As Israel and Hamas pause Gaza fighting, legal scholars grapple with question of genocide

Special Palestinian civilians made use of the temporary ceasefire that began on Friday to flee from northern Gaza, past hulking Israeli army tanks. (AFP)
Palestinian civilians made use of the temporary ceasefire that began on Friday to flee from northern Gaza, past hulking Israeli army tanks. (AFP)
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Updated 26 November 2023
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As Israel and Hamas pause Gaza fighting, legal scholars grapple with question of genocide

As Israel and Hamas pause Gaza fighting, legal scholars grapple with question of genocide
  • Some experts say there is even more evidence than before to hold Israel to account given the high Gaza civilian toll
  • Others say genocide has specific legal meaning, which means it is applies differently from its use in public discourse

LONDON: Since Oct. 7, Israel’s war with Hamas in the Gaza Strip has brought the inconsistencies of international law into sharp focus, with allegations of double standards and the contention of a two-tier system in global politics.

Central in this dispute is the claim that Israel’s seven-week bombardment of the Palestinian enclave, together with the crude comments made by several members of its governing establishment, form the basis of the world’s latest genocide.

During this period, more women and children have been reported killed in Gaza than the roughly 7,700 civilians documented as killed by US forces and their international allies in the entire first year of the 2003 Iraq invasion, according to Iraq Body Count, an independent British research group.

And in the battle to retake Mosul (2016-2017) from Daesh by Iraqi government forces with allied militias, an estimated total of 9,000 to 11,000 civilians died over a nine-month period, according to an Associated Press estimate.

Efforts to hold Israel guilty of genocide predate the latest conflagration. The National Lawyers Guild in 2014, the Russell Tribunal on Palestine also in 2014 and the Center for Constitutional Rights in 2016 described the siege of Gaza as a “slow-motion genocide.”

With the latest Israeli onslaught, a collective of over 800 international legal scholars have claimed that together with the pre-existing conditions there is even more evidence of genocide at play.




Palestinians fleeing to the southern Gaza Strip on Salah Al-Din Street in Bureij, Gaza Strip earlier this month. (AP)

“Israel’s current military offensive on the Gaza Strip since Oct. 7, 2023, is unprecedented in scale and severity, and consequently in its ramifications for the population of Gaza,” stated the letter “Public Statement: Scholars Warn of Potential Genocide” posted on Twail Review.

To prove intent, the letter cited comments made on Oct. 10 by two high-ranking officers within the Israeli military sector.

Addressing Gaza residents, Maj. Gen. Ghassan Alian, the Israeli army coordinator of government activities in the territories, said: “Human animals must be treated as such. There will be no electricity, no water, only destruction. You wanted hell, you will get hell.”

On the same day, Daniel Hagari, the spokesperson for the Israeli army, stated that “the emphasis is on damage and not on accuracy.”

Some also point to Israeli Prime Minister Benjamin Netanyahu’s statements that Israelis were united in their fight against Hamas, likening the group to an ancient tribe, the Amalek, which the Book of Samuel tells the Israelites to “attack … and totally destroy all that belongs to them.”

The list of public statements has only grown in the interim, with claims that the deputy speaker of the Israeli parliament called for the burning of Gaza on Nov. 17.

In a since-deleted tweet captured by other users of X, Nissim Vaturi, a far-right Likud Party member, said: “All of this preoccupation with whether or not there is internet in Gaza shows that we have learned nothing. We are too humane. Burn Gaza now no less!”

According to experts in genocide studies and international law, the issue is more nuanced, although this has not stopped a growing chorus joining calls to condemn Israel’s assault as a genocide.

The experts say the verdict is by no means unanimous and stress that the bar is “incredibly high” when it comes to proving genocide.




Smoke billows following an Israeli strike on the Palestinian territory amid ongoing battles between Israel and Hamas. (AFP)

Ernesto Verdeja, associate professor of peace studies and global politics at the University of Notre Dame, told Arab News that defining what was happening in Gaza as genocide was complicated for a litany of reasons.

“The term is used differently in different contexts, which leads to some confusion and, consequently, deep bitterness and anger when there are disagreements,” he told Arab News.

“In public discourse, genocide is used to signify a great evil committed against civilians. Thus, defenders of Israel accuse Hamas, and sometimes all Palestinians, of genocide, while Palestinians and their defenders accuse Israel of the same crime and call Zionism genocidal.”

