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A mandate to 'understand'

John Dugard tells the 'Post' he recognizes the frustrations that lead to acts of terror.

Karni crossing 88 224 (photo credit: Ariel Jerozolimski)
Karni crossing 88 224
(photo credit: Ariel Jerozolimski)
On January 21, John Dugard, the outgoing Special Rapporteur to the UN Human Rights Council on Palestine and Other Occupied Arab Territories submitted his seventh report on the human rights situation in the West Bank and Gaza. Over the years, Dugard has become reviled by many in Israel who charge that he is biased in favor of the Palestinians and that his reports are unbalanced, unfair and prejudiced. His latest report is no exception. Indeed, many consider it his most biased and extreme. The Jerusalem Post asked Dugard in a telephone interview to explain some of the statements he made in that report. You assume that the cause of Palestinian terrorism is the occupation. But that is not what Hamas says. Hamas says it is fighting to destroy Israel. As I see the situation, there is an ambivalence on the part of Hamas on the subject. On the one hand, Hamas's long-announced policy is one of opposition to the State of Israel itself. And that is a position that goes back to the creation of the country. But on the other hand, it's also quite clear that Hamas is opposed to the occupation and many of its pronouncements relate to the need to bring it to an end. As far as Fatah is concerned, Fatah accepts the State of Israel and so its policy does not include [Israel's] destruction. Why do you say that Israel cannot expect the end of violence as a precondition for ending the occupation? If the Palestinian leadership is effective enough to negotiate peace, should it not be effective enough to stop the terrorists? There are two answers. It's quite clear that the Palestinian security forces lack the capacity to stop violence in the territories. That has been clear under both [former PLO head Yasser] Arafat and [PA President Mahmoud] Abbas. And so one cannot wait until that situation is achieved. But my second answer is that if one looks at other situations in which there has been conflict, negotiations started before the conflict came to an end. I could refer to the South African situation, for instance. We had intense violence during the early 1990s, when peace negotiations were taking place. This was one of the worst periods for urban terrorism in South Africa. The same applied in Namibia. But the end of violence was not set as a precondition for peace negotiations. In an ideal world, one would like to see that, but given the incapacity of the Palestinian Authority to end violence in Palestinian territory and given the fact that one needs to bring the violence to an end, I think it is necessary to negotiate, albeit in a state in which violence continues. You write that "common sense dictates that a distinction must be drawn between acts of mindless terror, such as acts committed by al-Qaida, and acts committed in the course of a war of national liberation against colonialism, apartheid or military occupation. While such acts cannot be justified, they must be understood as being a painful but inevitable consequence of colonialism, apartheid or occupation." My question: Israel has been facing Palestinian terrorism since its creation. Fatah was established as a national liberation movement in 1964, three years before the Six Day War. In what context are we to understand these facts? Furthermore, when you condemn an act, and understand it at the same time, how strong can the condemnation be? I know this is a controversial statement that has been extracted from my reports. I'm well aware that it is unacceptable to many. But as I see the situation, what I described as the "mindless act of terror of al-Qaida," - al-Qaida has no justification whatsoever for its actions. On the other hand, the international community has indicated repeatedly that colonialism, racism and military occupation should be brought to an end. During the 1970s and 1980s, there was a debate in the United Nations about the extent to which acts of violence, acts of terror, could be justified because they were in pursuit of self-determination. And of course this is the problem that faces the UN in the drafting of a comprehensive convention against terrorism. So my ideas are not unusual. They are well-founded in UN practice. But what I do emphasize is that one man's freedom fighter is essentially another man's terrorist. I point out that in the context of Israel, during the British occupation, there were groups in Israel led by [Menachem] Begin and [Yitzhak] Shamir that engaged in what could be described as acts of terrorism. And I think that I referred to the bombing of the King David Hotel as an act of terror committed in the course of hostility toward the occupation. Again, to refer to the South African context, someone like Nelson Mandela is today seen as some sort of saint. But there was a time when he was portrayed as a terrorist by governments of the West. I know that both Margaret Thatcher and Dick Cheney described him that way. So, I think that one has to see terrorism committed in pursuit of self-determination against military occupation in that context. As for your second question, I have described