Raji Sourani
FOR OVER SEVENTY YEARS, Palestinian life has been characterized by widespread and systematic violations of international law. Since the creation of the State of Israel and the mass displacement of Palestinians—a disaster we know as the Nakba—we have endured annexation, military occupation, apartheid and oppression. Our life as Palestinians is marked by forced displacement and the violation of virtually every human right, from the right to self-determination, the right to health and the right to freedom of movement, to the prohibition of discrimination, the prohibition of torture and the right to life itself.
We know of international law through its violation.
Every Palestinian, even our youngest children, is all too familiar with war crimes. From the theft of our land and resources for the construction of illegal settlements that prevent our growth as an independent and viable State, to indiscriminate attacks and willful killings. We have even become accustomed to attacks on our hospitals, our health workers and volunteers, journalists, disabled people and children. Entire families have been erased. For us, witnessing a war crime is nearly as normal as taking a breath.
The world knows this. Our suffering has become a staple of prime-time TV, an ever-present news item. Everyone is familiar with the sight of white phosphorous raining down on Gaza, of the complete destruction of entire neighborhoods like Shuja’iyya, or the murder of unarmed protestors for the crime of demanding a better life, for demanding a future.
In the face of this reality, it is legitimate to ask why we put our faith in international law, and why we see international law as providing the roadmap for our future.
For me, turning to international law and seeing its possibilities, was a gradual process. I come from a family of lawyers, judges and prosecutors and, when I started my career in the late 1970s, it was natural for me to visit political prisoners. My own brother had been one of the “early birds” of the prisoner population after the Occupation of Gaza in 1967. I was naïve at the time. I used to go to prisons and ask “Have you been tortured?” If I could not see physical damage, I thought that torture had not occurred, and I moved on. I had no idea what psychological torture was, or how deep its scars ran.
Then I was arrested myself and lived through my own personal experience of it. I realized what “moderate physical and psychological pressure” really meant. Even though this was not the worst form of abuse, as I lived through it, I wanted to die fifty times a day. I also saw first-hand what “justice” under occupation meant. During interrogation I would be coerced to sign a false statement and returned to torture when I refused. Repeatedly. I saw the reality of kangaroo courts, where prisoners were detained or sentenced in minutes. I knew that this law under occupation was not the law I was trained in, that it was not the justice I believed in.
Over time, I began to understand just how miserable life was for prisoners, and I began to pay serious attention to international law. Israeli law offered no accountability for Palestinians, and so there had to be another way. I developed a close relationship with the International Committee of the Red Cross and while I was in prison, they brought me copies of the Geneva Conventions. I started to see a language we could use. These were laws ratified by every country in the world that were designed specifically for situations like ours. They regulated our reality.
After I left prison and developed my own private legal practice, I decided to devote some of my time to representing prisoners. I knew that the prisoners could not be abandoned, that we had to try to challenge the military orders and do what we could to stop the kangaroo courts and introduce a semblance of due process. I did not have any illusion of justice under occupation but decided that we should do our best to minimize the damage, and to fight for whatever victories we could achieve. I soon became overwhelmed. What was supposed to be minor work on the side of my practice soon became my entire work, and I bore witness to a dirty era.
I realized that the proper documentation of cases and the use of international law was a powerful tool. It allowed us to move beyond rhetoric. No longer were we “just” making demands. We had international laws and standards that we could use, which could not be dismissed as “political” claims. I started to engage with international organizations, with Amnesty International, the International Bar Association and the International Commission of Jurists. I also started to develop real relationships with lawyers and human rights organizations in Israel, both Jewish and Palestinian. This was our connection to the “other side” and our work together and friendship were a daily reminder of our shared humanity.
International law gave us a common language and a framework for engagement. We went to work and invested all our time and efforts fighting in the Israeli legal system and its courts. We tried to use the system, and to introduce international humanitarian law and the Fourth Geneva Convention into our language before the courts. Gradually, we came to the conclusion that pursuing justice in Israeli courts was not going to be sufficient on its own.
In the ’90s, I took over the Gaza Center for Rights and Law, and we started to build the team that would later go on to become the Palestinian Centre for Human Rights. We built a team of lawyers and advocates, and started to make connections throughout the community. We also made a deliberate effort to reach out internationally. We painstakingly documented the violations of international law that were occurring in Palestine and brought our work to the international community.
The relationships that we had started to develop in the ’80s really started to pay off. The International Commission of Jurists was hugely important to us, as was our relationship with Al-Haq in the Occupied West Bank. Over time, I became a member of the Executive Committee of the International Commission of Jurists, and the Vice President of the International Federation for Human Rights (FIDH). This international platform allowed us to start taking our message to the world. We started to participate in events at the United Nations and to build relationships with grassroots organizations from South Africa to South America. We shared our experiences in fighting oppression and learned from each other. This solidarity is so important. It is a reminder that you are not alone. A reminder, too, that, no matter how different we are, we are all united in a shared struggle for justice.
