Israel’s right to tyranny

AmjadIraqi

January 17, 2024

In justifying the violent unraveling of Gaza as ‘self-defense,’ Western capitals have once again signed off on Israelis’ license to act like despots.

 

It’s hard to overstate the symbolic power of the Jan. 11 hearing at the International Court of Justice. In a moving display of solidarity, a diverse lineup of South African, Irish, and British lawyers meticulously laid out their evidence for charging Israel with the crime of genocide in the Gaza Strip. The malicious statements of Israeli officials, including cabinet ministers and generals, were recited as declarations of murderous intent. Videos of mass destruction, often recorded gleefully by Israeli soldiers, and which have dominated our social media feeds for months were brought before the world’s highest court for judgment. Palestinians have long been bitterly disappointed with international law, but watching the courtroom that day, even the most cynical observers could not help but feel seen, supported, even hopeful.

Notwithstanding South Africa’s performance, the fate of the ICJ case is far from a foregone conclusion. In the second hearing on Jan. 12, Israel’s attorneys gave a tough rebuttal to try and dismiss the claims of genocide as ludicrous. They presented examples of Israel’s coordination of humanitarian aid; the army’s methods of instructing civilians to evacuate targeted areas; images showing Hamas militants’ assimilation into the urban environment; and of course, the repeated invocation of Israel’s right to defend itself under international law.

The Israeli arguments were predictable, and many were easy to debunk, but they still carry significant weight. Along with the court’s proclivity for conservative interpretations of the law, the judges are acutely aware that they are presiding over what may be the most politically divisive case ever brought to The Hague, and thus may opt for a more cautioned approach.

At this point, however, the ICJ’s impending decisions are secondary to the lessons that ought to be drawn from the proceedings. One key takeaway, which has yet to fully register in Western policy circles, is the vacuity of Israel’s claim of “defense” to explain the wanton devastation wrought upon the besieged Strip.

Indeed, from its oral arguments in The Hague to its actions on the ground, Israel has made it abundantly clear that it is not asking the court to respect its right to self-defense. What it really wants is for the world to indulge Israel’s right to tyranny: to violently redesign its geopolitical environment, to secure its military and demographic dominance, and to do whatever it wishes to the Palestinians without criticism or consequence.

This tyranny is not just reflected in the mounting death toll in Gaza, although 24,000 bodies and 7,000 others missing — an especially searing rate for a small population that is tightly intertwined by familial, communal, and cultural bonds — is a grisly indicator. It is also in the terrifying fact that Gaza’s social fabric is deliberately being unraveled.

Until three months ago, and despite years of de-development and siege, Palestinians in Gaza had remained relatively self-reliant, resourced, and cohesive enough to care for their own as best they could. Now, over 2 million people are in the throes of a man-made famine and epidemiological disaster, generated at a speed that has been described as unprecedented in modern history. The chilling scenes of hungry Palestinians scrambling over aid trucks to grab food for their families, surrounded by thousands of others trying to do the same, is a glimpse into Israel’s mutation of Gaza from a resilient enclave into a “graveyard for children.”

The biblical scale of displacement across the Strip — which has amounted to nearly three times the number of Palestinians expelled during the 1948 Nakba — is another reflection of this tyrannical force. In Orwellian fashion, the Israeli authorities have cited their distribution of leaflets, text messages, and other communications as proof of their efforts to put civilians out of harm’s way. But the exodus is the point: much of northern Gaza is now open for Israel to mold as it deems fit, whether for military buffer zones or future Jewish settlements. What Israel’s lawyers touted to the ICJ as a “humanitarian” gesture became a weapon of demographic engineering, accomplishing in three months what Israel is incrementally advancing in the occupied West Bank as well.

On top of all this, the methodical decimation of entire neighborhoods, hospitals, government buildings, schools, heritage sites, water networks, electricity grids, and other public infrastructure is thwarting the feasibility, and perhaps even the desire, of many displaced communities to return to large parts of Gaza in the near future.

The Herculean tasks of clearing the mountains of rubble, extracting bodies still trapped under the debris, and camping out in the cold with no basic supplies, are only the first daunting steps before Palestinians can even begin reconstruction — a process which no foreign government will be interested in bankrolling if another military campaign seems all but inevitable. Even if they could gather the resources, Palestinians will have to rebuild their lives under the watch of the very army that brought this ruin upon them, all while grappling with physical wounds, raw trauma, and the paralyzing fear that the next apocalyptic war is just around the corner.

Total shielding

The Hamas-led assault of October 7, which began with the dismantling of Gaza’s despised prison walls but ended with the horrific massacres of hundreds of Israeli civilians in their homes, has triggered a profound existential fear among Israeli Jews. This fear has manifested into a near-unanimous call for vengeance and retribution, cheered on from the Knesset to the media to the streets. But Israelis’ urge to exact tyrannical power did not suddenly arise from October 7. In fact, it is deeply embedded in the state’s ideological foundations and political psyche.

As a European-borne, nationalist-cum-settler-colonial project, Zionism was essentially conceived as an engine for Jews to replicate the path of Western nations in the 19th and early 20th centuries. In that context, statehood was not merely about embodying self-determination: it entailed the right to dispossess other peoples’ lands, deprive “inferior” subjects of civil liberties, and inflict monstrous violence aimed at erasing the unwanted society and its culture. (In Israel’s case, state-building was aided in no small part by the draconian apparatus left by its British predecessors in Palestine.)

