Does Israel really have the “right to defend itself” against people it occupies? What about Palestinians, don’t they have a right to defend themselves from their occupiers? How serious is South Africa’s case charging Israel with genocide at the International Court of Justice? Is there even any meaning to international law anymore? Francesca Albanese, the UN Special Rapporteur on the Occupied Palestinian Territories, joined Rania Khalek on Dispatches to discuss this and more.
Transkript 0:00 that this is the only only conflict which has registered in such a no first0:06 of all it's the only conflict quote unquote which has registered such an0:12 such a death doll among un staff over 130 un staff members have been killed0:21 around 100 journalists have been killed some by0:26 drones meaning they've been followed and targeted at the same time no foreign0:34 journalists are allowed in no Israeli journalists are allowed in no one is to0:41 see what's happening in Gaza so again I no there is no precedent this exter this0:48 is an extermination hello everyone I'm R cik0:55 and This Is dispatches Us officials respond to any and all criticism of Israeli atrocities against Palestinians1:02 with the same Mantra Israel has a right to defend itself but does Israel really have a right to defend itself against1:09 people it occupies what about Palestinians don't they have a right to defend themselves from their occupiers1:16 meanwhile South Africa has invoked the genocide convention against the Israelis at the international court of justice1:22 and the Israelis are freaking out how serious is that case what can be done to1:27 prevent a genocide that's being live streamed before the world if the US continues to Shield Israel from all1:33 measures of accountability while blocking ceasefires and sending weapons every day is there even any meaning to1:41 international law anymore here to discuss this and more is Franchesca1:46 Alban the UN special repertoire on the occupied Palestinian territories but1:51 before we jump into it this is just the first part of this episode the full interview is available to breakthrough1:57 news members only you can become a member at patreon.com breakthrough news and as2:03 always be sure to hit the Subscribe button and the Bell so you get a notification whenever we post new2:08 content and if you appreciate this show you can also donate Below on YouTube2:14 Franchesca welcome to the show thank you Dan it's so good to have you on and2:19 there's so much I want to discuss with you um I guess a good place to start let's just jump right into it uh you2:25 know I think you know very well that American officials respond to any criticism of Israel's conduct in Gaza or2:32 when dealing with the Palestinians in general with this Proclamation that Israel has a right to defend itself and2:39 you've argued that in the case of the Palestinian territories Israel in fact doesn't actually have a right to defend2:46 itself against the people it occupies can you explain what you mean by that yes um I think that the statement2:56 Israel doesn't have the right to defend itself tells more than it means in fact3:02 because I speak on the ground of international law where the right to3:07 defend itself doesn't necessarily correspond uh doesn't mean the right to3:13 protect itself the right to protect its citiz and the right to protect its territory which is Sac sa and Israel has3:22 however in international law the right of self-defense under article 51 of the3:27 UN Charter means something else more specific and deeper it's the use of3:33 lethal Force it's the right to wage a war which is only uh permissible under3:43 international law either when it's authorized by the security Council or in3:49 order to respond to an imminent attack so people could say yeah but what Hamas3:55 did on the 7th of October was an attack the the point is that the context4:01 matters the context that neither Israel nor uh the Us and other um unconditional4:09 supporters of Israel do not want to pose and think of the context is that of an4:16 occupation that has lasted 56 years and has translated into oppression and many4:22 violations of international law so there is a Consolidated Juris Prudence of the international court of justice the4:29 Supreme Morgan of the of the um the United Nations which recognizes the4:36 threats the security threat that emanate for Israel against Israel from the4:42 occupied Palestinian territory but at the same time it says Israel cannot claim the right to self-defense in the4:48 sense cannot wage a war against the people it maintains under occupation so4:54 Israel was allowed to use to respond to the attack but and to use Force but it5:01 it had to do within the limit of the law as an occupying power which do not include the right to wage of War sorry5:09 it was a long explanation but I think it's necessary for people to get fully familiar with this very complex and and5:16 sensitive matter no it's super important and I also think it's I'm curious if you could5:21 elaborate a bit on the fact that not only does it not have this right that you're talking about to defend itself in the way that it's carrying that out but5:28 it also actually has like an obligation to take care of the people it's5:33 occupying which it's absolutely not doing no and the thing is that he was5:39 not doing that before the 7th of October but think of it because this is the5:45 astonishing shocking part of all this for 56 years without without even going5:53 to what has happened before 1967 right but since 1967 on the ground of security security6:02 reasons Israel maintains a military