Mehmet Ugur
Professor of Economics and Institutions
University of Greenwich
Entrance
According to Article I of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), genocide is a crime committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group. The Convention obliges States Parties to enact the necessary laws and take the necessary measures to prevent and punish the crime of genocide (Article IV).
The International Court of Justice (ICJ) stated that the Genocide Convention is part of international law; He has repeatedly stated that he both prohibits genocide and that states must take the necessary measures to prevent and punish genocide. These obligations are binding on all states, whether or not they have ratified the Convention. The ICJ also ruled that the obligation to prevent genocide has an extraterritorial scope. Therefore, states that have the capacity to influence others have a duty to use all reasonable means to prevent genocidal crimes committed outside their borders.
The Center for Constitutional Rights (CCR), headquartered in New York, has prepared a report evaluating Israel’s actions in Gaza according to the criteria of the Genocide Convention. Dated October 18, 2023 and titled “Israel’s Unfolding Genocide of the Palestinian People & U.S. Failure to Prevent and Complicity in Genocide”, the Report reaches two conclusions.
First, Israel has shown that it has genocidal intent in Gaza and that it has taken a series of actions in that direction; Therefore, all states that are parties to the Genocide Convention, including the USA, have the duty and obligation to prevent the unfolding genocide. Secondly, countries that support Israel’s war crimes in Gaza are in breach of their obligations under the Genocide Convention; and thorough their support for Israel, they are complicit in the crime of genocide.
One aim of this article is to draw attention to the AHM’s fight for social justice within the USA and its solidarity with the people of Palestine. The second, but main purpose, is to share with Ehlen readers the findings of the ECHR report showing that Israel’s statements and actions regarding the bombardment in Gaza fall within the definition of genocide and that the USA is complicit in the crime of genocide. I also need to mention the motivation that triggered this article: To increase awareness about the case for prosecuting Israel’s war crimes, which have gone unpunished since 1948 and have eventually evolved into the crime of genocide. Therefore, I am writing this article in both Turkish and English.
CCR‘s Principled and Courageous Rights Advocacy
There is an organic relationship between CCR, which was established in the USA in 1966, and the black people’s struggle for civil rights and freedom. Because of this legacy, the CCR begins and continues as a collective of activists committed to using law as a positive force for social change. In addition to lawyers, the board of directors consists of long-time activists, human rights defenders, and academics. Most of the board members completed their ‘internship’ in the CCR kitchen and continue to contribute to the struggle for social justice and rights there. In this context, the CCR appliescutting-edge litigation methods; and combines rights advocacy with strategic communication. Another feature of the CCR is that it advances the struggle for rights in an organic relationship with rights defenders and social movements movements of which it is a part.
CCR’s work covers issues such as racial injustice;discriminatory policing; drone killings; state surveillance;LGBTQI persecution; sexual and gender-based violence;corporate human rights violations; and torture, war crimes, and militarism. CCR’s litigation in these areas has resulted in successful outcomes from many pioneering cases, and as such, has created a range of precedents for future judgements. Please visit the CCR’s website for information about its legal actions in these areas and the achieved results.
Solidarity with the Palestinian people is another area that CCR has been involved in since the mid-1980s. Browsing through CCR’s web pages on Palestine solidarity, we see that the first intervention in this field took place in 1987. That year, the US government arrests two Palestinian activists, Khader Hamide and Michel Shehadeh. Hamide and Shehadeh, who came to the USA for university education in the 1950s, have residence permits in the USA, where they had lived for thirty years. The US government has been trying to deport Hamida and Shehadeh since January 1987 for their alleged support for the Popular Front for the Liberation of Palestine. The case of Hamide and Shehadeh was concluded in favor of the two Palestinian activists after a 20-year ‘trial’ process. The court ruled that the U.S. government refused to disclose evidence in favor of Hamide and Shehadeh, and that the trial should be terminated, and that the request for deportation should be rejected.
CCR’s solidarity with the Palestinian people gained a broader scope after 2005. After losing several war-crimes cases against Israel between 2005 and 2009, CCR submitted a case again regarding the Israeli attack on the “Gaza Freedom Flotilla”, which was bringing aid to the blockaded Gaza in June 2010. Citing the Freedom of Information Act, the Court requests information from the US government regarding the events before and after the attack. The request asked for information from several US bodies, including the U.S. Coast Guard, the State Department, the Navy, the U.S. European Command, and the Department of Justice.
Since the information requested constitutes a long list, I will limit myself to just two examples: (1) What communications did the US government have with Israel regarding the fleet before and after the attack, and what was the content of these communications? (2) What is the US policy regarding Israel’s blockade of Gaza, which has been described as collective punishment by the United Nations?