some of the actions of the IDF as acts of terror. But at the same time, I understand the justification. I understand Israel's argument that these acts of terrorism against the Palestinians have been committed in self-defense and I understand the political demands in Israel for action of this kind. So, I can understand the reason for Israel's acts. In the same way, when it comes to Hamas or Islamic Jihad firing rockets at Sderot and southern Israel, I condemn these actions. They are clearly violations of humanitarian law and constitute war crimes. Nevertheless, I can understand the frustrations that have given rise to such actions. Your report says, "in the present climate, it is easy for a state to justify its repressive measures as a response to terrorism - and to expect a sympathetic hearing. Israel exploits present international fear of terrorism to the full." But do you not agree that the facts indicate that the repressive measures Israel has introduced in the past few years are a result of Palestinian violence aimed at it? I think one has to accept that any government in any situation of conflict will choose to call its opponents terrorists. Again, I'm sorry to return to the South African situation, but there, too, we had an anti-terrorism law, and opponents of the regime were criticized as terrorists. I was personally called a terrorist. Someone like Archbishop Tutu was labeled a terrorist. And in today's climate, since 9/11, this has become worse. Governments do so repeatedly in order to get the support of the international community to condemn the acts of violence of their opponents. What I'm suggesting in the context of the Middle East is that, although some of the acts of the Palestinians, such as the firing of rockets into Sderot and Ashkelon are acts of terror, Israel is able to gain international sympathy for its responses in both the West Bank and Gaza in light of the war on terror. For instance, if one looks at the actions of the Israeli government in the West Bank, the construction of the wall in Palestinian territory, the increase in the number of settlements, checkpoints, roadblocks - all these actions are justified by Israel as part of the war against terror. Quite frankly, I see the construction of the wall as part of an attempt on the part of Israel to enclose settlements within Israel. I think that some of the checkpoints are unnecessary and, of course there's no justification for the expansion of settlements as an anti-terrorism measure. But nevertheless, Israel is able to get international sympathy for its actions because they are construed by many in the West as part of the war against terror. You state "The mandate of the special rapporteur is concerned with violations of human rights and international humanitarian law that are a consequence of military occupation… for this reason, this report, like previous reports, will not address the violation of human rights of Israelis by Palestinians." If that is so, would you agree that your report is, by definition, one-sided? I must confess I regret the fact that my mandate is limited to human rights violations committed by the Israeli government and the IDF. I have, in previous reports and in this report, referred to some of the violations of human rights committed by the Palestinians against Israelis and against each other. All in all, however, it is a limitation in the mandate, and it's not my decision, but the decision, previously, of the Commission on Human Rights and now the Human Rights Council. The report does, as a result, present a one-sided picture. But I think one must see it in the context of the fact that military occupation, although it is tolerated by international law, is nevertheless regarded as unacceptable. In the same way that apartheid was unacceptable, or colonialism was unacceptable, so military occupation is unacceptable. And that's why the Human Rights Council and its predecessor have focused attention on human rights violations committed by the occupying power. As I say, I wouldn't have chosen it, but I can understand the reason for the choice. If "what distinguishes the case of Palestine from other situations in which violations of human rights occur is the occupation, an occupation which began in 1967, 40 years ago, and which shows no sign of ending," how do you explain that there has been a peace process since the early 1990s and several Israeli governments - under Yitzhak Rabin, Ehud Barak and Ehud Olmert - have been committed to finding a negotiated settlement? I certainly welcome the peace talks. However, I must confess I am fairly pessimistic about the outcome of the Annapolis process and, in some measure, Hamas is responsible for the fact that no progress is being made. But at the same time I think the Israeli government is largely to blame for its actions and for its continued construction of settlements. In this regard, I think my main criticism is not directed at either the Israeli government or the Palestinians. It is directed largely at the international community, particularly the United States and the European Union, because I don't see a will on their part to take strong action to bring the occupation to an end. And I would certainly like to see a stronger intervention from Western powers to assist both Israel and the Palestinians