occupation which implies the suspension6:07 of fundamental rights for the Palestinian people including the right of self-determination over the Gaza Strip6:13 which has also been held under blockade which is a collective punishment for 166:19 years during which Israel has waged five Wars against the against the6:24 Palestinians in Gaza killing 4,000 people including 1,000 children and it6:30 has built over these 56 years colonies after colonies after colonies including6:36 during the peace process that started in the 90s and it has next it has an nexted6:42 Jerusalem as of the 1980s these are crimes building colonies6:49 constitute a war crime annexing a territory is so not6:55 permitted that is considered an aggression as the case of Ukraine Russia7:02 reminds all of us and maintaining a PE a population under blockade has been said7:10 has been described by someone like Luis Moreno campor the former former prosecutor of the IC as genocidal itself7:18 in the face of this illegality what do the commun International Community done7:25 nothing nothing to fix this this structural violence which of course has7:31 uh triggered violence in response in any case look I've condemned what happened7:37 on the 7th of October and I will always do and they say that those who have committed crimes against Israeli7:42 citizens by killing brutalizing them or taking hostages will have to pay but7:48 this doesn't change the reality that the Palestinian people as an oppressed people have the right to exist to7:56 determine themselves and against continuous attacks at this basic right8:01 of course they will resist and this is recognized as legitimate within the limits of the law under international8:07 law well that's what I want to ask you about next when we talk about the Palestinians it's never I mean you never8:13 hear Palestinians have a right to defend themselves right but do I mean as an8:18 occupied people do they have a right to defend themselves and with weapons there8:24 is a difference between the right to resist and the right to self-defense because the of self-defense can be8:30 invoked by a state now the state of Palestine exists uh as but as in theory it's a8:39 state that lives under occupation and it has never invoked the the right uh the8:45 right to defend itself also because it's not a full member of the United Nations it's a it has an observer status the8:53 question is that the occupation doesn't allow the right of self-determination of8:58 the Palestinian people to be fully enjoyed so people whose right of self-determination is violated under9:04 international law have a right to resist so there is a um in the 70s during the9:11 phase of the colonization armed resistance was recognized as legitimate9:17 but we need to remind ourselves and this is also recognized to the Palestinian9:22 people there is a a resolution I think it's 3776 uh of the of the United Nations of9:30 the general assembly which recognizes the right to resist to the Palestinian people within the limits of the law what9:36 does it mean that you cannot Target civilians you cannot Target civilians9:42 ever civilians I mean uh have to be spared there is the principle of9:48 Distinction proportionality and precautions that apply including to resistance9:54 movement however what we have to recognize is that not just what is the10:00 the status of the law it's what's the perception of the people and how States project the right to resist today we are10:08 no longer in the decolonization era where people were breaking the chains of10:15 their oppression and again it has never in no case it has been the colonization10:21 has been a peaceful process now we are in the post 911 so even resistance10:26 movement are often uh crumped into this uh culton of10:34 terrorism and again uh I keep on saying I I'm I'm not entirely comfortable to10:42 say oh Hamas represents the Palestinian resistance because I know the Palestinian resistance is much different10:49 I mean at least it has been much different in the past 20 30 years uh with the exception of of the second10:56 intifa which was brutal and violent but Palestinians have resisted peacefully11:02 and recurring to the and resorting to international law instruments like11:07 international criminal court the international court of justice uh International treaty bodies and they've11:13 never achieved anything um so I don't want to dismiss the importance of11:19 Palestinian resistance also as peaceful um at the same time when there11:25 is armed resistance armed resistance needs to comply with basic rules that I11:31 annunciated I mean and I I mentioned and I'm also just curious I mean when it be when it comes and this11:37 is just more of a broad question um that obviously could apply to what's happening in Gaza but if it when it11:43 comes to the issue of of genocide and the fact that you know there people are charging that this is genocidal what's11:50 taking place right now do those calculations change at all or does it remain under the same Paradigm of like11:56 right to resist occupation right to Res this genocide it sort of falls under the same thing or is that even in12:02 international law anywhere I have no idea it's a tough question no yeah no12:09 it's it's an interesting question but genocide is really the crime of all12:14 crimes it's the most serious crime and it's also the hardest to prove because it's not just I you commit a crime and12:22 you commit a crime with an intent that is that that is evident like for example12:27 war crimes are violations of rules of international humanitarian law crimes committed in the context of