Ambassador Alan Baker is a legal adviser in the Israel Ministry of Foreign Affairs and is involved in the peace process with the Palestinians. From 1974 to 1996, he worked on the negotiation and drafting of peace treaties between Israel and Egypt, Jordan, Lebanon and the Palestine Liberation Organization. He has also served as senior legal officer in the International Law Branch of the Military Advocate General’s Unit of the Israel Defense Force, specializing in humanitarian law, law of armed conflicts and military law.
Q: The U.S. State Department’s human rights report says Israel’s “overall human rights record in the occupied territories was poor.” Was that assessment correct?
A: Well, from the beginning, when the State Department approached us and the members of the embassy came to me to ask various questions, I tried to stress a very central point. A human rights report for any country deals with the relationship between the government and its citizens on questions of human rights. The report is divided into various aspects–the right to work, the right to assemble, the right to due process. This is a normal situation in any normal country whether you are talking about New Zealand or Singapore. The question is to what extent is the government observing its obligations regarding human rights with respect to various elements of the population, whether it is women, religious rights etc. What I tried to explain is that when you are talking about the occupied territories, you are not talking about the same situation at all, and therefore you cannot categorize it by using the same criteria. It does not have the same type of relationship between the government and its citizens. In this situation, there is an occupying power and a hostile populace. The relevant framework is the framework of the Geneva Conventions and not the criteria used for human rights. What I tried to suggest to the Americans is that they not judge the situation in the occupied territories according to the same criteria, and obviously, I had no success with that. They didn’t agree. That is what upset us particularly. They categorized our activities or the situation we are facing now for the last five or six months of this intense disorder verging on armed conflict. They categorized it in the same way as any other country would deal with a demonstration by kids.
Q: Why is the situation in the occupied territories not like those other situations? Why should it require a different standard?
A: You have a situation in which the relationship between Israel and the population is not a relationship of loyalty of the population to the government or to law. Normal day-to-day civil laws don’t apply. You have a completely unique situation, and the basis was a basis of occupation. The Geneva Conventions enable an occupying power to limit the rights of the population and enable the occupying power to place people in administrative detention without trial. It is a completely different relationship. There was no room for the State Department to deal with these two concepts in the same report. Had the State Department come and said, “Look, we are going to criticize or comment on Israeli treatment in a separate annex, and we will stress that this is a different framework in which different ground rules apply,” and if then there is criticism according to the criteria of occupied territories, then, fine. This is perfectly legitimate, and we could relate to it.
Q: How would you characterize Israel’s behavior within the occupied territories?
A: What have we got? We have a situation in which the residents of the territories, which are not under Israel’s control, which are under a Palestinian administration, are using arms, setting off roadside bombs, using mortars, randomly shooting from inside residential areas into Israel’s residential areas, setting off car bombs and then running back into the Palestinian autonomous area, where Israel doesn’t have any presence. Therefore, Israel can’t just run after these people. Now the question then remains, what is Israel’s obligation toward its citizens? Is it obliged simply to sit by and let this happen and not protect its citizens? Or does it have an obligation to take this situation and judge it on the merits of what is happening. If this is an armed conflict, with organized armed units and groups of terrorists carrying out acts of terror against Israeli citizens, does Israel just have to sit and let it happen? Israel’s position is that the reaction to these acts is a reaction concomitant with the rules of armed conflict. Now according to the rules of armed conflict, which aren’t the rules of human rights, in such instances where one side is attacked by the other side, then the attacked side has the right to defend itself and has the obligation to make sure that the belligerent elements that it targets are only those legitimate targets that are actively involved in violence.
If that means Israel has to put a helicopter up into the air to accurately target this particular terrorist or that particular office, then Israel in so doing is fulfilling its duty and minimizing to the largest extent possible damage to innocent people who aren’t involved. What we have tried to do all along, including targeting individual terrorists, is to minimize the people who are getting harmed or killed or wounded only to those legitimate military targets and not beyond that. Of course there have been instances in which people have regrettably, unfortunately, been injured or killed. Again, Israel is reacting. In none of these instances is Israel initiating violence.
Q: From Israel’s perspective, what is the nature of the use of children in these conflicts?
