Oct 7: Not an international crime to kill soldiers, says UN’s Francesca Albanese

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Francesca Albanese, the United Nations special rapporteur for Palestinian rights, has courted controversy among Israel supporters for her one-sided faulting of Israel for its conflict with the Palestinians and comments she has made which have been widely interpreted as antisemitic.

Francesca Albanese, U.N. special rapporteur on the occupied Palestinian territories, speaks at the National Press Club of Australia on Nov. 13, 2023. Source: YouTube/ABC News (Australia)

The latter includes frequent comparisons of Israel to the Nazis for the Jewish state’s policies toward the Palestinians.

In a rare extended interview that Francesca Albanese conducted with Jewish media, Albanese sat down with JNS earlier this month in New York and in a video interview.

Albanese made clear that Hamas’s attacks on civilians on Oct. 7 violated international law. JNS asked her repeatedly whether the terror organization was justified in invading Israel and in killing Israeli security forces. “Why is this so unbelievable?” Albanese said. “You seem to be puzzled by this. What is the right to resist?”

The U.N. official also said that Israel and American evangelical Christians weaponize antisemitism in order to silence her and other critics of Israel. Jews who see Israel as a state of the Jewish people have an “obligation” to ensure it “behaves according to international law,” she said.

Below is JNS’s interview with Albanese, lightly edited for style.

Q: You have been very clear in public statements, internationally and to Palestinians directly, that they have the “right to resist the occupation.” On Oct. 7, specifically, where did that right start and end?

A: There is no question that people like the Palestinians, who are deprived of their right of self-determination, have the right to resist. The U.N. General Assembly recognized the right of the Palestinian people in particular to resist, but in line with international law.

We have no doubt whatsoever that what Hamas did on Oct. 7 is not in line with international law, because the moment Hamas targeted civilians, by killing, by taking hostages, by brutalizing and injuring civilians—these are crimes and cannot be justified.

This is not legitimate resistance. Now, I know that many Palestinians would pick an issue with that. However, an illegitimate act of resistance doesn’t delegitimize the resistance itself.

Q: Does that extend to the soldiers that were killed on Oct. 7? Does that extend to the police forces that were killed on Oct. 7? Does that extend to any cross-border activity where—

A: The limit is clear. Killing a militant, killing a soldier is a tragedy under international law, but when there is an armed conflict, like in this case, killing a soldier is not illegal. Pretty straightforward.

Q: So according to international law, and in your view, Hamas is justified in crossing the delineated border, going over to Israel’s side and killing soldiers on Israel’s side of the border?

A: Killing soldiers is not an international crime. I mean, why is this so unbelievable? You seem to be puzzled by this. What is the right to resist for the Palestinians? No one wants to live under oppression.

Q: You say that as if Gaza is occupied. There’s been a blockade, and it magically got named an occupation.

A: You talk of the blockade as if it was a standalone entity, which it’s not. The blockade is part of a legal framework. A blockade can happen within the context of an occupation, because there is control. So already saying that there is a blockade is recognizing that the law of occupation applies.

Q: There have been blockades throughout history. Just a few years ago, there was a blockade on Qatar by Saudi Arabia by other countries. No one said for a second that Qatar was occupied. There have been other blockades. Nobody calls those occupations. A blockade does not necessarily imply occupation, correct?

A: Everyone who’s against the idea that Gaza is occupied, everyone who challenges this—which is enshrined in the law, and there are U.N. resolutions and even the International Committee of the Red Cross, which is very conservative, agrees that this is still an occupation.

Why? Because in order to have an occupation, the determining factor was effective control under article 42 of the Hague Regulations. When the Hague Regulations were written, effective control was just something that could be exercised through military boots on the ground.

Israel does have effective control over the Gaza Strip, and it’s manifested by the blockade. [Note: The U.N. Office of the High Commissioner of Human Rights interprets article 42 as requiring “the unconsented-to presence of foreign forces” to determine an occupation. Israeli forces evacuated Gaza in 2005.]

Not only that, Israel determines the control of natural resources and who enters and exits Gaza. The currency is determined by Israel, and it’s forced to be the shekel, because Israel also administers the tax revenues in the Gaza Strip. [Note: A provision of the Oslo Accords mandates that Israel administer tax revenues.]

Do you realize what life is like for the Palestinians under occupation? You asked me a question that made me think that you really don’t see what is life under occupation.

Q: Your public statements might suggest that you’re unaware of what life has been like for Israelis. Israel has made peace with Egypt and Jordan. Israel has normalized relations with many of its Arab neighbours. Israel has accepted peace plans that were put forth multiple times by the international community. Still, the Palestinians have turned Israel’s hand away every single time. Yet, you seem at a loss to understand why the Israeli populace has drifted further to the right. Israel has made peace or has peaceful relations with many neighbours. Why not the Palestinians?

A: You’re talking of the Egyptians, who have their own state. You’re talking of Jordanians, who have their own state while Israel occupies the land that belongs to the Palestinians to have their own state.

