And actually

00:24:40: the

00:24:41: great powers were able to negotiate it in such a way that they had quite extensive authority in the occupied territory.

00:24:48: So

00:24:48: you're supposed to administer the occupied territory

00:24:51: in place

00:24:52: of the ousted sovereign.

00:24:54: And that gives you a lot of authority.

00:24:55: And that was quite convenient for Israel.

00:24:56: It was quite happy to accept a legal regime that gives it all kinds of authority.

00:25:01: So it relies on.

00:25:02: that area of the law of occupation to say that it can create legislation in occupied territory.

00:25:08: It can regulate life there and that includes

00:25:11: enforcing the law.

00:25:12: But after the Second World War, there was a dramatic development in the law of occupation.

00:25:17: In the wake of the really horrendous experience in occupied territory, particularly under Nazi Germany,

00:25:26: the law was

00:25:26: developed and there's a a new Geneva Convention that was added.

00:25:31: There had been

00:25:32: three Geneva

00:25:32: Convention.

00:25:33: There was a fourth one designed to protect civilians and particular civilians in occupied

00:25:37: territory.

00:25:38: There, the focus isn't so much on the interests of the sovereign and the ousted sovereign.

00:25:41: The focus was on protecting the people who find themselves suddenly

00:25:45: under the control

00:25:46: of this alien power.

00:25:47: So those rules establish all kinds of limitations on what an occupying power can do.

00:25:51: Those are less convenient for Israel.

00:25:52: For example, it says that you

00:25:54: can't move your

00:25:54: own population into the occupied

00:25:56: territory.

00:25:57: That goes against Israel's settlement enterprise.

00:26:00: You're not supposed to move the people in the occupied territory.

00:26:02: You can't transfer them forcibly from one place or another.

00:26:05: You certainly can't deport them.

00:26:07: All that runs very much against Israeli policy in the occupied territory.

00:26:11: You're not supposed to annex any of the

00:26:12: territory.

00:26:13: So there's been all kinds of attempts to say those rules don't

00:26:16: apply.

00:26:17: For example, Israel has maintained that the

00:26:22: territory wasn't

00:26:23: occupied from a rightful sovereign.

00:26:24: They don't accept.

00:26:26: the territory, both in the case of Gaza and the West Bank was taken from entities that didn't have

00:26:30: sovereign

00:26:30: claim over it.

00:26:31: Gaza was

00:26:32: controlled

00:26:33: by Egypt, which isn't a sovereign.

00:26:34: The West Bank was controlled by Jordan,

00:26:36: which wasn't

00:26:36: recognized by most states as a sovereign.

00:26:39: So Israel says, well, we didn't occupy it from another state.

00:26:42: And so we're not bound by these

00:26:43: obligations.

00:26:45: The international community has said there's a people there, they're recognized by us as a sovereign people.

00:26:50: It's not your territory for sure, so you

00:26:52: are bound by these rules.

00:26:54: So what Israel has tried to do is to say the Foshtian even convention isn't applicable because it's conditioned on

00:27:00: the territory being taken

00:27:01: from a rightful sovereign.

00:27:02: the older rules, these

00:27:03: Hague regulations from the nineteenth century to quite convenient, they apply through customary law.

00:27:08: That's been the approach.

00:27:09: It's a very much a cherry-pricking

00:27:11: approach,

00:27:11: which is a constant.

00:27:12: That's a constant, actually.

00:27:13: That's one of the ways that Israel has managed to maintain that it's respecting the law while actually violating it, is to read the law in this cherry-pricking

00:27:23: manner.

00:27:23: There are many other techniques that they apply, but that's been one of them.

00:27:28: Now, you were asking

00:27:29: also about the

00:27:31: these key provisions

00:27:32: of international humanitarian law, the additional protocols.

00:27:35: Those are

00:27:36: the place where you find the rules that

00:27:38: regulate behavior in hostilities when there's fighting, like the fighting that we're seeing in Gaza now.

00:27:43: And those have been codified in an additional protocol to the Geneva Conventions from the nineteen seventies, which Israel didn't sign up to.

00:27:52: But even Israel accepts that some of the basic

00:27:56: principles that are

00:27:57: established there do apply as a matter of what we call customary international law.

00:28:02: So for example, the most basic principle of hostilities, the rules governing hostilities, is that you're not supposed to distinguish between civilians.

00:28:10: and combatants

00:28:12: or fighters and between civilian objects and military objectives and you're only

00:28:15: allowed to direct your fire

00:28:17: at military objectives at fighters and military objects.