A: I studied this pretty intensely. What I discovered was something quite shocking that was happening, probably only in the first third of the riots and disturbances this time around. What we found was some type of preplanned tactic where the Palestinians used to bus kids or bring kids from inside the towns or take them out of the schools, 60 kids, to various crossroads or points outside the townships, on the outskirts of the Gaza streets. They used to transport these kids to the areas where four or five Israeli soldiers were inside one of these check posts, give them stones, usually about 4 o’clock in the afternoon. Then behind these kids you would get older youths having Molotov cocktails, and behind the youths with cocktails there was a pattern of bringing in these militia people armed with rifles and together with them groups of local Arab camera teams contracted by CNN. The kids started throwing stones. Once that started, then the Molotov cocktails started flying, then the camera crews would photograph this. Then Israel would respond. Then the other people would start to shoot.
As soon as you have a situation in which people are using live fire against you, you are entitled to shoot back. In the crossfire, the kids standing at the front were getting killed. We literally saw this to be a pattern that used to happen more or less every day at the same time. We saw that the way things were being perceived and reported on the various television stations, and this really shocked me. It turned out that several women’s organizations had, in the territories in the Gaza Strip and on the West Bank, came out with criticism against the various Palestinian military organizations, calling for this thing to stop. When there was a certain element of international criticism of this, including from various human-rights bodies in Geneva, they stopped. Then they changed tactics and reduced the extent of the demonstrations and moved into the mode of shooting and opening fire and roadside bombs. We also changed our tactics and moved from riot control and riot reaction to a mode of response in the framework of armed conflict.
Q: Does Israel believe it acted within the bounds of international law in these cases?
A: We are convinced that this is so. There wasn’t any other way that Israel could reasonably have reacted. You can’t have one rule for the Palestinians, who can freely and openly use terror and violence without our being able to defend ourselves in the most appropriate manner possible. I have heard several expressions by serious people saying, “Well, you know, how come so many Palestinians have been harmed, killed and wounded?”
Q: What’s the answer to that question?
A: This really is a very curious question. If more Israelis would have been killed, would it have been palatable? I think the very expression is somewhat unfortunate. Israel is an organized country. It has its army. They have their means of protecting themselves. Armor and helmets and the like. Shields and one thing or another. Besides which, fewer Israelis were involved in the actual conflicts. There was a small number of Israeli soldiers in a particular crossing point and 70, 80, 90 kids congregating around this small number of Israelis. Fewer Israelis were killed and wounded, but this shouldn’t be any basis for comparison. It’s absurd. Anybody who can make such a comparison I think really is going along the wrong direction. Now let me point to another thing that upset me about the report. They mentioned the fact that Palestinians were shooting from the occupied territory into apartments in the Jerusalem district just opposite. And then they go on to say that the Israelis in response to that were shooting cannon fire and helicopter fire into residential areas in the village of Beit Jala. The way this was put was misleading and inaccurate in my opinion. In actual fact, what the Palestinians did in the village of Beit Jala, they went into houses, forced themselves into houses. They set up machine guns. They started shooting at Israeli residential areas. And then when Israelis returned fire to the same area and houses, Israel was then accused of shooting into residential areas, which is forbidden by international law. But they never mentioned that the shooting by Palestinians was done from residential areas. This gives a perception of Israel’s violating human rights against poor Palestinians who are unarmed and living quietly. This is not true.
Q: Can Israel break this cycle of violence? Isn’t it likely that the seeds are being planted now that will carry it into the next generation?
A: This is part of the big cycle. The whole thing stands out of a very large element of incitement, which could have been prevented. Yasser Arafat wrote a letter to Yitzak Rabin in 1993, before he even signed the [1993] Oslo agreement. He undertook to solve problems in a peaceful way and stop all violence and terror. It was a very solemn undertaking, an agreement between Israel and the Palestinians. It is the basis for the whole construction of agreements that were signed since 1993 up to the present day. Clearly, it has been violated now very seriously. There was also a commitment to stop incitement on the part of Palestinians, but this hasn’t stopped. The danger for this thing to move into the next generation is very high. This is why everyone is trying to hard to persuade Arafat to stop the violence, and he is not prepared to do this. Now nobody, even the Palestinians, are certain that even if Arafat were to try, he would have the authority to do so.
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An edited transcript.