Israel annexed east Jerusalem in 1980. Israel has occupied east Jerusalem, together with the West Bank and the Gaza Strip, since 1967. In east Jerusalem, Israel takes down house after house after house on the ground for which there are no building permits or licenses. During the so-called peace process, Israel has doubled if not tripled the number of colonies [settlements].

These are the facts on the ground, Michael. I don’t care about the peace agreement with Jordanians and Egypt, because this has nothing to do with the occupied Palestinian territory.

Q: You mentioned Egypt. As you know, Israel controlled the Sinai—a huge swath of land that gave Israel a massive buffer zone vis-a-vis Egypt—after the 1967 war. Israel turned that over to Egypt for peace. Why is it so difficult to fathom that if the Palestinians offered peace to the Israelis, rather than slapping away their hand every time, that Israel would be willing again?

A: What is the peace you’re talking about? I don’t understand.

Q: Land for peace.

A: Look, Israel must withdraw its military presence from the occupied Palestinian territory, as it had to do from the Sinai and as it has to do from the Golan.

Q: It seems you think Israel should have to live with neighbours who threaten it, who are within striking distance at any time—whether it’s from Judea and Samaria, Gaza or the Golan Heights. That Israel should just have to live with that instead of creating guarantees of its security.

A: Israel has been creating the conditions for its insecurity for this generation and the next generations to come. Frankly, we are still thinking and talking in the pre-Oct. 7 mentality.

I have no idea how Israel will manage to secure itself after what it has done to the people in Gaza, because with 16,000 people killed—Israel claims that in these operations as of Oct. 7, it has killed from 1,500 up to 2,000 Hamas combatants. It means that 90% of the people that Israel has killed in the Gaza Strip alone are civilians. Tell me how this is going to make Israel more secure.

Q: According to you, Israel has no right to defend itself. This is what you’ve said about Oct. 7.

A: No. No. No. No. No. I didn’t say that. Israel has the right to protect itself, to protect its territory, to protect the citizens. But there are two issues. One is that I don’t think that Israel can claim the right of self defense in the territory that it occupies, including the West Bank, where it has troops on the ground.

It keeps on building colonies after colonies in east Jerusalem, which it continues to annex and Judaize to fulfil this goal of establishing a Jewish majority everywhere, which is, for me, insane. It is eliminatory of the “other.”

I agree with many Israelis on this issue. The basis should be the recognition of the other, the recognition of the humanity of the other and the equality and freedom of the other.

So you’re telling me Israel should have this right [of self-defence], but in fact it’s the Palestinians living without rights between the river and the sea. What are you talking about? I mean, I understand your fear, understand the Israelis’ fear, but we are talking about the people who are dying. They are being slaughtered day after day. Can we find a solution that allows everyone to live?

Q: It’s obviously more complex than that, or you wouldn’t be in the role that you’re in. Again, you have said Israel only has a right to defend itself within its own territory. When questioned on what Israel’s proper response should have been to Oct. 7, you laid out two potential scenarios.

A: What I said is that Israel cannot claim the right of self-defense under the U.N. Charter, which is different from the right to protect itself.

It’s a completely different question. Israel doesn’t have the right to wage a war against the people it maintains under belligerent occupation.

Q: Article 51 of the U.N. Charter only deals with states versus states, and since Hamas is not a state, then Israel can not cite the U.N. Charter in that particular instance.

A: It’s not only that Israel cannot claim the right of self-defence. There is an advisory opinion, based on established jurisprudence of the International Court of Justice, which is the supreme judicial organ of the United Nations.

While recognizing the security threats emanating from the occupied territory, the Court of Justice said that Israel needs to operate within the framework of international law, meaning international humanitarian law, securing order, establishing and maintaining order and public life and not invoking the right to wage a war. This is the difference.

Q: You’re effectively saying that there is no recourse for Oct. 7. According to you, Israel should turn to the United Nations to somehow demilitarize Hamas. The United Nations is completely toothless. 

The United Nations Interim Force In Lebanon doesn’t even have any power. The United Nations can’t even condemn Hamas in the General Assembly for the atrocities on Oct. 7. Yet you suggest that one recourse is to have the United Nations go demilitarize Hamas. 

Respectfully, that’s simply not reasonable. You also suggested in an interview to turn to law enforcement. Law enforcement simply doesn’t apply here. Investigators can track down every piece of information in the world. That won’t make the threat from Hamas go away. You cite international law, but in effect, in practice, in the real world—not in scholarly or legal volumes—Israel has no recourse for Oct. 7.

A: Israel has recourse. Israel occupies the Palestinian territory illegally, continuing to colonize the land, to brutalize the people, to let its armed settlers go around and terrorize everyone. The Palestinians have no recourse to justice, because the Israeli army is not there to protect the Palestinians. It is there to protect the settlers, who are illegal.

In Gaza, Israel has established an illegal blockade. Israel has also prevented a connection with the outside world that would allow for real change, a political change. Hamas has been considered an asset by [Israeli Prime Minister Benjamin] Netanyahu and to the Israeli government to maintain the status quo of no war, no peace.

