|
In a newly published book, Hope Never Disappoints, Pope Francis called for an investigation into whether Israel’s actions in Gaza fit the legal definition of genocide. On 19 November, an important part of Europe’s Jewish leadership responded.
The Conference of European Orthodox Rabbis Standing Committee represents an alliance of some 700 Orthodox Jewish leaders in Europe. Their statement was distributed by a Public Relations Company, ROATH. We should have some sympathy for the Rabbis being “deeply disturbed”, their phrase, by Francis’ words. Their language was significantly more measured than Prime Minister Netanyahu’s “disgraceful”. In such a passionate, polarised debate there is urgent need for shared understanding of basic facts. What the Rabbis say deserves consideration and a reply. In what follows all words inside quotation marks are from their short text, nothing I hope considered out of context. I have tried to take their points in order of importance. “Israel is committed to international humanitarian law”. This is the key issue considered by the UN’s International Court of Justice (ICJ) and International Criminal Court (ICC). Both focus on the cutting off of Gaza’s civilian population, intentionally and knowingly, from adequate food, water, electricity and medical supplies. This, rather than the estimated 44,000 Palestinian casualties of war, is the nub of the ICJ indictment of the Israeli Defence Forces (IDF), and of the recent arrest warrants issued by the ICC for Prime Minister Benjamin Netanyahu, and former Defence Minister, Yoav Gallant. Describing Israel’s actions as “defensive war”, after a brutal and criminal attack by Hamas waged against an “unprovoked, barbarous enemy”, does not ensure legality in international law. Evidence from the UN Independent International Commission of Inquiry on the Occupied Palestinian Territory, describing near-siege conditions and estimating that 70% of Gazan casualties are women and children, does not support the view that Israel is observing international humanitarian law. The ICJ’s opinion is that Israel, charged with war crimes and crimes against humanity of the most serious nature, with possibly genocidal intent, has a case to answer. Let’s be clear. The ICJ also accused Hamas of committing war crimes and crimes against humanity. An arrest warrant for Hamas military leader, Mohammad Deif (probably dead) was also issued. Nothing can justify 1,200 Israelis killed including hundreds of women, scores of children, and many wounded. But were the atrocities of 7 October “unprovoked”? Many would argue that Israeli governments’ longstanding denial of self-determination for Palestinians, their occupation of East Jerusalem and the West Bank, and encouragement of settlers, and the shooting dead of children throwing stones at the IDF, all call in question the Rabbis’ assertion Hamas was “unprovoked”. Hamas, the statement claims, is “a terrorist army that purposefully operates from within civilian population centres”, a slightly less incendiary version of the Israeli Government’s accusation that Hamas is using the civilian population as human shields. No independent observers or unembedded journalists are allowed into Gaza so there is simply no way of verifying or disproving such allegations. But Gaza is one of the most densely populated areas in the world. The land area on the eastern Mediterranean is 141 sq. miles, 3.7-7.5 miles wide and 25 miles long with a population density of 14,000 per sq. mile (Singapore has 21,500 people per sq. mile). 80% of Gaza’s 2.23 million Palestinians live in urban areas. It is practically inevitable that Hamas’ military wing would be present in “civilian population areas” and in tunnels beneath them, some of which were originally made for movement of imports and exports to sustain a rudimentary economy. This is not to say that the high concentration of civilians in Gaza doesn’t serve Hamas’ fight against a vastly more powerful enemy, and in the propaganda war that accompanies the conduct of asymmetric warfare. “Israel in its military measures to defend itself can still not be said to be engaging in genocide”, the Rabbis’ statement declares. But UN bodies, the International Court of Justice (ICJ) and the Pope are not stating that Israel is engaging in “genocide”. The near siege of 2.23 million Palestinians in Gaza is being condemned as a war crime and a crime against humanity. This is not a matter of “singling out the Jewish State”. They are aware that any such accusation must be determined legally within the very restrictive framework of the 1948 Genocide Convention, itself an international treaty that obliges States’ adherence in international law. A much less publicised case against Myanmar’s military rulers is being pursued. There have been convictions for genocide in Rwanda and Bosnia. Putin is driving his tanks, missiles, paid-for North Korean soldiers and Russian troops through international law. Now is the time to support the operation of our international courts. Israel has made itself