00:28:19: you can't

00:28:20: intentionally

00:28:21: target civilians and civilian objects.

00:28:23: that's customary law in israel accepts that.

00:28:25: there's another rule

00:28:26: called the rule of the principle of proportionality which says basically.

00:28:30: that even when you're

00:28:31: attacking

00:28:32: a legitimate

00:28:32: target, you have to consider the harm

00:28:34: that you're going to cause to civilians and civilian objects around that target.

00:28:38: And if the harm that

00:28:39: you think you're going

00:28:40: to cause is excessive in relation

00:28:41: to the military

00:28:42: advantage

00:28:43: that you expect that you're going to gain, then you have to avoid the attack.

00:28:46: There are also all kinds of precautions

00:28:48: that you have to take.

00:28:50: Each and every time.

00:28:52: Every single

00:28:52: time.

00:28:53: And I mean, these rules are crucial for a context like

00:28:56: Gaza.

00:28:56: Unfortunately, we have the impression that they've been

00:29:00: consistently

00:29:01: violated with tragic consequences.

00:29:07: And they've been violated also because of a different kind of interpretation and understanding of the law from the side of Israeli policymakers or decision makers in that sense.

00:29:20: Well, actually, so that was true in previous rounds of hostilities.

00:29:24: Israel was quite sophisticated in its engagement with international humanitarian law.

00:29:30: coming up with all these arguments and loopholes to explain why what seemed to everyone like a violation was in fact okay.

00:29:37: That still happens with some

00:29:40: kind of state officials, the lawyers working

00:29:42: for the state when they have to defend the position that the

00:29:44: state has taken.

00:29:45: But you mentioned policymakers and politicians, there we're seeing

00:29:49: an even more troubling kind of approach

00:29:50: than we had seen before

00:29:52: taking hold more and more and that is complete disregard

00:29:55: for the law.

00:29:56: So, I mean, the impression was that they weren't.

00:29:58: many Israeli officials and leaders were not particularly committed to international law,

00:30:03: to these rules

00:30:04: of international law, even beforehand.

00:30:05: But at

00:30:05: least they, maybe it wasn't at least, but they paid some kind of lip service

00:30:09: towards these rules in the past.

00:30:11: Now,

00:30:12: I think

00:30:14: with support from

00:30:16: the attitude that we see coming from

00:30:18: the White House now,

00:30:19: there's a dismissive approach towards international law.

00:30:22: So sometimes openly antagonistic towards it.

00:30:26: it's as though this

00:30:27: law

00:30:27: is not something that we have to bother

00:30:28: about.

00:30:29: So you see all kinds of statements by

00:30:31: including people like the Minister

00:30:32: of Defense

00:30:34: calling for actions in Gaza that you can't possibly reconcile with the law.

00:30:38: So that's at the kind of political level, a really troubling development that

00:30:42: we're seeing both

00:30:43: in the Israeli-Palestinian context and I would

00:30:45: say

00:30:46: globally increasing this kind of

00:30:49: dismissive

00:30:50: attitude, defiance of the law.

00:30:52: But then Israel does have to, it's not the US, it does sometimes have to

00:30:55: explain itself.

00:30:57: And then, as you

00:30:58: were suggesting, there are all these efforts

00:31:01: to kind of twist

00:31:01: and turn the law.

00:31:03: So there are a few different kinds of techniques that we see.

00:31:06: I mentioned in the beginning that international humanitarian law is about this kind of balancing act between military necessity and humanity.

00:31:14: So

00:31:15: what they often do

00:31:16: is just place

00:31:17: more emphasis

00:31:18: on military necessity and kind of ignore the humanitarian considerations.

00:31:22: and sometimes the law actually... is designed in a way that actually allows

00:31:26: states

00:31:27: to abuse, I would say, the law, so a principle like the principle of proportionality that I was describing before.

00:31:33: It's really difficult

00:31:33: to implement that.

00:31:35: It's hard to contest

00:31:36: a state that claims that

00:31:38: it had this very weighty military advantage

00:31:40: that it was seeking to pursue,

00:31:42: and it didn't actually

00:31:43: foresee that it would cause

00:31:44: so much harm.

00:31:45: Especially

00:31:46: in the fog of war.

00:31:47: In the fog

00:31:47: of war,

00:31:47: exactly.

00:31:48: I mean,

00:31:49: at some point

00:31:50: in Gaza, that became

00:31:52: less and less

00:31:52: plausible.

00:31:53: And eventually when you had entire cities that were wiped out, you know, the idea that this was somehow proportionate became increasingly preposterous.

