36 | VARIANT 34 | SPRING 2009 The End of Israel’s Impunity? Muhammad Idrees Ahmad The assault on Gaza marks the end of an era for William Douglas of the US Supreme Court accused rate is 49.1%, where the majority relies on food Israel. For the second time in two years its colonial the allies of “substituting power for principle” aid (from the World Food Program and the UN ambition has floundered in the face of determined and creating laws “ex post facto to suit the passion Relief and Works Agency (UNRWA), the latter resistance. It may persist for some time; but the and clamour of the time”. In his famous dissent alone feeding about 750,000 Gazans), and 50% trajectory is clear – it is losing both legitimacy and at the Tokyo trials, Indian Justice Radhabinod Pal of whose population comprises children – the power. Support for it is dwindling in Washington; indicted the tribunal for its exclusion of European consequences were devastating. Roy reports that its friends are alarmed. Citizens are acting where colonialism and the American use of the atomic according to Oxfam, an average of 4.6 trucks per governments have failed; the movement for bomb. The trial, he argued, was nothing more day entered Gaza in November 2008 as compared boycott, divestment and sanctions is snowballing. than an “opportunity for the victors to retaliate”. to 564 trucks a day in December 2005. There Apologists are finding it more difficult to justify Antiwar US senator Robert Taft called it “victors’ were three days where 20,000 went without food its persistent criminality. Rifts have emerged in justice”. and on 18 December UNRWA had to suspend the transatlantic alliance over its recent actions; Power asymmetry has defined the application of food distribution altogether. On top of that, the EU leaders have broken with Israel and the US, International Law since. Gaza is a case in point. WFP had to pay more than $300,000 to Israeli questioning the wisdom of continuing to isolate businesses in November and December for storage Hamas. Even the pliant Tony Blair will no longer of the food being withheld from Gaza. Thirty out toe the line. Jus ad Bellum? of Gaza’s forty-seven commercial bakeries had to This leviathan may yet be tamed, accountability Israel and its apologists have sought to justify close for the lack of cooking gas; by April there restored; but what part, if any, will international its military assault on Gaza as an act of “self- will be no poultry, on which 70% of Gazans rely for law have played in this? defence” against Hamas rockets invoking Article their protein. UNRWA’s cash assistance to the most 2 At one point in Errol Morris’s 2004 documentary 51 of the United Nations Charter. So pervasive needy has had to be suspended. The embargo on ‘Fog of War’, former US Secretary of Defence was this view that even putatively antiwar voices paper, ink and glue needed for the production of Robert McNamara recounts a conversation he frequently worked the word “disproportionate” textbooks would affect 200,000 students.8 had had with General Curtis Lemay of the United into their denunciations. Israel, according to this Gaza faces regular shortages of diesel, petrol States Air Force à propos the fire bombing of view, has a right to defend itself but used more and cooking gas. On 13th November, Gaza’s only Japanese cities. LeMay, according to McNamara, force than was necessary. However, this argument power station suspended operations because it said that if the US ended up losing the war “we relies on the inversion of cause and effect and a ran out of industrial diesel. Spare parts for the would be hanged for this”. As it transpired, the US defective legal premise. power station were auctioned by Israel after being did not lose; and far from being hanged, the allied Israel’s assault was not meant to protect its held in customs for eight months. Gaza’s hospitals command got to play hangman.1 The trials that citizens against the Hamas rockets, but to protect have had to rely on diesel and gas smuggled from led to the execution of German and Japanese high its colonial project and right to continue the Egypt via the tunnels. In an attempt to undermine command assumed a broader significance; they strangulation of Gaza. Israel broke the truce on Hamas, Israel’s surrogates in the Palestinian became the founding documents of international 4th November 2008 when under the cover of the Authority (PA) withheld World Bank funds from law. The conclusions from these trials served as US elections it launched an attack inside Gaza Gaza’s Coastal Municipalities Water Utility the basis for the Genocide Convention (1948), the killing six Palestinians. The attack, writes Middle (CMWU) to pay for fuel to run Gaza’s sewage Universal Declaration of Human Rights (1948), East scholar Sara Roy, was “no doubt designed system. Israel has allowed in only 18 of the 200 3 the Nuremberg Principles (1950), The Convention finally to undermine the truce”, as even according tons of chlorine requested by CMWU for water on the Abolition of the Statute of Limitations on to Israel’s own intelligence agencies Hamas had purification. While medical supplies in Gaza have War Crimes and Crimes against Humanity (1968), implemented the ceasefire with remarkable been running dangerously low, the collaborationist the Geneva Convention on the Laws and Customs effectiveness. Though Hamas retaliated with PA has been turning supply shipments away rather of War (1949), its supplementary protocols (1977), rockets, it still offered to renew the truce provided then send them to Gaza.9 4 and the International Criminal Court (2002). Israel ended the siege. Israel refused. It was within this context that on 19th As Kirsten Sellars details in her book ‘The Rise Between the evacuation of its settlements December Hamas officially ended its truce. and Rise of Human Rights,’ the Nuremberg trials from Gaza in 2005 and the beginning of its All of this is significant, as in 1967 Israel used and the subsequent Tokyo trials which would later latest assault, Israel had killed a total of 1,250 Nasser’s blockade of the Gulf of Tiran as the casus provide the basis for international law were not Palestinians, including 222 children, and maimed belli for its pre-emptive attacks on Egypt, Syria themselves free of controversy. At the end of the many more. This despite Hamas’s 18 month and Jordan – the fateful war where it captured the war, Western powers saw Germany and Japan as unilateral ceasefire to which it strictly adhered. West Bank and Gaza Strip. Unlike Gaza, however, potential allies in the looming conflict against The situation was so dismal before the siege Israel faced no shortages of food, fuel or medicine the Soviet Union. However, the passions that had that the late Israeli historian and author Tanya – indeed, trade continued unimpeded all across its been mobilized against the Axis powers demanded Reinhart described it as “a process of slow and main air- and sea ports (all of which are located 5 blood sacrifice before Japan and Germany could steady genocide”. Sara Roy saw in it a deliberate on the Mediterranean coast). Yet, in spite of the be laundered back into the Free World. It was process of what she calls “de-development”. The facts, ’67 has entered mainstream discourse as to satisfy this purpose that the tribunals were siege, in her view, had two objectives: to reduce a legitimate case of pre-emptive self-defence reluctantly instituted. While Justice Robert the Palestinian issue to a humanitarian problem; under Article 51 of the Geneva Conventions. Jackson’s eloquent pronouncements on the rule of and to “foist Gaza onto Egypt”. Israel’s economic The precedent was even invoked by Colin Powell law in international affairs have become de rigueur stranglehold over the territory, she said, was when on 5th February 2003 he made his case for 6 in discourses on the subject, his contemporaries leading to the “breakdown of an entire society”. invading Iraq at the UN Security Council. If Israel took a less generous view. US chief justice Harlan The UN human rights rapporteur John Dugard, was within its rights to launch a pre-emptive war Stone called the whole Nuremberg exercise a a South African legal scholar, has compared the in ’67 – a highly tendentious proposition – then the “sanctimonious...fraud” accusing Jackson of situation in the Occupied Territories to apartheid. Palestinians most definitely had a similar right. conducting a “high-grade lynching party”. Justice His successor Richard Falk, an American Jew and It is not only enshrined in the Fourth Geneva a leading authority on international law, called the Convention, it is also accorded them by virtue of situation a “prelude to genocide”. Gaza, he said, Israel’s denial of basic necessities. Even putatively antiwar was “slouching towards a holocaust” insofar as the But what of international law? situation expressed vividly “a deliberate intention The use of force is an act of last resort under on the part of Israel and its allies to subject an international law subject to the customary rules voices frequently worked entire human community to life-endangering of proportionality and necessity. As a signatory conditions of utmost cruelty”. Falk accused to the Geneva Conventions, Israel has a right to the word “disproportionate” Israel of bringing Gaza to the “brink of collective defend itself against attacks; but it has no right to starvation”, imposing “a sub-human existence” do so by force. In order to use force, it will have to on a people “repeatedly and systematically” show that other options were not available.