The permission to pursue belated colonialism is a fundamental bargain Israel has struck with its Western allies, who to this day see the Jewish state as a convenient remedy to “repent” for their antisemitic history and the crimes of the Holocaust. On the occasions Israel does face scrutiny, it simply reverts to the mantra of being “the world’s only Jewish state” — the code that reminds the West of the pact to condone Israel’s brutal behavior. From the 1948 Nakba, to its military rule since 1967, to its current onslaught in Gaza, Israel has grounded its tyranny in the same rationale: “The West had its turn — now it’s ours.”

In the past, foreign governments, including the United States, still had the sense to try and curb some of Israel’s hubris. But today, those limitations have vanished.

Outdoing his Republican predecessor, U.S. President Joe Biden is actively abetting Israel’s unbridled assault on Gaza, rejecting the very notion of a ceasefire and even bypassing Congress to deliver more weapons. In the early days of the war, European leaders like Commission President Ursula von der Leyen and British Prime Minister Rishi Sunak rushed to southern Israel to express their solidarity, without any mention of the thousands of Palestinians being bombed just a few kilometers away. Chancellor Olaf Scholz, in keeping with Germany’s obsessive efforts to prove its absolution to the Jewish state, announced that Berlin will join the ICJ case to back Israel against the charge of genocide.

The total shielding of Israel’s ruthless war has clearly struck a nerve beyond Palestine. Astounded by Germany’s planned intervention in the ICJ case, Namibian President Hage Geingob called out his country’s former colonizer for its selective memory of the atrocities it has to repent for, citing Germany’s campaign against the Herero and Namaqua peoples as “the first genocide of the 20th century,” three decades before the Holocaust. When a U.S.-led coalition launched air strikes against Houthi rebels in Yemen for disrupting the Red Sea’s trade routes — which the rebels declared was intended to compel an end to the Gaza assault — the hypocrisy was even starker; it seemed Washington would rather escalate a regional war than ask Israel to agree to a ceasefire.

For much of the Global South, these skewed responses from Western powers are hardly an oversight; they are indicative of the victims that the latter deem worthy of being mourned and protected in the international order. As if to make that point crystal clear, President Biden marked the 100th day of the Gaza war by extending his support to the 130 Israeli hostages still held in Gaza, without any mention of the more than 24,000 Palestinians killed, supposedly, in the name of retrieving those captives.

Such dismissal of Palestinian life, and the blatant impunity it promotes, has been heard loud and clear in Israel. The fact that the bombing of Gaza has “outpaced” that of the Assad regime in Syria, Russia in Ukraine, and the United States in Iraq is indicative of Israel’s ferocious power trip. “Nobody will stop us,” declared Prime Minister Benjamin Netanyahu days after the ICJ hearings, “not The Hague, not the axis of evil and not anybody else.” International principles may demand accountability for the crimes of October 7, but in tolerating Gaza’s demise as punishment, Western capitals have simply signed off on Israelis’ license to continue acting like despots.

 

Technicality Could Sink Genocide Case v Israel

Joe Lauria

 

In its defense last Friday before the World Court against allegations by South Africa that it is committing genocide in Gaza and must be stopped, Israel made a legal argument that could torpedo the case if the court buys it. 

In order for a claim to reach the International Court of Justice, there must be an established dispute between two states. Israel’s argument is that such a dispute was never established and thus the ICJ lacks jurisdiction to hear South Africa’s claim.

There would be a political outcry from those who seek to stop Israel’s ongoing slaughter in Gaza if the Court decides to dismiss the case on this technicality.

But given the pressure the Court is no doubt feeling from the United States, Germany and other allies of Israel it might be the best, if not the only way for the Court to escape without having to decide that it’s merely plausible that Israel is committing genocide.

That is the bar that needs to be met at this preliminary stage of the case for the Court to issue provisional measures to order Israel to cease its military operation.

The Dispute Over a Dispute

On Thursday, South Africa tried to build a case, probably in anticipation of Israel’s bid, that this was indeed a dispute between Israel and South Africa and it indeed belonged before the World Court. 

John Dugard, a South African professor of international law,  told the Court:

“The South African Government repeatedly voiced its concerns, in the Security Council and in public statements, that Israel’s actions had become genocidal. On 10 November, in a formal diplomatic démarche, it informed Israel that while it condemned the actions of Hamas, it wanted the International Criminal Court (ICC) to investigate the leadership of Israel for international crimes.

On 17 November South Africa referred Israel’s commission of the crime of genocide to the International Criminal Court for ‘vigorous investigation’. In announcing this decision President Ramaphosa publicly expressed his abhorrence ‘for what is happening right now in Gaza, which is now turned into a concentration camp where genocide is taking place’.

To accuse a State of committing acts of genocide and to condemn it in such strong language is a major act on the part of a State. At this stage it became clear that there was a serious dispute between South Africa and Israel which would end only with the end of Israel’s genocidal acts.

South Africa repeated this accusation at a meeting of BRICS on 21 November 2023 and at an Emergency Special Session of the United Nations General Assembly on 12 December 2023. No response from Israel was forthcoming. None was necessary. By this time, the dispute had crystallized as a matter of law. This was confirmed by Israel’s official and unequivocal denial on 6 December 2023 that it was committing genocide in Gaza.”

Dugard argues that there is a dispute between Israel and South Africa. (UN TV Screenshot)

Dugard added that “as a matter of courtesy” before filing the case with the ICJ on Dec. 29, South Africa sent a “Note Verbale to the Embassy of Israel to reiterate its view that Israel’s acts of genocide in Gaza amounted to genocide — that it, as a State party to the Genocide Convention, was under an obligation to prevent genocide from being committed.”

