Paper on legal characterisation of Israeli assault on Gaza
(A) Recent public statements/papers/interviews on Israel’s attack on Gaza
(1) Omer Bartov, Samuel Pisar Professor of Holocaust and Genocide Studies at Brown University
interview 21 June 2024, https://theanalysis.news/beyond-genocide-in-gaza-settler-violence-in-the-west-bank-omer-bartov/
Professor Bartov has now concluded that Israel has been committing genocide in Gaza. Professor Bartov is a cautious analyst. He was the spokesman for the big authoritative group of holocaust and genocide scholars which published a paper in November 2023, stating that Israel was committing war crimes and is at risk of committing genocide, but hadn’t committed genocide yet.
“I’ve been trying to be as cautious as I can, over time, so already, in November, I wrote that my view was that the IDF was involved in committing war crimes, that potentially crimes against humanity, and could very quickly be moving into what could be defined as genocidal actions.
Now, since then, a lot has happened. Vast numbers of people have been killed. Much more of Gaza has been destroyed, and I have to say that since Israel launched its last operation in Rafah, after a period in which the IDF was not really sure what it was doing there, I’ve reached the conclusion that we cannot avoid but say that it appears that Israel is engaged in an attempt to destroy Gaza, to remove the population, to intimidate or kill large numbers of the people, that it systematically destroyed universities, schools, places of worship, public buildings, infrastructure, and has displaced the vast majority of the population and then kicked them around from one place to another.
So all of this, it seems to me by now, it’s still going on, gives very serious grounds to suspect it could be called genocide or a genocidal operation…I think the nature of the operation up to now appears to indicate that there is a genocidal intent in what Israel is undertaking at the moment in Rafah – in Gaza.”
Despite the measured language, or perhaps because of it, no reasonable person could doubt that Professor Bartov is saying Israel is committing genocide in Gaza.
(2) Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel. In particular, the detailed report on Israel’s military operations and attacks in Gaza.
The Commission was established by the UN Human Rights Council to investigate all alleged violations of international humanitarian law and abuses of international human rights law in the Occupied Palestinian Territory, including East Jerusalem, and in Israel,. leading up to and since 13 April 2021. The Chair is the South African jurist and former UN High Commissioner for Human Rights, Nava Pillay.
This report was originally intended to cover the period until the end of 2023, but also examined some incidents that took place after this date when they were relevant to the topics under discussion and were seen to represent a similar trend.
Report 12 June 2024. https://www.ohchr.org/sites/default/files/documents/hrbodies/hrcouncil/sessions-regular/session56/a-hrc-56-crp-4.pdf
Israeli attacks “constitutes the war crimes of:
intentionally directing attacks against the civilian population, including children, or against individual civilians not taking direct part in hostilities,
murder or wilful killing, intentionally directing attacks against civilian
objects that are not military objectives or justified by military necessity or not
imperatively demanded by the necessities of the conflict, and
intentionally using starvation of civilians as a method of warfare by depriving the civilian population of objects indispensable to their survival.”
Israel has also committed the “crimes against humanity of:
murder, forcible transfer and inhuman and cruel treatment, and
extermination and gender persecution.”
(3) Al Haq, respected Palestinian legal NGO, based in Ramallah
Genocidal Massacre in Central Gaza: Israeli Forces Kill 274 Palestinians and Injure 698 in Attack Lasting 75 Minutes
report, 10 June 2024, https://www.alhaq.org/advocacy/23288.html
Al Haq characterises Israel’s repeated attacks in Gaza as “genocidal”. Note the change from the judicial review application in the UK in December 2023, which only cited “grave breaches of international law”.
“We urge the international community, especially the members of the United Nations (UN) Security Council, the Secretary-General of the UN, the UN High Commissioner for Human Rights, to take immediate and concrete measures to put an end to the ongoing genocide in the Gaza Strip and enforce an immediate and unconditional ceasefire. We call on the Prosecutor of the International Criminal Court to urgently investigate and prosecute genocidal acts orchestrated by Israeli policy makers and the Israeli military in Gaza. Furthermore, we reiterate our call on Third States to abide by their obligations under the Genocide Convention, including by taking all feasible measures to end the ongoing genocide and prevent the commission of further genocidal acts.
(4) Aryeh Neier, co-founder and long-time head of HRW, former Head of the Open Society Foundation, former adjunct Professor of Law at New York University
New York Review of Books, op, ed, 6 June. https://www.nybooks.com/articles/2024/06/06/is-israel-committing-genocide-aryeh-neier/
Aryeh Neier concluded Israel is committing genocide in Gaza. He didn’t initially think so, but was convinced by Israel’s deliberate obstruction of food and other humanitarian aid supplies which has caused famine.