00:32:01: But that was one area.

00:32:03: There have been

00:32:03: these kinds

00:32:04: of arguments, but they've actually been

00:32:06: in a way more sinister

00:32:08: types of arguments, perhaps more surprising, where

00:32:11: Israel has

00:32:12: relied on humanitarian logic to justify what it's doing.

00:32:15: So some of

00:32:15: the most harmful

00:32:17: practices that we're seeing in Gaza now

00:32:19: have been defended or presented

00:32:21: as though they were humanitarian measures.

00:32:23: So to explain, we've seen

00:32:26: most of the population

00:32:28: in Gaza

00:32:28: displaced now.

00:32:29: So the population of above two million people, at least ninety percent of that population, is understood to have been displaced in many cases many times over.

00:32:38: And the way they're displaced

00:32:40: is, at least in many cases, is that Israel will

00:32:43: instruct people or direct people

00:32:45: to leave an area in advance of an attack.

00:32:47: This is supposedly done to protect them from an attack.

00:32:51: And they're doing it as we're speaking.

00:32:53: Absolutely.

00:32:54: Now we're witnessing that happening in Gaza City.

00:32:57: The people that have remained or returned to Gaza City are now being

00:33:00: instructed

00:33:00: to leave.

00:33:03: The other sinister side of this is that Israel seems to

00:33:05: presume

00:33:06: that after

00:33:06: it's told people

00:33:07: to leave, it can just assume that everybody who remains is a fighter and can just attack indiscriminately, which is very much at odds with the law.

00:33:14: But under the cover of this kind of humanitarian logic, we've seen displacement

00:33:20: being

00:33:20: justified.

00:33:21: And

00:33:22: there's a concern

00:33:23: also that people are being concentrated in a very small slither of Gaza.

00:33:26: At the moment, Palestinians

00:33:28: are

00:33:29: confined.

00:33:30: to less than fifteen percent of the

00:33:32: territory.

00:33:33: The rest

00:33:33: is all off limits and you risk your life if you enter that as a Palestinian.

00:33:39: There have been Israeli politicians who have

00:33:41: been quite open,

00:33:42: again, using humanitarian language about the desire

00:33:45: to concentrate

00:33:46: the population in these tight, kind of confined

00:33:49: zones.

00:33:50: So the Minister of Defence spoke about this vision of establishing a humanitarian

00:33:54: city, as he called

00:33:55: it.

00:33:56: Others, including a former Israeli Prime Minister, Erhard Olmoud, who was actually from the

00:34:00: right,

00:34:01: well, the old right.

00:34:02: said that this is a concentration camp, quite rightly.

00:34:05: And the idea would be to, on the ruins of what used to be Rafa, the city that's been

00:34:09: flattened

00:34:10: to create a so-called city, in effect a mega kind of concentration camp for all of what remains

00:34:17: of

00:34:17: the two million or so people that live in Gaza.

00:34:21: And they've been quite open about the fact that this is what the Minister of Defense said, that people won't be

00:34:26: allowed to leave that space after they voluntarily

00:34:29: enter it.

00:34:30: The voluntary is of course his language.

00:34:32: And the only way to leave would be to leave

00:34:35: exile, basically,

00:34:36: to leave Gaza.

00:34:37: So it seems very much that all of this, under the guise of humanitarian gestures, so to speak, to protect people, there's a plan to drive them out of Gaza.

00:34:49: I mean, basically, the choice that people will have if this vision is realized, and it looks like they're trying to realize it, is that they can be in a concentration camp

00:34:57: in this space.

00:34:59: They won't be allowed to leave.

00:35:01: The conditions there are likely to be very dire.

00:35:04: So we're

00:35:05: seeing people starving in

00:35:07: Gaza.

00:35:07: There's a famine in Gaza at the moment.

00:35:09: There's concern

00:35:10: that this humanitarian city won't be that humanitarian.

00:35:13: If they leave that city, they'll be presumed to be a Hamas fighter, and their lives will probably be quite short.

00:35:18: So they'll have

00:35:19: a choice between a quick death, a kind of slow death in a concentration camp, or

00:35:24: exile.

00:35:27: And to use

00:35:27: humanitarian logic to kind of present this as something that's lawful and acceptable is really turning the law on its head completely, turning humanitarian law on its head into a kind of, so a body of law that we see as a kind

00:35:42: of shield that's supposed to protect people

00:35:44: is being turned into

00:35:46: a sword.

00:35:47: Yeah.

