Amnesty International has issued a new report accusing the state of Israel with the crime of genocide in its actions against the Palestinian people in the Gaza Strip. The crime of genocide is the most serious crime in international law and an accusation of genocide needs to meet extremely specific and demanding criteria of both actions and intent. Amnesty International is a well-respected human rights organization with a record of accomplishment that deserves respect.
It is a long, incredibly detailed report with evidence from a variety of credible sources. The report begins with an acknowledgement of what needs to be proven in order to support an accusation of genocide:
“To make a determination on genocide, Amnesty International first examined whether Palestinians in Gaza constitute part of a protected group under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), that is a national, ethnical, racial or religious group. It then focused on three out of the five prohibited acts under the Genocide Convention: ‘killing members of the group’; ‘causing serious bodily or mental harm to members of the group’; and ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part’. It finally examined whether Israel committed these acts with the specific ‘intent to destroy, in whole or in part, [the] group, as such’.”
The report then goes through each of these criteria and documents specific cases through eyewitness testimonies. I was unaware of several of these cases, even though I have tried to be as well-informed as I can on this conflict. Much of the evidence, largely from satellite imagery, suggests destruction in Gaza which can hardly be described as precision accuracy. And the degree of forced displacement is staggering. Given the scale of destruction in such a small area, it would be difficult to deny that the degree of “harm” inflicted on the population in the Gaza satisfies the first two criteria of the Convention.
The significantly more difficult question to answer is whether Israel intends to “destroy, in while or in part, [the] group, as such”. People have intentions; governments have intention; it is questionable whether “states” have intentions. In today’s US Department of State Press Briefing, members of the press questioned the matter of intent:
“QUESTION: Because now we have Amnesty International. Before that, we had Human Rights Watch. We have all the UN organizations, all the human rights organizations probably throughout the world, B’Tselem, the Israeli human rights organization, every other organization saying that Israel is committing genocide. And depends – I mean it says – I know that genocide depends a great deal on intent, and it says – it bases its conclusion on statement time and time and time again by Israeli commanders, by Israeli officials, by certainly the president of Israel, by many, many other people that said they are committing genocide. I mean, we see that they have killed 44, 45 thousand people, 17,000 children. It deprives it food from going in, it deprives anesthesia from going on. CNN reported yesterday that Israel disallowed anesthesia from going into Gaza.
What is it going to take for you – for the United States of America that really holds the moral high ground on these issues, on human rights issues – to say what is happening is genocide? Because you are – what we see today, what we witness in northern Gaza is basically starvation by intent.
MR PATEL: Said, that’s an opinion. And you’re certainly welcome and you are entitled to it, as are all the organizations that you listed. They are entitled to make their own analysis of the situation and come to their own conclusions. What I can say as a spokesperson of the U.S. Government and as a spokesperson of this administration is that the findings of – the accusations of genocide, we continue to believe those to be unfounded. That does not change and that does not change the prioritization and the stress and the emphasis that we are placing on ensuring that there is appropriate access to humanitarian assistance, ensuring that every possible measure is taken to protect civilians, ensuring that we’re doing everything possible to bring this war to an end.
QUESTION: So —
MR PATEL: People, organizations, groups are entitled to draw their own conclusions. The U.S. conclusion is that these allegations of genocide are unfounded. There are and there continue to exist a number of avenues within the U.S. Government in which we are looking at what’s happening on the ground, where those assessments continue to be ongoing. But I don’t have any update to provide as it relates to that.