(5) Raz Segal, Associate Professor of Holocaust and Genocide studies at Stockton University and endowed professor in the study of modern genocide.
Interview, 3 June. https://www.youtube.com/watch?v=VqHoRP9u5Bk
”But we’re still in the midst of a genocidal assault on Gaza” and “Israeli genocidal assault” and “Genocide prevention in Gaza has failed.” (repeated).
Raz Segal’s change of opinion is particularly telling because he was the spokesman for one the two big groups that said Israel was nearing genocide in the early days of the offensive.
(6) Omer Bartov
interview 24/5 May, https://www.youtube.com/watch?v=4-qBl-9hs3E
“I think that we are on the brink or past the brink of calling this a genocide.”
Omer Bartov’s changing opinion is particularly telling for the same reason.
(7) International Criminal Court (ICC)
ICC Chief Prosecutor applies to Pre-Trial Chamber of the Court for arrest warrants Netanyahu, Gallant, Sinwar, Haniyah and Dief “on charges of war crimes and crimes against humanity”
20 May, https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-kc-applications-arrest-warrants-situation-state
(8) John Miersheimer, Professor of International Relations at University of Chicago, pre-eminent in the “realist” school of international relations, co-author of “The Israel Lobby and US Foreign Policy”.
Presentation 17 May, https://www.youtube.com/watch?v=kAfIYtpcBxo
Professor Miersheimer’s presentation at the Centre for Independent Studies in Australia, 17 May. Since December, he has believed Israel is committing genocide in Gaza. His reason is the same as the one given by Aryeh Neier.
(9) Association for Civil Rights in Israel (ACRI), Gisha, Physicians for Human Rights, and HaMoked
Legal correspondence to the War Cabinet demanding action against anyone who harms the transfer of humanitarian aid to the Gaza Strip
16 May, https://www.english.acri.org.il/post/take-action-against-those-harming-humanitarian-aid-trucks
“wilfully delaying the delivery of humanitarian aid to starve civilians is a war crime under international law, and that it is the duty of the Israeli authorities to bring the perpetrators to justice.”
(10) The University Network for Human Rights
The Network is a network of student introductory courses in international law, designed to give students an appreciation of international law. The students get degree credits for taking the course. The four university “clinics” are part of the network. Their reports are presumably supervised by academic advisers to the courses.
Genocide in Gaza, 15 May, https://static1.squarespace.com/static/5b3538249d5abb21360e858f/t/66475850eceb152a52fd55fe/1715951696844/Genocide+in+Gaza+-+Final+version+051524.pdf
“Israel has committed genocidal acts of killing, causing serious harm to, and inflicting conditions of life calculated to bring about the physical destruction of Palestinians in Gaza.”
(11) Nimer Sultany, Reader in law, SOAS School of Law
A Threshold Crossed: On Genocidal Intent and the Duty to Prevent Genocide in Palestine, Journal of Genocide Studies
9 May, https://www.tandfonline.com/doi/full/10.1080/14623528.2024.2351261
“there is an emerging consensus that Israel’s actions in Gaza are not another instance of armed conflict but instead amount to genocide…The emerging consensus described here may not be overwhelming and will have to face opposition and potential judicial disagreement. Yet an overwhelming body of evidence supports it and a consistency in the application of standards requires it.”
(12) Ronald Grigor Suny, historian of Russia and the former Soviet Union, emeritus professor at the University of Michigan and the University of Chicago, scholar of genocide.
25 April, The Nation, https://www.thenation.com/authors/ronald-grigor-suny/
“As someone whose own people suffered a genocide just over 100 years ago, and having spent a quarter-century researching those events and thinking about genocide, it is evident to me that the Israeli assault on Gaza—along with the permissiveness that the Netanyahu government allows for Jewish settlers in the West Bank, aided by the Israeli army and police to carry out violence and dispossessions against Palestinians—is genocidal and should be recognized as such.”…”The world is watching a genocide taking place in real time.”…”this horrific crime against humanity, which must unambiguously be condemned as genocide.”
(13) Al Haq and Global Legal Action Network (GLAN) continue to seek a Judicial Review in the UK of UK arms shipments to Israel.
22 April 2024, https://www.alhaq.org/advocacy/22921.html
This is an application to reverse the courts January decision to dismiss a judicial review. The wording used is that Israel is “in violation of international humanitarian law in Gaza.”
(14) Amos Goldberg, professor of Holocaust History at the Hebrew University of Jerusalem,
The Palestine Project, 18 April 2024, https://thepalestineproject.medium.com/yes-it-is-genocide-634a07ea27d4 (republished i9 May in Swiss Policy Research)
“Yes, it is genocide. Although it is so difficult and painful to admit this and despite all efforts to think otherwise, at the end of six months of a brutal war it is no longer possible to escape this conclusion. Jewish history will henceforth be stained with the mark of Cain of the “crime of crimes,” which cannot be erased from its forehead. As such, it will stand trial for generations.”
