By Jeff Klein
As the brutal assault on the more than 2 million Palestinians trapped in the Gaza Strip enters its fourth month, there are finally signs that the international community may begin to hold Israel accountable. On December 29 South Africa filed a charge of Genocide against Israel with the International Court of Justice (ICJ).
Meanwhile, in the US Congress, a majority of Senators voted against a measure simply to call for a report on potential Israeli human rights violations in its assault on Gaza. Bernie Sanders had moved a resolution under a US law that allowed Congress to demand a report from the State Department on potential violations of US arms export rules. Section 502B of the Foreign Assistance Act allows Congress to request information on a particular country’s human rights practices and to alter or terminate U.S. security assistance to that country in light of the information received. If no report is forthcoming from the State Department within 30 days, weapons transfers must be suspended.
Unlike other Senate resolutions, this rule requires a debate and vote on the request. However, a large majority of Senators effectively voted to say: “don’t ask, don’t tell.” Democratic Senator Ben Cardin moved to table the motion and this motion was approved, killing the Sanders resolution without further debate. Cardin argued that military aid to Israel and all other recipients is already conditioned by US law – but of course these human rights requirements are never invoked against Israel or other recipients of US military aid. Massachusetts Senators Warren and Markey were among the 11 votes against tabling the Sanders resolution.
Despite this setback, the good news concerning the Sanders resolution and a few other measures, is the gradual emergence of a coherent Senate group willing to challenge the status quo of US policy toward Israel and Palestine. This is a welcome development, even if the Senators are decidedly more cautious and equivocating than the members and supporters of “The Squad” in the House, which includes our own Rep. Ayanna Pressley. Early on in the Israeli assault, 18 representatives cosponsored a resolution for an immediate Gaza ceasefire, something that no US Senator has so far proposed in the upper chamber.
As for the charge against Israel before the ICJ, Genocide is recognized as a crime under international law by the United Nations. Shortly after the end of the Second World War, the international community grappled with the horrific atrocities committed by the Axis powers. The systematic slaughter of millions by the Nazis and in particular the industrial-scale murder of Europe’s Jews had been named Genocide, a new term coined in 1944 by Polish-Jewish lawyer Raphael Lemkin. In 1946, the General Assembly of the newly created United Nations recognized Genocide as an international crime and called for the creation of a binding treaty to prevent and punish its perpetrators. A few years later, in 1948, the UN codified the resolution in the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG), which has since been adopted by 152 state parties, including Israel and the US.
The UN Convention in article 2 defines Genocide as any of the following acts, among others, committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.
There seems to be little doubt that Israel has committed these crimes in action as well as intent. As of this writing, more than 24000 Gazans have been killed by Israeli attacks. With so many Gazans still missing, the likely death toll is much higher. The majority of the victims are women and children, while tens of thousands more have been wounded, often grievously.
“In a matter of weeks, a far greater number of children have been killed by Israeli military operations in Gaza than the total number of children killed during any individual year, by any party to a conflict since I have been secretary-general,” said UN Secretary-General Antonio Guterres on 30 November 2023.
Get Congress on the record! Sen. Bernie Sanders has introduced a privileged resolution which would force the State Department to investigate Israel’s human rights abuses. Ask your senators to sign on!
Most of the homes in the Gaza strip have been destroyed or are seriously damaged; hospitals, schools, universities, mosques, churches and many cultural institutions have been targeted repeatedly. According to the UN, almost two million Gazans have been forced by the bombing to flee their homes to crowded and squalid conditions in the south of the Strip without adequate shelter – and where they have also been targeted by Israel’s military. The conditions resulting from the Israeli assault, together with its blockade and limits on the entry of food, water and fuel, have caused widespread hunger, with hundreds of thousands of Palestinians civilians facing outright starvation. The medical system in Gaza has virtually collapsed under the weight of Israeli attacks, so the likelihood of severe disease epidemics that could claim many more lives is increasingly dire. This is an outcome that has been welcomed by high-level Israeli officials.
All of these crimes are excruciatingly documented in the 84-page South African indictment submitted to the ICJ (read the full text here, and a useful summary here).