in finding a solution. You write that "the test for determining whether a territory is occupied under international law is effective control and not the permanent physical presence of the occupying power's military forces in the territory in question." From what I have been told by legal experts, there is no international precedent for the situation in Gaza. In your report, you provide facts to back up your argument. But it is easy to provide other facts to prove that the alleged occupation is ineffective - primarily the development of a military force by Hamas, and the import of heavy weapons which threaten to reach Israel's most densely populated centers. Israel's army of occupation, as you call it, is unable to prevent this. First of all, you suggest that opinion in Israel is united on the subject of whether or not Israel continues to occupy Gaza. But much of the scholarly writing in favor of the continued occupation has been done by Israeli scholars and if you look at the footnotes in my report, you will see that I do refer to Israeli writings and this is also the view expressed by many Israeli commentators. So, there is a vigorous and vibrant debate on the subject within Israel itself. My second response is that "effective occupation" is a legal concept and one has to look at the extent to which the state exercises, or attempts to exercise, control over the territory, and I suggested that if one looked at the closure of Gaza's borders, the control over air space and sea space, the control over the Palestinian population registry, the frequent military incursions into the territory, that Israel is ultimately in effective control. It has control over the territory. Gaza may be in a state of conflict but it is, in many respects, a prison and Israel has the key. So despite the fact that there is opposition within Gaza, I think one must accept that Israel is in military occupation of the territory. If one looks at other cases of military occupation during the Second World War, for instance, Germany occupied western European countries and there was resistance in many of these countries. And so I don't think the fact that there is resistance changes the nature of the occupation. In my view, it is a legal concept and Israel does meet the requirements for military occupation. You write that "in the past two years, 668 Palestinians have been killed by Israeli security forces in Gaza. Over half - 359 people - were not involved in hostilities at the time they were killed. Of those killed, 126 were minors, etc." These figures are likely misleading. The fact that some of those killed were not involved in hostilities at the time they were killed, or were minors, does not necessarily indicate that they were not terrorists. You acknowledge that Israel has the right to defend itself. But how is it to do so if it may only kill terrorists in uniform or carrying weapons? As far as the figures are concerned, I have to rely on respectable sources and my source here is, as I recall, B'Tselem, a well-known Israeli human rights group. So, I accept B'Tselem's view and that's been endorsed by other UN agencies on the ground, such as OCHA (the UN Office for the Coordination of Humanitarian Affairs). They support the view that a large number of civilians, women and children, have been killed. One must accept that one cannot adopt a completely armchair attitude toward civilian casualties. I accept that the intention of the IDF is to target combatants and that inevitably some civilians are going to be injured in actions of this kind. But I have doubts as to whether the IDF always acts in compliance with the restraints imposed by the Israeli Supreme Court. You will recall that recently the court gave a decision on targeted killings, targeted assassinations. To me, it doesn't seem that the IDF even complies with the Supreme Court rules on the subject. But then international law also has rules relating to disproportionality and the targeting of civilian targets, and I don't think that on all occasions the IDF has been sufficiently careful. For example, at the end of 2006, there was an incident in which a family of about 20 people in Beit Hanun was killed. I visited the site. They were all civilians. The IDF did apologize. They indicated that there had been an error, but refused to hold an investigation or hold anyone accountable. So I think there are some clear cases in which there has not been sufficient regard for civilian targets. You compare the casualties on the Gaza side to those on the Israeli side. You seem to implying that the damage caused by Gaza terrorists is negligible in comparison to the damage inflicted on the Palestinians. But the people of Sderot and the surrounding area have been traumatized. The casualties in that sense are much higher. And the wider the range of terrorist rockets, the greater the physical and mental damage there will be. I certainly do not wish to minimize the terror to which the people of Sderot have been subjected. As my mandate doesn't require me to go into it, I didn't expand on it. But I have said categorically that the firing of rockets constitutes a war crime. And I'm aware of the traumatization of the people of Sderot and the impact it has had. So, if my report doesn't express my condemnation sufficiently, I apologize.