00:35:53: Yeah, it's difficult to grasp everything.

00:35:59: I think what is particularly depressing also, especially as a lawyer, since I'm a lawyer myself and I've also studied international humanitarian law, is to see how we can also witness this or similar narratives and ways of argumenting in Europe when it comes to when we talk about upholding the rule of law and we talk about a rule-based order that, you know, actually was based or started off on the ruins of World War Two.

00:36:35: We're based in Berlin.

00:36:36: We're based in Germany.

00:36:37: You know, we, we, we've witnessed the Nurembic trials here.

00:36:41: And it's, um, it's, uh, it's, yeah, they're, they're very scary developments.

00:36:46: And, um, I wonder if you can speak about how you view also the European positioning from an Israeli perspective.

00:36:55: And yeah.

00:36:56: Yeah.

00:36:57: So.

00:36:58: I mean, as I said, we place a lot of hope as a humanitarian organization

00:37:02: on Europe.

00:37:02: The US,

00:37:03: which has most influence on Israel, is not an actor that we expect much from at the moment.

00:37:09: If anything, it just encourages unlawful practices under this administration.

00:37:15: So Europe is like the place you turn to.

00:37:18: There is this professed commitment to rule-based international order.

00:37:25: The values that underpin international humanitarian law, international law more widely

00:37:30: are values

00:37:31: that Europe is formally committed to human rights.

00:37:34: There's a strong commitment to these values, to the rule of law.

00:37:37: There's also an interest actually in preserving these because they're part of the protection against

00:37:41: acts of aggression,

00:37:42: like Russia deciding that it wants to invade a neighboring European

00:37:46: state.

00:37:47: And we've seen Europe

00:37:49: speak in the language of international law

00:37:51: to protest

00:37:51: against abuses, such as the ones that Putin's Russia has committed in the

00:37:57: Ukraine.

00:37:58: So

00:37:58: there was an expectation

00:37:59: for consistency and

00:38:01: for European

00:38:02: states

00:38:03: to

00:38:05: defend

00:38:05: the rule of international law, to

00:38:06: defend these values.

00:38:08: But I mean, we're not naive.

00:38:09: We also understand the complexities

00:38:11: about political complexities when it comes to Israel.

00:38:15: For Germany, they're more pronounced, I think, than any other actor.

00:38:18: Actually,

00:38:19: in a way, in two ways, because I think Germany, the sort of post-Second World War, Germany

00:38:23: has the strong

00:38:24: commitment to the rule of international law to these values and also a strong commitment to Israel.

00:38:29: And what we're seeing now is a situation where those

00:38:32: are clashing.

00:38:33: And you have to decide how you manage that.

00:38:36: From my perspective, actually,

00:38:37: as an Israeli,

00:38:40: being a two-friend to Israel

00:38:42: would mean insisting that it adheres to these values.

00:38:46: Take the approach

00:38:47: that many in Europe unfortunately

00:38:49: and in Western Europe that has more influence

00:38:51: over Israel the approach that many seem to be taking where they are prioritizing their Relationship

00:38:57: with Israel over

00:38:58: their commitment to international

00:39:00: law at least in that context

00:39:01: That's that's not really helping Israel.

00:39:04: That's helping currents

00:39:05: that

00:39:05: exist in Israeli society in the Israeli political

00:39:08: system that are corrosive.

00:39:10: They're destroying the country from within.

00:39:12: from the perspective of at least those of us who are committed to democratic values who, you know, I mean, there are people who would define themselves as Zionists,

00:39:23: but their

00:39:24: vision of Zionism was of a democratic state.

00:39:28: I mean, that's a complicated thing to explain, but

00:39:31: there are many people who are seeing that crumble before their

00:39:34: eyes.

00:39:36: It's just an empty shell of, it calls itself a democracy, but it's a democracy emptied of these values

00:39:43: that

00:39:43: really

00:39:44: had justified

00:39:45: its

00:39:45: existence

00:39:46: beforehand and for many people

00:39:48: that's the state that they're committed

00:39:49: to.

00:39:50: So by supporting Israel as it turns its back on these fundamental

00:39:54: values,

00:39:55: you're promoting the European actors that are doing that, the international actors that are doing that are supporting.

00:40:03: the development of, or the

00:40:05: rise to power of

00:40:06: elements

00:40:07: that are committed

00:40:08: to a completely different set of values and completely different visions.

00:40:12: I mean, we have people in the government

00:40:14: who see these norms

00:40:16: as, not just as norms that they're

00:40:18: indifferent to, they're

00:40:19: actually antagonistic

00:40:20: towards them.