The request had to be granted after 13 months. Various agencies of the US government had to release thousands of pages of documents showing that the US government shielded Israel and the Israeli army from liability for the deadly and unlawful attack on the “Gaza Freedom Flotilla”.
Another important case filed by the Court of Justice within the scope of solidarity with the Palestinian people is related to the war crimes committed by Israel and its allies in Gaza. It is necessary to give some information about this case, as it is closely related to the subject of the article.
On January 16, 2015, the International Criminal Court (ICC) opens a preliminary investigation into war crimes committed on Palestinian territory. Palestinian human rights organizations and victims make statements and provide information regarding war crimes and crimes against humanity committed by Israeli authorities. On 20 December 2019, the ICC concludes that there is a reasonable basis for continuing the investigation. The CCR then makes a presentation to the court on behalf of twenty Palestinian victims from all over Palestine and the diaspora. Following this presentation, on April 29, 2020, together with more than 180 human rights organizations from Palestine and the region, the CCR demanded that the ICC Prosecutor initiate the investigation without delay. Thereupon, on March 3, 2021, the ICC Prosecutor announced that an investigation had been opened into the war crimes committed by Israel in Palestine.
As can be seen from the summary above, the CCR pursues a wide-ranging agenda for civil and human rights. The two most distinctive features of the CCR’s approach are to use the law creatively and fearlessly; and to work with communities struggling for social justice and liberation. While these features are one of the reasons why the CCR has won many pioneering cases to date, the other reason is that it combines legal actions, rights advocacy, and strategic communication together. Thus, it creates momentum to shift the dominant narratives. For this reason, I take the CCR’s report on Palestine seriously because it constitutes a draft indictment that documents the unfolding genocide crime by Israel and the USA’s complicity therein.
Documenting Israel’s Crime of Genocide and US Complicity
In this section, I will examine summarize the CCR’s findings with respect to the unfolding genocide crime by Israel and the USA’s failure to fulfill its obligations under the Genocide Convention as well as its complicity in the unfolding genocide. In doing this, I will first summarize the evidence regarding Israeli statements on Gaza between 7 and 10 October; the ways in which the Israelis have been demonizing the Palestinians as a people. Then, I will summarize what is known about the civilian casualties and physical damages caused by the Israeli attacks on Gaza until October 23. In the third part of the chapter, I will summarize the CCR’s evidence regarding the United States’ failure to prevent the unfolding genocide and its complicity therein. In each section, I will also summarize the conclusions that the CCR derives from the documented facts.
It is necessary to start with CCR’s view on the actions of fighters affiliated with the Al-Qassam Brigade, Hamas’ military wing. The CCR found that the killing of an estimated 1,400 Israelis, most of whom were civilians, by the fighters of the Al-Qassam Brigade and the taking of approximately 200 civilians as hostages was against the rules of international humanitarian law, including the laws prohibiting war crimes. Therefore, it recognizes that this violation must be addressed through appropriate mechanisms for accountability. However, these appropriate mechanisms neither entitle nor legitimize any state or individual to commit war crimes that amount to genocide in the name of self-defense. These mechanisms must be limited and compatible with the rules of international law.
After this clarification, the Report documents the statements and actions of the Israeli state representatives (and some civilians who were former government officials) between October 7 and 17 – particularly with respect to demonizing the Palestinian people and the intent to annihilate them. Because the statements and actions are documented thoroughly in the report, I will skip the references and sources here to make the text more redear friendly.
On October 7, the Israeli Prime Minister Benjamin Netanyahu announced in a televised speech that war had been declared against Gaza. The reason for the declared war is the infiltration of the Hamas militants into Israeli territory, killingcivilians and taking around 200 hostages. It was clear from the first moment that the declared Israeli war also targeted civilians. Netanyahu announced that Israel had begun “clearing up communities infiltrated by terrorists.” This was a clear announcement of the intended “demographic cleansing” of the people of Gaza. Emphasizing that the “enemy” would pay an unprecedented price, Netanyahu ordered more than two million Palestinians in Gaza to “go out immediately” – despite the fact that they have nowhere to go due to Israel-imposed closure. This was followed by an announcement from the Israeli Energy Minister Israel Katz, who announced an order to completely cut off electricity to the Gaza Strip.
On October 9, Israeli Defense Minister Yoav Gallant used language demonizing the Palestinian people and ordered a complete siege of the Gaza Strip. He announced the intention for collective punishment against the Palestinians: “There will be no electricity, no food, no fuel, everything is closed. “We are fighting human animals, and we act accordingly.” The minister also threatened to “bomb those trying to provide aid to the Gaza Strip.”