hostilities12:35 then there are certain crimes that are so serious when they translate into an assault against an attack against the12:41 civilian population that can occur both in war and um or they occur outside of12:47 War as well like force displacement um at the same time12:53 genocide is really specific is the intent to destroy a people in full or in12:58 part through certain acts like acts of killing acts of killing member of the group or acts of um acts intended to to13:07 cause Mass suffering Mass um to cause harm physical or mental harm or creating13:17 conditions that would make life of the group impossible now it's not13:22 necessarily I mean intent doesn't mean that you you want each Act uh uh to13:29 produce a given effect but it's the intent is the knowledge that that13:35 conduct can result into the destruction of of the people in flowing part so I13:41 think it's absolutely commendable what uh South Africa did instituting13:47 proceedings against isra genocide the court will determine whether there is the risk and and therefore as this fire13:54 is necessary or um and then he will have to look into to whether it is or it's14:00 not genocide so Franchesca Israel's security establishment and their state attorney's office have expressed a14:06 concern that the international court of justice at the ha will charge Israel with genocide in the Gaza stript at the14:13 request of the South African uh government so I was actually a bit surprised to hear that the Israelis are14:19 so concerned about this can you explain the significance of South Africa invoking the genocide convention at the14:26 icj and how this could potentially have consequences on Israel's aggression in14:34 Gaza sure surely um there is a a a14:41 multiple layer significance of the the South African institution of prings at14:48 the icj the icj being the Supreme organ of the United Nations has a special14:55 competence when it comes to genocide which is a s the crime of all crimes H and there is an15:04 obligation uh to prevent genocide in the convention so when states do not act to15:11 prevent genocide to stop genocide and the risk of genocide being committed then the court can take sort can declare15:20 like some precautionary measures and South Africa has asked a number of of15:26 measures but particularly a ceire so of course Israel is reasonably15:34 worried of a request forsus fire because the uh the conclusions the decision of15:41 the icj are obligatory and compulsory for all states so it would be it would15:50 kick off a series of reactions from the International Community which has been15:55 silent and inactive but also I would say the other layer of uh16:02 complexity which generates preoccupation is symbolic having South Africa former16:08 apparte state recognized aparti State acting against Israel which is currently16:16 practicing apartheid and Char I mean asking for measures against Israel16:21 committing genocide the state that is considered is symbolically the state16:28 that they emerges out of a genocide the genocide of the Jewish people carries16:33 such a such a weight also as a again as a symbol that it's it's it's huge and16:39 therefore um now Israel is engaged in discrediting this this measure from16:46 South Africa but I'm very happy to see that as we speak many states are16:53 declaring their intent first of all support for South Africa commending South Africa and declaring their intent16:58 ition to join the proceedings I also saw a European State Belgium whose pre Vice17:04 pre Minister said that this is an important move and I hope that they will join the proceedings this is very17:12 powerful so what happens let me like can you explain what happens if Israel wins17:18 and then what happens if Israel loses like what are the two outcomes here that could but there are17:24 different so what uh what will what this South Africa's move has initiated is17:32 first of all um um a proceding the my17:38 and tell um like some preliminary measures some precautions taking17:45 precautions because the risk of there is a risk of genocide um emanating from the measures17:53 used by Israel and the uh the numbers of of victims so there is the uh means and18:01 methods of War which have which already it's clear clearly entail war crimes and18:07 potentially crimes against humanity like starvation extermination and the threat of force18:12 displacement um so the threshold to take18:18 this preliminary measure this measures this precautions is pretty low then18:23 there will be a full proceeding to investigate whether Israel has in fact18:29 committed genocide and this is a much longer proceeding that will again might18:35 last long because for example we have seen it in the case of Ukraine in the in the case of Myanmar proceedings were18:42 initiated the court declared some preliminary measures took preliminary measures and uh and then the proceedings18:50 take longer to examine the the commission of the crime okay so then I want to ask you18:58 also you mentioned earlier it's very difficult to prove genocide but you know it seems like the Israeli leadership19:03 many of the highest level officials in the Israeli government have stated on19:09 more than one occasion what can be considered genocidal intent I mean that's what the South Africa uh uh case19:14 lays out pretty clearly uh their soldiers are filming themselves on camera very proudly committing really19:22 heinous crimes and enjoying it um and19:27 you know I'm just curious like how much more would like how difficult is it to prove genocidal intent in this kind of19:34 situation is it actually easy does this come down