00:40:21: If you listen to statements made

00:40:23: by people like Ben Grey

00:40:25: and Smotri

00:40:26: to our ministers in our government and actually other officials as well, they, Their vision

00:40:34: for the future is based

00:40:35: on a completely different set

00:40:38: of norms as kind of

00:40:39: their reading of,

00:40:42: in my view, kind of twisted reading

00:40:44: of Jewish tradition and Jewish

00:40:47: norms.

00:40:48: This vision of a greater Israel

00:40:53: and

00:40:53: Palestinians are in the way of that vision and they're willing to do, it seems, almost anything to get them out of the picture.

00:40:59: just to support that is to really

00:41:01: corrupt the country.

00:41:02: So

00:41:03: I don't think even though it seems like

00:41:05: it's helping Israel, that is really helping Israel.

00:41:08: I mean, I suppose the other side of this is that they're they're interested of a different kind.

00:41:12: It's not just

00:41:13: the value of defending Israel.

00:41:16: It's also all kinds of economic relations,

00:41:18: the relations

00:41:18: with the U.S.

00:41:19: that will be complicated.

00:41:21: So we still hope that there's going to be enough commitment.

00:41:26: to the rule of law to stand up and perhaps sacrifice some of those economic interests, at least in the short term,

00:41:34: perhaps stand up to the

00:41:35: US a little bit.

00:41:36: Personally, I mean, I can't speak for the EU, but my only impression is that that would be in Europe's

00:41:43: interest as well, to succumb

00:41:45: to the kind of pressure to accept

00:41:48: these practices, this kind

00:41:51: of attitude that Trump has.

00:41:54: where you know you can just say that you want to take over Greenland and I don't think that's in.

00:41:58: I don't think it's at all

00:41:59: in Europe's interest

00:42:00: to to accept that.

00:42:01: how

00:42:01: do you stand up to put in afterwards and say stop?

00:42:05: on what grounds?

00:42:09: Does the way that European states are positioned themselves does it entail any you know implications when it comes to international law?

00:42:20: Does it have, do they have any responsibility to protect some of these rules?

00:42:27: No, so absolutely.

00:42:28: So I mean, I was saying that this

00:42:29: is an expectation that

00:42:30: we have, but it's also actually an obligation in some cases.

00:42:35: So first of all, states have an obligation that they undertook

00:42:40: to abide by

00:42:42: when they signed up to the Geneva Conventions,

00:42:44: all four of the Geneva Conventions in their first article.

00:42:47: So

00:42:47: right at the beginning, have a provision that says that states will

00:42:51: respect and ensure respect for the conventions.

00:42:55: And that's understood

00:42:56: to be a duty to respect and ensure respect for IHL more broadly.

00:43:00: Ensuring respect means

00:43:02: not only ensuring

00:43:03: internally that your own nationals

00:43:05: respect the law, but also that others

00:43:07: do.

00:43:07: To do what you

00:43:08: can, so it's a kind of obligation of

00:43:10: means to act with due diligence to ensure

00:43:12: that

00:43:14: other actors

00:43:15: respect their obligations

00:43:16: under international

00:43:16: law.

00:43:17: So, I mean, for example,

00:43:19: you shouldn't be providing the means.

00:43:21: with which the law is being violated.

00:43:23: So if you're witnessing

00:43:24: that Israel is bombarding Gaza in a way that constitutes a

00:43:29: war crime,

00:43:31: then you shouldn't be providing

00:43:32: the

00:43:32: weapons with which that or parts that

00:43:34: enable

00:43:35: it to do so.

00:43:36: And you should be as much as you

00:43:39: can putting

00:43:39: pressure on Israel to

00:43:40: refrain from

00:43:41: this

00:43:43: behavior.

00:43:44: And obligations of

00:43:44: means means that those who have more influence have more obligations.

00:43:48: So... the EU as a collective and its members, particularly the more powerful members of the EU.

00:43:54: So we're speaking in Germany.

00:43:55: Germany certainly falls in that

00:43:57: category

00:43:58: also

00:43:58: because it has strong

00:43:59: relations with Israel.

00:44:00: They have more robust obligations

00:44:02: to promote

00:44:03: respect

00:44:04: for international humanitarian law.

00:44:06: And then there are

00:44:08: norms

00:44:08: of international law that impose

00:44:09: a responsibility on states to respond

00:44:12: to what we call internationally wrongful acts.

00:44:15: So certain violations of international

00:44:16: law.