On 10 October, Israeli Defense Forces (IDF) spokesman Daniel Hagari announced that the Israeli military had dropped “hundreds of tons of bombs”, adding that “the emphasis is on damage, not accuracy”. Israeli Major General Ghashan Alian, head of the office for the Coordination of Government Activities in the Territories (“COGAT”), openly expressed his intention to destroy the lives of Palestinians in Gaza: “Human animals must be treated as such. There will be no electricity and no water, there will only be destruction. You wanted hell, you will get hell.” “Creating a severe humanitarian crisis in Gaza is a necessary means to achieve the goal,” ReservistMajor General Giora Eiland wrote in the Israeli newspaper Yedioth Ahronoth, adding: “Gaza will become a place where no human being can exist.”
On October 11, Israeli forces added a new war crime to the catalogue of atrocities they have committed for a long time: They used white phosphorus in densely populated areas of Gaza. This chemical weapon causes severe burns down to the bones; Even when it affects only 10 percent of the human body, it can be fatal and cause birth defects for generations. On October 12, the Israeli army ordered the entire population of more than one million northern Gaza to be moved to southern Gaza within 24 hours.
On October 13, Israeli President Isaac Herzog made his genocidal intent clear: “It’s an entire nation out there that is responsible. It’s not true – this rhetoric about civilians not aware, not involved, it’s absolutely not true.” Similarly, the Minister of Energy and Infrastructure Israel Katz said: “All the civilian population in Gaza is ordered to leave immediately. We will win. They will not receive a drop of water or a single battery until they leave the world.”
The officials’ statements about Palestinians being less than human and must be destroyed were supported by 95-year-old Israeli army reservist Ezra Yachin, who was called to reserve duty to “boost morale”. In a clip viewed more than two million times on social media, he encouraged Israeli soldiers to commit genocide: ““Be triumphant and finish them off and don’t leave anyone behind. Erase the memory of them. Erase them, their families, mothers and children. These animals can no longer live. . . . With all of our forces, complete destruction, enter and destroy.”
On October 14, Tzipi Navon, a close advisor and office manager of Sara Netanyahu, wife of Prime Minister Benjamin Netanyahu, called on Israel to torture Palestinians in Gaza. “We keep saying to flatten Gaza, flatten Gaza, and I think that’s not enough,” she said. Then she proposed that “the people of Gaza should be captured and tortured ‘one-by-one’ by pulling out their nails and skinning them alive” and that men’s genitals should be cut off, fried, and fed to the captured.On October 16, Israeli Prime Minister Netanyahu articulated the necessity of destroying the Palestinians as follows: “This is a struggle between the children of light and the children of darkness, between humanity and the laws of the jungle.”
These statements resemble the Nazi regime’s rhetoric demonizing the Jews, but they even went further than the Nazi in openly advocating uncontrolled violence against the Palestinians. As such, they clearly indicate the intent to commit the crime of genocide – both within the Israeli political elite and among civil society members. Israel’s attacks on Gaza from 7 October onwards provide strong evidence that this intent was also backed by action.
Daily information on the loss of life and physical destruction caused by Israeli attacks in Gaza is given daily in the CCR report. But this information was only available until the day before the report was published on October 18. To provide more up-to-date information, I consulted some reports of the human rights organizations in the region and drew on information published by the United Nations. The toll suffered by the Gaza people is hearth breaking.
According to the United Nations based on the Gaza Ministry of Health, the number of civilians killed in Gaza as of October 23 is 5,087. More than 62 percent of those who died were women and children! There were more than 15 thousand 273 injured, more than half of whom were women and children, and more than 12,000 missing people from whom no news was heard; and there are at least 50,000 pregnant women without all basic services.
After the Israeli violence began on 7 October, 35 UN personnel from the UN Relief Agency for Palestine Refugees (UNRWA) were killed and 18 personnel were injured. The number of children deprived of education due to destruction of their schools and neighborhoods is over 625 thousand; The number of schools bombed was at least 206, of which at least 29 were schools run by UNRWA. According to the information provided by UNRWA on Sunday, October 22, half of the UNRWA personnel who died in the bombings were teachers.
The number of displaced people in Gaza is 1.4 million as of October 23 – two-thirds of Gaza’s population! The number of health facilities bombed is 72. A human rights monitoring organization called Euro-Med Monitor stated that these violations are a clear attack on fundamental rights of civilians in the Gaza Strip, especially the right to life, the right to housing and the right to property. The situation can be described only as an unprecedented humanitarian disaster.
