Briefing by
Alan Baker
Legal Advisor of the Ministry of Foreign Affairs

Jerusalem Media Center
April 24, 2002

What we’re talking about today is what happened in Jenin. Why? Because the Security Council – as a result of what can only be described as a blood libel initiated by the Palestinians and the Arabs, but taken up by the international community and the Europeans – as if Israel had carried out a massacre of the Palestinians in Jenin.

Since then, of course, we know otherwise. This whole blood libel has basically been unveiled and blown open, and we’re hearing that, if at all, we’re not talking about 300 or 200, but possibly about 80 people who were killed during the course of the fighting in the Jenin refugee camp – most of whom were armed terrorists. There was certainly no massacre.

But, as things happen in the United Nations, this became the subject of a proposal for intervention by the international community. And as a result of our own willingness to prove that we have nothing to hide, and to indicate to the world at large that "here, come and see", we agreed to a fact-finding team by the United Nations to come to the area and collect information on the recent events in the Jenin refugee camp.

We agreed to this simply because we wanted the truth to come out; we wanted to get rid of this pathetic blood libel that people seem to be believing. Why such a thing wasn’t done in Srebrenica, where 7,000 people were killed in a couple of hours there was no Security Council fact-finding team. Or, when the Jordanians killed 8,000 Palestinians on the 20th of September, 1970, there was no Security Council fact-finding team. But, we decided, in order to clean the table, so that the world will believe what we are saying, we will go along with this; we agreed to have a fact-finding team come.

And the basis for agreement was Article 2 of the Security Council Resolution, which says: "The Security Council welcomes the initiative of the Secretary General to develop accurate information regarding recent events in the Jenin refugee camp through a fact-finding team, and requests him to keep the Security Council informed." This is what we agreed to, this is what we are prepared to do. This was adopted on Friday, and what we have seen over the last few days is a sort of fogging of this mandate, which would appear to be very clear to anybody reading it, and an alteration of the ground rules of this fact-finding mission.

When one talks about developing accurate information regarding recent events in the Jenin refugee camp, the intention of those who drafted the Resolution was of all the events in the refugee camp: both the fact that the Palestinians had turned it into an armed terrorist encampment, as well as the resulting reaction by Israel in having to deal with the extensive armed nature of the refugee camp.

By the way, this is despite the fact that General Assembly resolutions oblige everybody to honor the special status of refugee camps and not to allow arms to be stored there, produced there, or used there for any purpose. This is one of the functions of the United Nations bodies here in the area, supervising refugees, to make sure that this doesn’t happen. Clearly, they didn’t do very well in this aspect. So, the whole idea of this fact-finding mission was to come and check into the facts regarding this situation, and to report on the facts.

What we saw evolving over the weekend was that this mandate was widened and extended by the statements made, the documentation circulated – it wasn’t necessarily just in the Jenin refugee camp, but there was a statement made that Jenin was just the beginning and it could possibly be elsewhere. And then, it wasn’t just collecting information, but it was also coming to conclusions. Then, it wasn’t the recent events in the Jenin refugee camp, but the military activities by Israel in the Jenin refugee camp. What we saw was a slow expansion of the terms of reference, or the mandate, of the team which we agreed we would cooperate with into spheres which we felt didn’t have any clear framework or boundary.

We were also somewhat surprised by the people appointed to lead the fact-finding team, who were appointed without consulting us. We had hoped that there would be a concentration of military expertise and anti-terror expertise, in view of the nature of the fighting there and of the situation that existed there before the fighting began.

Hence, the Israeli government decided to ask the Secretary General to clarify, together with us, the terms of reference so that we would all know clearly where we stand and the various basic components of a fact-finding mission, which is a standard procedure in United Nations practice, of detailing the mandate – the composition, the modes of movement, the modes of meeting people, of interviewing people, questions of confidentiality, and the way in which the findings of the team will be handled and presented and shown to the sides.

All these things need to be set down as they are usually set down in commissions of fact-finding or teams of fact-finding. This is what we asked the Secretary General to do. We asked that, pending this clarification, the team "hang on" until we can come to an agreement with the United Nations on this.