But in international law, genocide has a specific meaning and this in turn means it is applied differently to its use in public discourse, according to Verdeja.

This definition, contained in the UN Convention on the Prevention and Punishment of the Crime of Genocide, states genocide is “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”

Acts include “killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group, and/or forcibly transferring children of the group to another group.”

Verdeja said key to proving any claim is being able to show that the perpetrators were aiming for the “intentional destruction of a civilian group in whole or part.”

FASTFACTS

* Hamas released 24 hostages (13 Israelis, 11 foreigners) on Friday.

* Israel released 39 Palestinian prisoners as part of the same deal.

* Attacks by Hamas on Oct. 7 killed 1,200, with about 240 taken hostage.

* More than 14,500 Palestinians killed in Israel’s retaliatory campaign.

Ben Kiernan, director of the Cambodian Genocide Program, told Time magazine that Israel’s assault on Gaza “however indiscriminate … and despite the numerous civilian casualties” did not meet that “very high threshold” for the legal definition of genocide.

Concurring, David Simon, director of genocide studies at Yale University, said that Israel had been explicit in its desire to exterminate Hamas.

He also told Time that Israel had not been explicit in its intent to “destroy a religious, ethnic or racial group,” adding that while it may be possible to conclude Hamas or the Israel Defense Forces were guilty of acts of genocide, “it’s certainly not textbook.”

Amid the debate, the endeavors for justice are not abating, with three Palestinian human rights organizations attempting to bring Israel before the International Criminal Court.

Al-Haq, Al-Mezan Center for Human Rights and the Palestinian Centre for Human Rights, represented by Emmanuel Daoud, attorney at the Paris Bar and the International Criminal Court, have filed a lawsuit with the ICC under claims of genocide.

The submission notes Israeli airstrikes, the siege, the forced displacement of Gaza’s population, the use of toxic gas, and the denial of necessities, such as food, water, fuel, and electricity.

Perhaps more important than the lawsuit filed, however, were the statements of Daoud, who also obtained an ICC arrest warrant against President Vladimir Putin after filing a lawsuit with the court against Russian leaders for their war crimes against Ukraine.




A Palestinian medic and civilians carry an injured man after an Israeli strike on Rafah, in the southern Gaza Strip on November 23, 2023, amid continuing battles between IDF and Hamas. (AFP)

“Whether war crimes are committed in Ukraine or Palestine, the culprits should be held to account,” said Daoud, adding “there is no place for double standards in international justice.”

Echoing Daoud, M. Muhannad Ayyash, professor of sociology at Mount Royal University, drew stark comparisons between Western reactions to the killing of Israelis and reactions “or lack thereof” to the killing of Palestinians and its response to Russia’s war on Ukraine.

“We need to look at how Western governments have responded to the killing of Israeli civilians versus the killing of Palestinian civilians,” Ayyash wrote in The Conversation, an independent news website that publishes articles written by academics and researchers.

“For the Israeli state and victims, political, military, economic, cultural, and social institutions have fully mobilized to provide support. The same is entirely absent for the Palestinians. For the Palestinians, there are no evacuations.

“Aircraft carriers are not sent to provide military support. Mainstream political and cultural discourse does not humanize Palestinian life and mourn Palestinian death.”

That there is a perceived double standard is perhaps not surprising given that the genocide convention was negotiated and structured by powerful states in a way that many believe provided their leaders, contemporaneously and in the future, protection against charges of genocide.




As the Israel-Hamas war rages in Gaza, there’s a bitter battle for public opinion flaring in the US, with angry rallies and disruptive protests at prominent venues in several major cities. (AP)

Verdeja cautions that debate over genocide may be sucking oxygen from the more pressing issues, calling for sharper focus on pushing leaders to protect civilians and hold perpetrators accountable.

“In international law, there is no hierarchy between crimes against humanity, genocide, and war crimes. All are major violations of international law and so just because an actor is not committing genocide does not mean their actions are legal or otherwise justified,” he said.

“Unsurprisingly, it is easier to legally prove crimes against humanity and war crimes over genocide since the former do not require proving strict intentionality.”

Asked where he positioned himself in the debate, Verdeja said it is crucial to note genocide is not an event but rather a process that emerges over time as perpetrators find themselves in a position where their actions are insufficient to achieve their goals.