I sincerely doubt that there are many Israelis who wish to see the Palestinian people exterminated, even after the atrocities of 7 October. But does the government of Israel wish to see the Palestinian people exterminated? According to Amnesty:
“The offensive on Rafah was launched a week after Minister of Finance Bezalel Smotrich, a member of Israel’s security cabinet, explicitly called for the city’s destruction by referring to a well-known Biblical story of absolute vengeance in which an entire nation – the people of Amalek – is ordered to be destroyed: “There are no jobs half done. Rafah, Deir al-Balah, Nuseirat, destruction! Blot out the memory of [the people of] Amalek from under heaven,” he said at a public event on 29 April 2024. In fact, Minister of Finance Smotrich and Minister of National Security Ben-Gvir, who also made some of the most explicit calls for the destruction of Palestinians in Gaza, threatened to quit the government coalition if Prime Minister Netanyahu abandoned plans to attack Rafah. Minister of Finance Smotrich’s statement came months after Prime Minister Netanyahu first referred to the story of the total destruction of the people of Amalek in the first week of Israel’s ground offensive in late October and early November 2023. He used it to garner support for what was, at the time, a new and highly destructive phase of the conflict. As Israel’s highest office-holder, who oversaw the offensive on Gaza, Prime Minister Netanyahu would have most certainly known that his words would be understood by soldiers, particularly those affiliated with the settler movement and religious nationalist parties led by the two ministers, as calls for the destruction of Palestinians in Gaza.”
The Israeli Government has explicitly rejected the report. The US has not rejected the report, but has rather found it to be “unfounded”. There really is no way to determine what the intent of the destruction on the people and land of Gaza was or is. But the future will give us an answer. If the Palestinian people cannot repopulate the land because of Israeli occupation or sovereignty, then the intent to remove the Palestinian people will become clear. If the world wants to know what Israel’s intentions truly are, then the world should demand that Israel clearly state that the Palestinian people will be able to return and to live in the Gaza Strip as part of their own homeland, Palestine.
Last Tuesday, the Israeli Defense Force announced that its current plan is for the complete evacuation of Palestinians from north Gaza. The Guardian summarized the announcement:
“Israeli ground forces are getting closer to ‘the complete evacuation’ of northern Gaza and residents will not be allowed to return home, the Israel Defense Forces (IDF) has said, in what appears to be the first official acknowledgment from Israel it is systematically removing Palestinians from the area.
“In a media briefing on Tuesday night, the IDF Brig Gen Itzik Cohen told Israeli reporters that since troops had been forced to enter some areas twice, such as Jabaliya camp, ‘there is no intention of allowing the residents of the northern Gaza Strip to return to their homes’.
“He added that humanitarian aid would be allowed to ‘regularly’ enter the south of the territory but not the north, since there are ‘no more civilians left’.”
With that announcement, it is clear that Israeli military actions against the Gaza Strip, Syria, Lebanon, and Iran no longer qualify as “self-defense” unless we decide to include ethnic cleansing as an act of self-defense. Indeed, the IDF tactic is similar to the horrific acts committed by the Serbs and Croats in Bosnia in the early 1990s. The US Holocaust Memorial Museum characterized these acts as war crimes:
“On April 5, 1992, the government of Bosnia declared its independence from Yugoslavia. The creation of an independent Bosnian nation that would have a Bosniak majority was opposed by Bosnian Serbs, who launched a military campaign to secure coveted territory and “cleanse” Bosnia of its Muslim civilian population. The Serbs targeted Bosniak and Croatian civilians in areas under their control, in what has become known as “ethnic cleansing.”
“During the subsequent civil war that lasted from 1992 to 1995, an estimated 100,000 people were killed, 80 percent of whom were Bosniaks. In July 1995, Bosnian Serb forces killed as many as 8,000 Bosniak men and boys from the town of Srebrenica. It was the largest massacre in Europe since the Holocaust.”
There is little question that the act clearly qualifies as a war crime. The Fourth Convention of the Geneva Accords is explicit on the movement of civilian populations in an occupied territory:
ART. 49. — Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive. Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.
There is little chance that there is any amount of pressure that will change Israel’s behavior, as Prime Minister Netanyahu has openly refused to accept most guidance from its allies. And now that former President Trump has been elected, it appears that US policy will be guided by the blank check suggested by Trump: “do what you have to do”. Netanyahu also seems to be preparing the US government for expanded actions against Palestinians in the West Bank by appointing Yechiel Leiter as the next Israeli Ambassador to the US. Leiter has been an advocate for annexing the West Bank. According to Middle East Eye:
“Leiter was a member of the Jewish Defence League, which was founded in the US by the far-right rabbi Meir Kahane. The group was later designated as a terrorist organisation by the US, although the designation was lifted in 2022 due to inactivity.