00:44:18: Especially when there are severe violations,

00:44:20: there are basic norms of international law.

00:44:23: We call them peremptory norms or use COVID.

00:44:26: And

00:44:28: Israel is violating

00:44:29: those norms, or at least there's

00:44:30: grounds for concern

00:44:31: that it's violating many of those norms.

00:44:33: For example, respecting

00:44:34: the right to self-determination of a people.

00:44:38: Certainly the prohibition against genocide, committing serious violations of international humanitarian law that would amount to war crimes.

00:44:46: When those kinds of violations occur, then other states have obligations.

00:44:51: First of all, they're not allowed to

00:44:53: assist in any

00:44:54: way in perpetrating those violations.

00:44:58: And secondly, they're not supposed to recognize

00:45:00: those unlawful acts as being lawful in any way.

00:45:04: And then finally, they're supposed to

00:45:05: act individually and collectively

00:45:08: to cooperate to try and bring

00:45:09: an end to the violations.

00:45:12: And we haven't seen enough of that.

00:45:14: We're beginning to see small

00:45:15: signs,

00:45:16: but the fact is that, you know, we've recently heard the authoritative body indicate that there's a famine in Gaza.

00:45:25: The situation is, and on top of that, there've been some dramatic developments within international

00:45:31: institutions

00:45:32: that... actually created extra obligations

00:45:34: for states to respond.

00:45:36: So I mentioned the International Court of Justice before.

00:45:39: They've been some dramatic developments before the International Court of Justice.

00:45:42: One was it issued an advisory opinion.

00:45:44: So that's the court as a function where

00:45:47: it can answer

00:45:48: a certain question and its answers on questions of international law are considered authoritative.

00:45:53: It provides the authoritative interpretation on the law

00:45:55: and it was asked

00:45:57: to assess the policies and practices of Israel in the occupied Palestinian

00:46:01: territory.

00:46:03: And among other

00:46:04: things, to assess whether Israel's presence in the occupied Palestinian territory is lawful.

00:46:07: And it found that Israel's presence in the occupied Palestinian territories

00:46:11: is

00:46:12: unlawful and must end as rapidly as possible.

00:46:15: That was a year ago.

00:46:18: Israel has only

00:46:19: since entrenched

00:46:20: its presence in occupied

00:46:21: territory.

00:46:22: It's entrenched its settlement enterprise.

00:46:24: There's

00:46:25: practices like violence, settler violence, displacement of local people.

00:46:29: Everything has just gotten worse

00:46:30: since that decision.

00:46:33: The court didn't just say that Israel has to leave.

00:46:35: It also was asked and answered a question about third state's responsibilities.

00:46:39: And there,

00:46:40: among other things, it said that third states certainly shouldn't aid and

00:46:43: assist in

00:46:44: creating this reality that they shouldn't recognize this reality is lawful and that they should take

00:46:50: actions

00:46:52: so as

00:46:53: not to have a hand in maintaining this illegal enterprise

00:46:57: or in entrenching it.

00:46:58: So, for example,

00:47:00: that would mean that you shouldn't in any

00:47:02: way

00:47:02: economically assist

00:47:04: Israel.

00:47:05: to maintain its illegal presence in occupied Palestinian territories.

00:47:08: In fact, you should create economic incentives not to maintain that reality.

00:47:14: We haven't seen effective measures on that.

00:47:15: So

00:47:16: the EU seems content

00:47:17: to kind of carry on with the measures that have been

00:47:19: set in place beforehand,

00:47:20: where basically you label products to indicate whether they come from the West Bank.

00:47:26: And that's, I mean,

00:47:28: that does nothing.

00:47:28: These products.

00:47:30: There are.

00:47:31: there's some products that are labeled as coming from the West Bank and then you sort of leave

00:47:34: it for the consumer

00:47:36: To make the decision

00:47:37: rather than the state

00:47:38: actually taking action.

00:47:39: on top of that

00:47:40: Israel markets so many

00:47:42: of the goods coming from the occupied

00:47:44: territory

00:47:45: as Israeli products, because Israel doesn't

00:47:48: draw any distinction between the West Bank,

00:47:49: the occupied territory, and its

00:47:50: own territory.

00:47:51: So,

00:47:51: for example, a company producing wine

00:47:55: will be registered

00:47:56: in an Israeli

00:47:57: city

00:47:57: on the Israeli side of the green line, but the vineyards are sometimes in the West

00:48:02: Bank.

00:48:02: They won't

00:48:02: draw any distinction, and they'll market that on the basis of it.

