As Israel plummeted the Palestinians living in Gaza, observers of the mainstream media in the United States of America and indeed the US government, might be prone to think that Israel was merely matching tit-for-tat the Palestinians’ acts of violence or even that Israel was defending itself. Nothing could be further from the truth. The acts of Israel do not only amount to widespread and serious violations of human rights, but they constitute the paramount crimes of genocide and aggression. No media coverup or attempts to paint a picture of equalities of arms can obscure this reality. There is simply no equivalence between the acts of the Palestinians and the Israelis.
The misconception of equivalence is either based on a misunderstanding of international law or more likely mere bias that reflects an effort to whitewash the inhumane acts of the Israel authorities that amount to the very crime of genocide from which so many Jewish people fled in World War II. Perhaps it is the US media’s guilt at having supported its own government’s indifference to the plight of the Jewish people in Germany that encourage it follow its government’s propaganda with so few questions. Indeed, during World War II many Jews were prevented from seeking safe haven in the United States by laws that the US now directs against Africans, Arabs, Latin Americans, and Muslims. But is guilt a justification for silence while another genocide takes place? One would hope not.
While the explanation of guilt might be understandable, the ignorance of the law that both the government and the media have demonstrated, is not. The United States is home to some of the most brilliant legal minds. Even Arabs and Africans who are among the leading jurists from their continents are often enticed to American law schools and law firms, not only to study, but to teach, practice, or advise. The US media is able to call upon legal commentator after legal commentator when covering celebrity trials on 24-hour legal TV networks or reacting to the political theatre of impeachments or its own foreign incursions. With all these significant legal minds about in the US, it is hard to understand how anyone could not understand the law that applies. Nevertheless, this seems to be exactly what the US media and the US government has done. Both have ignored or misinterpreted the applicable law that almost every other country in the world—certainly an overwhelming majority of them—seem to understand.
It is addressing a few of the factual and legal misconceptions that permeated the media coverage of Israel latest show of inhumanity.
No reasonable person can deny that Israel was created on territory that was inhabited by a majority of Palestinians—Arabs who have lived on, developed, and cared for that land for hundreds of years. To argue that the land was terra nullis open to exploration ad conquest is to claim that Palestinians never existed as a people. Such an argument, rather than being a justification, is more likely evidence of the intent to destroy Palestinians as a group in whole or in part. This is because of the overwhelming evidence that a group like the Palestinians existed throughout contemporary history for hundreds of years. Israelis existed only since the annexation of Palestinians land on 14 May 1948 into a new not previously existing entity of Israel. When you steal someone’s property you cannot create good title by changing your name. Theft is theft because you take property that does not belong to you with the intention to keep it at the time you took it.
Supporters of Israel point to the fact that it is recognized by the United Nations. This recognition, however, ignores the views expressed by Arab States unanimously opposing the recognition of Israel. In other words, all the regional States existing at the time objected to Israel’s creation repeatedly. They had no specific animosity against the Jewish people or even a ‘State of Israel’, they merely did not think it should be created on the land of Palestinians. Land that was occupied by a foreign (British) occupation and then annexed to a new entity of Israel.
As a result, Israel was created in complete disrespect for the right to self-determination of the Palestinian people. The UN knew this because every Arab State told the UN Member States to their face this fact before the world body recognized Israel by a political vote. The UN, however, was controlled by mainly Western States and their proxies. It merely ignored the indigenous population and even all the neighboring States. The recognition of Israel by the UN was thus contrary to respect for the rule of law or for the fundamental human dignity of Palestinians. It was at best the result of the guilt of Western States and their propensity to decide what they think is best for others. At worst, it was another expression of colonial exploitation of a people by more powerful States.
At the time Israel was created in the 1940s, the right to self-determination had not only been recognized it was one of the most fundamental principles of international law. Yet it was given short shrift by States reeling from the atrocities they had tolerated right under their noses due to their tardy actions, their policies of appeasement, and their own restrictive immigration practices. The allied powers after World War II whitewashed their guilt (and perhaps their greed in protecting their own territorial integrity) with the blood of the Palestinian people.
