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If It's a Genocide in Gaza, Then Invoke the Convention to Stop it

A Global Legal Intifada

by SAM HUSSEINI

On Monday, Iran is hosting a meeting of the Non Aligned Movement urging global action to end what top Iranian officials have called the “genocide” in Gaza. Certainly meaningful action is desperately needed. And if Iran and other governments are serious about taking action and the charge of genocide, they have an avenue open to them: Go beyond denunciations and invoke the Genocide Convention against Israel.

Supreme Leader Ayatollah Ali Khamenei has accused Israel of “genocide” as has Iranian Foreign Minister Mohammad Javad Zarif: “We have repeatedly warned of this genocide conditions in Gaza.”

Pakistani Prime Minister Nawaz Sharif has called Israel’s attack “genocide,” adding: “I am saddened and disappointed to note the silence of international community against this injustice. The silence and ineffectiveness of Muslim Ummah [community] has made Palestinians more vulnerable and made Israel more aggressive. World must stop Israel from this naked and brutal aggression.”

Others who have charged that Israel is committing genocide include Bolivian President Evo Morales, who recalled that country’s ambassador from Israel, as have Brazil, Chile, Ecuador, El Salvador and Peru. Said Morales: “What is happening in Palestine is genocide.”

Similarly, from the the Venezuelan government: Israel has “initiated a higher phase of its policy of genocide and extermination with the ground invasion of Palestinian territory, killing innocent men, women, girls and boys.”

Leading legal scholars have also called what Israel is doing genocide. It’s important to note that you don’t need millions of dead bodies and a Nazi industrial system of extermination to constitute genocide under the relevant convention. See from President Emeritus of the Center for Constitutional Rights Michael Ratner: “UN’s Investigation of Israel Should Go Beyond War Crimes to Genocide” and the piece “More voices describe Gaza slaughter as a ‘genocide.’

But none of these governments seem to be moving to actually invoking the relevant legal remedy for the charge they make: The Convention on the Prevention and Punishment of the Crime of Genocide.

Professor Francis Boyle at the University of Illinois is proposing that they do so –and has laid out a legal strategy to do so that attempts to shortcut the predictable obstructionism from the U.S. and Israel. He recommends countries that are signatories to the Genocide Convention:

Immediately institute legal proceedings against Israel before the International Court of Justice in The Hague on the basis of the 1948 Genocide Convention, request an Emergency Hearing by the Court, and obtain an Order by the Court against Israel to cease and desist from committing all acts of genocide against the Palestinians. This Order will then be transmitted by the Court to the United Nations Security Council for enforcement as required by the United Nations Charter. In the event the United States were to exercise a veto at the Security Council against the enforcement of this World Court Cease-and-Desist Order against Israel, you can then invoke the General Assembly’s Uniting for Peace Resolution of 1950 in order to have the World Court Order turned over to the United Nations General Assembly for enforcement against Israel. Under the terms of the Uniting for Peace Resolution, the General Assembly can recommend enforcement measures against Israel to every state in the world that would be lawful for them to carry out. In addition, the U.N. General Assembly could also admit Palestine as a full-fledged U.N. Member State.

John Quigley, a leading expert on genocide at Ohio State University, who was an expert witness at the trial of Pol Pot, agrees that invoking the Genocide Convention could work. He notes that many countries that are signatories to the convention have stipulated reservations to the critical Article IX. The U.S. has a reservation to this Article. But Israel doesn’t. Venezuela and other states currently have reservations and would be hindered in moving forward until they dropped them. However, Bolivia, Brazil, Chile, Gambia, Iran, Lebanon, Pakistan, Paraguay, Peru, South Africa, Russia, Tunisia, Uganda and other countries are perfectly positioned legally to do so. (The list of signatory states is here. If there’s no footnote for a country regarding Article IX, that country can move invoke the convention against Israel.)

Notes Quigley: “A country with a reservation to Article IX could drop it and then sue. A country lacking a reservation cannot add one. A reservation can be entered only upon becoming a party.”

So, what’s stopping these countries from invoking the treaty against Israel? In part, it appears to be the Palestinian Authority. Or more exactly, the Palestine Office at the United Nations. Which is ironic, since PA head Abbas has called it genocide: “It’s genocide — the killing of entire families is genocide by Israel against our Palestinian people.”