The ICJ can order an immediate halt to the Israeli assault against Gaza even before its final judgement. And assuming it rules in favor of the Genocide charge, it can refer the perpetrators to criminal prosecution at the International Criminal Court (ICC). In 1998, the Rome Statute treaty, ratified by nearly all UN member states, established the International Criminal Court, to prosecute four core international crimes: (I) Genocide, (II) Crimes against humanity, (III) War crimes, and (IV) Crime of aggression. Only a few countries, including Israel and the United States, refused to ratify the Rome Statute, but their citizens are still liable for prosecution under the treaty if they commit crimes on the territory of a signatory. Palestine, which has observer status at the UN, is one of these.
But the ICJ has no powers to enforce its decisions outside the machinery of the UN, where the US may stall any action. And the highly politicized ICC – where the US and its allies have decisive influence over its funding – has already been slow walking a charge brought by the Palestinian Authority against Israeli officials years ago. Reports also suggest that the US is trying to block action by the International Committee of the Red Cross to charge Israel for violations of the Fourth Geneva Convention, which is supposed to protect civilians from murder, torture or brutality, and from discrimination on the basis of race, nationality, religion or political opinion in wartime.
So it is possible that Israel and its governmental leaders may escape legal consequences for their war crimes in Gaza.
Meanwhile, Israeli officials declare that their war on Gaza will continue “for many more months.” Their stated aim is to completely destroy the military capabilities of Hamas and kill its leadership. But few observers, even inside Israel, believe this is feasible, given how deeply embedded the resistance organization is in Gaza society – and increasingly in the West Bank. Instead, the true aim may be to obliterate the entire population of Gaza through continuing bombardment and potential forced expulsion. Such an aim has been openly voiced by Israeli officials, including Netanyahu and ministers in his rightwing government, under the euphemism of “voluntary migration.” Opinion polls indicate that this project of ethnic cleansing has the overwhelming support of Jewish Israelis. In any case, much of the Gaza strip, already suffering from years of Israeli blockade, has been turned into rubble and may be uninhabitable for years to come.
The recent announcement that Israel is withdrawing some of its combat troops from inside Gaza are less an indication of any changed war aims than a recognition that Hamas resistance on the ground has been taking a high toll among Israel combat forces. Prolonged reservist mobilization has been severely damaging to the Israeli economy, which is also suffering from the collapse of Israel’s important tourism industry.
If Israel has been directly committing genocide and other war crimes in Gaza, it is the US which has been its decisive enabler. All the Israeli war planes operating over Gaza, every attack helicopter and nearly all the bombs being dropped are made in the USA. The weapons are transferred cost-free to Israel, courtesy of the US taxpayer and the billions in annual US military aid to Israel. During the Israeli assault, almost non-stop shuttles of US aircraft have replenished Israel with more munitions to use against Gazans, even, for “emergency” reasons bypassing US laws that mandate Congressional oversight. The White House and the leaders of both parties in Congress are now pushing for a further $14 billion in US taxpayer funds to support the Israeli war effort.
The US has so far blocked UN efforts to enforce a ceasefire in Gaza by its use of its veto in the Security Council. It should be noted in this context that “Complicity” is also a crime under the Genocide Convention.
But if the ICJ declares that interim measures are required to halt a potential Genocide in Gaza, the US, as a signatory to the Genocide Convention, is required to uphold and enforce the decision. Treaties adopted by the US become part of enforceable US law, so an ICJ order to stop the US-assisted Israeli assault on Gaza may be enforceable in court. Already, lawyers from the Center for Constitutional Rights have filed a suit on behalf of Palestinians in Gaza charging that Biden, Blinken, and Defense Secretary Lloyd Austin violated U.S. and international law.
Nevertheless, given the power disparities at the UN, Israel and its US enablers may avoid direct punishment for their crimes in Gaza. But they will certainly face the judgement of history and condemnation by most of the world community.
Just before Christmas, Palestinian pastor Munther Isaac preached a sermon in Bethlehem which included these words:
“Leaders of the so-called “free” lined up one after the other to give the green light for this genocide against a captive population. They gave the cover. Not only did they make sure to pay the bill in advance, they veiled the truth and context, providing political cover… I feel sorry for you. We will be ok. Despite the immense blow we have endured, we will recover. We will rise and stand up again from the midst of destruction, as we have always done as Palestinians, although this is by far the biggest blow we have received in a long time. But again, for those who are complicit, I feel sorry for you. Will you ever recover from this?”
Jeff Klein is co-convener of MAPA’s Gaza Israel Peace Campaign and Palestine-Israel Working Group, and a member of the board.
This article was updated on January 18.