London- Sarah Tamimi
As I researched in preparation for this article, my body chilled at the historical recap of the origins of the legal prohibition of genocide. Not only did I react to the atrocious details of the actions that led to the Nuremberg trial, which brought Nazi war criminals to the stand for committing horrendous crimes against the Jewish population, but also at the chilling similarity between statements and actions against Jews and those executed against Palestinians in Gaza.
According to the tribunal, Nazi Politician Hans Frank has spoken “the final words of this chapter of Nazi history”. He testified saying “We fought against Jewry, we fought against it for years”. This statement has rung an alarming bell in my head, drawing me back to a statement of Israeli Defense Minister Yoav Gallant, when he announced the complete siege on Gaza: “We are fighting human animals”.
Throughout the war on Gaza, many lawyers and advocates have come forth describing Israeli atrocities against Palestinian civilians as “genocide”. Others, including political figures, have refrained from using the term altogether. However, one can deduce that a lot of this reluctance does not stem from wariness but from the potential value Palestinian life holds compared to state bilateral relations.
Only three months into the Russian invasion of Ukraine, U.S. President Joe Biden accused Russian troops of committing genocide when the Ukrainian death toll surpassed two thousand. Nonetheless, the American President has not even come close to pointing to war crimes more generally in the Gazan context, even as death tolls surpassed 13 thousand less than two months into the Israeli invasion and have currently exceeded 18,000.
Only three months into the Russian invasion of Ukraine, U.S. President Joe Biden accused Russian troops of committing genocide when the Ukrainian death toll surpassed two thousand. Nonetheless, the American President has not even come close to pointing to war crimes more generally in the Gazan context, even as death tolls surpassed 13 thousand
This should not come as a shock given the efforts of politicizing the usage of legal terms and their institutions, especially after America’s tenacious fight against the International Criminal Court’s (ICC) consideration of investigating crimes committed by American troops in Afghanistan.
In the case of Afghanistan, the Trump administration has taken a hard line against ICC investigations in Afghanistan, going as far as sanctioning its prosecutor, Fatou Bensouda.
“The ICC is already dead to us,” said John Bolton in his first public remarks as Trump’s National Security Advisor in 2018.
Following Washington’s threats, the ICC has declared resuming investigations into Afghanistan at the time of the current prosecution of Karim Khan, but “deprioritized” the investigations into US military actions. The actions which were excluded from investigations contained but were not limited to claims of torture and ill-treatment of detainees and CIA’s backing of Afghan forces’ potential summary executions before the Taliban takeover.
Can Traces of Genocide be Found in Gaza?
Before delving into this question, one must grasp the precise definition of the legal term. The notion of international war crime trials, intended to prosecute individuals accused of genocide, was proposed during a meeting of the British Imperial War Cabinet in 1918.
According to the Convention on the Prevention and Punishment of the Crime of Genocide adopted in 1948, the crime of Genocide is defined as the acts committed with the intent to destroy in whole or part:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
This definition is also adopted in the Rome statute’s Article 6, which is the legal ground under which the International Criminal Court (ICC) came into force in 2002.
The ICC has the legal authority to prosecute individuals accused of committing crimes prohibited by international criminal law, including genocide. Such requests must originate from either a state that is a party to the Rome Statute, a state on whose land the offenses have occurred, or a state whose national is indicted. The final avenue for a request to be admitted is through the United Nations Security Council (UNSC).
After the 8th of October 2023, the word genocide was used repetitively and alarmingly by many witnessing the Israeli atrocities in Gaza. The New York office of the UN High Commissioner for Human Rights in Gaza stated in his resignation letter: “We are seeing a genocide unfolding before our eyes and the Organization that we serve appears powerless to stop it”.