more to the chances of whether19:40 or not this will be biased given who gets to make the decision and given the fact that Israel is very good at19:46 pressuring and lobbying um against anybody you know ruling in favor of of19:51 Palestinians are in favor of a ceasefire in this case it is difficult to prove genocide20:00 because you need to prove the intent to destroy a population in full or in20:07 part at the same time I do understand what is behind your question in the20:13 sense eight there are almost I mean according to some there are 30,000 people who are killed how many more need20:20 to be killed the thing is that they could also be just War crime the the20:25 outcome of war crimes or crimes Against Humanity but yet there are on the one20:32 hand the genocidal there is the genocidal incitement that and the South African20:39 government has been excellent excellent at documenting these uh these statements20:46 that do not come from you know uh just uh doctors there were doctors calling20:54 for the destruction of Gaza um but the there were military commanders there21:01 were um political leaders there were there was the the the president of21:08 Israel uh talking of breaking their bit back on like um referring to all gazans21:14 are all Palestinians in Gaza as responsible for what has Hamas has done on the 7th of October the question is21:22 the question is the the intent to commit genocide is the knowledge of the effect21:29 that certain acts would have knowledge that certain conduct would cause the21:34 killing of the people Mass um Mass suffering or creational21:40 conditions which will make life impossible and it's unable that following these21:47 statements the conduct was such that created conditions which will make life21:54 impossible so there are there is the deployment of genocidal22:00 Technologies like causing starvation destroying the the health system that22:07 would allow the 50,000 people who have injured there are three kids a day who22:13 get amputated of one or two legs as we speak 10 children are killed no I think22:21 more I mean the the number of kids who get killed every day is astonishing22:27 there are almost 10,000 kids are been killed and this is an an22:35 unavoidable effect of such a massive violation of the law of of War so uh I22:42 think that it's it's it makes total sense to envisage genocide but also for22:48 another element a set settler colonialism if we22:54 look at settler colonialism it carries an minatory element in itself ethnic23:01 cleansing this is something that Palestinians have endured through and through since the very creation of the23:08 state of Israel and in fact since ever even before and23:14 genocide it is often an element of ethnic cleansing so when the the the the23:22 purpose of a state is to reduce the population to uh23:29 to reduce it politically uh physically with Force displacement and uh and push them out of23:37 the land and there are declarations I mean there there are countless declaration that the Palestinians have23:44 to leave Gaza have to leave um the the West Bank and East Jerusalem there have23:50 been called for calls for a NABA a second NABA in fact it would be the third also in23:56 1967 350,000 Palestinians were expelled from their land so I say it's a24:02 Continuum so one is to appreciate what genocide would mean what the crime of24:09 genocide would mean in the context of Israel's prolonged occupation and24:16 prolonged violations of Palestinians rights yeah and then I mean another24:23 element of all this and this I guess Falls more under the war crime category but you know is engaging in the24:29 systematic uh destruction of medical facilities and essentially the24:35 eradication of healthcare infrastructure altogether in Gaza and I'm just curious as an expert in international law does24:42 this have a precedent anywhere in terms of actively targeting as a matter of24:48 what seems like policy hospitals as military targets like routinely regularly across the24:56 board no there is no not that we know not that25:04 we know of and again I often talk to and work with uh Experts of um law or of our25:16 conflicts experts in other conflicts you know I'm a human rights lawyer my25:22 expertise is in human rights also Refugee law and I would say I don't25:29 think so and no one else I know can think of an of a of a similar uh25:36 experience of a similar criminal conduct but also ra think that this is the only25:43 only conflict which has registered in such a no first of all it's the only25:49 conflict quote unquote which has registered such an such a death toll25:55 among un staff over over 130 un staff members have been killed26:03 around 100 journalists have been killed some by drones meaning they've been26:10 followed and targeted at the same time no foreign26:16 journalists are allowed in no Israeli journalists are allowed in no one is to26:23 see what's happening in Gaza so again I no there is no precedent this exter this26:30 is an extermination campaign from assessment so it's it's necessary to26:36 look at it does it constitute genocide we need to give an answer and those The26:43 Architects of this those who have executed this must26:49 be investigated and brought to Justice yeah you know my uh my friends26:56 in Lebanon who work for different un agencies um and they're you know27:01 obviously very concerned about what they're seeing in Gaza and on top of that you know they're they fear that27:06 this conflict will expand to Lebanon um and you know the Israelis have the location of every un facility uh in Gaza27:16 they also have the location I mean the UN gives them