Consequently, Israel was created as political convenience using oppression and forcible transfer of the indigenous Palestinian people out of their own land. Creating a State through such uses of force is contrary to international law. Since at least the 1928 Kellogg-Briand Pact—named after the United States’ and France’s most prominent diplomatic representatives at the time—the use of force to accomplish foreign policy ends has been prohibited. At the time Israel was created it was unlawful under international law to take the land of others by force. Yet that is exactly what the Israel did with assistance from many European States and the United States. It is no coincidence that Israel depends on these same alliances today to maintain its oppressive authority over the Palestinians with hordes of weapons from these same accomplices, including weapons that cause mass casualties.
Even if one accepts the United Nations recognition of Palestine, international law still provides Palestinians the right to use all necessary means to achieve their self-determination. UN General Assembly Resolution 2734 (XXV) of 1970, recognizes at paragraph 18 that people fighting oppression wage a “legitimate struggle.” UN General Assembly Resolution 32/154 (1977), “[r]eaffirms the legitimacy of the struggle of peoples under colonial and alien domination to achieve self-determination and independence….” This Resolution goes on to urge States to support the efforts of peoples struggling to achieve self-determination. Furthermore, the General Assembly in a resolution on measures to prevent international terrorism (UNGA Res. 32/147 of December 16, 1977), again reaffirms the inalienable right of oppressed people to self-determination and the “legitimacy of their struggle, in particular the struggle of national liberation movements, in accordance with the purposes and principles of the Charter and the relevant resolutions of the organs of the United Nations” (para. 3). There can be little doubt that the Palestinian peoples have the right to use force in self-determination.
Despite this right force has not been the first choice of Palestinians. For years they have negotiated as Israel unlawfully thwittled away their territory with settlement or mere blatant violent annexation. While Israel ignores international law, Palestinians struggle to resist despite the almost ridiculous disadvantage to Israel’s fire power. It is not David with a slingshot against Goliath with his sword, it was a child throwing rocks a seasoned Marine armed with technology that most of us don’t even know exists. It was a slaughter, and still is. Moreover, at the same time Palestinians, especially those in Gaza continued to struggle of self-determination against impossible odds, they also turned to the democratic means. To build a political party Hamas build a network of social programmes for education, healthcare, religion, and social services that is rare in today’s world. Hamas was rewarded for its efforts in the last election to take place in Palestine when they bettered the long ruling Fatah Party by a landslide. Hamas became the fair and freely elected government of Palestine.
Instead of embracing this admirable expression of democracy, the United State and its allies condemned it. The withheld funds and even paid Palestinians who were willing to betray their country to work against the democratic will of the Palestinian people. Within months, the Hamas’ political party was neutralized and prevented from ruling. Within a few years Fatah leader Abbas declared himself President and created hiss own government. Israel obliged with a torrential display of violence against the Palestinians people in Gaza at the end of 2008 and the start of 2009. Israel’s onslaught has been unending. Gaza still under de facto, and thus de jure occupation has since been the regular target of unlawful Israeli aggression.
Since the State of Palestine was recognized by UN General Assembly Resolution 67/19 on November 29, 2012, the Fatah-led government has had the right and responsibility to stand up for the Palestinian people against the aggression of the Israeli authorities. This is the right and responsibility of a sovereign State, which although subject the prohibitions of the use force in Article 2(4) of the Charter, is also governed by the right to self-defense under article 51 of the Charter. This latter right gives the State of Palestine the right to react against the oppression of its people by the Israeli authorities with the use of force. It also places every Israeli who participates in the aggression against Palestine liable to prosecution for the crime of aggression before the International Criminal Court, which has recently confirmed it jurisdiction to consider crimes committed in Palestine, including my Israelis.
Moreover, any State that can muster the courage and the strength to do so can come to the aid of the State of Palestine in collective self-defense. And States that promote or facilitate acts of aggression against the Palestinian people fighting for self-determination, or, against the State of Palestine, make themselves the target for the corrective actions of other States in aid of the State of Palestine. In other words, any other State that is acting in accordance with the wishes of Palestinians can act in collective self-defense of Palestine against Israel or any State supporting Israel’s aggression. This is what international law allows, even if it may be an inconvenient truth for the American media and the US government.
International law also recognizes Israel as the occupier of Gaza, among other parts of Palestine. Occupation under international law is a de facto determination. If an entity controls another people in a territory that it invaded, it occupies those people according to international law until that control ends. Despite Israel’s withdrawal from Gaza in 2005 by dismantling its 21 settlements, it continues to occupy Gaza because of the effective control that it exercises over the enclave. This has been recognized by the international community in repeated UN Human Rights Council and General Assembly resolutions.