“Israel responded,” Dugard said, “by way of a Note Verbale that failed to address the issues raised by South Africa in its Note and neither affirmed nor denied the existence of a dispute.”

On Jan. 4, South Africa sent another Note Verbal highlighting Israel’s failure to respond adequately to South Africa’s concerns, and concluded that the dispute between the nations was “plainly not capable of resolution by way of a bilateral meeting.”

In addition, on Nov. 20 Israel recalled its ambassador to South Africa in protests over South Africa calling Israel’s operation in Gaza “genocidal,” which can clearly be interpreted as a dispute.

Israel Says There is No Dispute

For its part, Israel on Friday argued that no such dispute exists and therefore the Court lacks jurisdiction over the case. Quoting from Article IX of the Genocide Convention, British attorney Malcolm Shaw KC, representing Israel, told the Court:

“Whether or not a dispute in these terms exists at the time of the filing of the Application is a matter for objective determination by the Court, ‘it is a matter of substance, and not a question of form or procedure’. The Court will ‘take into account in particular any statements or documents exchanged between the Parties as well as any exchanges made in multilateral settings’, the Court has said.

The key point here is the use of the term ‘exchange’ between the parties. Unilateral assertion does not suffice. There needs to be some element of engagement between the parties. The element of interchange and bilateral interaction is required. A dispute is a reciprocal phenomenon.”

Shaw made clear Israel does not believe such an exchange took place:

“South Africa cites only a couple of general public statements by Israel referencing merely a press report by Reuters and a publicity release from the Israeli Ministry of Foreign Affairs. These responses were not addressed directly or even indirectly to South Africa. There is no evidence of ‘positive opposition’ as required by the Court.

Further, South Africa cites no relevant exchange between the Parties, which would be the normal fashion for the expression and determination of a dispute between States. This actually typifies how South Africa has approached this matter. It seems to believe that it does not take two to tango. It is sufficient if one State determines there is a dispute, leaving the other party flummoxed.

It is thus disingenuous for Professor Dugard to conclude that ‘Israel must have been aware from South Africa’s public statements, démarche and referral to the International Criminal Court of Israel’s genocidal acts that a dispute existed between the two States’. This is not a dispute, it is a ‘unispute,’ a one-sided clapping of hands.”

Shaw said Israel did respond to the Notes Verbale on Dec. 26 by offering to arrange a meeting between the two foreign ministries at South Africa’s “earliest convenience.” The Israeli embassy tried to deliver this note on Dec. 27 to the South African foreign ministry but the ministry was closed because of a holiday, Shaw said.

He claims Israel was informed by the South Africans on Dec. 28 that the note should be hand-delivered on Jan. 2, but on Dec. 29 filed the case with the ICJ, allowing no time for the states to have a dialogue.

That South Africa did not wait for this bilateral meeting before filing with the court puts its case at risk. 

Legal Experts Weigh In

“There does have to be a position stated by one side and rejected by the other before there is a dispute,” John Quigley, professor emeritus at the Moritz College of Law of Ohio State University, told Consortium News. “But there was probably sufficient statement by [South Africa] that it thought Israel was committing genocide, and sufficient statement by Israel that it was not committing genocide for there to be a ‘dispute” between the two.'”

Quigley added, “If the court wants to avoid giving provisional measures, it could use this.” He made clear, however, that he thought this was unlikely to happen.

Analyst Alexander Mercouris concurred. He told CN:

“In a sane world it should not defeat the claim.  After all, in what sense has Israel been prejudiced? And given that the case is about genocide there is a strong case for acting with urgency.  However if the Court wants to find some way out of hearing the case, this lapse has provided it.  

If the Court were to take this view, South Africa would have the option of requesting the Israeli response, and then re-filing, either when Israel provided its reply or, in the event that Israel inordinately delayed its reply, when that became clear.”

American academic Norman Finkelstein, told an interviewer: “It will completely discredit the Court if they issue a decision — we have decided not to pursue this case of genocide because we don’t think there is a dispute. That just can’t work.”

Francis Boyle, a professor of international law at the University of Illinois Urbana-Champaign, represented Bosnia-Herzogovina at the ICJ where he brought a case of genocide against Yugoslavia in 1993.

“To the best of my knowledge the [Yugoslavs] did not know of my genocide lawsuit until the Registrar informed them of it,” Boyle said in an email. “Again, this created no problems for me with the Court on winning my first Order of Provisional Measures of Protection on April 8 [1993].”

Boyle added that Bosnia’s then president, Alija Izetbegovic was at the time “pretty busy negotiating” the Vance-Owen peace deal at U.N. headquarters in New York. “I don’t think he said anything about my genocide lawsuit to the [Yugoslavs] there before I sued them.”

Thus the fact that Sarajevo and Belgrade never directly disagreed about a genocide claim did not affect the Court’s decision to issue provisional measures against Yugoslavia.

In an article published on Consortium News on Sunday, former British diplomat Craig Murray, who was in the public gallery for both days of the hearing, wrote that simply refusing to respond to an allegation of genocide cannot become a way for a nation to continue committing it with impunity. He wrote:

“The case could be technically invalid, and then [the judges] would neither have to upset the major Western powers nor make fools of themselves by pretending that a genocide the whole world had seen was not happening. For a while, they looked visibly relieved.  Israel is hoping to win on their procedural points about existence of dispute …

The obvious nonsense [Israel] spoke about the damage to homes and infrastructure being caused by Hamas, trucks entering Gaza and casualty figures, was not serious. They did not expect the judges to believe any of this. The procedural points were for the court. The rest was mass propaganda for the media.”