their location across Lebanon and a lot of them don't feel comfortable with that they feel like27:22 that's actually telling them where you can hit me if a war expands to Lebanon I that's the situation were in it it it27:29 really is stunning that this has taken place to the point where you mentioned 130 people un staff have been murdered27:37 and you have the Israeli ambassador to the UN standing before the UN General Assembly a month or so ago essentially27:44 accusing the UN of being uh Hamas I think he actually made a statement I27:49 mean I'm not I'm not exaggerating when I say that many HRA workers in Gaza are27:54 themselves members of Hamas the time has come to bust the myth of un supplied28:01 facts this council is being spoonfed lies um as somebody who works with the28:07 UN I mean how do you perceive28:14 that uh look this person in particular is28:21 notorious for his incendiary statement incendiary statement again28:28 un officials un experts uh with a history of commitment to Human Rights28:35 and Justice I mean what is um what is28:40 astonishing to me is that his you huis is tolerated inside the28:47 UN and his perous allegations are never met with proper28:56 measures because he insults the UN and29:02 he insults frankly he breach is in breach of every standard of minimum29:08 decorum that should exist in the United29:14 Nations yeah well I wanted to also bring up the issue of us complicity um I mean29:19 Anthony blinkin we're we're recording this on a day when Anthony blinkin actually visited Israel uh and you know29:27 once again the White House has stated that they are not interested in pursuing a ceasefire at the moment the US has29:33 repeatedly used its veto to prevent a ceasefire from taking place and used also its ability to pressure the UN29:40 Security Council against issuing a statement for a ceasefire the US sends29:46 weapons to Israel on a daily basis um and you know they they really do block29:51 all measures of accountability so I'm curious when we talk about the Israelis being investigated for you know what's29:58 an extermination is campaign all these war crimes everything that we've discussed so far could the US30:04 potentially be held liable for Israel's CL crimes there is a case that was brought30:11 against the US by a a very renowned very30:17 well established organization in the US which is the center for constitutional rights uh against the US for enabling30:24 genocide so with without prejudice to the uh conclusions of uh of the court I30:33 think it's very meaningful because again uh sending weapons to a state which is30:39 clearly committing atrocity crimes and it's announcing overly its intention to30:46 pursue further uh atrocity crimes like the force displacement of the the people30:51 in Gaza out of of Gaza but you know think of this think of this there are30:57 over 23,000 people who have been killed probably 30,000 because there are 7,00031:04 people who are missing and they've been missing for weeks so they they perished under the rbls31:12 reasonably so out of 30,000 people 70% 70% of31:20 them were women and children uh and Israel so it means that31:28 7,000 7,000 are men adult men over31:33 between 18 and Israel says that it has killed 8,000 terrorists look at the MS31:42 of this so more than the male so all the male31:49 population constituted a terrorist a legitimate Target according to Israeli31:54 standards where's the evidence we have seen first of all we have seen women hit32:01 I mean women targeted women killed while waving a white flag and carrying their32:07 children killed by Israeli snipers and can we reasonably assume than more than32:15 the entire male population who's been killed were terrorist you know this is32:20 so it just it just matters to pae for a second and do basic maths beyond the32:26 horror of 70% of those who were killed being women32:32 and children this assumption that every adult male is responsible is presumed32:41 guilty is precisely the the symbol of the dehumanization of the Palestinians that32:48 Israel has has put forward since the very beginning of this and in fact even32:56 before and then I'm also curious you know can33:01 you do you think you can separate what's happening in Gaza from the West Bank I mean obviously the scale of Destruction33:07 and aggression in Gaza is astronomically worse but obviously there's similar goals at play here um Force displacement33:15 ethnic cleansing you know basically everything on a smaller scale in the33:20 West Bank is taking place and I mean I think over 250 people in the West Bank at this point 250 Palestinians have been33:27 killed by the Israelis since October 7th so I guess just to go back to my original question can you separate what33:32 Israel does in these two territories no no I cannot separate that33:40 and I cannot separate what what is happening to the Palestinians in the in33:45 any part of the occupied Palestinian territory from what was happening before because the level of violence against33:52 the Palestinians the level of Oppression humilation IND dignities as a result of33:58 intentional violation of basic rights of the Palestinian people was a reality so34:03 what we're seeing now is shocking but not surprising if you enjoyed this34:08 episode and want to hear the rest you can access it by becoming a breakthrough news member at34:13 patreon.com breakthrough34:18 news
Francesca P. Albanese (born 1977 in Ariano Irpino) is an Italian lawyer specialising in international law and human rights[1] and has been the United Nations Special Rapporteur on the occupied Palestinian territories since 2022[2].
Comments