An occupier cannot use military force to attack an occupied population. It may be able to use police force in some instances to secure public order and security, but that use must be in the interest of protecting the occupied population, not attacking it. This is the clear impot of article 43 of the Hague Regulations annexed to the 1907 Hague Convention and article 64 of the Fourth Geneve Convention protecting civilians. Israel’s use of force against the Palestinian population is unlawful.
Most striking, however, is how a willing or merely ignorant media and US government have colluded to prevent respect for one of the most important principles of international law: the prohibition of genocide.
Genocide as a word did not exist until Polish jurist Raphael Lempkin coined it in the aftermath of the holocaust in Europe during World War II. To describe the indescribable atrocities the world was witnessing with slow or no adequate reaction by the allied States, the creative Lempkin came up with a new word to describe the horrific nature of the atrocities. He came up with the innovative word ‘genocide’ to describe the killing of people belong to an ethnic, national, racial, or religious group with the intent to eliminate them in whole or in part. The 1951 Genocide Convention then added detail to that definition to define ‘genocide’ as the killing of members of a group, the causing of serious bodily or mental harm to members of a group, the imposing of conditions of life calculated to bring about the destruction of the group in whole or in part, the imposing of measures intended to prevent births, or the forcible transfer of children from one group to another. These acts must be committed with the intention to destroy, in whole or in part, a national, ethnical, racial, or religious group.
Israel has conducted the actions that constitute genocide and has expressed the intention necessary to find it responsible of the international wrongful act of genocide. And the genocidal intention of Israel is perhaps of the clearest that the world has ever witnessed.
Israel has carried out the acts necessary for genocide by decades, now almost a century, of oppression of the Palestinian people. It has regularly killed Palestinians, upwards of 10,000 since the First Intifada, which started in 1987. Israel has seriously wounded with its fighter jets and sophisticated chemical weapons, weapons of mass destruction, and indiscriminate bombings, tens of thousands of Palestinians since the First Intifada. The recent aggression by Israel has injured almost 2,000 Palestinians and displaced more than 70,000 Palestinians. Israel has killed more than 250 Palestinians; more than 70 of them children.
Even before the recent aggression took hold, Israel had created conditions in Gaza, especially, but also in parts of the West Bank for which there could be no other explanation except that they were calculated to bring about the destruction of the Palestinian people at least in part. Controlling the territory of Palestine, Israel has made life hell for most Palestinians living in Gaza and the West Bank. Israel has used its position as an occupying power to do this. Utilities, even life-sustaining water, are under Israel control and often interrupted by the occupying power. Palestine mineral and agricultural wealth is expropriated by Israel with regularity. Settlers supplement the Israeli military’s attacks on Palestinians by shooting at Palestinians even when there is not active military action taking place. Palestinians have been made into human targets for sport by Israelis.
Israel’s intention has been clear from its consistent actions, but also sometimes it words. Since its creation Israel has indicated its unwillingness to allow the Palestinian people to exist. It drove millions of Palestinians from their homes and refused to allow them to return. Its first Prime Minister Golda Meir was quoted in the Sunday Times and Washington Post in June 1969 as stating that “[t]here were no such thing as Palestinians.” And later that “[t]t was not as if there was a Palestinian people in Palestine and we came and threw them out and took their country away from them. They did not exist.” These statements evidence Israel’s intention to destroy the Palestinian people in whole or in part. These statements are corroborated by Israel’s actions in constantly, for nearly a century, conducting regularly repeated armed attacks against the people of Palestine and subjecting them to inhumane conditions. The cumulative nature of these actions makes it very apparent that Israel is intent on destroying, in whole or in part, the Palestinian Arab and Muslim people, a nationally, ethnically, and religiously identifiable group of people.
To muster the courage to address the crime of genocide that has been committed by Israelis in Palestine the international community needs to understand there is no equivalence between the acts of Palestinians and Israelis. Israel is the aggressor seeking to destroy in whole or in part the Palestinians. Israel’s intention has been on display for decades and it is backed up by its actions. Now the international community needs to decide if it is willing to back up the promises of international law and treat Israel’s actions as the international crime that they are. It we fail to ensure justice and the restoration of the rule of law this time, coming up with a new word to describe the second holocaust that we have ignored will likely be much harder than it was the first time.
– Curtis Doebbler is a Research Professor of Law at the University of Makeni. He contributed this article to The Palestine Chronicle.