This is the situation as it stands at the moment. As I said, this position has been very well-stated by the Foreign Minister, that we have nothing to hide. This was a terrible blood libel, another instance of exaggerating and taking completely out of context the situation here and the activities of Israel.

It reminds me – two or three weeks ago, when the first Security Council Resolution, 1402, was adopted, calling upon the parties to cease fire, calling upon the Palestinians to cease terror, calling upon the Israelis to withdraw from Area A, the only thing that anybody remembered in all the approaches that were made to us by the world at large and the Europeans and everybody else was: Ah, you have to withdraw from the territories; everybody forgot that there was also a call to the Palestinians to stop terror.

Here, we’re seeing the same thing. There is this misconception that the whole idea of the fact-finding team is to deal with the alleged massacre by Israel of the Palestinians in Jenin. Everybody seems to have forgotten that this fact-finding team is to deal with the situation in Jenin that existed, that brought about the need for Israel to have to fight from house to house and to suffer a huge amount of casualties in order not to bomb military targets – which, by any standards of international humanitarian law, can be attacked from the air or in any other way, in view of their blatant military nature.

This is where we stand at the moment; and I’ll be very happy to answer any questions.

Q: Is there any possibility that Israel is not going to cooperate with this fact-finding team?

A: I wouldn’t think that there would be such a possibility. We’ve told the United Nations that we’re prepared to cooperate; we’ve got nothing to hide.

What I’ve been doing over the last three or four days is sitting with a team, with the army and the Ministry of Defense, with the police and with various other authorities, checking the material that we would want to present to the team, and planning what we’re going to show the team, where we are going to take them, who they are going to meet with. We have considerable information to show how Jenin was a basis for terror. In the Palestinian press – and it’s not so much in the English language press, but in the Arabic press – there are statements referring to Jenin being the capital of the suicide bombers, of the Shaheeds. This glorification of suicide bombings was centered in Jenin.

We can prove this, we can show this, we can indicate this. The impression, the libel, that has been circulated – as if one bright day, the Israeli army decided to come down on these poor innocent refugees sitting in a refugee camp minding their own business and going about their daily life – it’s completely "scotched." It’s completely blown open. Most of the innocent refugees weren’t there – they had all been sent out beforehand, and virtually the whole of the area that we’re talking about, which is a relatively small area, was booby-trapped. When I say "booby-trapped," I’m talking about garbage pail lids, doorknobs, bodies, children. Some of the most vile violations of basic norms in international humanitarian law were there in this Jenin camp.

The world at large is under the impression that the Israelis just came down and carried out a massacre. So, we’re very keen on the fact that this committee should come and allow us, through them, to show the world exactly what was happening in Jenin. What we don’t want is for this to become a trap, and for this to evolve into something which wasn’t intended by the Security Council Resolution.

Q: Given your concerns and the fact that you communicated them to the UN through various channels, I’m wondering when you do expect to welcome the team and what sorts of invitations or diplomatic formalities have to be put into place before that happens – a visa, a formal invitation, something along those lines – and when do you expect to issue it?

A: First of all, we are going to discuss with the Secretary General and his people what I referred to before (the modalities of how the team will function) so that it can all be very clear and there won’t be misunderstandings during the visit. Once that is cleared up, then we will be able to work with the team and the team will come and we will make them very welcome and they’ll meet with those people they wish to meet with and get the information they wish to get. They’ll presumably want to visit Jenin with the Palestinians, and meet Palestinians. They also wish to meet Israelis and we’ll probably also want to show them around Jenin from our point of view. But these things haven’t yet been decided, it remains to be seen.

Q: My understanding is the team expects to arrive around Saturday. Do you see that as reasonable?

A: We don’t know yet. I can’t answer because this is something which we have yet to discuss with them.

Q: There were reports in the Israeli press that in these government meetings you were opposed to the decision to postpone their arrival.

