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Brig Dr. Tughral Yamin (R)

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Hilal English

Genocide in Palestine

March 2024

It is imperative that the global community collectively embraces the principle of the Protection of Civilians to prevent the humiliation and annihilation of the Palestinian people. This fundamental aspect of humanitarian law underscores that civilians, as well as those not actively engaged in conflict, must never be subjected to attacks and must be safeguarded and spared from harm.


Human history is replete with horrific examples of massacres and genocide. It is widely known that during the Middle Ages, it was the norm to indiscriminately put defeated nations to the sword. No discrimination was made between combatants and non-combatants, and entire populations were slaughtered to satiate the appetites of the victors. Mongols made mountains out of skulls of the vanquished to scare the enemies into subservience. 
This gory custom has been repeated in recent times. Tomes have been written on the killing fields of Cambodia and the genocide in Rwanda. Macabre scenes from Hollywood movies have etched these dark events into the collective human memory. 
During the Bosnian War of 1992-1995, the Srebrenica massacre and wider crimes against humanity were carried out in the areas controlled by the Army Republika Srpska (VRS). The events in Srebrenica in 1995 included the killing of more than 8,000 Bosniak (Bosnian Muslim) men and boys, the rape of thousands of women, and the mass expulsion of 25,000-30,000 Bosniak civilians by VRS units under the command of General &1#82;adko Mladić. The ethnic cleansing campaign against Bosnian Muslims qualifies as genocide, and this is now being replayed in occupied Palestine.
Historical Context of the Conflict in Palestine 
For over seventy years, occupied territories in Palestine (and Kashmir) have witnessed the indiscriminate killing of innocent people without any international intervention. Israelis have resorted to killing innocent Palestinian civilians, as a retribution against the acts of defiance by freedom fighters. The Sabra and Shatila massacre took place between September 16-18, 1982, when Israeli forces killed approximately 3,500 Palestinian civilians in Beirut's Sabra neighbourhood and the adjacent Shatila refugee camp. The Israelis were venting their anger against the Palestinian Liberation Organization (PLO). The PLO had to eventually withdraw from Beirut. 


Almost 30,000 people have been killed in the Israeli military operations and those who are still alive are dying of starvation and lack of medical aid.  More than half of those dead are children. Heart-rending stories have emerged of children dying in absence of medical aid. Six-year-old Hind Rajab frantically sent SOS (save our souls) messages for help, which failed to arrive in time. 


Now their principal adversary in the occupied territories is Hamas.  Hamas or Harakat al-Muqawama al-Islamiya (Islamic Resistance Movement), is a Palestinian Sunni Islamic political and military movement governing the parts of occupied Gaza strip.
After the October 7 surprise missile attacks by Hamas last year, the Israeli forces retaliated by launching a military operation that not only targeted Hamas but also the civilian population. In wave after wave of merciless aerial bombardment and ground offensive, public and private properties in the Gaza Strip and the West Bank were systematically destroyed. Nothing was spared. In clear contravention of International Humanitarian Law (IHL), places of worship, schools, and hospitals were razed to the ground. No structure was left standing, and all buildings were reduced to rubble. Civilians including children and women, were mercilessly killed. Almost the entire 2.5 million population of Gaza Strip was rendered homeless. Almost 30,000 people have been killed in the Israeli military operations and those who are still alive are dying of starvation and lack of medical aid.  More than half of those dead are children. Heart-rending stories have emerged of children dying in absence of medical aid. Six-year-old Hind Rajab frantically sent SOS (save our souls) messages for help, which failed to arrive in time. 
Relief goods have been prevented from entering Gaza. To make the situation worse, Western donors have stopped the funding of the United Nations Relief and Works Agency (UNRWA) that looks after the refugee camps, hospitals and schools in the occupied Palestinian territories. 


Long before Adolf Hitler’s "Die Endlösung" or the Final Solution plan to exterminate the Jews, European countries had been concerned about the growing influence of this small community that controlled a major share of the European financial markets. One proposed solution to this concern was to resettle the Jews elsewhere in the world.