00:48:05: You know, it's in Rishon et Sion.

00:48:06: That's where it's registered.

00:48:08: So, it will be marketed as an Israeli product.

00:48:12: And so, It's nowhere near the kind of pressure that would be required to actually adhere to what the court

00:48:18: required.

00:48:19: Then that's just, I'm not exhausting everything to say about that advisory opinion.

00:48:24: But on top of that, the court had to deal with a case that was instituted

00:48:30: by South Africa.

00:48:31: That was interesting for me being a South African and an Israeli.

00:48:34: So South Africa instituted a case before the International Court of Justice against Israel.

00:48:39: alleging that Israel is committing genocide and asking

00:48:43: the court to intervene to prevent this crime

00:48:45: from being perpetrated.

00:48:47: It's going to take years for that case

00:48:48: to be resolved.

00:48:49: I

00:48:50: don't know what's going to be left of the population in Gaza by the time that happens.

00:48:54: But in the meantime, the court has issued some interim provisional orders.

00:48:59: And in this case,

00:49:01: these are legally binding.

00:49:02: Israel has an obligation to abide by these orders.

00:49:05: For example, the

00:49:06: court instructed

00:49:08: that it has to refrain from any kind of action

00:49:11: that could

00:49:12: amount to a genocidal act as defined in the convention.

00:49:17: It should prevent

00:49:18: any kind of incitement to commit genocide.

00:49:22: Since

00:49:22: then, we've heard countless statements

00:49:24: by leading Israeli officials inciting for what amounts to genocide, so that hasn't happened.

00:49:32: But also that it had to... ensure that humanitarian assistance was provided at scale to Gaza.

00:49:38: And since then, we've seen the humanitarian situation turn into a catastrophe to the point, again, that people are starving

00:49:45: and there's

00:49:45: a famine in Gaza.

00:49:46: So that's Israel's

00:49:47: obligations, but that also triggers obligations for third states.

00:49:50: And you shouldn't have any hand

00:49:52: in

00:49:52: those kind of, in facilitating these, and you should ensure and create effective pressure, you being all third states, pressure on on Israel to abide by the provisional orders that it's violating.

00:50:04: That hasn't

00:50:05: happened certainly

00:50:06: in any

00:50:06: kind of effective way.

00:50:08: I mean, you can live in Israel now

00:50:12: almost,

00:50:13: you know, as though things are normal.

00:50:16: I mean, those of us who are monitoring what's happening, who are aware of what's happening can't

00:50:21: do

00:50:21: that.

00:50:21: You know, you look at your plate and you're thinking about someone just a few kilometers down the way who's starving.

00:50:26: But for most people, you can carry on with life as normal and there hasn't been any kind

00:50:31: of mirror that's

00:50:31: been set up by the international community to make people sort of reflect on themselves.

00:50:35: I say that because as a South African who was old enough to have remembered being a child in apartheid South Africa, white people in South Africa, at least in the part of the public that I lived among,

00:50:49: were very

00:50:49: much aware that their country

00:50:51: was doing something wrong.

00:50:52: And that was partly

00:50:52: because they were constantly reminded of that.

00:50:55: They were banned

00:50:56: from participating in any kind of cultural

00:50:58: sports events

00:50:59: internationally.

00:51:01: kind of showing your

00:51:02: South African passport and airport

00:51:04: was a kind of shameful thing.

00:51:05: There were economic sanctions that were put on board.

00:51:07: I

00:51:07: mean, that would be kind of painful

00:51:10: for those of us living in Israel to experience

00:51:12: that.

00:51:14: I think it's essential

00:51:15: that there'll be

00:51:16: some kind

00:51:16: of pressure.

00:51:17: It's not going to come from within,

00:51:18: unfortunately, this

00:51:20: understanding about what's happening.

00:51:21: There are parts of the population that realize some people are motor-fied, but most

00:51:26: are going on with their lives as normal and they kind of

00:51:28: can.

00:51:30: Yeah.

00:51:32: What do you say, and maybe we'll come to an end soon, but what do you say to people who really, you know, question international law in general because of its because there's no way to enforce it?

00:51:46: there's no you know I think there's a lot of I don't know, yeah, it's just like a general feeling of why do we have these rules if there's no way to enforce them, if there's no respect for them at all, and how do you think that there's still a need for those rules to be

00:52:10: kept

00:52:10: in place?

00:52:11: So, I mean, obviously, those of us who work in this field are increasingly frustrated by that.