So excuse me, what did the Palestinians have to do? I’m not justifying what Hamas has done. I’m just asking what they are left with.

Q: Hamas has control over Gaza, because Hamas doesn’t need to take care of its people. Because the United Nations is more than happy to go in there, take international money, have their jobs bank in Gaza and provide for the people through international contributions instead of demanding that Hamas take care of its own people. 

The United Nations says, “No, don’t worry about that. You build your rockets. You build your military machines. You prepare to attack Israel. We’ll take care of your people for you.’” 

A: There is no evidence for that. It’s so false.

The United Nations does the utmost to ensure peace and stability in the region, despite what the Israeli government says. I know because I’ve worked for the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), and I’ve engaged with the Israeli government.

The Israeli government is very happy to have the United Nations managing the conflict, managing the humanitarian costs without taking political responsibility for it. The moment you have any U.N. official saying something that is vaguely critical of Israel, and so perceived as political, the criticism starts. But this attack against the United Nations is absolutely disingenuous. It’s totally baseless.

Q: The people in Gaza and in Judea and Samaria would say their governments don’t take care of them and the money is going elsewhere. They would say that their governments are corrupt, and therefore the United Nations fills the void. It’s a fact that the United Nations is happy to fill the void that Hamas and the Palestinian Authority don’t because they are too corrupt and militant.

A: Is this a real interview? The United Nations doesn’t work on happiness. The United Nations works based on mandates.

Each U.N. agency has a mandate, and UNRWA in particular has a General Assembly mandate, so it doesn’t operate in a vacuum. It follows certain rules and doesn’t fill in the gap for anyone if the government is corrupt.

Let’s have elections. Can the Palestinians have elections? Free elections? No, they can’t. It is because of Israel. The peace and security of Israel cannot happen at the expense of all of the others, first and foremost, the Palestinians who are under their military rule.

Q: You have often said that your critics have not really talked about the facts or international law and instead they smear you directly. In a recent interview, you said there has been “a weaponization of antisemitism, which is shocking in recent years. That’s dangerous for the Palestinians. It’s also dangerous for Jewish communities, because it increases their resentment.” You went on to say, “Frankly … we have to let the dogs continue to bark at the airplane a little bit.” What did you mean by “dogs barking at the airplane?”

A: These continuous accusations of antisemitism were very distressing for me, because I come from a country—I feel very strongly about my country’s antisemitic past. And I have so much respect for the Italian—and also beyond—for the Jewish communities for what they have gone through. I always denounced the fact that the Shoah wouldn’t have been possible without the centuries of discrimination.

So being accused of antisemitism, because of my views of the state of Israel—I’m not against the state of Israel. I’m against Israeli policies with the Palestinians. I remember when I was still very upset by these attacks against me, there was an Israeli friend of mine, a lawyer, who reassured me: It looks like it’s dogs barking at an airplane. Eventually you will have to deal with it, in the sense that you are the airplane. Let them bark.

This is the thing. In every country where I go, I meet with Jewish communities—not all of them. I mean, not all Jewish communities are happy to meet with me, because of a number of reasons. But those who meet with me, we are always on the same page in the sense that I stand against any form of racism against anyone.

I will always speak in defence of any Jews, including those who feel very strongly about the State of Israel. It’s their right. I don’t judge. I totally understand what it means for a Jewish person to see the State of Israel as the state of the Jewish people. I don’t judge it. I don’t question it. It’s their obligation to make sure that Israel, as a partner of the international community, behaves according to international law. That’s it. [Note: Albanese has compared Israelis to Nazis, among other antisemitic comments.]

Q: Who is weaponizing antisemitism?

A: The state of Israel, first and foremost. And a number of people, who are not even Jews. Christian evangelicals in the United States, and the right—like what I see in France—are weaponizing antisemitism, or the extreme right, which is antisemitic itself.

It’s no different from my own country. It’s incredible that, in my own country, parties in the government that have been historically antisemitic, and have never regretted the antisemitic legacy of their parties, have this stance with the State of Israel, which doesn’t mean standing with Israeli people.

Q: The next time you’re in the United States, I invite you to my home borough in Brooklyn to visit some of the Jewish neighbourhoods, where Jews are assaulted on a regular basis. And to some of the college campuses, including Columbia University and the City University of New York, to talk to Jewish students and get their thoughts on the weaponization of antisemitism. I think they will have a very different view, and possibly an angry one, toward those accusing them of weaponizing antisemitism.

A: I accept the invitation. Next October, I will make sure that we have these plans on my agenda.

The second thing is that I’m 100% convinced that antisemitism is an issue. And I’m 100% convinced that whatever has happened as of Oct. 7 has made many less secure, more isolated, more fearful.

But this is why we need to have this dialogue, because for me, antisemitism is discriminating against Jews because they are Jews. This has nothing to do with the appraisal of Israel’s performance as a member state of the United Nations. But again, I accept your invitation and consider it done.