Transcription
The UK government and the US government have consistently said they do not have concerns about Israel's approach to international humanitarian law so far as targeting.
Oh, no. No, no, no, no, no, no. No, no, no. You, that is, that's an extraordinary allegation. May I finish the question? May I finish the answer? Be careful what you're saying. I beg your pardon. I beg your pardon. No. I' I've come here in good faith to answer questions. And from the moment I walked in the room, I've been barricked and told to be quiet when I've been trying to answer questions. I will answer this one with your permission. Please ask this question accurately. Yes. And with care.
Predicting famine in Gaza and that have been used to justify the false accusations of starvation as a weapon of war. That little time we have, I'd greatly appreciate if you could just ask a full answer. I'm no answer the question that you've been asked if you don't mind given that we are already running over time. You've been asked specifically about the about aid not getting in at the moment and you're talking about another period of time which is in itself contentious and we don't have time to get into that argument. What we're asking, what the the question that you were asked was very precise and carefully put and I would greatly appreciate it. In the few moments that we have left if you could answer it.
Mind just for the record, just telling us who you are and what and what you do.
Of course. Um, I'm a barrister, own practice at six pump court chambers in London. Um, for about 10 years I've been very actively involved in a voluntary association of lawyers called UK lawyers for Israel, working for the proper application of law to Israel, Israelis and also countering anti-semitism. Uh, and in the latter years I've been privileged to take on the role of legal director at the UKI charitable trust. Uh, so I've been asked to address you on matters of international law, but also I I think my experience over the last year and a half, um, my trips to Israel and indeed Gaza.
Um, can I come to uh what you described as one of your missions which is to combat the weaponization, I think you said, of international law?
Yes. Um, I mean, I read your speech about the legal basis for settlements in the West Bank in which you made the case that Israel's borders were set in 1948 and in international law that is should still be the position. Um, but you also said that that was not the position as determined by the International Court of Justice, the International Criminal Court, and most other commentators. Given that, I mean, how how can you continue to maintain that in international law, Israel is not in breach through settlements in the West Bank?
Uh, because I consider as a legal professional my first duty to be to the rule of law and to upholding international law and one cannot have a general rule uh such as utiposetisurus which you referenced. This is this customary rule of international law which is universally applicable as a default rule uh and its application uh to Israel's formation on the 14th of May 1948. I have in, you know, a decade of discussing this with leading academics around the world. Uh, I have yet to hear uh a single reason why it would not apply. We can certainly go into some of the detail of that.
Um, can I interrupt you because you you set out the argument quite clearly in your speech and I I I'm not sure which speech you're referring to. Um, I'm not I'm afraid I can't give you the precise date, but anyway, what you're talking about is is exactly the the the the case you put at that time. And I understand that. What I don't understand is that almost all international legal bodies take a different view. Um, and why should that be um when you make when you argue that it the case in legal terms is very clear. So despite about a decade of seeking to get to the bottom of um a plausible reason why this would be disapplied this default rule uh to Israel's formation in 1948. I have yet to encounter one.
Can I just cut across you just for a moment? Um, I mean, so your position essentially is is that is that uh since the British mandate um was that was all of the land up to the up to the river um in 48 that Israel is the whole of that area as well. Of course, the original mandate was far bigger, wait. So let's let's let's not go into past history. Let's just like try and stick to so so the question it is important because this rule applies to the administrative lines of the mandate. The administrative line that had previously um divided trans what then trans Jordan, what later became the Hashimite Kingdom of Jordan from the rest of the mandate is the line that ran all the way down along the Jordan River to the Red Sea. Yes. And that under this universal customary rule that is the only line in play when Israel declares. So that's so that's where I wanted to start.
Right. So that's your position. Now the question is though it's it's not the position I mean because we've not heard from the Israeli government. Uh, but it's not the Israeli government's position is it? The Israeli government has the Israeli government position is not that that that that Israel's borders go from the river the the the Jordan River to the sea. Is it?