more vulnerable to charges by the ICJ and ICC of breaking international humanitarian law by failing to adequately curtail and punish criminal military conduct. Failure to institute proceedings when military forces are under suspicion of breaching international law is a cause for the ICC, which has issued individual arrest warrants, to intervene. When it comes to litigation, the ICC’s work is seen as complementary to that of UN member States. The assertion that Netanyahu is “fighting for return of 101 hostages” taken last October is not convincing. Netanyahu knows well, as do countless Jewish protesters including hostages’ families, that the return of the hostages alive depends on a ceasefire and that continued fighting renders a final hostage deal improbable. Netanyahu also knows that an end to hostilities will very likely spell an end to his government and political career. The conclusion to the Rabbis’ statement reads “every word issued from a major leader has immense consequences” which “our lived experience, suffering from rising violent antisemitism sadly confirms”. Their anxiety is understandable. But presenting public concern for the plight of the Palestinians as a cause of antisemitism in Europe is highly questionable. It demeans the Jewish minority around the world who openly oppose the IDF’s conduct in Gaza and are afraid Israel is becoming a pariah state. The European Rabbis do not echo claims often made by representatives of the Israeli government that Israel’s accusers are asserting a moral equivalence between Israel and Hamas, an omission for which they deserve recognition. The role of the ICC and ICJ is to make legal judgements. When there is sufficient evidence, they make judicial decisions in international law about State and individual criminality - on both sides of a conflict. The ICC and ICJ cannot, and do not, ignore war crimes and crimes against humanity committed by Hamas or Israel. The Rabbis’ loyalty to Jewish troops in combat and their fears for Israel itself are understandable. Much less understandable is uncritical loyalty to the current Israeli government beyond the suggestion “the effectiveness of Israel’s ongoing war can be debated”. The Pope’s call was motivated by compassion for those suffering in Gaza and fear for what follows if the Middle East conflict further undermines the international order. It would help to put an end to this tragedy if the European Orthodox Jewish leaders were to put their moral authority behind the quest for a ceasefire in Gaza. Upholding international law, without fear or favour, at a time when international order is crumbling, should be paramount.
2 Comments
Last weekend, Vatican News and the Italian daily La Stampa quoted Pope Francis having said that some international experts had declared that “what is happening in Gaza has the characteristics of a genocide", an excerpt from interviews in a book Hope Never Disappoints. "We should investigate carefully to assess whether this fits into the technical definition (of genocide) formulated by international jurists and organisations," the Pope urged.
These remarks will, without doubt, have caused distress in Israel and in Jewish communities around the world with whom the Pope has worked to have better relationships. Francis visited the tomb of Theodor Herzl, the father of modern political Zionism in 2014, Auschwitz in 2016, and expressed concern about growing antisemitism on Italian television in November 2023. But tensions have been growing as the Israel-Palestine conflict escalated with religious affiliation becoming more significant. The Vatican’s attempt to achieve a balance between Islam and Judaism has become more challenging. Last December, to some degree South Africa pre-empted the Pope’s call, filing a complaint, a ‘Memorial’, in the International Court of Justice (ICJ) against Israel for its actions in Gaza. The Genocide Convention was adopted by the UN in December 1948 as a response to the Holocaust. Alleging that a Jewish State needed to be prevented from committing the crime of genocide is particularly shocking. The Pope is seeking clarification on whether the Convention is applicable to the situation in Gaza. So, on what grounds did South Africa institute such legal proceedings in the ICJ? There are certain international Conventions which “all States can be held to have a legal interest in their protection” and thus an obligation to intervene. The Genocide Convention, an international treaty, is one of them. This principle, erga omnes partes (directed at all parties), was endorsed by the ICJ in 2022 in a case of Gambia v Myanmar involving the plight of the Rohingya. In approaching the ICJ South Africa found legal means and precedent to express its solidarity with Palestinians. In international law the definition of the crime of genocide is highly restrictive. Nonetheless, thirteen other States, including Spain, Mexico, Ireland and Belgium, have indicated their intention of intervening on the side of South Africa at the ICJ with their own ‘Memorials’. A