A: The question was a question of tactics. What is the best way to solve the problem? There was no discussion or argument about the fact that the task of the team was being extended and changed. The question was, how to cope with this now, how to deal with this? Representing the Foreign Ministry, I was very concerned that we not find ourselves in a difficult situation opposite or vis-a-vis the international community or the United Nations, etc. This is why, in the end, we contacted the Secretary General and said, "we’ve got a few things that we want to iron out. Please hold your horses. We’ll sit with you and discuss with you." Hopefully, we will be able to iron these things out.

Q: As time progresses, there have been concerns that much of the evidence, much of the facts that may be found on the ground may be deteriorating. To expedite the process here, how far is the Israeli government willing to go to speed it up? Having the concerns that you expressed, is there some leeway to get those people on the ground and get them there quickly?

A: What we’re asking is standard operating procedures for fact-finding committees. This is the usual practice. It’s not the usual practice to just appear without knowing exactly how this thing is going to happen, what’s going to be done. As soon as we manage to get this in place and that’s why we’re running off tonight to New York, in order to be able tomorrow morning, first thing in the morning, to sit with the United Nations people and deal with these questions. So that as soon as possible, the thing will be operated. In any event, the team is meeting in Europe, I think in Geneva, and is planning to come here for the weekend. We will see what happens with the discussions.

Q: Now concerning the composition of the fact-finding mission, the Secretary General of the United Nations said he had the understanding of Israel that there would be no objections to the composition. Now have the objections been dropped or are they still maintained by the Israeli government?

A: I haven’t used the term "objections". What I said was that we were somewhat surprised by the fact that there was no process of consultation with us. Because we had a pragmatic and useful suggestion. That because of the nature of the Jenin refugee camp and the way it was used, and the nature of the fighting to solve the problem of the concentration of terror there, the nature of house-to-house fighting, we felt it would be useful for the team to include people with military expertise, anti-terrorism expertise, as a tool, a technical means, of helping the committee appreciate the situation. Because perhaps politicians or experts in humanitarian or human rights or humanitarian law might not have the tools to judge or consider what was needed to deal with the threat and the problem. So we expressed our frustration and our disappointment.

With respect to the individuals concerned, we know these individuals. I know Mr. Ahtisaari personally from when I used to work in the United Nations, and I also know Mr. Sommaruga. Again, this will be part of the discussions that we will be having in the United Nations. Hopefully, we will be able to solve this.

Q: If you can not come to agreement with the Secretary General, or if the purpose of this still seems to be beyond what you accept, what is Israel’s next step? Do you keep the team out of the country? Do you keep the team out of Jenin? What will you do?

A: I hope that we won’t be faced with this problem, and I don’t think we will. Because what we’re asking is nothing more than to crystallize the mandate that’s already been agreed upon in the Security Council resolutions. I don’t think there should be any reason for these qualifications not to be finalized successfully so as to enable the thing to go forward. Hopefully it won’t happen, therefore I prefer not to look at such a situation. We have an interest in showing to the world, to the international community, the facts as they are, so we can scotch this blood libel. And so we have an interest, the international community evidently has an interest, in coming to see what’s happening. It’s becoming evident, day by day, that the accusations are without any basis, even without a fact-finding team. So what we will produce will only add proof to what is already becoming evident. So hopefully it will be able to go through.

Q: Can you be more specific, please, on the information coming in from New York that leads you to the conclusion that you think you are not going to get a fair deal? Or address more generally the suspicion you have.

A: Israel finds itself in a very special situation in the United Nations. Not always an easy one, as I think everybody is aware. I say this both as an international lawyer who has considerable expertise in United Nations matters for many many years, and as an ex-employee. I used to work in the legal office of the United Nations.

Israel’s situation in the UN is not easy from the political point of view, from the parliamentary point of view, because of the majority. Israel is not a member of the regional groupings. We’re not accepted into the Asian geographical group that we belong to. Therefore we can’t get elected to any UN bodies, or any serious UN bodies, the Security Council, the General Assembly, main committees, the International Court of Justice. We’re the only state that is prevented. So our situation in the UN is difficult.