May I take a moment to answer because you are skipping through decades of history and policy. What I want to do is just like just because we're because we're missing the Israeli government here. I just want to make sure that I haven't missed something. I mean, it's not the Israeli government's position that Israel begins at the River Jordan and finishes at the Mediterranean Sea. I'm not here to represent the Israeli government. No, I just want to make sure that I've got that. I'm speaking to the application of international law, real international law that is universal. The Israeli government is not applying. Well, that's not accurate. And if I may be permitted to answer the question, perhaps the committee will um follow the response. Uh, what utiposetas does is it tells us the starting point. Uh, this is the position in 1948. It is in fact endorsed by all subsequent agreements. The armistice agreements between Israel and Egypt and Israel and Jordan 1949 and later on also the peace agreements only refer back to those mandatory lines, administrative lines of the British mandate. That is significant. What happens in 1967 when Israel recovers the relevant territory, the disputed territory that had previously been under Jordanian occupation, this is the uh parts of East Jerusalem and the West Bank of Judea and Samaria is that it treated those territories differently. The Israeli government applied its law, administration and jurisdiction in full to East Jerusalem. Um, and critically Aba Evan uh who was the foreign minister at the time writes to the UN secretary general in 1967 and says this is not annexation critically which is uh because one cannot annex what is already one's own sovereign territory. So if you're asking if you're if you're asking me, forgive me. The question was what is Israel's position? That was Israel's position in 1967. Since then, of course, in pursuit of this land for peace formula, Israel anticipated that peace with Jordan would be achieved by giving Jordan some of the West Bank. So a temporary administration was instituted in Judea and Samaria. Now, that peace with Jordan when it eventually came along in 1994 didn't include land to Jordan because it no longer wanted anything to do with that territory. So, that temporary administration lasted until the Oslo Accords, which I'd already referenced in relation to the absence of ICC jurisdiction. But critically, the Oslo Accords created the Palestinian autonomy in areas A and B, but they did not change the status of the territory, the underlying status of the territory. That has always been a matter that the parties and international backers have agreed was a matter for final status negotiations.
Exactly. And it has yet to be and it is so so it is not
So your so your answer is that Israel has not stated that it that the Israel begins at Jordan and ends at the sea.
Forgive me. Israel does not need to state that. And it doesn't.
Well, you're you're you're equating, I'm afraid, two very very different things here.
Sure. I'd like to move on to talk about international humanitarian law and ask you some questions on you simp uh if we can uh agree first of all there's a consensus that a single fighter suspected of being a terrorist operative uh for Hamas or uh Islamic Jihad is is a legitimate target and a civilian who is not is not a legitimate target. Um, I think we can probably agree on that much. Then what about operatives homes? Would those be legitimate targets?
Terrorists operatives homes.
Um, that depends ultimately on the purpose that they are being used for. Uh, and um the de the definition of a of a military target um ultimately depends on its use uh in the hostilities. So I can tell you from my time on the ground in Gaza in September, I went in as part of a military expert panel. Um, I could see that um civilian houses uh were booby trapped. Um, at least in Rafa it seemed that more or less every house or every second house that we were encountering uh had been booby trapped by Hamas. Uh, and therefore much of the destruction that one is seeing in terms of the civilian infrastructure is unfortunately as a result of the IDF having to uh disarm um these booby track houses mostly by destroying them. But in terms of targeting, um, international humanitarian law is very clear that you can only target, uh, military targets, that one has to distinguish between civilians and military targets. And certainly the officers that I was on the ground with, very senior officers from six NATO states and we spent a week undertaking briefings with the military um were all convinced uh that there are no issues visav um the distinction element of international humanitarian law and Israel's application of it that you've raised. So uh what about if the uh if the building also let's say there are people in it uh there are terrorist operatives and there are civilians in in that instance would the IDF be entitled to target that building?