look at how genocide became a crime recognised in international law sheds some light on the difficulty of establishing it legally today. The Polish, Jewish lawyer, Raphael Lemkin, coined the term ‘genocide’ in late 1942 in the context of Axis rule in occupied Europe: a process of destruction of an oppressed group “after removal of the population and the colonisation of the area by the oppressor’s own nationals”. He struggled to define the term but was clear about its historical precedents. “Bartolomé de las Casas, Vitoria [16th century Salamanca Dominican Friars who championed rights of indigenous peoples], and humanitarian interventions, are all links in one chain leading to the proclamation of genocide as an international crime by the United Nations”, he wrote in a later unpublished essay. By the end of World War II, the crime of genocide was still not fully defined but the prosecutors in the International Military Tribunal in Nuremberg (1945-1946) did not flinch from using the term. Though none of the convicted Nazi leaders were found guilty of genocide as a specific crime. The Nuremberg indictments were for one or more crimes notably ‘war against peace’ (waging aggressive war), war crimes and crimes against humanity – which covered genocide. At the time, Lemkin was defining genocide as “the criminal intent to destroy or cripple a human group” with an added emphasis on the destruction of cultures and their loss to humanity. His focus then was on the destruction of racial and national groups citing the fate of Poles, Gypsies and Jews. In a resolution in the September 1948 session of the United Nations, the General Assembly declared that genocide was a crime that could take place in peacetime. In December 1948 the Convention defined genocide in Article II as: “a crime committed with the intent to destroy a national, ethnical sic, racial or religious group, in whole or in part”. Because of the imperial sensitivities of UN member States, Lemkin’s emphasis on the destruction of cultures had disappeared, nor were political groups included. On 8 October, the BBC led on an update report from the UN’s Independent International Commission of Inquiry on the Occupied Palestinian Territory set up in 2021 by the UN Human Rights Council. The Israeli Defence Forces (IDF) had not allowed them into Gaza. The UN team of three brought considerable combined experience to a difficult task. Members were South African Navi Pillay, former President Judge of the International Criminal Tribunal for Rwanda, Miloon Kothari, a former convener of the Working Group on Human Rights in India and the UN, and Professor Chris Sidoti, an academic expert on international human rights law and formerly Australian Human Rights Commissioner and head of the Australian Justice and Peace Commission.. Their report highlighted both Israel’s actions and those occurring during Hamas’ terrible 7 October attack when 1,200 Israelis died, 40 children killed, and hundreds were wounded. At the Nova music festival alone 136 women were slaughtered and there were incidents of sexual violence. 251 hostages were taken. The UN Human Rights Office has examined over 8,000 deaths in Gaza from the beginning of the war. Requiring three sources for each verification of death - for that reason mostly inside residential buildings - the Human Rights Office found 44% were children, 26% women and 30% men. Assuming for every direct killing four indirect deaths because of the war, The Lancet estimate some 190,000 Palestinians have died. In the words of the Austrian diplomat and High Commissioner for Human Rights, Volker Türk, “unprecedented levels of killing, death, injury, starvation, illness and disease”. Overall, the figures support allegations of indiscriminate bombing and shelling and appear incompatible with Israel’s claimed policy of legitimate self-defence: ending terrorism by targeted attacks on Hamas belligerents. An action cited by Article II as genocidal in the Convention, and relevant when considering the war, is “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”. Under Article III of the Genocide Convention, direct and public incitement to commit genocide is legally punishable whether or not it results in actual genocidal action. On 28 December 2023, in a letter to Israel’s Attorney General, a group of former Knesset members, Israeli diplomats, academics and journalists gave details of “extensive and blatant incitement to genocide’ by influential Israeli public figures and called for their prosecution. The most significant calls had come from Itamar Ben-Gvir, Minister of National Security, who declared those who “celebrate, those who support.... they’re all terrorists and they should also be destroyed”, and from former Minister of Defence, Yoav Gallant, who said Israel was fighting “human animals” and that he was “imposing a complete siege on Gaza. There will be no electricity, no food, no water, no fuel”. In a statement on 28 October 2023 on war against Hamas, Prime Minister Netanyahu himself urged Israelis to remember