Murray added:

“I am sure the judges want to get out of this and they may go for the procedural points. But there is a real problem with Israel’s ‘no dispute’ argument. If accepted, it would mean that a country committing genocide can simply not reply to a challenge, and then legal action will not be possible because no reply means ‘no dispute’. I hope that absurdity is obvious to the judges. But they may of course wish not to notice it…”

 

In Gaza, the West Is Enabling the Most Transparent Genocide in Human History

Richard Falk

This is extraordinary because the states supporting Israel, above all the United States, have claimed the high moral and legal ground and lectured the states of the Global South about the importance of the rule of law.

 

Recall Samuel Huntington’s controversial, yet influential, 1993 Foreign Affairs article, “The Clash of Civilizations,” which ends with the provocative phrase, “The West against the rest.” Although the article seemed far-fetched 30 years ago, it now seems prophetic in its discernment of a post-Cold War pattern of inter-civilizational rivalry. It is rather pronounced in relation to the heightened Israel/Palestine conflict initiated by the October 7 Hamas attack on Israeli territory with the killing and abusing of Israeli civilians and IDF soldiers, as well as the seizure of some 200 hostages.

Clearly this attack has been accompanied by some suspicious circumstances such as Israel’s foreknowledge, slow reaction time to the penetration of its borders, and, perhaps most problematic, the quickness with which Israeli adopted a genocidal approach with a clear ethnic cleansing message. At the very least the Hamas attack, itself including serious war crimes, served almost too conveniently as the needed pretext for the 100 days of disproportionate and indiscriminate violence, sadistic atrocities, and the enactment of a scenario that looked toward making Gaza unlivable and its Palestinian residents dispossessed and unwanted.

Despite the transparency of the Israeli tactics, partly attributable to ongoing TV coverage of the devastating and heartbreaking Palestinian ordeal, what was notable was the way external state actors aligned with the antagonists. The Global West (white settler colonial states and former European colonial powers) lined up with Israel, while the most active pro-Palestinian governments and movements were initially exclusively Muslim, with support coming more broadly from the Global South. This racialization of alignments seems to take precedence over efforts to regulate violence of this intensity by the norms and procedures of international law, often mediated through the United Nations.

This pattern is quite extraordinary because the states supporting Israel, above all the United States, have claimed the high moral and legal ground for themselves and have long lectured the states of the Global South about the importance of the rule of law, human rights, and respect for international law. This is instead of urging compliance with international law and morality by both sides in the face of the most transparent genocide in all of human history. In the numerous pre-Gaza genocides, the existential horrors that occurred were largely known after the fact and through statistics and abstractions, occasionally vivified by the tales told by survivors. The events, although historically reconstructed, were not as immediately real as these events in Gaza with the daily reports from journalists on the scene for more than three months.

Liberal democracies failed not only by their refusal to make active efforts to prevent genocide, which is a central obligation of the Genocide Convention, but more brazenly by openly facilitating continuation of the genocidal onslaught. Israel’s frontline supporters have contributed weapons and munitions, as well as providing intelligence and assurance of active engagement by ground forces if requested, as well as providing diplomatic support at the U.N. and elsewhere throughout this crisis.

These performative elements that describe Israel’s recourse to genocide are undeniable, while the complicity crimes enabling Israel to continue with genocide remain indistinct, being situated in the shadowland of genocide. For instance, the complicity crimes are noted but remain on the periphery of South Africa’s laudable application to the International Court of Justice (ICJ) that includes a request for Provisional Measures crafted to stop the genocide pending a decision on the substance of the charges of genocide. The evidence of genocide is overwhelmingly documented in the 84-page South African submission, but the failure to address the organic link to the crimes of complicity is a weakness that could be reflected in what the court decides.

Even if the ICJ does impose these Provisional Measures, including ordering Israel to desist from further violence in Gaza, it may not achieve the desired result, at least not before the substantive decision is reached some three to five years from now. It seems unlikely that Israel will obey Provisional Measures. It has a record of consistently defying international law. It is likely that a favorable decision on these preliminary matters will give rise to a crisis of implementation.

The law is persuasively present, but the political will to enforce is lacking or even resistant, as here in certain parts of the Global West.

The degree to which the U.S. has supplied weaponry with U.S. taxpayer money would be an important supplement to rethinking the U.S. relationship to Israel that is so important and which is underway among the American people—even in the Washington think tanks that the foreign policy elites fund and rely upon. Proposing an arms embargo would be accepted as a timely and appropriate initiative in many sectors of U.S. public opinion. I hope that such proposals may be brought before the General Assembly and perhaps the Security Council. Even if not formally endorsed, such initiatives would have considerable symbolic and possibly even substantive impacts on further delegitimizing Israel's behavior.

A third specific initiative worth carefully considering would be timely establishment of a People’s Tribunal on the Question of Genocide initiated by global persons of conscience. Such tribunals were established in relation to many issues that the formal governance structures failed to address in satisfactory ways. Important examples are the Russell Tribunal convened in 1965-66 to assess legal responsibilities of the U.S. in the Vietnam War and the Iraq War Tribunal of 2005 in response to the U.S. and U.K. attack and occupation of Iraq commencing in 2003.

Such a tribunal on Gaza could clarify and document what happened on and subsequently to October 7. By taking testimony of witnesses, it could provide an opportunity for the people of the world to speak and to feel represented in ways that governments and international procedures are unable to given their entanglement with geopolitical hegemony in relation to international criminal law and structures of global governance.