The bloodshed in Gaza and the West Bank of Palestine is not solely the result of the missile attacks on October 7, 2023. The conflict dates back to the late 19th and early 20th centuries. It began with the emergence of Zionist movements advocating for a Jewish homeland in Palestine, which was then under the Ottoman Empire. Long before Adolf Hitler’s "Die Endlösung" or the Final Solution plan to exterminate the Jews, European countries had been concerned about the growing influence of this small community that controlled a major share of the European financial markets. One proposed solution to this concern was to resettle the Jews elsewhere in the world.
Creation of Israel 
In 1917, during the First World War, the British Government issued a public statement announcing its support for the establishment of a "national home for the Jewish people" in Palestine, which was then a part of the Ottoman Empire with a small minority Jewish population. The declaration was contained in a letter dated November 2, 1917, from the United Kingdom's Foreign Secretary, Arthur Balfour, to Lord Rothschild, a leader of the British Jewish community, for transmission to the Zionist Federation of Great Britain and Ireland. This announcement came to be known as the Balfour Declaration.
In 1947, the United Nations (UN) proposed a partition plan for Palestine, leading to the establishment of the state of Israel in 1948. The Arab states rejected the plan to partition Palestine. Their rejection could not stop the creation of the state of Israel and led to the displacement of hundreds of thousands of Palestinians, resulting in what is known as the Palestinian exodus or Nakba (catastrophe). 
Occupation and Settlements 
The state of Israel has been nibbling into what genuinely belongs to the Palestinians. Currently, Palestinians are restricted to the West Bank and the Gaza Strip.
Following the 1967’s Six-Day War, Israel occupied the West Bank, including East Jerusalem, and the Gaza Strip, along with other territories. Israel's establishment of settlements in these areas has been a major point of contention, as they are considered illegal under international law. This has led to further displacement of Palestinians.
Palestinians in the occupied territories have not only lost their land but have faced restrictions on their movement, access to resources, and basic rights. The Israeli military presence, checkpoints, and barriers have severely impacted their daily lives. 
Human Rights Violations 
Human rights violations by Israeli forces against hapless Palestinians include extrajudicial killings, arbitrary arrests, torture, and the use of excessive force against protesters. The international community, including the UN and various human rights organizations, has routinely condemned Israel's actions in Palestine and has called for a peaceful resolution to the conflict based on the principles of international law. This includes the right of return for Palestinian refugees and the establishment of a viable Palestinian state alongside Israel.
Gaza Blockade and Gaza Wars 
Since 2007, Israel has imposed a blockade on the Gaza Strip, severely restricting the movement of people and goods in and out of the territory. This has led to a dire humanitarian crisis, marked by shortages of essential supplies such as food, medicine, and electricity. In 2010, David Cameron, who was then the Prime Minister of the UK and is now its Foreign Secretary, referred to the Gaza Strip as the biggest open-air prison in the world.
Israel has, in the past, launched several military offensives against the Gaza Strip. This includes Operation Cast Lead in 2008-2009, Operation Protective Edge in 2014, and others. These assaults have resulted in significant loss of life and infrastructure damage in Gaza, disproportionately affecting civilians. 
Hamas has often registered its protests against the Israeli occupation forces by launching such attacks in the past too. On October 7, 2023, Hamas fired thousands of rockets from the Gaza Strip in territories occupied by Israel. The sheer size of the missile attacks overwhelmed Israel’s vaunted Iron Dome air defense shield and resulted in the deaths of Israeli settlers. A number of Israeli military and civilian persons were also taken prisoners. The Israeli action was ostensibly meant to eliminate Hamas’ fighters but they are methodically killing civilians. About one million residents are now holed up in the border town of Rafah and are now facing an Israeli attack. Urgent appeals for ceasefire have fallen on deaf ears.


The word “genocide” was used by a Polish lawyer Raphäel Lemkin in 1944 in his book Axis Rule in Occupied Europe. Lemkin had experienced the Nazi policies of the systemic killing of Jewish people of what is now referred to as the Holocaust. Later on, Raphäel Lemkin led the campaign to have genocide recognised and codified as an international crime.


