Law for Palestine and ICHR Bring Together Global Experts to Discuss Ongoing Gaza Genocide: Legal Perspectives and Global Action

Law for Palestine, in partnership with the Independent Commission for Human Rights in Palestine (ICHR) and as part of “Jurists for Palestine Forum” organized a webinar entitled “Addressing the Unfolding Gaza Genocide: A Legal Perspective for Global Action”.

The webinar, which was held on December 7th virtually via Zoom, aimed to delve into the legal aspects related to the crime of genocide and the obligations incumbent upon third states in light of the current circumstances, with a specific focus on the situation in the Gaza Strip/Palestine.

The event was moderated by the ICHR Director General, Ammar Dwaik who led the discussion with six prominent scholars: Prof. Mutaz Qafisheh (Law for Palestine Chair of the Board of Trustees), Prof. Penny Green (Professor of Law and Globalisation at Queen Mary University of London), Dr. Halla Shoaibi (Assistant Professor of international law at Birzeit University and ICHR Board Member), Prof. John B. Quigley (Professor of law at the Moritz College of Law at the Ohio State University), Dr. Giulia Pinazauti (International Criminal Law expert-Leiden University) and Dr. Francesca Albanese (the current UN Special Rapporteur on Palestine).

The Gaza Genocide Case: Unprecedented Global Visibility of Atrocities Amidst a Lack of Significant Intervention or Condemnation

In his intervention, Prof. Mutaz Qafisheh expressed how unique the case of Genocide in Gaza is, pointing out the silence of key individuals and organizations, while a genocide, for first time in history, is being podcasted live, rendering them complicit by their inaction.

Qafisheh focused on connecting legal statutes to the unfolding events in Gaza. He referenced specific articles from the Rome Statute and the Genocide Convention of 1948 outlining how at least three components of the crime of genocide align with the situation in Gaza, including intentional and systematic killing of particular national, racial or religious group; causing serious bodily or mental harm to members of a group; and deliberately inflicting on the group conditions of life calculated to bring about its physical destruction, including the complete blockade on Gaza, cutting off food, water, fuel, and medical supplies for Gaza.

Finally, Qafisheh discussed potential actions that can be taken. He provoked the work of various entities, including Law of Palestine. He emphasized some examples of multifaceted approaches that should lead to building a comprehensive evidence and legal groundwork to address the crisis effectively. These include engaging in institutional efforts by corresponding with international entities; establishing a database to document and analyze genocide-related data in multiple languages; conducting academic and social initiatives; forming dedicated working groups to address the crisis; and focusing on doctrinal development by referencing legal precedents to strengthen documentation; and support potential lawsuits in international judicial bodies like the ICJ and ICC.

An Organized Civil Society is the Most Effective Way to Challenge State Violence

Professor Penny Green’s intervention presented a distinct viewpoint on understanding and challenging Israel’s actions in Gaza, departing away from a strictly legal interpretation. She questioned the efficacy and credibility of the international legal order, citing Israel’s continual violation of UN resolutions with no repercussions. Green posited that state crimes should be perceived as social norm violations, often unacknowledged or overlooked by legal institutions due to states’ involvement in making and interpreting laws. Highlighting these limitations of legal frameworks, Green advocated for organized civil society as the most effective mean to challenge state violence. She asserted that civil society, operating from grassroots levels, possesses greater agility and capacity to recognize the early stages of state crimes, often overlooked by legal bodies. Moreover, she emphasized the role of civil society in identifying, documenting, and resisting state crimes, citing its effectiveness in spotlighting Israel’s actions as settler colonialism, apartheid, and genocide.

Regarding the charge of genocide against Israel, Green delineated its legal and criminological dimensions. She referenced Raphael Lemkin’s definition, stating that genocide encompasses intentional acts aimed at destroying the foundations of national groups. Pointing to Israel’s actions in Gaza, Green presented explicit evidence, such as the use of Dahiya doctrine (encompassed of wielding disproportionate power and causing immense damage and destruction[1]), and deliberate targeting of civilians, to support the accusation of genocide.

She elaborated on the phases of genocide and asserts that Israel’s crimes against Palestinians, documented over decades, align with recognizable stages of genocide. Green placed the ongoing crisis in Gaza within the context of historical dispossession, highlighting the systemic discrimination and structural violence Palestinians have faced for years.

Situating the Current Genocide in the Context of an “Ongoing Nakba” is Crucial.

Building on Green’s insights, Dr. Halla Shoaibi highlighted that while legal scholars perceive “genocide” as specific incidents, it’s an ongoing systemic approach to achieve a particular goal. Sociologists, Historians, and state crime scholars offer a deeper understanding of genocide compared to legal viewpoints, urging lawyers to consider the law from a liberation perspective. Hence, Shoaibi introduces the term “Ongoing Nakba,” indicating its inception in 1948 and its continuous impact through various military, political, economic, and cultural means aimed at the destruction of the Palestinian people. Situating “genocide” within this context becomes crucial.