The South African World Court Case, Pariah State, and Popular Mobilization

The South African initiative is important as a welcome effort to enlist international law and procedures for its assessment and authority in a context of severe alleged criminality. If the ICJ, the highest tribunal on a supranational level, responds favorably to South Africa’s highly reasonable and morally imperative request for Provisional Measures to stop the ongoing Gaza onslaught, it will increase pressure on Israel and its supporters to comply. And if Israel refuses to do so, it will escalate pro-Palestinian solidarity efforts throughout the world and cast Israel into the darkest regions of pariah statehood.

In such an atmosphere, nonviolent activism and pressure for the imposition of an arms embargo and trade boycotts as well as sports, culture, and touristic boycotts will become more viable policy options. This approach by way of civil society activism proved very effective in the Euro-American peace efforts during the Vietnam War and in the struggle against apartheid South Africa, and elsewhere.

Israel is becoming a pariah state due to its behavior and defiance exhibited toward legal and moral norms. It has made itself notorious by its outrageously forthright acknowledgement of genocidal intent with respect to Palestinian civilians whom they are under a special obligation to protect as the occupying power.

Being a pariah country or rogue state makes Israel politically and economically vulnerable as never before. At this moment, a mobilized civil society can contribute to producing a new balance of forces in the world that has the potential to neutralize Western post-colonial imperial geopolitics.

It is also relevant to take note of the startling fact that the anti-colonial wars of the last century were in the end won by the weaker side militarily. This is an important lesson, as is the realization that anti-colonial struggle does not end with the attainment of political independence. It needs to continue to achieve control of national security and economic resources as the recent anti-French coups in former French colonies in sub-Saharan Africa illustrate.

In the 21st century weapons alone rarely control political outcomes. The U.S. should have learned this decades ago in Vietnam, having controlled the battlefield and dominated the military dimensions of the war, and yet having failed to achieve control over its political outcome.

The U.S. is disabled from learning lessons from such defeats. Such learning would weaken the leverage of the military-industrial-government complex, including the private sector arms industry. This would subvert the domestic balance in the U.S. and substantially discredit the global geopolitical role being played by the U.S. throughout the entire world.

So, it is a dilemma. We know what we should be doing to make amends, yet well-entrenched special interests preclude such rational adjustments, and the military malfunctions and accompanying geopolitical alignments persist, ignoring costly failures along the way.

We know what should be done, but do not have the political clout to get it done. But global public opinion is shifting, and demonstrations globally are building opposition to continuing the war.

Iran

There is a huge U.S./Israel propaganda effort to tie Iran to everything that is regarded as anti-West or anti-Israeli. It has intensified during this crisis, starting with the October 7 attack by Iran’s supposed proxy Hamas. You notice even the most influential mainstream print media as The New York Times routinely refers to what Hezbollah or the Houthis do as “Iran-backed.” Such actors are reduced misleadingly to being proxies of Iran.

This way of denying agency to pro-Palestinian actors and attributing behavior to Iran is a matter of state propaganda trying to promote belligerent attitudes toward Iran to the effect that Iran is our major enemy in the region, while Israel is our loyal friend. At the same time, it suppresses the reality that If Iran is backing countries and political movements, it obscures what the U.S. is doing more overtly and multiple times over.

It is largely unknown what Iran has been doing in the region to protect its interests. Without doubt, Iran has strong sympathies with the Palestinian struggle. Those sympathies coincide with its own political self interest in not being attacked and minimizing the U.S. role in the region. Additionally, Iran has lots of problems arising from opposition forces within its own society.

But I think dangerous state propaganda is building up this hostility toward Iran. It is highly misleading to regard Iran as the real enemy standing behind all anti-Israeli actions in the region. It is important to understand as accurately as possible the complexity and unknown elements present in this crisis situation that contains dangers of wider war in the region and beyond. As far as is publicly known, Iran has had an extremely limited degree of involvement in the direct shaping of the war and Israel’s all-out attack on the civilian population of Gaza.

Hamas and a Second Nakba

While I was special rapporteur for the U.N. on Israeli violations of human rights and international humanitarian law, I had the opportunity to meet and talk in detail with several of the Hamas leaders who are living either in Doha or Cairo and also in Gaza. In the period between 2010 and 2014, Hamas was publicly and by back channels pushing for a 50-year cease-fire with Israel. It was conditioned on Israel carrying out the unanimous 1967 Security Council mandate in SC Res 242 to withdraw its forces to the pre-war boundaries of “the green line.” Hamas had also sought a long-range cease-fire with Israel after its 2006 electoral victory for up to 50 years.

Neither Israel nor the U.S. would respond to those diplomatic initiatives. Hamas, Machel particularly who was perhaps the most intellectual of the Hamas leaders, told me that he warned Washington of the tragic consequences for both peoples if the conflict was allowed to go on without a cease-fire, which was confirmed by independent sources.

Where can Palestinians go as the population suffers from famine and continued bombing? What is Israel’s goal?

I see the so-called commitment to thinning the Palestinian presence in Gaza and to a functional second Nakba. This is a criminal policy. I don’t know that it has to have a formal name. It is not a policy designed to achieve anything but the decapitation of the Palestinian population. Israel seeks to move Gazans to the Egyptian Sinai, and the Egyptians have already indicated that they don’t welcome this.

This is not a policy. This is some kind of a threat of elimination. The Israeli campaign after October 7 was not directed toward Hamas’ terrorism nearly as much as it was directed toward the forced evacuation of the Palestinians from Gaza and for the related dispossession of Palestine in the West Bank.