“Leiter’s son was killed last year in Gaza while serving with the Israeli military.
“Leiter’s appointment came just three days after Donald Trump’s election as US president. During his first term, Trump reversed decades of US policy that considered Israeli settlements in the West Bank a violation of international law.
“Under Trump, Israel aggressively expanded its settlement building, pushing deeper into the West Bank and constructing thousands of settler homes on Palestinian land.
“Trump also recognised Israel’s control over the Golan Heights, a Syrian territory that Israel annexed in 1981 in a move the international community has never recognised.
“Israel’s settler leaders and far-right figures welcomed Trump’s victory, particularly after the Biden administration imposed sanctions and asset freezes on settler groups and individuals involved in violence against Palestinians in the occupied West Bank.
“Leiter’s appointment suggests that Netanyahu plans to advance policies in line with the settler movement’s agenda, which includes the annexation of the West Bank.”
I expect that Netanyahu will take advantage of President Biden’s lame-duck status and move forward aggressively to resettle the Gaza and the West Bank. Israel’s behavvior is comparable to the atrocities in Bosnia, in Rwanda in 1994, and the ongoing war against the Royingha in Myanmar. The critical difference is that Israel would not be able to accomplish any of its goals without the support of the US, and the American complicity in the atrocity breaks my heart. But we can dispense with the idea that Israel is conducting a war of self-defense. It is quite clearly a war of conquest.
Yesterday, the Israeli Knesset declared that the creation of a Palestinian states would “pose an existential danger to the State of Israel.” The vote was 68 to 9 out of a possible 120 votes, and the fact that 43 members did not votes is intriguing, and perhaps, telling. The vote was held just as Prime Minister Netanyahu is scheduled to deliver an address to the US Congress next Wednesday, 24 July. Since US President Biden has repeatedly held that the creastion of a Palestinian state is necessary for peace between the Israelis and the Palestinians, the vote was intended to undermine the US position. To further indicate the growing distance between the US and the Netanyahu government, the Israeli national security ministar, Itamar Ben-Gvir, prayed at the al-Aqsa mosque compound, stating that he had prayed for the Israeli government to not sign a cease-fire agreement over Gaza.
Today, however, the International COurt of Justice relieased its findings in a Advisory Position which was requested by the UN General Assembly in 2022. The decision, “Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem“, forcefully reiterated previous legal findings that the Israeli occupation of the Gaza Strip, the Golan Heights, and the West Bank, territories seized by Israel in the war of 1967, violated both the Geneva and Hague Conventions on occupied territories:
“Conclusion on Israel’s settlement policy
155. In light of the above, the Court reaffirms that the Israeli settlements in the West Bank and East Jerusalem, and the régime associated with them, have been established and are being maintained in violation of international law (see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 184, para. 120).
“156. The Court notes with grave concern reports that Israel’s settlement policy has been expanding since the Court’s Wall Advisory Opinion. In particular, in December 2022 Israel’s parliament approved the establishment of an additional minister within the Ministry of Defence vested with governing powers in the West Bank, including land designations, planning and co-ordination of demolitions, which would expedite the approval process for new settlements. Also, the size of existing Israeli settlements expanded from 1 November 2022 to 31 October 2023 at a significant rate, with approximately 24,300 housing units within existing Israeli settlements in the West Bank being advanced or approved, including approximately 9,670 in East Jerusalem (“Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan: Report of the United Nations High Commissioner for Human Rights”, UN doc. A/HRC/55/72 (1 February 2024), paras. 7 and 10).” (p. 47)
“On July 19th the International Court of Justice (icj) rejected all of Israel’s legal claims in response to a request for a legal opinion by the United Nations General Assembly. In a series of coruscating majority rulings, it said that Israel’s prolonged presence can no longer be considered a temporary military occupation, but amounts to illegal annexation that undermines the rights of the Palestinians living there to self-determination. It said the occupation, ‘transfer by Israeli of settlers to the West Bank and Jerusalem’ and ‘forced displacement’ of Palestinians are clear breaches of international law. The bottom line, according to the judges, is that ‘Israel’s continued presence in the Occupied Palestinian Territory is unlawful’ and that the Jewish state is ‘under an obligation to cease immediately all new settlement activities’ and evacuate the settlers already there.