their biblical enemy Amalek citing Deuteronomy 25.17. Samuel 15.3 on the Amelekites reads: “Do not spare them; put to death men and women, children and infants...” Emotional rhetoric after the security failure and the tragic losses and hostage-taking of 7 October, or incitement and indications of intent? This is the kind of material jurists consider. Proof of specific genocidal purpose will be critical if South Africa’s case is to succeed. Genocide, like any other crime, may be committed for a variety of motives ranging from ethnic or religious hatred revenge or fear to the elimination of an enemy and acquisition of territory. But when purpose/intent is inferred from circumstances rather than directly proved, genocidal purpose must be the sole possible inference that can be drawn from the criminal actions. That would be very difficult. Restriction of medical supplies, food and water, mass displacement as well as killing of the civilian population, conditions close to siege, do not necessarily add up legally to the crime of genocide. But South Africa’s proceedings at the ICJ are looking increasingly grounded in facts. The UN’s Independent Commission of Inquiry is examining Hamas’ and the Israel’s actions as possible war crimes and crimes against humanity, no less serious crimes than genocide in international law but more easily proven. All States have a common interest in fulfilling the purposes of the Genocide Convention. South Africa has taken the lead in upholding international law under threat today from so many quarters. The Pope was asking for the situation in Gaza to be clarified legally not claiming that the IDF is committing genocide. Any judgement from the ICJ will take a long time and is far from a foregone conclusion. This is an acutely difficult time for a compassionate Pope seeking ways of stopping or reducing the suffering. Difficult for Catholics horrified at the plight of Palestinians, and difficult for Jewish friends too, processing the pain and insecurity of 7 October. This is an intractable conflict. Pope Francis leads a global Church not the allies of Israel or Hamas. As in the motif of the Synod, Francis would want to open the hearts and minds of both sides to each other. But for the time being that looks impossible. Discrediting the US electoral process is the key weapon in Trump’s assault on democracy. Trump will not stop insisting that this, and the previous, Presidential election was rigged. Win or lose, narrowly or not, on Tuesday 5h November, he will persist. He has been laying the foundations for his own authoritarian rule for years. The threat of election-linked violence is part of it.
In swing (marginal) States, the harassment of State officials and electoral officers, from the declaration of Biden’s victory to the January 2021 attack on the Capitol, has continued. Radio 4’s PM programme on 25th October featured an interview with Tammy Patrick, Chief Executive Officer for Programs at the National Association of Election officials, and a recognised expert in election administration who for eleven years had served as a Federal Compliance officer for elections in Maricopa County, Arizona (population 4.2 million). She revealed how serious pressure on officials has become. The offices of electoral commissions in Arizona, and other States, have been threatened by MAGA (Make America Great Again) extremists. Now, electoral offices need guards and some have even installed bullet-proof glass. And after family members were followed some electoral officers are driving rental cars. After the 3 November 2020 election, 62 Republican lawsuits claiming widespread electoral fraud and irregularities were filed, without supporting evidence. Within the last two years, an additional 165 lawsuits have been filed, mainly by Republicans and conservative organisations attempting to ease Trump into the White House. The primary purpose of this unprecedented level of litigation is to sow doubt about the electoral process. It is impossible to keep up with Trump’s lies about the elections, which include claims that illegal, unregistered immigrants will be voting, postal votes will be stolen, and there will be widespread impersonation of registered voters. The illegal immigrant voter is a key figure in Trump’s manipulation of fears of uncontrolled immigration. After extensive enquiries, Tammy Patrick reported that Vigilant checking of signatures on postal votes made any chance of potential fraud ‘infinitesimal’ and described the incidence of voter impersonation in 2020 as zero. Stuffing ballot boxes, a resort of the worst autocratic State leaders, isn’t feasible due to the tightly controlled US procedures. How to Rig an Election: Defending Democracy from the World’s Despots by Nic Cheeseman and Brian Klaas (second edition 2024 Yale University Press), whilst focusing on already existing autocracies and ‘counterfeit democracies’, casts a light on Trump’s threat to democracy as well as the importance of Electoral Commissions and observers. But elections can be, and are, rigged