While, the US National Security Spokesman, John Kirby, indicated that the Biden administration respects freedom of speech he believed that the usage of the word genocide to describe Israel’s actions is getting “thrown around”. Kirby insisted that “Israel is not trying to wipe the Palestinian people off the map”, hence assuring Americans that she is “not trying to wipe Gaza off the map” but is only trying to defend itself against a “genocidal terrorist threat” by Hamas.
While the saying goes that actions speak louder than words, both Israel’s words and actions are aggressively competing for the title of genocide.
While the saying goes that actions speak louder than words, both Israel’s words and actions are aggressively competing for the title of genocide.
Before beginning to test the Israeli actions in terms of the legal provisions around genocide, It is important to highlight that the Palestinian people represent a national group. This means that any claim that aims to scratch the possibility of genocide based on the claim that it is not deliberate against a specific group as dictated by the convention is erroneous.
The Rome statute clearly states that the acts of genocide include any of the following:
- the causing of serious bodily or mental harm to members of the group
- deliberately inflicting on the group conditions of life calculated to bring about physical destruction in whole or in part
- imposing measures intended to prevent births within the group and
- Forcibly transferring the children of one group to another.
Any of the previous actions may be constitutive of a crime of genocide if it comes with a specific intent to destroy, which is the most critical element of proof required and the most complex too.
In the context of Gaza, the causing of serious bodily/mental harm is evidenced in the striking death toll of civilians and the usage of more than 18 thousand tons of bombs which is about 1.5 times the explosive force of the bomb dropped on Hiroshima in World War II.
It is important to highlight that Hiroshima is more than two times the size of densely-populated Gaza where every 500 people live in 100 square meters.
In addition to that, the Israeli prohibition of allowing humanitarian aid to civilians is one of the most strikingly obvious acts of genocide.
Israel has official statements indicating the blockage of humanitarian aid from entering Gaza will remain if the “hostages” are not returned. The Israeli defense minister, Yoav Gallant, has stated that the complete siege on Gaza will include “no electricity, no food, no water, no gas”. This is a clear violation of Article 23 of the Fourth Geneva Convention which specifies the role of states to allow “the free passage of all consignments of medical and hospital stores”.
The Israeli conditions are considered not only repressive but also a collective punishment prohibited in Article 33 of The Geneva Convention (IV) which explicitly states that “no protected person may be punished for an offense he or she has not personally committed”.
The intent is clear
While the list of potential genocidal actions extends beyond the aforementioned indications, these examples represent only a fraction of what the international legal community may examine, present, and substantiate. What sets these acts apart from other war crimes, however, is the necessity of a clear intent for an action to be classified as genocide.
In the Gazan context, it is crucial to look back at Gallant’s statements once more, specifically the one on the 9th of October where he refers to Palestinians as “human animals”. This reference makes strong suggestions of an inhumane approach to hunting down Palestinians collectively.
The statements of potential genocidal rhetoric do not stop here, they continue to include a full excerpt from Israeli Prime Minister Benjamin Netanyahu, who has used Judaic scripture on the Amalek to justify the targeting of the Palestinian community. “You must remember what Amalek did to you, says our holy bible”, says Netanyahu. He goes on to say that Israelis “do remember and we are fighting … our brave troops and combatants who are fighting in Gaza … are joining this chain of Jewish heroes” which was started by Joshua ben Nun.
The statement has not come separately from Netanyahu’s scripted speech on Gaza, therefore, it can’t be seen as a betrayal of the word, an improvisation that went wrong, or a mere unintentional misrepresentation of his thoughts, but one used to send a clear cut message of annihilation.
Some Israeli officials have even gone as far as asking for the dropping of a nuclear bomb on Gaza, as did Israeli Minister of Heritage, Amihai Eliyahu on the 5th of November.
Even though the statements have been retracted by the government and the official has been suspended, it remains that the ICC is in charge of prosecuting war criminals no matter the government’s actions after their representatives speak out.
