Did Israel Commit Genocide in Gaza?
by Richard Falk
[Prefatory
Note: the post below is a somewhat revised version of a text published
by The Nation, and to be found at the following link. I should also
point out that in these proceedings in Brussels under the auspices of
the Russell Tribunal I served as a member of the jury]
In a special session of the Russell Tribunal held in Brussels on September 24th,
Israel’s military operation Protective Edge was critically scrutinized
from the perspective of international law, including the core allegation
of genocide. The process featured a series of testimonies by legal and
weapons experts, health workers, journalists and others most of whom had
experienced the 50 days of military assault.
A
jury composed of prominent individuals from around the world, known for
their moral engagement with issues of the day that concerned their
societies, and also the wellbeing of humanity, assessed the evidence
with the help of an expert legal team of volunteers that helped with the
preparation of the findings and analysis for consideration by the jury,
which deliberated and debated all relevant issues of fact and law,
above all the question of how to respond to the charge of genocide.
It
should be acknowledged that this undertaking was never intended to be a
neutral inquiry without any predispositions. It was brought into being
because of the enormity of the devastation caused by Protective Edge and
the spectacle of horror associated with deploying a high technology
weaponry to attack a vulnerable civilian population of Gaza locked into
the combat zone that left no place to hide. It also responded to the
failures of the international community to do more to stop the carnage,
and condemn Israel’s disproportionate uses of force against this
essentially helpless and beleaguered civilian population. Israel’s
contested military operations targeted many legally forbidden targets,
including UN buildings used as shelters, residential neighborhoods,
hospitals and clinics, and mosques. In defense of these tactics, Israel
claimed that rockets and
ammunition were stored in these buildings and that Hamas rocket
launchers were deliberately placed in the structures that had been
singled out for attack. The evidence presented did not confirm these
Israeli claims.
Although
the Russell Tribunal proceeded from the presumed sense that Israel was
responsible for severe wrongdoing, it made every effort to be scrupulous
in the presentation of evidence and the interpretation of applicable
international law, and relied on testimony from individuals with
established reputations as persons of integrity and conscience. Among
the highlights of the testimony were a report on damage to hospitals and
clinics given by Dr. Mads Gilbert, a Norwegian doctor serving in a Gaza
hospital during the attacks, Mohammed Omer, a widely respected
journalist who daily reported from the combat zone, Max Blumenthal, the
prize winning journalist who was in Gaza throughout Protective Edge and
analyzed for the jury the overall political design that appeared to
explain the civilian targeting patterns, and David Sheen, who reported
in agonizing detail on
the racist hatred exhibited by prominent Israelis during the period of
combat, widely echoed by Israelis in the social media, and never
repudiated by the leadership or public in Tel Aviv.
The
jury had little difficulty concluding that the pattern of attack, as
well as the targeting, amounted to a series of war crimes that were
aggravated by the commission of crimes against humanity, most centrally
the imposition of a multi-faceted regime of collective punishment upon
the entire civilian population of Gaza in flagrant and sustained
violation of Article 33 of the Fourth Geneva Convention. A further
notable legal finding was the rejection of the central Israel claim of
acting in self-defense against rocket attacks directed at Israel.
There
were several reasons given for reaching this conclusion: the claim of
self-defense does not exist in relation to resistance mounted by an
occupied people, and Gaza from the perspective of international law
remains occupied due to Israeli persisting effective control despite
Israel’s purported disengagement in 2005 (more properly characterized as
a military redployment); the rockets fired from Gaza were partly at
least in response to prior Israeli unlawful provocations, including the
mass detention of several hundred persons loosely associated with Hamas
in the West Bank and incitement to violence against Palestinians as
revenge for the murder of the three kidnapped Israeli settler children;
and finally, the minimal damage done by the rockets, seven civilian
deaths over the entire period, is too small a security threat to qualify
as “an armed attack” as
is required by the UN Charter to uphold a claim of self-defense. At the
same time, despite these mitigating factors, the jury did not doubt the
unlawfulness of firing of numerous rockets into Israel that were
incapable of distinguishing between military and civilian targets. This
form of unlawful resistance was attributed to both Hamas and independent
Palestinian militias operating within the Gaza Strip.
A
focus of concern in the jury deliberations before and after the
proceedings themselves was how to address the allegation of ‘genocide,’
which has been described as ‘the crimes of crimes.’ The jury was
sensitive to the differences between the journalistic and political uses
of the word ‘genocide’ to describe various forms of collective violence
directed at ethnic and religious minorities, and the more demanding legal definition of genocide that requires compelling and unambiguous evidence of a specific ‘intent to destroy’.
The
testimony made this issue complex and sensitive. It produced a
consensus on the jury that the evidence of genocide was sufficient to
make it appropriate and responsible to give careful consideration as to
whether the crime of genocide had actually been committed by Israel in
the course of carrying out Protective Edge. This was itself an
acknowledgement that there was a genocidal atmosphere in Israel in which
high officials made statements supporting the destruction, elimination,
and subjugation of Gazans as a people, and such inflammatory assertions
were at no time repudiated by the Netanyahu leadership or subject to
criminal investigation, let alone any legal proceedings. Furthermore,
the sustained bombardment of Gaza under circumstances where the
population had no opportunity to leave or to seek sanctuary within the
Gaza Strip lent further credibility to the
charge of genocide. The fact that Protective Edge was the third
large-scale, sustained military assault on this unlawfully blockaded,
impoverished, and endangered population, also formed part of the larger
genocidal context.