That depends on another very important aspect of international humanitarian law which is the rule of proportionality. Now it's probably worth taking a moment to explain what it is because it is perhaps the most misrepresented element of uh international humanitarian law. I mean, we've got somebody else who's going to uh ask about that that business about proportionality being about the military objective rather than about uh being somehow to do with uh equivalent deaths on both sides. Of course, that is is a very misrepresented principle of international humanitarian law. But I want to focus on distinction. If um if there are civilians in the building, the IDF targets that building. um you've established that that might be might be a violation of the IHL principle of distinction. You cannot separate the two, I'm afraid. Distinction, proportionality, precaution and necessity all work together. So if the target in that building is necessary to advance the military objectives of the fighting force, uh if they have identified terrorist operatives there, then the next two factors to consider are the first which is proportionality and that is about as you correctly indicate weighing up the importance of that military objective against the anticipated civilian collateral damage on the basis of intelligence that is available. that is a um not an effects-based uh assessment that is a uh intent-based assessment but the other aspect of this the fourth principle which is critical is precaution and this is something that Israel does do on a scale I'm afraid I have to say never before seen because other modern armies aren't in a position to issue the sorts of warnings and the evacuation uh um um measures that Israel has taken with respect to this urban armed conflict.
So perhaps we could then take an example. I mean the the sort of precaution that you talk about is is the is the is the tapping on the roof before uh ordinances knock on roof is is one of the um one of the distinctive elements of this particular conflict. Um could we use the example of the uh destruction of the Al Yamuk neighborhood uh 12-story residential building in October 2023. The target of of the strike was uh Hamas terrorist tunnel underneath the building. The building was 12 stories tall and it resulted in the death of 81 women and children. Was in that instance international humanitarian law applied? Did we see here the principle of distinction used?
You are asking me about an one particular incident in the last year and a half which I'd be very happy to look into. Um uh certainly I would have done if there had been any advanced warning but off the top of my head I'm certainly not in a position to say one way or the other and can may I be clear um neither are any international commentators who purport to give a decided answer on that and there's a very straightforward reason for it. The only um way that a proper analysis of your question can be conducted is if the information that was available to the operatives that undertook that strike in advance of conducting it can be properly assessed. We simply don't know what that is because it is not in the public domain. But I would say that the two entities I'm aware of that Israel has shared elements of sensitive intelligence of this nature with the UK government and the US government have consistently said they do not have concerns about Israel's approach to international humanitarian law so far as targeting.
Oh, no. No, no, no, no, no, no. No, no, no. That is that's an extraordinary allegation. May I finish the question? May I finish the answer? Be careful what you're saying. I beg your pardon. I beg your pardon. No. I' I've come here in good faith to answer questions and from the moment I walked in the room, I've been barricked and told to be quiet when I've been trying to answer questions. I will answer this one with your permission. Please answer this question accurately. Yes. And with care.
The UK and the US have consistently said that so far as targeting and proportionality, which is what your question pertains to, there are not concerns. There have been other concerns raised uh un un uh on the basis of incorrect information. If we have time to discuss detention and aid, we certainly can. But even the United Kingdom and I'm afraid the foreign secretary has had to walk back some unfortunate remarks in the past. But so far as targeting and portionality is concerned, there have not been concerns raised on the
Why why is it therefore that Britain is not selling arms to Israel that can be used in Gaza? Is it not on the basis that there is a risk of a breach of humanitarian law?
I might ask this committee to look into that very question because there is no nexus between the concerns that this government has raised on detention and aid and the arms that have been embargoed. There is a very great concern I have that absent a nexus because of the absence of concerns on proportionality and targeting. That is not a decision that can in fact be lawful and it is one that has clearly upended the licensing regulations in this country which certainly has impacts quite outside of the scope of this committee's inquiry but that are very significant to the UK's ability to export arms uh confidently to other countries. So this is what I mean about playing fast and loose with real law. It creates very problematic precedents in other in other respects and the decision on the embargo is a deeply deeply troubling one because of this absence of nexus. It is in fact um the foreign office has made it very clear in its advice where it's um in its public statements on this where its concerns lie and they are nothing to do with the arms that have been embargoed which must ultimately be for political reasons rather than legal ones.
you.
Um, so firstly, I I take your claim that the IDF has the highest standards of IHL for any army in history as outrageous. Having particularly served in the British military myself, um, I I think that is um a particularly staggering claim. Um, I I would like to ask about international humanitarian law again and and aid deliveries. Um, so 91% of people in Gaza are facing food insecurity. um, one-third of hospitals there are completely out of action with the other two-thirds um damaged already by by uh by the fighting. 92% of housing units have been destroyed or damaged. Um, and there's now 50 days that no uh aid deliveries have been taken uh have been accepted into into Gaza. And in fact, Israeli ministers have declared they are blocking aid uh in particular to exert pressure on Hamas. Um, this is for from my opinion um and almost every aid agency in the world a clear breach of uh international humanitarian law. I I wonder how you think um Israel was justifying this.