Importantly, however, while we engaged internationally as much as we could, we always had our feet planted firmly on the ground in Gaza. This is where our work really is, and we never stopped working in the Israeli legal system. We do not do this because we feel that real justice under occupation is possible. We do it because we must. We have to pursue every avenue possible for our clients and we have to be eyewitnesses to injustice. We have to document how the courts and the legal system itself actually work. We have to record our experiences. It is important that we show the world the reality: that from the military courts right up to the Israeli High Court of Justice, the entire Israeli system provides full legal cover for the systematic commission of war crimes and crimes against humanity. It is also required in pursuit of international legal redress to show that we have “exhausted” the Israeli justice system, and that justice has been denied. This allows us to turn to international mechanisms, whether it is the International Criminal Court or universal jurisdiction.
No one would believe us if we simply said that justice under occupation is no justice at all. We would be dismissed out of hand. Many people believe that the Israeli court system is one of the best in the world. But if so, insofar as Israeli law is like Roman law—one law for the masters and another for the slaves—it only applies to the former. Without our legal work, our criticisms would be pushed aside as political. People would think that we are “just being Palestinians.”
However, we do not ask to be judged on the strength of our word. Judge us on the strength of our work. Our documentation and our use of international law give us the language to clearly depict the reality of the situation in normative, legal terms. People might want to dismiss us as politically motivated Palestinians, but it is impossible to dismiss well documented cases and clear and sound legal analysis. For those who do not believe us, we suggest they consult a lawyer for verification of our work.
In the late 1990s, we started to more actively seek out possibilities for international justice. From the outset, we have been supporters of the International Criminal Court. This has always been the beautiful but seemingly impossible dream: the hope that the law would be applied equally to everyone, without discrimination, and that those responsible for the most serious international law violations would be finally held to account.
It was only months after the final adoption of the Rome Statute of the International Criminal Court in 1998 that news of the arrest of General Augusto Pinochet in the United Kingdom, based on the principle of universal jurisdiction, hit us like a bolt of lightning. This was a revolution. The possibility that an individual could be arrested and held to account in another country for torture or war crimes was music to our ears. While it would take years for the International Criminal Court to get up and running, universal jurisdiction was something that we could pursue immediately. This gave us a new focus and energy, and we put a huge amount of effort into preparing cases and monitoring the movements of our list of war crimes suspects.
We brought our first universal jurisdiction case in England on 29 October 2002, seeking the arrest of Shaul Mofaz. Mofaz had been Chief of the General Staff of the Israel Defense Forces, from 1998 until July 9, 2002. The complaints lodged covered a broad range of serious violations, including grave breaches of the Geneva Conventions, war crimes and crimes against humanity. At the time, Mofaz was Minister of Defense, and as such was provided personal immunity. However, the Crown Prosecution Service noted that the case could be revisited once his term in office ended.
This gave us hope and, over the next few years, we built an excellent legal team, bringing together committed lawyers and human rights activists from all over the world. I am proud of this work. Among the universal jurisdiction cases we brought: in September 2003 two complaints were submitted to the Swiss Military Attorney General in Berne on behalf of Palestinian victims and relating to the extensive destruction of Palestinians homes, and five counts of torture. The suspected were Benjamin Ben-Elizer (former Israeli Minister of Defense), Shaul Mofaz (former IDF Chief of Staff), Doron Almog (former Commander IDF, Southern Command), and Avi Dichter (former Director, Israeli General Security Services). The complaints were brought against the defendants pursuant to their individual criminal responsibility, in light of the principle of command responsibility. However, the Swiss Military General Prosecutor decided not to prosecute the case, as none of the accused was on Swiss soil at the time the complaints were brought, in what is a procedural, rather than a substantive ground for dismissing the complaints.
Following these outcomes, we did not give up. To the contrary, we have stepped up our efforts to bring war criminals to account and restore the rule of law and the rights of the victims.
Not all of our cases are made public, and we are still waiting for some suspects to travel to countries where they might be apprehended. That said, we have secured arrest warrants for Tzipi Livni in England, for Moshe Yaalon in New Zealand and Ami Ayalon in the Netherlands. Dramatically, in 2005 we secured an arrest warrant for Doron Almog, former Commander of the Southern Command, as he was flying to London. The moment his flight landed on 11 September 2005, he was liable to arrest. However, British police refused to board the aircraft—rumor had it that Almog’s bodyguards were armed—and, following a tip off from the Israeli embassy, he never left the plane, flying straight back to Tel Aviv.
One of the greatest, most hopeful moments, was on January 29, 2009, when a Spanish judge ruled that the Israeli authorities were not willing to properly investigate the Al-Daraj massacre in 2002 in which an Israeli strike on Gaza killed 15 people. and opened a universal jurisdiction case. This came just days after Operation Cast Lead, which was—at that time—the most brutal and deadly offensive in the Gaza Strip. It was a clear reminder that Israeli officials suspected of international crimes could be held accountable and that they were not above the law. In those dark days, as Gaza lay in ruins, it gave us hope.
Some people have criticized our universal jurisdiction work, saying we never achieved any actual prosecutions and were wasting our time. But in actuality, we did two really important things. First, we convinced judges in some of the most respected legal systems in the world that we had an actionable case. While this did not lead to a conviction, it did clearly show that the judges believed in the evidence sufficiently to necessitate a prosecution. That cannot be lightly dismissed. Second, we reminded Israeli military and government officials that they are not above the law, and that we will not play good, docile victims. We will not stop in our fight for justice and accountability, and we will follow them around the world.