Further
in the background, yet perhaps most relevant consideration of all,
Israel failed to exhaust diplomatic remedies before its recourse to
force, as required by international law and the UN Charter. Israel had
the option of lifting the blockade and exploring the prospects for
long-term arrangements for peaceful co-existence that Hamas had proposed
numerous times in recent years. Such initiatives were spurned by Israel
on the ground that it would not
deal with a terrorist organization.
Despite
the incriminating weight of these factors, there were legal doubts as
to the crime of genocide. The political and military leaders of Israel
never explicitly endorsed the pursuit of genocidal goals, and purported
to seek a ceasefire during the military campaign. There was absent a
clear official expression of intent to commit genocide as distinct from
the intensification of the regime of collective punishment that was
convincingly documented. The presence of genocidal behavior and language
even if used in government circles is not by itself sufficient to
conclude that Protective Edge, despite its scale and fury, amounted to
the commission of the crime of genocide.
What
the jury did agree upon, however, was that Israeli citizens, including
officials, appear to have been guilty in several instances of the
separate crime of Incitement to Genocide that is specified in Article
3(c) of the Genocide Convention. It also agreed that the additional duty
of Israel and others, especially the United States and Europe, to act
to prevent genocide was definitely engaged by Israeli behavior. In this
regard the Tribunal is sending an urgent message of warning to Israel
and an appeal to the UN and the international community to uphold the
Genocide Convention, and act to prevent any further behavior by Israel
that would cross the line, and satisfy the difficult burden of proof
that must be met if the conclusion is to be reached that the crime of
genocide is being committed. At some point, the accumulation of
genocidal acts will be reasonably
understood as satisfying the high evidentiary bar that must be reached
so as to conclude that Israel had committed genocide.
Many
will react to this assessment of Protective Edge as lacking legal
authority and dismiss the finding of the jury as merely recording the
predictable views of a biased ‘kangaroo court.’ Such allegations have
been directed at the Russell Tribunal ever since its establishment in
the mid-1960s by the great English philosopher, Bertrand Russell, in the
midst of the Vietnam War. These first sessions of the Russell Tribunal
similarly assessed charges of war crimes associated with U.S. tactics in
Vietnam, and in Russell’s words, represented a stand of citizens of
conscience ‘against the crime of silence.’ This latest venture of the
tribunal has a similar mission in relation to Israel’s actions in Gaza,
although less against silence than the crime of indifference.
It
is my view that such tribunals, created almost always in exceptional
circumstances of defiance of the most elemental constraints of
international law, make crucial contributions to public awareness in
situations of moral and legal outrage where geopolitical realities
preclude established institutional procedures such as recourse to the
International Criminal Court and the UN Security Council and General
Assembly. That is, these kind of self-constituted tribunals only come
into being when two conditions exist: first, a circumstance of extreme
and sustained violation of fundamental norms of morality and
international law and secondly, a political setting in which
governmental procedures and UN procedures are inoperative.
When
the interests of the West are at stake, as in the Ukraine, there is no
need to activate unofficial international law initiatives through the
agency of civil society. However in circumstances involving Israel and
Palestine, with the United States Government and most of Western Europe
standing fully behind whatever Israel chooses to do, the need for a
legal and moral accounting is particularly compelling even if the
prospects for accountability are virtually nil. The long suffering
people of Gaza have endured three criminal assaults in the past six
years, and it has left virtually the whole of the population, especially
young children, traumatized by the experience of such sustained
military operations.
It
should be acknowledged that the UN Human Rights Council has appointed a
Commission of Inquiry to investigate allegations of war crimes
associated with Protective Edge, but its report is not due for several
months, Israel has indicated its unwillingness to cooperate with this
official UN initiative, and it is almost certain that any findings of
criminality and related recommendations will not be implemented due to
the exercise of a geopolitical veto by the United States, and perhaps,
other members of the Security Council. In view of these circumstances,
the argument for convening the Russell Tribunal remains strong,
especially if one recalls the fate of the Goldstone Report prepared in
analogous conditions after the 2008-09 Israeli attacks on Gaza known as
Operation Cast Lead.
The
Russell Tribunal is filling a normative vacuum in the world. It does
not pretend to be a court. In fact, among its recommendations is a call
on the Palestinian Authority to join the International Criminal Court,
and present Palestinian grievances to the authorities in The Hague for
their investigation and possible indictments. Even then the realities of
the world are such that prosecution will be impossible as Israel is not
a party to the treaty establishing the ICC and would certainly refuse
to honor any arrest warrants issued in The Hague, and no trial could be
held without the physical presence of those accused. The value of an ICC
proceeding would be symbolic and psychological, which in a legitimacy
war would amount to a major ‘battlefield’ victory. It is notable that
Hamas has joined in urging recourse to the ICC despite facing the
distinct possibility
that allegations against its launch of rockets would also be
investigated and its officials indicted for its alleged war crimes.
As
with the Nuremberg Judgment that documented the criminality of the Nazi
experience, the process was flawed, especially by the exclusion of any
consideration of the crimes committed by the victors in World War II,
the Russell Tribunal can be criticized as one-sided in its undertaking.
At the same time it seems virtually certain that on balance this
assessment of Israel’s behavior toward the people of Gaza will be viewed
as supportive of the long struggle to make the rule of law applicable
to the strong as well as the weak. It is also reflective in the
disparity of responsibility for the harm done by the two sides.
I recall some illuminating words of Edward Said uttered in the course of an interview with Bruce Robbins, published in Social Text
(1998): “The major task of the American or the Palestinian or the
Israeli intellectual of the left is to reveal the disparity between the
so-called two sides, which appear to be rhetorically and ideologically
to be in perfect balance, but are not in fact. To reveal that there is
an oppressed and an oppressor, a victim and a victimizer, and unless we
recognize that, we’re nowhere.”
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