He is certain that both Hamas and Israel had committed crimes against humanity and war crimes but believes that Hamas, despite its leadership’s rhetoric, lacks the capacity for genocide.

As for Israel, he said it is “quite likely committing genocide.”


Iran says it gave warning before attacking Israel. US says that’s not true

Iran's Foreign Minister Hossein Amir-Abdollahian (L) and US President Joe Biden. (Agencies)
Iran's Foreign Minister Hossein Amir-Abdollahian (L) and US President Joe Biden. (Agencies)
Updated 15 April 2024
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Iran says it gave warning before attacking Israel. US says that’s not true

Iran's Foreign Minister Hossein Amir-Abdollahian (L) and US President Joe Biden. (Agencies)
  • Iran launched hundreds of drones and missiles on Saturday in a retaliatory strike against Israel
  • Washington says did have contact with Iran through Swiss intermediaries but did not get notice 72 hours in advance

WASHINGTON/BAGHDAD/DUBAI: Turkish, Jordanian and Iraqi officials said on Sunday that Iran gave wide notice days before its drone and missile attack on Israel, but US officials said Tehran did not warn Washington and that it was aiming to cause significant damage.
Iran launched hundreds of drones and missiles on Saturday in a retaliatory strike after a suspected Israeli strike on its embassy compound in Syria.
Most of the drones and missiles were downed before reaching Israeli territory, though a young girl was critically injured and there were widespread concerns of further escalation.
Iranian Foreign Minister Hossein Amirabdollahian said on Sunday that Iran gave neighboring countries and Israel’s ally the United States 72 hours’ notice it would launch the strikes.
Turkiye’s Foreign Ministry said it had spoken to both Washington and Tehran before the attack, adding it had conveyed messages as an intermediary to be sure reactions were proportionate.
“Iran said the reaction would be a response to Israel’s attack on its embassy in Damascus and that it would not go beyond this. We were aware of the possibilities. The developments were not a surprise,” said a Turkish diplomatic source.
One senior official in US President Joe Biden’s administration denied Amirabdollahian’s statement, saying Washington did have contact with Iran through Swiss intermediaries but did not get notice 72 hours in advance.
“That is absolutely not true,” the official said. “They did not give a notification, nor did they give any sense of ... ‘these will be the targets, so evacuate them.’“
Tehran sent the United States a message only after the strikes began and the intent was to be “highly destructive” said the official, adding that Iran’s claim of a widespread warning may be an attempt to compensate for the lack of any major damage from the attack.
“We received a message from the Iranians as this was ongoing, through the Swiss. This was basically suggesting that they were finished after this, but it was still an ongoing attack. So that was (their) message to us,” the US official said.
Iraqi, Turkish and Jordanian officials each said Iran had provided early warning of the attack last week, including some details.
The attack with drones, cruise missiles and ballistic missiles risked causing major casualties and escalating the conflict.
US officials said on Friday and Saturday they expected an imminent attack and urged Iran against one, with Biden tersely saying his only message to Tehran was: “Don’t.”

ESCALATION
Two Iraqi sources, including a government security adviser and a security official, said Iran had used diplomatic channels to inform Baghdad about the attack at least three days before it happened.
The exact timing of the attack was not disclosed at that point, but was passed to Iraqi security and military authorities hours before the strikes, allowing Baghdad to close its airspace and avoid fatal accidents.
“The government clearly understood from the Iranian officials that the US military in Iraq was also aware of the attack in advance,” said the Iraqi security official.
A senior Jordanian official said Iran had summoned Arab envoys in Tehran on Wednesday to inform them of their intention to carry out an attack, though it did not specify the timing.
Asked if Iran had also given details about the targets and kind of weapons to be used, the Jordanian source did not respond directly but indicated that that was the case.
An Iranian source briefed on the matter said Iran had informed the US through diplomatic channels that included Qatar, Turkiye and Switzerland about the scheduled day of the attack, saying it would be conducted in a manner to avoid provoking a response.
How far escalation can be avoided remains in question. Biden has told Israel the United States will not join any Israeli retaliation, the US official said.
However, Israel is still weighing its response and will “exact the price from Iran in the fashion and timing that is right for us,” Israeli minister Benny Gantz said on Sunday.