However, in recent years, pursuing universal jurisdiction has become nearly impossible. There has just been too much political interference to make this a viable option. In England as an instance, the law, itself, was changed following pressure from the Israeli government.
The International Criminal Court became our only option. The year 2015, when Palestine joined the Court, marked a new era after years of frustration. We had supported the International Criminal Court from the outset and had been fighting to find a way to seize the attention of the Court for years. We faced huge pressure, threats, and at times, it seemed like mission impossible. Israel´s Operation Protective Edge, the 2014 war on Gaza, was a turning point, and it finally looked like the Palestinian Authority in Ramallah might ratify the Statute, but they would not do it without the support of the de facto government in Gaza. We played a key role in bringing all the groups to the table, including Hamas and Islamic Jihad. In 2021, the opening of an investigation by the Office of the Prosecutor of the International Criminal Court was a huge leap forward. We hope that it is the start of a new era of accountability for crimes against Palestinians. Needless to say, we are well aware that powerful political pressure will seek to obstruct access to justice for victims. We all remember the attacks and the fact that in 2020, former US President Donald Trump went so far as to place sanctions against Ms. Fatou Bensouda, former Prosecutor of the International Criminal Court, and other Court officials (and family members, alike).
Now we have two fights. We continue to represent our clients before the Israeli courts, to fight for whatever victories we can achieve and we are fully engaged with the investigation at the International Criminal Court.
The pressure we have faced because of our work at the International Criminal Court has shocked me—but it is only a testimony to how important this work is. We have been accused of misusing international law. It is claimed that we are agents of terrorist organizations. The Israeli Ministry of Strategic Affairs and Public Diplomacy circulated a document internationally, called “Terrorists in Suits,” where we are named as individuals and organizations. The former Israeli Prime Minister, Benjamin Netanyahu, considered opening an investigation against us as a strategic threat to Israel. It is claimed that we are engaged in “lawfare” against Israel.
Why is the State of Israel so worried about a small group of Palestinian and international lawyers working at the International Criminal Court? We do not use any magic formula. We legally document facts, we apply international standards, the same as do other international litigants. In our view, our case files show that Israel has systematically committed war crimes and crimes against humanity. But Israel will not join the International Criminal Court. They have some of the best lawyers in the world and vast resources. But they boycott the Court. Why? If they disagree with our findings, why not face us across the court?
I have lived my entire life under occupation. I am 67 years old, and this is my life story. I do not have a nationality. I am totally under Israeli control. However, I do believe in the rule of law and our shared dignity. We are romantic revolutionaries. I firmly believe that we are on the right side of history, that justice will be achieved, but the road is not easy.
So now, looking back, what do I think about international law? Has pursuing this path been worth it?
The Oslo Accords were a major lesson. We opposed them and came under huge pressure for doing so. But we opposed them because they did not properly reflect international law. How can there be peace without human rights? How can you build a future that is not based on human rights? We cannot victimize the rule of law, democracy and human rights for the sake of security. This was the logic of the US and the EU in supporting the Oslo Accords and, in doing so, they effectively legitimized all of the human rights violations that followed. We were accused of being anti-peace, but we knew that this flawed agreement would only create a new brand of apartheid. What has happened in the years since then are a daily reminder of what happens when politics trump international law. The Oslo Accords remind us of the importance of staying true to our belief in our rights and of speaking truth to power in their pursuit.
We did not invent international humanitarian law or international human rights law. These laws emerged from the horrors of war, and they offered a shared hope for a better future. The Geneva Conventions have been ratified by every single country in the world. We cannot be dismissed as political voices for using them. Such charges are only to be expected from the parties that are the abusers. The legal cogency of our cases has been proven by the arrest warrants we have secured around the world and the role that we have played in ensuring the International Criminal Court began its investigation.
International law is a way of demonstrating that we are equal. What we are asking for is the equal application of the law, so that we are treated the same as everyone else, that we enjoy the same rights under law as everyone else. Indeed, including that we be held accountable, just like everyone else. This is why we work on two strands. We work to hold Israel accountable for the crimes of the occupation, and we work to hold the Palestinian groups to account as if there was no occupation. There is no other way.
Sometimes our legal analysis is ahead of its time. At the 2001 World Conference against Racism, we issued a statement accusing Israel of the crime of apartheid for its treatment of Palestinians in Israel and occupied Palestine. This conclusion was shocking to many people at the time and caused huge controversy. Twenty years later, first B’Tselem, an Israeli human rights organization, and then Human Rights Watch reached the same conclusion. This is a reminder to stick to our principles and our belief that we are entitled to our rights.
We are living in the rule of the jungle. What we demand, what we fight for, is simple. We want the rule of law. We are committed to justice and dignity for Palestinians. This is why accountability is essential.
We will not play “good victims.” We are in this work knowing that it is a long fight, but we have no right to give up. Tomorrow will be ours.