Now if you add to this the fact that you have four or five Security Council resolutions, almost day after day, recalling the previous resolutions of the day before and the day before that and calling upon Israel to implement them, there is a very clear tendency towards singling out Israel. This is something that we have had to live with for many many years.

When resolution 1405 was put forward by the United States, we agreed because it was put forward with the aim of enabling a complete open review of the recent events at the Jenin refugee camp. As soon as we saw that this was being misconceived within the international community and presented more as a move to show what the Israelis did to the Palestinians in the Jenin refugee camp, this lit up red lights and sounded warning bells. So that there wouldn’t a problem with what is an important resolution, we decided that we want to clarify these points.

Q: You’re telling us that international humanitarian law is not the appropriate criteria for judging the legality of the situation?

A: I’m not getting into the question of whether or how the legality of the situation is to be judged. The function of this team is to, and I’m quoting: "develop accurate information". Nobody is being asked to judge the legality. If anybody wants a lecture on the legality of the present situation, I’d be very happy to give it. On the legality of the use of a refugee camp as an armed terrorism base, the legality of the use of children as live bombs or booby traps. I can get into this, but this isn’t the question that’s on the agenda.

The question on the agenda is a team to come and ascertain the facts, then take the facts back to the Secretary General and present them to the Secretary General, which the Secretary General will then present to the Security Council. No conclusions, no recommendations, no judgements. It’s not a legal matter, and the Secretary General in fact said this. If he said it in his press conference, then we’d like to see it in black and white.

Q: There is a report in the agency this morning saying that there was a military man who wasn’t originally on the team that Kofi Annan (inaudible)?

A: You’re talking about General Bill Nash. He was initially appointed as an adviser to the team. After our request went through that there should be a person experienced in military matters on the team, the Secretary General agreed to upgrade him and place him, rather than as an advisor, as a status more or less equal to the members of the team.

Q: You said in your initial statement, you said two problems. One was a lack of military expertise? Does is this not meet your requirements?

A: We’re not looking for formality. I referred to the word ‘tools’. What we need is expertise in anti-terrorism, in a certain type of combat within towns and cities. Now I don’t know General Nash, I don’t know his experience, I really don’t know. As far as we’re concerned, the important thing is that this fact-finding team has the tools to be able to appreciate the situation and on that basis be able to understand the facts that they’re collecting.

Q: I haven’t heard you rule out excluding this team from Israel or Jenin?

A: I really can’t say, I really don’t know, this remains to be seen. There are still consultations which will be going on later today before we leave. We will be sitting with our ambassador to the UN, after which we presumably will be sitting with the UN people.

Q: There are people who are saying that it looks like you’re trying to set the membership, you’re trying to set their agenda and you’re trying to set the rules.

A: I think this is a very unfair accusation. I think if you were to check the fact-finding missions that have been sent out throughout the years, and you only have to go into the UN web site, you’ll get a very long list, or go into any of the textbooks that refer to the mode of fact-finding as a mode of dealing with conflicts, then you’ll find that any average fact-finding mission is based on a terms of reference that are usually agreed upon between the parties in advance. We’re not asking any more than this. Mr. Arafat says, "I’m not asking for the moon." Let me quote Arafat here. We’re not asking for anything more than is reasonable to expect. Why should we therefore accept anything less? Why, for this particular fact-finding team, should we not be granted the same framework that is given in any other fact-finding circumstance?

Q: If there is no change in the terms of reference, would there be no fact-finding committee?

A: I really can’t say. The Prime Minister, the Foreign Minister, will be meeting this evening to discuss this. They will give me instructions on what to do, what to say and, hopefully, we won’t have to address this question. Because as I’ve said, what we’re asking for is nothing more than a clear indication, so we know where we are, they’ll know where they are, there won’t be problems that pop up during the course of the mission, and so that the thing will be able to go through pragmatically, and efficiently.

Q: About the terms of reference, couldn’t this have been anticipated before you agreed?

A: Had the extension over Monday not evolved, had it been very clear from the very beginning, that the team is only going to deal with the recent events in the Jenin refugee camp, and it’s only going to be fact-finding, and had this not been evolving and extending, then perhaps the question might not have arisen. But we saw that in the last few days it was becoming fuzzy and things were being added to it and Jenin was only the first stage and perhaps there’d be another stage.