00:52:16: So you

00:52:16: know

00:52:16: the law, you're pointing it out, you're

00:52:18: raising these claims, and you're seeing them being

00:52:19: consistently violated in ways that are becoming more

00:52:22: and more severe.

00:52:23: So I certainly can sympathize

00:52:25: with that sentiment.

00:52:27: I don't think that the problem with these laws,

00:52:29: for the most part, is their content.

00:52:32: So

00:52:32: I mean, they can be improved.

00:52:34: No law is perfect,

00:52:35: and this body of law certainly

00:52:37: isn't perfect.

00:52:38: But if it

00:52:39: had been adhered

00:52:40: to, the reality would be so much better than it is.

00:52:45: A lot of the situation that

00:52:48: sort of locked Palestinians

00:52:49: and Israelis in an impossible kind of situation that's really difficult to see how

00:52:53: to unravel wouldn't have unfolded if the law had

00:52:55: been respected.

00:52:57: So my approach is that

00:52:59: these laws

00:53:00: outline

00:53:01: a mode of behavior

00:53:02: that we

00:53:03: should actually advocate

00:53:04: for.

00:53:05: States have committed to this and I think we should take advantage of the fact

00:53:09: that they've made these formal commitments.

00:53:11: And rather than just turning our back on this

00:53:13: law because it isn't being

00:53:14: respected

00:53:15: is to do more everything we can as civil society actors to ensure that these rules actually are acted upon and to

00:53:23: use the

00:53:23: fact that States have committed themselves

00:53:25: to these rules

00:53:26: to pressure them to actually respect what they committed to.

00:53:32: It's a way of articulating an advocacy message really.

00:53:37: So it's not

00:53:37: just certainly, I mean, what's happening in Gaza and the West Bank is a moral outrage.

00:53:43: And you can definitely articulate it in the language of morality.

00:53:47: But here

00:53:48: on top

00:53:48: of that, these

00:53:49: moral intuitions

00:53:50: have

00:53:50: been translated already into laws.

00:53:53: And

00:53:55: I think we shouldn't surrender those laws just because to Trump's and Putin's and

00:53:59: Netanyahu's and all these actors who disregard them, but insist

00:54:03: on them.

00:54:03: I

00:54:05: still, perhaps I'm naive, but I still have some

00:54:07: hope that depends also on the politics in various countries in Europe, but that within

00:54:11: Europe there is still some commitment

00:54:12: to these

00:54:13: values and that there is still some prospect

00:54:15: that, especially if politicians who respond, I suppose, among other things

00:54:19: to their voters, if civil society champions these rules

00:54:23: rather than turning them back on them and does so effectively, then hopefully we'll

00:54:29: see

00:54:29: a little bit more teeth for these norms.

00:54:32: I think it's crucial.

00:54:34: So I draw some encouragement by

00:54:35: seeing that even while

00:54:37: states are acting in an appalling way, in my view,

00:54:41: still providing weapons,

00:54:42: pretending that this isn't happening,

00:54:44: disregarding and criminalizing

00:54:46: those who

00:54:47: try to resist, that you're still seeing

00:54:48: people

00:54:49: coming out in the streets

00:54:50: in hundreds of thousands, millions, and some all over the world.

00:54:55: And quite often they're

00:54:55: speaking the language of international law.

00:54:58: I listen to, you know,

00:55:01: the way people are articulating

00:55:02: their concerns about Gaza,

00:55:03: and they are, among other things, speaking, perhaps

00:55:05: not even

00:55:06: knowingly,

00:55:06: the language of international law.

00:55:07: And I think

00:55:08: there's some

00:55:09: power there, and we shouldn't surrender that power.

00:55:12: We should push

00:55:13: more and struggle more, not less,

00:55:15: because those who

00:55:17: have the most power

00:55:18: are happy to ignore these rules.

00:55:20: The rest of us should insist on them.

00:55:23: I think that was a really good, beautifully said last words.

00:55:26: Thank you so much, Eitan.

00:55:29: Keep up the good work.

00:55:32: I really need you.

00:55:33: I might need a lawyer at some point.

00:55:35: Okay, that's good to know.

00:55:37: Okay, thank you.

00:55:38: Thanks a lot.

00:55:42: Thank you for listening to this episode of the Epicon Podcast.

00:55:46: Epicon stands for European Palestinian-Israeli Trilateral Dialogue.

00:55:51: an initiative that creates and fosters dialogue between Palestinian and Israeli peace advocates and European opinion leaders.

00:55:59: EPICON is implemented by the Candid Foundation with the financial support of the European Union.

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