“’Successive Israeli governments have treated the settlements, as well as Israeli control over the area, as an immovable fact on the ground and not even made a pretence of negotiating with the Palestinians,’ says Eliav Lieblich, a professor of international law at Tel Aviv University. ‘This [ruling] was inevitable.’”
The decision is not enforceable. The International Court of Justice can only refer matters to the UN Security Council, and this is only an Advisory Decision. But there are members of the Security Council who would not be willing to even entertain an enforcement resolution. Nonetheless, the decision further isolates Israel and its allies from the vast majority of the states in the United Nations. Currently, 145 of the 193 member states in the UN recognize an independent Palestinian state.
What is most inrtiguing about the decision is that the preferred position of the US on the Israeli-Palestdinian question is that the only possible resolution lies in the creation of an independent Palestine. But the US insists that such an outcome needs to be negotiated and not imposed. The Israeli occupation has lasted for 57 years, and there have been numerous negotiations over those years which have had no discernable effect toward any effective resolution. There is no reason to believe that further negotiations will yield different outcomes. Israeli Prime Minister Netanyahu released this statement after the Court’s decision: “The Jewish people are not occupiers in their own land, including in our eternal capital Jerusalem nor in Judea and Samaria, our historical homeland. No absurd opinion in The Hague can deny this historical truth or the legal right of Israelis to live in their own communities in our ancestral home.”
The time has long past for the US to indulge the fantasy of negotiations. The International Court of Justice has created an opportunity for the US to change its position.
On 8 February 2024, US President Biden issued National Security Memorandum 20 (NSM20) to avoid a showdown with Democratic Senators who were threatening to pass an amendment to restrict US military aids to Israel because of its use of US weaponry in the conduct of the war in Gaza. The Senators believed that the weapons were already being used in a manner inconsistent with international and domestic laws safeguarding humanitarian use of the weapons and wanted the US to enforce the laws more stringently. According to Sarah Harrison, writing for Lawfare:
“Which is why it comes across as misleading that President Biden cites these laws and policies in NSM-20, a document based on the Van Hollen amendment, which was originally intended to put pressure on his administration to comply with them. If applied objectively, the president’s own Conventional Arms Transfer (CAT) Policy, the departments of State and Defense Leahy laws, and 620I of the Foreign Assistance Act—all of which are cited in NSM-20—arguably restrict some assistance to Israel. But so far, public reporting and indications from U.S. officials make clear that is not happening. (NSM-20 also references end-use monitoring requirements, though the State Department does not interpret them to mandate monitoring of actual use of equipment, but to strictly prevent diversion.)”
Importantly, NSM20 requires that such a determination be made within 45 days from the onset of a conflict in which US miliatary assistance is being used. The report from the State Department was released yesterday, a few days past that deadline. It is a textbook case in sophistry, holding two conclusions that do not support the policy recommendation.
The first conclusion is: “Nevertheless, given Israel’s significant reliance on U.S.-made defense articles, it is reasonable to assess that defense articles covered under NSM-20 have been used by Israeli security forces since October 7 in instances inconsistent with its IHL obligations or with established best practices for mitigating civilian harm.” (p. 22) That conclusion is followed by several pages of examples of Israeli military activity violating international humantiarian law.
That conclusion, however, does not suffice to halt military deliveries; the laws also require the US to assess whether the recipient of US military assistance is taking all necessary steps to follow international humanitarian law. If such measures are being taken, then the US can still legally provide aid, hoping that those measures can mitigate the harm to civilian populations.