 


Israelis rattled by Iranian attack, fear escalation

A man crosses an empty street in Jerusalem on April 14, 2024. (AFP)
A man crosses an empty street in Jerusalem on April 14, 2024. (AFP)
Updated 15 April 2024
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Israelis rattled by Iranian attack, fear escalation

A man crosses an empty street in Jerusalem on April 14, 2024. (AFP)
  • Israel has killed more than 33,686 Palestinians, according to Gaza’s Health Ministry

JERUSALEM: The first direct attack on Israel by Iran has shaken Israelis and left them fearful that a bigger war is looming.
While the population has long been used to sirens warning of attacks from Hamas, the hundreds of drones and missiles sent from Iran over Saturday night marked a new element in the over-lapping Middle East conflicts.
Israel reported modest damage on Sunday after the military said it shot down almost all of the more than 300 drones and missiles launched by Iran.
But the attack still rattled Israelis, whose army has fought Hamas for years in Gaza but never engaged in direct warfare with regional superpower Iran. Iranian weapons and interceptors could be seen flashing over the sky at night.

I hope there won’t be a big war; none of us in Israel wants a big war, so I hope that’s it, and I hope Iran would stop no.

Jeremy Smith, Resident of Tzur Hadassah

“I think it was quite scary when we started hearing booming in the middle of the night, and we did not know what it was. I mean, we knew what it was, but we didn’t know to what extent it would be,” said Jerusalem resident Cecile Smulowitz.
“But thank God the Israeli army came through, and so far it’s quiet, and we hope it will continue that way.”
Iran mounted its attack in retaliation for a suspected Israeli air strike on Tehran’s embassy compound in Damascus on April 1, which killed 13 people. Israel has neither confirmed nor denied carrying out the attack but is widely believed to have done so.
Following Iranian senior leader Ali Khamenei’s promise to hit back, Israelis were put on high alert.
Iran warned Israel and the US on Sunday of a “much larger response” if there was any retaliation for its mass drone and missile attack.
Israeli Prime Minister Benjamin Netanyahu, who has repeatedly told the world that Iran is an existential threat to the Jewish state, vowed Israel would achieve victory.
The threat of open warfare erupting between Iran and Israel and dragging the US into the conflict has put the region on edge.
Some Israelis said they did not want an escalation, but with the stakes so high, they are nervous despite having the most powerful and technologically advanced military in the region.
“I hope there won’t be a big war; none of us in Israel wants a big war, so I hope that’s it, and I hope Iran would stop now,” said Jeremy Smith, 60, a resident of Tzur Hadassah.
“I imagine Israel will respond because, I mean, our whole country was covered in missiles and drones. So what can you do? But we have to stop it somehow.”
Before the Iranian attack, Israeli authorities had instructed the public not to hold large gatherings, to close all schools and venues for children’s camps during the Jewish holiday of Passover, and to close some beaches and travel sites.
“We didn’t want the war with Hamas. They attacked us. We don’t want a war with Iran, they attack us,” said Jerusalem resident Amy Friedlang Morgans, 71.
“We don’t want a war with Iran. They, somehow, cannot accept Jewish people living here. This is our homeland. It’s written in the Bible.”
The Iranian attack took place against the background of the Israel-Hamas war in Gaza, in which Israeli forces have killed more than 33,000 Palestinians, according to the Gaza health ministry figures.

 


Ambrey says Israel intercepted UAV ‘launched from Yemen’

Ambrey says Israel intercepted UAV ‘launched from Yemen’
Updated 15 April 2024
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Ambrey says Israel intercepted UAV ‘launched from Yemen’

Ambrey says Israel intercepted UAV ‘launched from Yemen’
  • Israel used its seaborne missile defense system for the first time on Tuesday to shoot down a drone approaching from the Red Sea that had set off sirens in the port city of Eilat, the military said

CAIRO: British security firm Ambrey said on Sunday that Israel Defense Forces (IDF) intercepted an Unmanned Aerial Vehicle (UAV) near Eilat, stating that it assessed the UAV was launched from Yemen.
Ambrey said it also observed unprecedented levels of Automatic Identification Systems (AIS)interference off Eilat and neighboring Aqaba, Jordan, on Sunday.
“These were due to electronic warfare counter-measures,” the statement said.
“A Sa’ar 6-class corvette successfully intercepted a UAV that approached Israeli territory from the southeast using the ‘C-Dome’ Defense System earlier this evening,” the IDF posted on X.
Israel used its seaborne missile defense system for the first time on Tuesday to shoot down a drone approaching from the Red Sea that had set off sirens in the port city of Eilat, the military said.
Eilat has been a frequent target for launches by Iran-backed Houthis in Yemen as a show of support for Hamas, the Palestinian group that rules Gaza and is also backed by Iran.