If Israel really wanted to deal with its security in an effective way, much more efficient and effective methods would have been relied upon. There was no reason to treat the entire civilian population of Gaza as if it were implicated in the Hamas attack, and there was certainly no justification for the genocidal response. The Israeli motivations seem more related to completing the Zionist Project than to restoring territorial security. All indications are that Israel used the October 7 attack as a pretext for the preexisting master plan to get rid of the Palestinians whose presence blocks the establishment of Greater Israel with sovereign control over the West Bank and at least portions of Gaza.

For a proper perspective we should remember that before October 7, the Netanyahu coalition government that took power at the start of 2023 was known as the most extreme government ever to govern the country since its establishment in 1948. The new Netanyahu government in Israel immediately gave a green light to settler violence in the Occupied West Bank and appointed overtly racist religious leaders to administer the parts of Palestine still occupied.

This was part of the end game of the whole Zionist project of claiming territorial sovereignty over the whole of the so-called promised land, enabling Greater Israel to come into existence.

The Need for a Different Context

We need to establish a different context than the one that exists now. That means a different outlook on the part of the Western supporters of Israel. And a different internal Israeli sense of their own interests, their own future. And it’s only when substantive pressure is brought to bear on an elite that has gone to these lengths that it can shake commitments to this orientation.

The lengths that the Israeli government has gone to are characteristic of settler colonial states. All of them, including the U.S. and Canada, have acted violently to neutralize or exterminate the resident Indigenous people. That is what this genocidal interlude is all about. It is an effort to realize the goals of maximal versions of Zionism, which can only succeed by eliminating the Palestinians as rightful claimants. It should not be forgotten that in the weeks before the Hamas attack, including at the U.N., Prime Minister Benjamin Netanyahu was waving a map of “the new Middle East” that had erased the existence of Palestine.

Undoubtedly, one of Hamas’ motivations was to negate the view that Palestine had given up its right to self-determination, and that Palestine could be erased. Recall the old delusional pre-Balfour Zionist slogan: “A people without land for a land without people.” Such utterances of this early Zionist utopian phase literally erased the Palestinians who for generations lived in Palestine as an entitled Indigenous population. With the Balfour Declaration of 1917, this settler colonial vision became a political project with the blessings of the leading European colonial power.

Given post-colonial realities, the Israeli project is historically discordant and extreme. It exposes the reality of Israel’s policies and the inevitable resistance response to Israel as a supremacist state. Israeli state propaganda and management of the public discourse has obscured the maximalist agenda of Zionism over the years, and we are yet to know whether this was a deliberate tactic or just reflected the phases of Israel’s development.

This may turn out to be a moment of clarity with respect not only to Gaza, but to the overall prospects for sustainable peace and justice between these two embattled peoples.

 

Zionism, Anti-Palestinianism, and the Fall of Harvard’s Claudine Gay

Charles Hirschkind

 

Berkeley, CA (Special to Informed Comment; Feature) – Much of the media conversation about the recent resignation of Harvard’s president, Claudine Gay, has (rightfully) framed her abrupt removal in the context of the current right-wing assault on liberal education and, particularly, its targeting of the policies and practices designed to promote racial equality on US campuses (DEI). Indeed, many of the leading actors who mobilized to bring down President Gay have made no secret of their aim to exploit her fall from grace as fodder for their war on affirmative action policies in US academia. However, while this is undeniably one half of the story, the other, even more worrisome half, has received strikingly little attention among commentators (including, unfortunately, President Gay herself): that her successful ejection from office was enabled, first and foremost, by her failure to satisfy a congressional inquisition on antisemitism on campus to which she had been summoned.

At that event, President Gay fell into the trap of accepting Representative Elise Stefanik’s radical mis-characterization of two expressions that have a long history within Palestinian struggles for freedom—“intifada,” and the phrase “from the river to the sea,”—as calls for genocide against Jews, and then, when pressured, failed to state unequivocally that such speech was a violation of Harvard’s rules of conduct. That is, when pressed to state that pro-Palestinian perspectives, wherein the use of these terms is commonplace, should be forbidden from campus, she wavered, perhaps momentarily confused by her free speech concerns. It was this failure to denounce the illegitimacy of pro-Palestinian speech and activism—glossed as “genocidal” by Stefanik, and accepted as such by all present, including Gay—that ultimately spelled her downfall.

The main reason liberal pundits have downplayed the salient role of what could be called “anti-Palestinianism” in sealing Dr. Gay’s fate is that, unlike the attack on liberal education, it cannot be framed as a partisan issue. The termination of her presidency did not provoke any outcry among Washington Democrats largely because they also have embraced the position expressed in Rep. Stefanik’s rhetoric, namely, that anti-Zionism (i.e. expressed in calls for an end to the Israeli occupation) is equivalent to antisemitism or, in other words, that calls for Palestinian liberation, for full legal and political rights for Palestinians, constitute a murderous threat to exterminate Jews.

For clarification, let me note here that intifada, as used by Palestinians in recent history, simply means “uprising,” and more specifically, an uprising against the oppressive conditions of the Israeli occupation; “from the river to the sea (Palestine will be free),” for its part, is chanted at pro-Palestinian demonstrations, not as a call for genocide of Jews, but a demand that everyone inhabiting this geography have equal rights and freedoms. That scholars of the region have vehemently and publicly criticized the misuse of these terms within US political discourse has not hindered pro-Israeli pundits from rehashing such mistranslations.

Stefanik and co. have now demonstrated how the political class’s unwavering support for pro-Israeli perspectives and policies can be weaponized against the university, including its commitments to racial equality. The current chair of the Education and Workforce Committee, Representative Virginia Foxx of North Carolina, who originally organized the congressional hearings on antisemitism on college campuses, now plans to expand the scope of her investigation into antisemitism on campus to other elite schools, giving particular attention to the way DEI programs may have adversely affected Jewish students.