First of all uh with reference to uh the highest humanitarian standards applied by the IDF. Um, it's not just from me. Uh, I think you've had Colonel Richard Kemp certainly at other parliamentary committees testifying. Uh, John Spencer the head of urban armed conflict at West Point in America. Uh, and there are certainly the members of the military expert panel that I went into Gaza with um who would give very similar testimony. Um, but we'll have to agree to disagree on that. I approach this as a as an international uh lawyer looking specifically at the application of IHL. So far as the aid issue is concerned, um the statistics on this I'm afraid have been consistently misrepresented. So far uh across the uh operation period of uh this is before the ceasefire. Um, there was 1.1% of trucks that uh came from the international community to aid crossing points that Israel refused to allow into Gaza. That was it. because they were either dual use items or because the aid organization in question didn't allow a search to be conducted. Now, those searches about the current blockade, not what
Well, let's be clear because um the reports that you referred to were also erroneous and in fact many of them predicting famine in Gaza and that have been used to justify the false accusations of starvation as a weapon of war. How little time we have, I'd greatly appreciate if you could just answer question. No, answer the question that you've been asked if you don't mind given that we are already running over time. You've been asked specifically about the about aid not getting in at the moment and you're talking about another period of time which is in itself contentious and we don't have time to get into that argument. What we're asking what the the question you were asked was very precise and carefully put and I would greatly appreciate it. In the few moments that we have left if you could answer it.
The question I was asked referenced uh reports of international bodies which have erroneously predicted famine and starvation in Gaza. And in fact I link in our submission to a report separately we have done uh on those aid reports and on the famine review that we have conducted which I would ask the committee to consider uh because um these the IPC report in particular was called out by the famine review committee as being uh based on only impartial information and being implausible uh in its predictions. Now that is significant to answer your question on what aid organizations have reported. Those allegations I'm afraid are false and you only need to look at the volume of aid that has gone in. The blockade in place at the moment. I'll come to that in a moment if I you there were several parts to your question. One only has to look at the volume of aid that has gone in which is publicly available on Kogat uh statistics on the on their website. um and the subsequent analysis of the caloripfic content of that aid which in the seven months that were analyzed January to July last year found that over 3,000 calories per person per day had gone into Gaza which is significantly in excess of NHS guidelines that is the position before going into the ceasefire as part of the ceasefire aid was flooded into the Gaza Strip so that even uh international humanitarian organizations uh have uh agreed that there were many many months of aid available in the Gaza Strip. So that the subsequent um seizure of uh of of aid going in as part of an attempt to put pressure on Hamas. Let me be clear, Hamas has been stealing the aid, selling it on the black market and using those funds to fuel its war machine against Israel. So that is the reason for the aid being turned off on the basis that the civilian population have sufficient because of the flooding of Gaza with humanitarian aid over the course of the ceasefire. I hope that answers your question.
So your position is um despite the UN's reports that over 90% of people in Gaza face food sec food insecurity last week it's acceptable to conduct this blockade because there was lots of aid delivered in the past.
That's the UN reports and that's why it's important that I flooded have been consistently found to be wrong and I ask you to look at the numbers the data that has gone in and the analysis of the calorific content. If there are indeed individuals facing food insecurity in Gaza, then there is a very clear reason for that and that is Hamas's diversion of aid because the total volume that has been facilitated into the Gaza Strip by Israel is far in excess of what is required by individual Gazans. Hamas has been stealing the aid but also I mentioned they were shooting civilians. That includes shooting civilians that were seeking to obtain some of that aid that was being brought in by international organizations. That is the true tragedy here which in some sense brings us full circle that if the United Kingdom's policy is to continue I'm afraid to encourage Hamas and Anthony Blinken um did actually in a moment of of of great honesty uh reference America's part in encouraging Hamas every time there was criticism of Israel Hamas would walk away from uh hostage negotiations. That is, I think, a very important message for this committee to internalize, to include in its report and to feed back to the government in terms of building a better future for both Israelis and Palestinians alike.