 


US judge tosses out lawsuits against Libyan commander accused of war crimes

US judge tosses out lawsuits against Libyan commander accused of war crimes
Updated 15 April 2024
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US judge tosses out lawsuits against Libyan commander accused of war crimes

US judge tosses out lawsuits against Libyan commander accused of war crimes
  • The ruling was a significant reversal of fortune for Haftar

ALEXANDRIA, Virginia: A US judge has tossed out a series of civil lawsuits against a Libyan military commander who used to live in Virginia and was accused of killing innocent civilians in that country’s civil war.
At a court hearing Friday, US District Judge Leonie Brinkema said she had no jurisdiction to preside over a case alleging war crimes committed in Libya, even though the defendant, Khalifa Haftar, has US citizenship and lived for more than 20 years in the northern Virginia suburbs of the nation’s capital as an exile from the regime of Muammar Qaddafi.
The ruling was a significant reversal of fortune for Haftar. In 2022, Brinkema entered a default judgment against Haftar after he refused to sit for scheduled depositions about his role in the fighting that has plagued the country over the last decade.
But Haftar retained new lawyers who persuaded the judge to reopen the case and made Haftar available to be deposed. He sat for two separate depositions in 2022 and 2023 and denied orchestrating attacks against civilians.
Once a lieutenant to Qaddafi, Haftar defected to the US during the 1980s. He is widely believed to have worked with the CIA during his time in exile.
He returned to Libya in 2011 to support anti-Qaddafi forces that revolted against the dictator and killed him. During the country’s civil war, he led the self-styled Libyan National Army, which controlled much of the eastern half of Libya, with support from countries including Russia, Egypt and the United Arab Emirates. He continues to hold sway in the eastern half of the country.
In the lawsuits, first filed in 2019, the plaintiffs say family members were killed by military bombardments conducted by Haftar’s army in civilian areas.
The lawsuits also alleged that Haftar and his family owned a significant amount of property in Virginia, which could have been used to pay off any judgment that would have been entered against him.
While the lawsuits were tossed out on technical issues over jurisdiction, one of Haftar’s lawyers, Paul Kamenar, said Haftar denied any role in the deaths of civilians.
“He’s not this ruthless figure that everyone wants to portray him as,” Kamenar said in a phone interview Sunday.
Faisal Gill, a lawyer for plaintiffs in one of the three lawsuits that Brinkema tossed out Friday, said he plans to appeal the dismissal.
Mark Zaid, lawyer for another set of plaintiffs, called Brinkema’s ruling perplexing and said he believes that the court’s jurisdiction to hear the case had already been established at an earlier phase of the case.
“A US citizen committed war crimes abroad and thus far has escaped civil accountability,” Zaid said Sunday in an emailed statement.
In court papers, Haftar tried to claim immunity from the suits as a head of state. At one point, the judge put the cases on pause because she worried that the lawsuits were being used to influence scheduled presidential elections in Libya, in which Haftar was a candidate. Those elections were later postponed.


Israel army says Hamas holding hostages in Gaza’s Rafah

Israel army says Hamas holding hostages in Gaza’s Rafah
Updated 15 April 2024
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Israel army says Hamas holding hostages in Gaza’s Rafah

Israel army says Hamas holding hostages in Gaza’s Rafah
  • The move comes just days after the army pulled out all troops from southern Gaza’s main city of Khan Yunis, leaving just one brigade to carry out operations across the Palestinian territory

JERUSALEM: Israel said Sunday that Hamas is holding hostages in Rafah in southern Gaza, where Prime Minister Benjamin Netanyahu has vowed to launch a ground invasion despite international outcry.
“Hamas is still holding our hostages in Gaza... We also have hostages in Rafah, and we will do everything we can to bring them back home,” Israeli military spokesman Rear Admiral Daniel Hagari said at a briefing.
In a separate statement, the army said it was calling “approximately two reserve brigades for operational activities on the Gazan front.”
It did not specify whether the brigades would be deployed inside Gaza.
The move comes just days after the army pulled out all troops from southern Gaza’s main city of Khan Yunis, leaving just one brigade to carry out operations across the Palestinian territory.