Shoaibi emphasized the persistent destruction of Palestinian villages, land appropriation, and cultural erosion since 1948, resulting in millions of Palestinian refugees worldwide. Illustrating the ongoing nature of Nakba, Shoaibi pointed out instances of what could be termed as a “slow-motion genocide,” citing the prolonged siege on Gaza, deliberate denial of essentials, economic restrictions, and community demolitions while establishing new settlements, threatening Palestinian existence.

Drawing parallels from colonial history, Shoaibi highlighted incriminating practices resembling genocide, particularly in the West Bank, East Jerusalem, and Golan Heights. She underscored the alarming rate of demolitions of Palestinian structures, highlighting the plight of Palestinian citizens in Israel subjected to discriminatory laws and viewed as a demographic threat.

Shoaibi concluded by stressing that Israeli efforts over 75 years demonstrate deliberate harm inflicted upon Palestinians, indicating that the “Ongoing Nakba” and genocide didn’t commence on a specific date but have been ongoing since 1948.

What is Happening in Gaza Qualifies as a Genocide

Professor John Quigly began by examining Gaza’s situation in relation to the Genocide Convention, highlighting the potential for what’s happening there to qualify as genocide, particularly regarding evacuation orders. He delved into the state responsibility outlined in the Genocide Convention, emphasizing its applicability not just to individuals but also to states, as clarified in Article 9.

Analyzing key sections of the Genocide Convention, Quigly focused on Article 2, Paragraph 3, addressing actions intended to physically destroy a population, and Article 3, highlighting that genocide involves not only the principal actor but also those complicit in aiding and abetting the act of genocide.

Expanding on state liability under the Genocide Convention, Quigly detailed the importance of both action and mental state elements, referencing the draft articles on state responsibility (2001), outlining liability for states providing aid while aware of circumstances constituting an Internationally Wrongful Act.

In conclusion, Quigly underscored the World Health Organization’s characterization of the evacuation order in Gaza as a potential death sentence, pointing out how other states, notably the United States, have cautioned Israel, indicating their awareness of the situation. He suggested that Israel’s actions might be interpreted as genocide under the genocide convention.

An ICJ Jurisdiction can Serve as a Preventive Tool to Instruct Israel to Halt Military Operations, and Demand Refrain from Genocidal Acts. 

Dr. Guilia Pinazauti discussed the legal pathways via the International Court of Justice (ICJ) to hold Israel accountable for alleged genocide in Gaza. Initially, she highlighted Palestine’s potential to file a case against Israel under the Genocide Convention, despite not being a UN member state. She clarified that any state party to the Convention could initiate the case, emphasizing ICJ’s recognition that all member states have an interest in upholding the convention, though some states might be limited by their reservations to Article 9, altering treaty application reciprocally.

Regarding ICJ’s viability for prevention, Giulia emphasized that if the court’s jurisdiction is established, the applicant state could seek provisional measures. These measures, focusing on urgent actions pending case resolution, might include instructing Israel to halt military operations, refrain from genocidal acts, and preserve evidence linked to the accusations. While ICJ decisions on the merits may take years, these provisional measures are treated as urgent, offering a potential avenue for preventive action.

Pinazauti affirmed that although compliance isn’t assured, a binding decision could influence other states and pressure Israel, notably from Western nations. These measures, though not guaranteeing compliance, hold potential for exerting substantial international influence.

Domestic Courts are Important in Addressing the Ongoing International Crimes

On her part, the UN Special Rapporteur, Dr. Francesca Albanese underscored the significance of domestic courts under Universal Jurisdiction, emphasizing their authority in probing and prosecuting war crimes, crimes against humanity, and genocide. She stressed the urgency of moving beyond verbal condemnations to take concrete action, citing the UN Secretary General’s recent steps and invoking Article 99 of the UN Charter. This, she argued, was crucial given the failure of the Security Council and General Assembly to prevent atrocities in various past instances.

Pointing to the real-time visibility of the ongoing genocide in Gaza, Dr. Albanese criticized the lack of Western state responsibility despite the televised nature of the unfolding events. With over 16,000 Palestinians killed, she highlighted Israel’s consistent disregard for international law, stressing the need for a ceasefire, humanitarian aid supervised by UN agencies, and an end to Israel’s authority over Occupied Palestinian Territories.

Albanese proposed an international presence agreed upon by the affected people to ensure peace, stability, the release of hostages, and the evacuation of Gazans unable to stay. She concluded by emphasizing the necessity of political solutions grounded in peace, international law, and human rights for a path toward lasting peace.

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Watch the recording here

[1] https://www.washingtonpost.com/world/2023/11/10/israel-dahiya-doctrine-disproportionate-strategy-military-gaza-idf/