It’s imperative that countries that may be considering action along these lines not be hindered by the PA — over the course of decades, it’s been clear that the PA does not have a legal strategy in play that will meaningfully protect the life and well being of Palestinians, especially in Gaza. The Palestinian establishment in Ramallah is either unwilling or unable to meaningfully protect the Palestinian people. Any move by a nation that has been critical of Israel to invoke the Genocide Convention against Israel will obviously be welcomed by an overwhelming majority of Palestinians, and likely their own publics.

Most assessments regarding Israel’s legal culpability center for the carnage in Gaza around the International Criminal Court. But Quigley, Boyle and others have criticized the ICC as being extremely selective about who they prosecute. Indeed, the Palestinians were initially rebuffed by the ICC and the ICC has shown that it is most interested in going after Africans who are critical of the Western powers. The ICC was glaringly silent when it came to the invasion of Iraq.

Some — like Human Rights Watch — have urged “Palestine: Go to International Criminal Court.” So far, those at the Palestine mission in New York have not taken the final steps to doing so. (Human Rights Watch comes with their own set of double standards, like many legal observers, they criticize Israel, but don’t take the steps that would actually put Israel in legal jeopardy, for example, they have not invoked the term “genocide” with regards to Israel, though of course they did for example with regards to Iraq.)

The Palestine mission to the UN could fear that if they went to the ICC, that court would go after Palestinians for relatively minor crimes just as the ICC has done for Africans. Or it could be because the Palestinian Authority does not want to upset Israel, either because they are defacto operating in collusion or because they fear that such a legal move against Israel would mean Israel will use even more violence, including in the West Bank and conceivably targeting PA officials and their families.

AP recently reported:

Nearly a month into Israel’s fierce assault on Hamas in Gaza, Palestinian President Mahmoud Abbas is facing mountingdomestic pressure to seek war crimes charges against Israel at the International Criminal Court.

He has hesitated in the past because such a move would instantly put the Palestinians on a risky collision course with Israel. But with about 1,400 Palestinians killed in Gaza, according to health officials, Abbas has signaled he might move ahead — cautiously.

Palestinian officials said Thursday that Abbas asked all Palestinian political factions, including Hamas and the smaller group Islamic Jihad, to give their written consent to such a move. Different PLO factions signed up in a meeting in the West Bank earlier this week, while Abbas is still waiting for a response from Hamas and Islamic Jihad, they said.

In trying to make a case against Israel, Abbas could also expose Hamas, a bitter rival turned potential political partner, to war crimes prosecution because it has fired thousands of rockets from Gaza at Israeli communities over the years.

The French lawyer Gilles Devers has filed a complaint on behalf of the Palestinian justice minister at the International Criminal Court.

Whatever the cause for the PA’s not fully embracing the ICC, the clear remedy is for other states to take up the flag, to in effect launch a global legal intifada against Israel using the Genocide Convention. It would be particularly poignant for countries who understand settler to do this — it may even help them come to terms with their own histories.

Some, like James Paul, a longtime UN observer and former head of the Global Policy Forum, wonder if such legal proceedings could take years. Boyle however states that his strategy could win an emergency order in three weeks — and he has a record to back it up, having successfully filed genocide charges on behalf of the Bosnians: “I filed that lawsuit on March 19, 1993 and won the order April 8, 1993 and it was immediately transmitted to the Security Council.” In either case, given the recurring bombing campaigns by Israel, meaningful legal action is long overdue.

What’s plainly not needed is that various states take the carnage in Gaza to simply make pronouncements denouncing Israel and the United States for political gain without invoking the legal remedies that are available to them to potentially protect Palestinians in Gaza. Of course, such a course will likely mean serious retribution of some sort from Israel and likely the United States. But that’s the nature of meaningful solidarity. It’s not pronouncements, it’s actions that can help the oppressed and achieve justice that invariably entail risk.

Or perhaps the greater risk is not invoking the legal mechanisms available. The Palestinians are the targets today. Who will be the target years from now unless the rule of law is meaningfully asserted now?

Sam Husseini is the communications director of the Institute for Public Accuracy.