The congressional group, under Foxx’s leadership has already demanded that Harvard make available a list of “posts by Harvard students, faculty, staff, and other Harvard affiliates on Sidechat and other social media platforms targeting Jews, Israelis, Israel, Zionists, or Zionism.”

And who will be the primary victims of this congressional campaign targeting critics of Israeli occupation? Palestinians, Arabs, and Muslims, of course, will find themselves directly in the crosshairs of this witch-hunt. But—and, for the critics of the liberal university, this is the genius of the Republican plan—so will the Black and Brown folk who have played a dominant role in urging universities to adopt DEI concerns and commitments. Why? Because the underlying values and principles informing DEI initiatives are radically incompatible with the ethnonationalism of the Zionist project. Indeed, if there are three terms that are completely foreign to Israeli political discourse on the Palestinian people they are Diversity, Equity, and Inclusion.

Will the Democratic majority in congress be able to counter this Republican assault on liberal education and on its recently bolstered commitments to anti-racism? Unlikely. As the congressional ambush of the presidents of Harvard, U Penn, and MIT demonstrated, the Democrat’s near total devotion to the cause of defending Israel, however egregious its violation of international laws, renders them largely incapable of defending the academic institutions they claim to value. Their blind dedication (“subservience” is probably a more accurate term) to Israel prevents them from calling out the weaponization of the antisemitism charge for what it is, a well-planned and orchestrated effort to silence any criticism of Israel’s decades-long brutalization of Palestinians.

To be clear, I am not suggesting that antisemitism is not a real issue in the US today, simply that its use to tarnish the struggle for Palestinian justice is based on a profound and dangerous political lie. As Bernie Steinberg, a previous executive director of Harvard Hillel, has written: “As a leader in the Jewish community, I am particularly alarmed by today’s McCarthyist tactic of manufacturing an antisemitism scare, which, in effect, turns the very real issue of Jewish safety into a pawn in a cynical political game to cover for Israel’s deeply unpopular policies with regard to Palestine.”

The fact that the Democrats are willing to throw their commitment to racial equality under the bus for the sake of demonstrating their infinite devotion to Israel suggests that such a commitment may have been rather thin to begin with. Can support for Israel’s apartheid system (as it has been described by most reputable human rights organizations), not to mention for the war crimes currently being committed in Gaza (again, the designation comes from those same human rights organizations), be squared with a politics of racial justice in the US? When push comes to shove, which is where we are now, then it is obvious the answer is clearly no.

 

Israel’s Argument at The Hague: We are Incapable of Genocide

BinoyKampmark

 

Israel’s relationship with the United Nations, international institutions and international law has at times bristled with suspicion and blatant hostility.  In a famous cabinet meeting in 1955, Prime Minister David Ben-Gurion famously knocked back the suggestion that the United Nations 1947 plan for partitioning Palestine had been instrumental in creating the State of Israel.  “No, no, no!” he roared in demur.  “Only the daring of the Jews created the state, and not any oom-shmoom resolution.”

In the shadow of the Holocaust, justifications for violence against foes mushroom multiply.  Given that international law, notably in war, entails restraint and limits on the use of force, doctrines have been selectively pruned and shaped, landscaped to suit the needs of the Jewish state.  When the strictures of convention have been ignored, the reasoning is clipped for consistency: defenders of international law and its institutions have been either missing in the discussion or subservient to Israel’s enemies.  They were nowhere to be seen, for instance, when Egypt’s Gamal Abdel Nasser was preparing for war in the spring of 1967.  Israel’s tenaciously talented statesman, Abba Eban, reflected in his autobiography about the weakness of the UN in withdrawing troops from the Sinai when pressured by Nasser to do so.  It “destroyed the most central hopes and expectations on which we had relied on withdrawing from Sinai”.

These steely attitudes have seen international convention and practice, in the Israeli context, treated less as Dickensian as protean instruments, useful to deploy when convenient, best modified or ignored when nationally inconvenient.  This is most evident regarding the Israel-Hamas war, which is now into its third month.  Here, Israeli authorities are resolute in their calls that Islamic terrorism is the enemy, that its destruction is fundamental for civilisation, and that crushing measures are entirely proportionate.  Palestinian civilian deaths might be regrettable but all routes of blame lead to Hamas and its resort to human shields.

These arguments have failed to convince a growing number of countries.  One of them is South Africa.  On December 29, the Republic filed an application in the International Court of Justice alleging “violations by Israel regarding the Convention on the Prevention and Punishment of the Crime of Genocide […] in relation to Palestinians in the Gaza Strip.”  Various “acts and omissions” by the Israeli government were alleged to be “genocidal in character, as they are committed with the requisite specific intent … to destroy the Palestinians in Gaza as part of the broader Palestinian national, racial and ethnical group”.  What Pretoria is seeking is both a review of the merits of the case and the imposition of provisional measures that would essentially modify, if not halt, Israel’s Gaza operation.

Prior to its arguments made before the 15-judge panel on January 12, Israel rejected “with contempt the blood libel by South Africa in its application to the International Court of Justice (ICJ).”  The Israeli Foreign Ministry went so far as to suggest that the court was being exploited, while South Africa was, in essence, “collaborating with a terror group that calls for the destruction of Israel.”