long before the main body of election observers are on the ground doing their observing. And even then, there are never enough observers to cover all the polling stations. Amongst the recent proliferation of lawsuits, there are indications that attempts to manipulate and discredit the elections has partly shifted, from the voting itself towards a focus on rigging before the ballot papers are printed or digital voting systems set up: gerrymandering, voter suppression, disinformation, buying votes, intimidation of electoral officials. Though both the US Parties have been guilty of some of the above in the past, they are all major features of the Trump/Republican electoral playbook. Gerrymandering goes back to 1812 and Governor of Massachusetts, Eldridge Gerry. He organised the State electoral map so that the bulk of his rival Federalists were squeezed into a handful the electoral districts. The ploy was noticed at the time. Cheeseman and Klaas describe a cartoon in the Boston Gazette depicting one such newly formed district, shaped as a salamander with a forked tongue, captioned “the Gerrymander’. It stuck. Gerry was not re-elected Governor but did end up as James Madison’s Vice-President, dying in 1814. Both US political Parties have been guilty of gerrymandering though the liberal Brennan Center for Justice, a New York University Law School think-tank, estimate that Republicans currently benefit most, gaining for them some 16 seats in the House of Representatives. In Presidential elections, the biggest effect is found in three marginal States, Pennsylvania (19 electoral college votes), where at time of writing is tied at 48% each, Michigan where Harris is 0.7%% ahead (15) and North Carolina (16) where you can choose which poll to believe. Massachusetts (9) is a good example of democrat gerrymandering where in 2020, Jo Biden won a huge majority, 68.5% against 28.6% for Trump, so gerrymandering did not alter the overall result. Gerry might be smiling. Significant gaps between the two contender Parties are typical of most States. The second major form of rigging was, and is, voter suppression. The 1965 Voting Rights Act (VRA) outlawed discriminatory voting practices in the southern States, notably literacy tests, inaugurating a period of enfranchisement of black voters and minority groups. It also established a VRA formula for deciding which jurisdictions, States and localities, needed to submit changes in voting laws to the Federal Justice Department for ‘pre-clearance’. The 2013 Supreme Court Shelby County (Alabama) v Holder (Federal Attorney General), by 5-4, did away - as outdated and correspondingly unconstitutional - with the VRA formula. Dissenting Justice Ruth Bader Ginsburg described the judgement as ‘like throwing away your umbrella in a rainstorm because you are not getting wet’. In the following decade 23 States created new obstacles to voting largely through varied ID introducing stricter demands for voter identification. It was alleged that changes were intended to counter voter impersonation – which was non-existent. Those who could not produce a passport or a driving licence, predominantly the poor, would be turned away at the polling facility. It is estimated that in the marginal, northern State of Wisconsin 300,000 citizens lacked the required voter identification documents. Trump won the State by 30,000 votes. Nationally, voter suppression gave an advantage to the Republicans - the main reason for its implementation. Incentivising voters by offering some form of reward – for the individual or the Party - or for registering to vote, is run-of-the-mill practice on several continents, but provided the voter believes their vote is secret, is the least reliable rigging method. It is also illegal. Whether Elon Musk’s sweepstake, available only to registered voters in swing States who sign a petition ‘In favour of Free Speech and the Right to Bear Arms’, might also be illegal is unclear. A daily draw rewards the winner with $1 million could be interpreted as appealing to Republican sentiment against the Democrats’ desire for gun control. Philadelphia District Attorney, Larry Krassner, is suing Musk and his Political Action Committee which funds Trump’s campaign on the grounds of breaching election law. Illegal or not, Musk’s intervention highlights, as Tammy Patrick said in her interview, that elections should be about ‘the Will of the People not the will of the billionaires’. Trump’s election rigging gambit must be taken seriously. It works. The administration of the US 2020 Presidential elections was carried out with due auditing, caution and integrity. The 2022 Electoral Count Reform Act makes it more difficult for Trump to reproduce the chaos around Presidential elections. But an astonishing number of people believe his allegation that they are rigged. The rigging that has taken place, was inherited, or planned, is not there to thwart Trump’s autocratic ambitions, but to fulfil them. See TheArticle 03/11/2024 |
Archives
November 2024
Categories |
RSS Feed