However, the second conclusion is: “While Israel has the knowledge, experience, and tools to implement best practices for mitigating civilian harm in its military operations, the results on the ground, including high levels of civilian casualties, raise substantial questions as to whether the IDF is using them effectively in all cases.” (p. 28)
By these criteria, the US should stop all military assistance to Israel until there is more effective implementation of the requirements of international humanitarian law. But that course of action is not what the report calls for. The final policy recommendation (pp. 31-2) is: “While the USG has had deep concerns during the period since October 7 about action and inaction by Israel that contributed significantly to a lack of sustained and predictable delivery of needed assistance at scale, and the overall level reaching Palestinian civilians – while improved – remains insufficient, we do not currently assess that the Israeli government is prohibiting or otherwise restricting the transport or delivery of U.S. humanitarian assistance within the meaning of section 620I of the Foreign Assistance Act. This is an ongoing assessment and we will continue to monitor and respond to any challenges to the delivery of aid to Palestinian civilians in Gaza moving forward.”
The most benign interpretation of the incoherence of this document is that there are two competing factions in the State Department that failed to reach a compromise. A less benign interpretation is that the State Department had already decided not to follow the law and decided merely to follow the letter of the law with an act of obfuscation. Ni matter, the US should be ashamed of being an accomplice to the crime in Gaza.
I wrote about the South African case brought by South Africa to the International Court of Justice which accuses Israel of threatening genocide and requests a provisional cease-fire in the Gaza Strip. The brief states that….
“The facts relied on by South Africa in this application and to be further developed in these proceedings establish that — against a background of apartheid, expulsion, ethnic cleansing, annexation, occupation, discrimination, and the ongoing denial of the right of the Palestinian people to selfdetermination — Israel, since 7 October 2023 in particular, has failed to prevent genocide and has failed to prosecute the direct and public incitement to genocide. More gravely still, Israel has engaged in, is engaging in and risks further engaging in genocidal acts against the Palestinian people in Gaza. Those acts include killing them, causing them serious mental and bodily harm and deliberately inflicting on them conditions of life calculated to bring about their physical destruction as a group. Repeated statements by Israeli State representatives, including at the highest levels, by the Israeli President, Prime Minister, and Minister of Defence express genocidal intent. That intent is also properly to be inferred from the nature and conduct of Israel’s military operation in Gaza, having regard inter alia to Israel’s failure to provide or ensure essential food, water, medicine, fuel, shelter and other humanitarian assistance for the besieged and blockaded Palestinian people, which has pushed them to the brink of famine.”
The brief totals 84 pages and it is a well-reasoned complaint against the state of Israel, not only in the current conflict in the Gaza, but also for its occupation of territories since the war in 1967. It is not an easy read, but it is worth the effort. The brief asks for an early decision for a cease-fire, arguing that the determination of actual genocide is a decision that will require more time but that the facts at this time demand a case-fire without that final decision. Israel argued that its actions are based upon the principle of the right of self-defense and that the South African brief “grossly distorted” the facts.
Israeli Prime Minister Netanyahu denounced the suit. According to the Public Broadcast System, News Hour:
“Israel will pursue its war against Hamas until victory and will not be stopped by anyone, including the world court, Prime Minister Benjamin Netanyahu said in a defiant speech Saturday, as the fighting in Gaza approached the 100-day mark.
“Netanyahu spoke after the International Court of Justice at The Hague held two days of hearings on South Africa’s allegations that Israel is committing genocide against Palestinians, a charge Israel has rejected as libelous and hypocritical. South Africa asked the court to order Israel to halt its blistering air and ground offensive in an interim step.
“’No one will stop us, not The Hague, not the axis of evil and not anyone else,’ Netanyahu said in televised remarks Saturday evening, referring to Iran and its allied militias.”
Even if the International Court of Justice demands a provisional cease-fire, it can only refer that demand to the UN Security Council. If the matter goes that far, it will be a decisive moment for the United States. It will have to decide whether to veto a resolution demanding a cease-fire. It does seem, however, that the Biden Administration is beginning to lose patience with Israeli policy.
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