Examples of intent are not only limited to speeches. Some roads in Israel have had banners in Hebrew that translate to “mass destruction of Gaza” in English. The banner phrases are chilling if one is familiar with the Nazi rhetoric against Jews, as it seems to repeat itself but this time against Palestinians.
Examples of intent are not only limited to speeches. Some roads in Israel have had banners in Hebrew that translate to “mass destruction of Gaza” in English
Where Does this leave the ICC
On the 30th of October, the ICC (International Criminal Court) Prosecutor Karim Khan, published a statement on the situation in Palestine and Israel calling for the respect of the law on both ends and the importance of providing the ICC with additional resources to investigate potential crimes.
Beyond the expected rhetoric, two statements made by Khan on the investigation seem to draw critical attention. The first is regarding the jurisdiction of investigations by the ICC and the second is about the ambiguous language around his inability to get access to Gaza.
Khan’s statement attempts to indicate jurisdiction over “any Rome Statute crimes committed by Palestinian nationals or nationals of any state parties on Israeli territory.”
However, it should be noted that the jurisdiction to which Khan refers stems from the efforts made by the State of Palestine to ratify the Rome Statute after years of back-and-forth communications regarding claims of inability due to a “lack of statehood.”
In terms of crimes by the Israeli end, Khan goes on to say that “whilst Israel is not a member of the ICC” he stands ready to work with “state parties and non-state parties alike in pursuit of accountability”.
No definite remark has been made on the ability to investigate Israeli actions given that they are not a state party to the Rome Statute, even though the ICC has the jurisdiction to do so as long as acts are committed against a state party to the Rome Statute.
The difference in tone in the ICC prosecutor’s statement regarding the potential investigations of Hamas actions and Israeli actions is evident. While he insists on having jurisdiction since Palestine is a state party to the Rome Statute, he merely hints at his readiness to work with Israel to pursue accountability.
The difference in tone in the ICC prosecutor’s statement regarding the potential investigations of Hamas actions and Israeli actions is evident.
This is despite the ICC having jurisdiction to hold criminals on the Israeli side accountable as long as their actions take place on the land of a state party to the Rome Statute. The capturing of criminals, no matter their nationality, can take place the moment they land in any country that is a signatory state party to the Statute, as long as the state party commits to its duties in turning the criminal in.
Concerning the ambiguity surrounding the visits, Khan has highlighted the significant efforts he has undertaken since October 7th to gain access to locations where the “crimes have been committed in Israel” and to meet with families of those who are grieving, as stated in his statement.
He mentioned that he has made similar efforts to enter Gaza; however, according to his statement, this has not been possible, without explaining why it wasn’t.
It is important to note that Khan has been quick to indicate the Palestinian Authority’s liability under the Rome Statute if it does not commit to the provisions, which include guaranteeing access to the ICC.
However, nothing has been said about Israel’s potential role in denying access to the ICC’s representatives from entering the occupied territories or the fact that Prime Minister Netanyahu has insisted that any investigation attempts are “pure anti-Semitism.”
It is crucial to note that the Israeli occupying power has never been open to allowing any human rights reviewing or investigating body to enter the occupied Palestinian territories, even before October 7th. It has consistently denied access to UN Special Rapporteurs, Human Rights Watch, and UN Human Rights Staff.
While I leave it to the reader to draw the most logically educated guesses as to why Khan has been unable to access the Occupied Palestinian Territories, it remains alarming to see the ICC Prosecutor’s vagueness in indicating the reason.
Nonetheless, irrespective of the reasons and potential political inclinations, the law remains the law. Its application may be slowed down by political pressures, but it cannot be swept under the rug.
This is particularly significant when considering the scrutiny of double standards applied to the global south compared to the global north by many in the international community.
What remains a matter left for time to uncover is whether the law on its own is the sole emancipator of the Palestinian people or is just one gear operating within a bigger machine.
Sarah Tamimi is a journalist by trade and a researcher in international law by practice. Tamimi has an MA in international law from SOAS University of London.