(15) Anatomy of a Genocide
Report of Francesca Albanese, United Nations Special Rapporteur on the occupied Palestinian territories, submitted to the UN Human Rights Council. Ms. Albanese is a respected academic international lawyer, Adjunct Professor at Georgetown University and expert on forced migration and refugee issues.
25 March 2024,
https://www.un.org/unispal/document/anatomy-of-a-genocide-report-of-the-special-rapporteur-on-the-situation-of-human-rights-in-the-palestinian-territory-occupied-since-1967-to-human-rights-council-advance-unedited-version-a-hrc-55/
“By analysing the patterns of violence and Israel’s policies in its onslaught on Gaza, this report concludes that there are reasonable grounds to believe that the threshold indicating Israel’s commission of genocide is met. One of the key findings is that Israel’s executive and military leadership and soldiers have intentionally distorted jus in bello principles, subverting their protective functions, in an attempt to legitimize genocidal violence against the Palestinian people.”
(B) Older public papers/statements
(1) Public Statement: Scholars Warn of Potential Genocide in Gaza
A group of 800 scholars and practitioners of international law, conflict studies and genocide studies. Israel is committing war crimes and is at risk of committing genocide, but hasn’t committed genocide yet. The spokesman was Professor Omer Bartov.
15 October 2023, https://twailr.com/public-statement-scholars-warn-of-potential-genocide-in-gaza/
(2) A smaller group of holocaust and genocide scholars but still large (about 50 people).
December 2023 The spokesman was Associate Professor Raz Segal.
This group also said Israel was committing war crimes and was at risk of committing genocide, but hasn’t committed genocide yet.
(3) Al Haq and Global Legal Action Network (GLAN) seek a Judicial Review in the UK of UK arms shipments to Israel.
6 December 2023, https://www.alhaq.org/advocacy/22299.html
The application cites “grave breaches of international law”.
(4) Centre for Constitutional Rights
“Stop the Genocide”, “United States Complicity and Failure to Prevent the Israeli Government’s Unfolding Genocide of Palestinians”
The CCR is a radical American civil rights legal advocacy organisation. Almost all of its work is in the US and where the US has been militarily involved, but its experts also list “Palestinian solidarity” as a work area. International Humanitarian Law (laws of War) is not listed.
November 13, 2023, https://ccrjustice.org/stop-the-genocide
“The Israeli government is committing genocide against the Palestinian people in Gaza with unconditional U.S. support.” “Those statements of intent – when combined with mass killing, causing serious bodily and mental harm, and the total siege and closure creating conditions of life to bring about the physical destruction of the group – reveal evidence of an unfolding crime of genocide.”
The CC is pursuing legal action in the Federal courts against the US Administration for complicity in Acts of genocide by Israel in Gaza.
(C) Particularly pertinent comments from two of the papers
(A1) Commission report. “The Commission adopts the ‘reasonable grounds’ standard in making factual determinations and reaching its legal findings and conclusions.” This takes into account the wide context of the situation, It allows findings of guilt on a more common-sense basis than the more onerous “only reasonable inference” standard traditionally adopted by the ICC.
(A9) This paper raised two important legal arguments debunking Israel’s claims that it is complying with international law. None of us had thought of them.
(a) This was the argument that the Court should broaden its traditional standard for proof of intent in view of the fact that genocidal intent will rarely be stated and so has to be inferred. The traditional standard was that genocide had to be “the only reasonable inference” as the motive for the government’s actions, which is basically the same as the domestic criminal standard of “beyond reasonable doubt”. In the case of The Gambia vs, Myanmar, seven states, including the UK, argued that genocidal intent could exist simultaneously with military motives, and so had to be assessed with reference to wider factors of the state’s behaviour towards to affected population. The argument was presumably effective because the Court ruled for provisional measures against Myanmar, saying “no further acts of genocide”.
(b) This concerns Israel’s attempted perversion of the meaning of the rule of proportionality in protecting civilians in a war. Israel’s version of the rule is that the anticipated harm to civilians in any particular planned attack should be proportional to achieving the overall objective of the war, rather than to the expected benefit of the particular action. It takes only a moment’s reflection to realise that Israel’s version is impossibly loose. It could be used to justify almost any number of civilian casualties in almost any individual action.
(D) Convention on the Prevention and Punishment of the Crime of Genocide
Article 2
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(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.
(Editors note: The operative words are in bold. Every bold word, except for “killing”, is open to interpretation. When assessing any offensive or series of acts, the bold words (except for “killing”) have to be interpreted as to whether they apply in that offensive or series of acts.)
AG 26/6/24