These devastating consequences of the Israeli actions indicate that Israel’s genocidal intent is not limited to rhetoric, but it is also relentlessly put into practice. Of course, the recent attacks on Gaza do not diminish the importance of the war crimes that Israel has previously committed in the Palestinian territory. On the contrary, it shows that the Israeli state and its personnel, whose crimes remain unpunished, are recklessly committing and unfolding genocide. The violence displayed by Israel in Gaza cannot be justified because of Hamas’s action against international law. For this reason, the CCR states that Israel has shown intention for and engaged in the practice of destroying a people, and this is the crime of genocide defined in the international law. Therefore, there is sufficient evidence for a possible trial for the crime of genocide.
The CCR report also claims that the USA was complicit in Israel’s unfolding crime of genocide. This argument is based on the rhetoric and actions of various representatives of the US administration, who have provided unconditional support for Israel. For example, President Biden stated on October 7 that the United States was ready to provide all kinds of support to the Israeli government, and Cabinet Secretariat members and executive branch officials reaffirmed this unequivocal support. On October 8, US Secretary of Defense Lloyd Austin stated that the US would “expeditiously provide additional equipment and resources, including ammunition, to the Israeli Defense Forces.”
On October 9, it was determined that white phosphorus artillery shells bearing US Department of Defense identification codes were placed by Israel in Sderot outside Gaza. Presumably, this equipment was used in the white phosphorus attack in Gaza on October 12. Moreover, despite widespread reports that Israel was deliberately targeting civilian areas, the United States and other Israeli allies provided Israel with diplomatic and political support to facilitate the blockade of Gaza and its civilian population.
At a press conference on October 10, President Biden reiterated his unconditional and clear support for Israel’s actions. The US “will make sure Israel has what it needs to take care of its citizens, defend itself, and respond to this attack,” he said. At the same time, he supported Israeli disinformation that demonized Palestinians, claiming to have “seen” images of beheaded children and babies when no such images existed. That same day, State Department spokesman Matthew Miller was asked whether the United States was aware of the number of Palestinians killed and whether the United States would “call on Israel to cease its attacks.” Miller declined to talk about the number of Palestinians. Moreover, he said that Israel had the right to respond harshly to terrorism against its citizens, justifying collective punishment of Gaza’s population. Although he added that they expected Israel to comply with international law while giving this response, he did not give any information about what the USA would do to ensure such compliance.
On October 12, Israel ordered the 1.1 million people living in northern Gaza to leave the area immediately. Even though this order was asking the impossible and constituted a war crime against civilians, the US Secretary of State Blinken clearly stated the US’s unconditional support for Israel. The United States “will always be there, by your side,” he said during his visit to Israel. This was followed by the visit of US Secretary of Defense Austin on October 13. During this visit, Austin declared that the United States was ready to send military aid to Israel, including ammunition, air defense capabilities and other equipment. These statements from Blinken and Austin were made the day it was widely reported that Israel used white phosphorous on civilian areas.
Based on this evidence, the CCR report derives three conclusions about the role of the USA. First, the unconditional support given by the United States to Israel neither eliminates genocidal intent nor legitimizes attacks that violate the international law. Therefore, there is evidence to suggest that Israel has been involved in an unfolding genocide against the Palestinian people, both in terms of intent and actual implementation. Secondly, attacks targeting civilians by fighters affiliated with Hamas’s military wing, the Al-Qassam Brigade, are contrary to international humanitarian law and accountability mechanisms must be put in place. However, and as stated in the Genocide Convention, such violations cannot be used as a reason to legitimize “any State or individual to commit genocide in the name of self-defense.” Thirdly, given that Israel’s intentions and actions to destroy the Palestinian people in Gaza are evident, the US support for the Israeli military operation and attacks constitutes complicity in an unfolding genocide.
In Lieu of Conclusion
By publishing this report, the CCR has made three important contributions to the Palestinian people’s struggle for justice and freedom and to the support campaigns of those in solidarity with the Palestinian people. First, it has taken an important step towards filing a lawsuit against Israel and its international supporters for the crime of genocide and alleged participation in the crime of genocide. It is highly likely that the CCR’s legal team will make a public statements on the unfolding crime of genocide and launch an international campaign to ensure the accountability of those responsible. Secondly, the CCR report has challenged the ‘legitimate defence’ narrative pushed by Western states, especially the USA to cover up the crimes of the Israeli state. This ‘narrative shifting’ effect is likely to be strengthened by the increasing criticism of Israel and the US within the United Nations. Such criticism, in turn, may create opportunities for the group of countries known as the Global South to play an effective role in the UN, similar to the role played by the Non-aligned Movement in the 1960s and 1970s. Thirdly, the evidence in the CCR report pointing to an unfolding genocide of the Palestinian people will serve as a reference for all activists who stand in solidarity with the Palestinian people. Therefore, the report has the capacity to create a common framework for articulating demands in and organizing international support campaigns.
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