Prime Minister Benjamin Netanyahu, with demagogic rage, claimed that his country had witnessed “an upside-down world.  Israel is accused of genocide while it is fighting against genocide.”  The country was battling “murderous terrorists who carried out crimes against humanity”.  Government spokesman Eylon Levy tried to make it all a matter of Hamas, nothing more, nothing less.  “We have been clear in word and in deed that we are targeting the October 7thmonsters and are innovating ways to uphold international law.”

In that innovation lies the problem.  Whatever is meant by such statements as those of Israel Defence Forces spokesman, Rear Adm. Daniel Hagari, that “Our war is against Hamas, not against the people of Gaza”, the catastrophic civilian death toll, destruction, displacement and starvation would suggest the contrary.  Innovation in war often entails carefree slaughter with a clear conscience.

On another level, the Israeli argument is more nuanced, going to the difficulties of proving genocidal intent.  Amichai Cohen of Israel’s Ono Academic College and senior fellow at the Israel Democracy Institute admits that comments from right-wing Israeli ministers calling for the “emigration” of Palestinians from Gaza were not helpful. (They were certainly helpful to Pretoria’s case.)  But he insists that the South African argument is based on “classic cherry-picking.”  Cohen should know better than resort to the damnably obvious: all legal cases are, by definition, exercises of picking the finest cherries in the orchard.

The Israeli defence team’s oral submissions to the ICJ maintained a distinct air of unreality.  Tal Becker, as legal advisor to the Israeli Foreign Ministry, tried to move judicial opinion in his address by drawing upon the man who minted genocide as a term of international law, Raphael Lemkin.  Invariably, it was Becker’s purpose to again return to the Holocaust as “unspeakable” and uniquely linked to the fate of the Jews, implying that Jews would surely be incapable of committing those same acts.  But here was South Africa, raining on the sacred flame, invoking “this term in the context of Israel’s conduct in a war it did not start and did not want.  A war in which Israel is defending itself against Hamas, Palestinian Islamic Jihad and other terrorist organizations whose brutality knows no bounds.”  Israel, pure; Israel vulnerable; Israel under attack.

In yet another jurisprudential innovation, Becker insisted that the Genocide Convention was not connected in any way to “address the brutal impact of intensive hostilities on the civilian population, even when the use of force raises ‘very serious issues of international law’ and involves ‘enormous suffering’ and ‘continuing loss of life’.”  The Convention, rather, was meant “to address a malevolent crime of the most exceptional severity.”

The view is reiterated by another lawyer representing Israel.  “The inevitable fatalities and human suffering of any conflict,” submitted Christopher Staker, “is not of itself a pattern of conduct that plausibly shows genocidal intent.”  Butcheries on a massive scale would not, in of themselves, suggest such the requisite mental state to exterminate a race, ethnic or religious group.

As for South Africa’s insistence that provisional measures be granted, Staker was unwavering in repeating the familiar talking points.  They “would stop Israel defending its citizens, more citizens could be attacked, raped and tortured [by Hamas], and provisional measures would prevent Israel doing anything.”

Legal tricks and casuistry were something of a blooming phenomenon in Israel’s submissions.  South Africa had, according to Becker, submitted “a profoundly distorted factual and legal picture.  The entirety of its case hinges on deliberately curated, decontextualised, and manipulative description of the reality of current hostilities.”  Happy to also do a little bit of decontextualising, curating and manipulating himself, Becker trotted out the idea that, in accusing Israeli’s war methods as being genocidal, Pretoria was “delegitimizing Israel’s 75-year existence in its opening presentation”.  It entailed erasing Jewish history and excising “any Palestinian agency or responsibility.”  Such a ploy has been Israel’s rhetorical weapon for decades: all those who dare judge the state’s actions in a bad light also judge the legitimacy of the Jewish state to exist.

Malcom Shaw, a figure known for his expertise in the thorny realm of territorial disputes, did his little bit of legal curation.  He took particular issue with South Africa’s use of history in suggesting that Israel had engaged in a prolonged dispossession and oppression of the Palestinians, effectively a remorseless, relentless Nakba lasting 75 years.  The submission was curious for lacking any mooring in history, a fatal error to make when considering the Israel-Palestinian issue.  It’s also palpably inaccurate, given the dozens of statements made by Israeli politicians over the decades acknowledging the brutal, ruthless and dispossessing tendencies of their own country.  But legal practitioners love confines and walled off applications.  The only thing that mattered here, argued Shaw, was the attack of October 7 by Hamas, a sole act of barbarity that could be read in terrifying isolation.  That, he claimed was “the real genocide in this situation.”

Having tossed around his own idea about the real genocidaires (never Israel, remember?), Shaw then appealed to the sanctity of the term genocide, one so singular it would be inapplicable in most instances.  Conflicts could still be brutal, and not be genocidal.  “If claims of genocide were to become the common currency of our conflict … the essence of this crime would be diluted and lost.”  Woe to the diluters.

Gilad Noam, in closing Israel’s defence, rejected the characterisation of Israel by South Africa as a lawless entity that regarded “itself as beyond and above the law”, whose population had become infatuated “with destroying an entire population.”   In a sense, Noam makes a revealing point.  What makes Israel’s conduct remarkable is that its government claims to operate within a world of laws, a form of hyper-legalisation just as horrible as a world without laws.

Ironically enough, the Lemkin Institute for Genocide Prevention has been furiously pressing the International Criminal Court to indict Israeli Prime Minister Benjamin Netanyahu for the crime of genocide, the siege and bombardment of Gaza “and the many expressions of genocidal intent, especially in his deleted tweet from 10/17/2023.”  The tweet (or post) in question crudely and murderously declared that, “This is a struggle between the children of light and the children of darkness, between humanity and the law of the jungle.”  If that does not reveal intent, little else will.