This was not what we agreed to, this was not what we accepted to cooperate with initially. Hence, we realize, perhaps we should insist on a clear terms of reference so that there won’t be any further misunderstanding. Otherwise we don’t know where this will end.

Q: [Question about the Secretary General]

A: First of all I wouldn’t want to criticize the Secretary General because I know and like him. He helped me get my job in the UN years and years ago when he was the head of personnel. So I wouldn’t want to criticize him. I don’t know why there was some difference between the initial terminology of the resolution of Friday and the Monday morning press conference. I really have no answer for this.

Q: Can I clarify the three members of the team who have been named, Sommaruga, Ogata and Ahtisaari, do you have any objection to those three or no objection those three?

A: It is difficult for me to answer. As I say, we were surprised that they were appointed because we thought people of a more technical nature with more military knowledge would be appointed. What we are interested in is enhancing the expertise, and military expertise. Technically speaking, having the correct expertise to enable the team to do it’s job.

Q: You spoke about a trap, Israel being led into a trap. Were you thinking of some procedure that might lead to accusations of war crimes?

A: Let me put it this way. It is not that I am thinking of this, but there have been statements by Palestinian friends and various other representatives of Arab countries, who’ve said that they are waiting to use this mechanism as a means for furthering attempts to bring prosecutions against Israel. And this is something they’re trying to do in various international forums, as we’ve seen in Belgium where the initiators of the prosecution against the Prime Minister have admitted that this is politically motivated but by utilizing the universal jurisdiction in Belgian criminal law to do this. This certainly is a problem that is foreseeable. Hence, if we’re talking about a fact-finding team, we’re only talking about a fact-finding team which has a very clearly defined mandate.

Q: Given the history of your relationship with the United Nations, can you assess how difficult it might be to get a fair shake from the UN? And, is it maybe more difficult because the investigation centers on camps that are run by the UN and they might feel proprietary?

A: This is a very serious question. We are very confident, we believe in the UN, we’ve always been believers in the UN, and we would hope that the UN will be able to function as a genuinely impartial organization to further international relationships between states. It is very depressing to see this parliamentary situation which goes against the grain of the UN charter and, to a certain extent, limits the capability of the UN to carry out its job.

The problem in the refugee camp, which has been administered and run and financed by the UN, is complemented by the fact that these camps have been hotbeds of terror. Therefore the question is very relevant. Why, how come the UN, UNRWA and the other various UN bodies haven’t done anything to prevent this when there are several resolutions of the Security Council and the General Assembly that specifically declare these areas to be areas of special status that shouldn’t be used for anything that prejudices their special status.

According to international law, if one brings weapons into a church or a holy place, then one is prejudicing the protective status of that holy place. The same with a refugee camp, the same with a hospital, the same with a school. Perhaps one of the lessons the UN will have to learn, when the facts become evident as a result of this fact-finding team, will be how it came about that the refugee camp in Jenin, just to mention one, was such a blatantly armed terrorist camp. Nothing more, nothing less.

Q: Why are you so surprised by the make-up of the team, former ICRC, former UN people, when the whole wording of the original resolution was all about the dire humanitarian situation in the camp, the lifting of restrictions, the need for lifting of restrictions, repeated over and over again? That’s the wording, not as you explained. Why was it a surprise?

A: I think we were surprised not by the people who are in the team, but the people who aren’t in the team. Usually this type of fact-finding team is technical. It’s technical because the facts in such a situation are complicated, involving various aspects that one normally doesn’t find in day-to-day political life. Nobody is doubting that there is a humanitarian situation, that there has been a humanitarian situation, and they will certainly be able to relate to it. Similarly, we are talking about a refugee camp and the ex-head of the UNHCR, the High Commissioner of Refugees, certainly knows or should know what a refugee camp is and how a refugee camp should be administered.

So I would look at it from a completely other angle. All we’re asking for is that the other aspects, the military aspects, should also be covered, and not just the political and the human rights aspects.