Genocide
By all accounts, the Israeli military actions in Gaza and West Bank are tantamount to genocide. Genocide is a compound word consisting of the Greek prefix genos, meaning race or tribe, and the Latin suffix cide, meaning killing. The word “genocide” was used by a Polish lawyer Raphäel Lemkin in 1944 in his book Axis Rule in Occupied Europe. Lemkin had experienced the Nazi policies of the systemic killing of Jewish people of what is now referred to as the Holocaust. Later on, Raphäel Lemkin led the campaign to have genocide recognised and codified as an international crime.1
Genocide was recognised as a crime under international law in 1946 by the United Nations General Assembly (A/RES/96-I).  It was codified as an independent crime in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide2  (the Genocide Convention). The definition of the crime of genocide is contained in Article II of the Genocide Convention.3 It is defined in the same terms as in Article 6 of the Rome Statute of the International Criminal Court (ICC)4, as well as in the statutes of other international and hybrid jurisdictions. Many states have also criminalized genocide in their domestic laws. 
As per Article II of the Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
▪   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;
▪ Forcibly transferring children of the group to another group.
Elements of the Crime
The narrow definition of the crime of genocide includes two main elements:
▪  A Mental Element. The "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such"; and
▪  A Physical Element. It encompasses the five abovementioned acts: killing, causing serious harm, deliberately imposing life-threatening conditions, preventing births, and forcibly transferring children, all targeted towards a specific group.
To constitute genocide, there must be a proven intent on the part of perpetrators to physically destroy a national, ethnical, racial, or religious group. Cultural destruction does not suffice, nor does an intention to simply disperse a group. It is this special intent, or dolus specialis, that makes the crime of genocide so unique. In addition, case law has associated intent with the existence of a state or organizational plan or policy, even if the definition of genocide in international law does not include that element.
Most importantly, the victims of genocide are deliberately targeted–not randomly–because of their real or perceived membership of one of the four groups protected under the Convention (which excludes political groups, for example). This means that the target of destruction must be the group, as such, and not its members as individuals. Genocide can also be committed against only a part of the group, as long as that part is identifiable (including within a geographically limited area) and “substantial.”
South Africa’s Case of Genocide by Israel 
While the U.S. and most of the Western world have remained silent regarding the Israeli forces' actions against Palestinian civilians, the Government of South Africa took the matter to the International Court of Justice (ICJ) and sued Israel for committing genocide in Gaza under the 1948 Genocide Convention, a treaty to which both South Africa and Israel are parties.
The case generated a l t of excitement. Although it is understood that the ICJ lacks the means to have its judgements enforced, it was hoped that it would bring to an end the agony being suffered by the Palestinians. In its Order of January 26, 2024, the Court recalled the attack of October 7, 2023 on Israel with hostage taking and loss of life, as well as the human suffering, displacement of civilians and damage to the infrastructure in Gaza caused by Israel. The Court ordered:
1.  Israel must, in accordance with its obligations under the Genocide Convention and in relation to Palestinians in Gaza, ‘take all measures within its power’ to prevent the commission of acts prohibited in the Convention, in particular killings, causing serious physical or mental harm, the deliberate infliction of conditions of life calculated to bring about the physical destruction of the population in whole or in part, and the imposition of measures intended to prevent births;
2. Israel must ensure that its military forces do not   commit any of the acts mentioned in point 1;
3.  Israel must take all measures within its power to prevent and punish direct and public incitement to commit genocide;
4.  Israel must take immediate and effective measures to enable the provision of humanitarian relief to Gaza;
5. Israel must take effective measures to prevent destruction of evidence relating to allegations of acts contrary to the Genocide Convention;  
6.  Israel must submit a report to the Court within one month regarding the measures it has taken to give effect to the Order.
The Court noted that all parties are bound by IHL; it stated that it was gravely concerned by the fate of the hostages and called for their immediate release.
In its January 26 decision, the Court decided that South Africa prima facie has ‘standing’ to bring the case, that is, it has the right to do so under the Genocide Convention, recalling that the obligations under the Convention are erga omnes: they concern the international community as a whole.
The provisional measures are legally binding on Israel and there is no right of appeal. Unfortunately, there is no international police to enforce rulings of the ICJ. The Court’s decisions have a reputational, political, and diplomatic impact, including in the court of public opinion. It is also possible to take the issue to the UN Security Council.
The decision of the ICJ notwithstanding, for the last four months, crimes against humanity have been committed in Gaza, a small sliver of land with an area of 365 km2 (41 kilometres in length and 6 to 12 km in width).  The Israeli offensive proves beyond doubt that the Palestinians are completely at the mercy of the occupying forces. They do not have the military means to defend themselves. Missile attacks are just a form of registering protests and nothing else. This has at times been triggered by the desecration of the Al-Aqsa Mosque, the second holiest place in Islam. Sadly, the Arabs and the comity of Islamic nations have failed to protect the Palestinians. 
It is time for the world to collectively invoke the principle of Protection of Civilians (POC) to save the Palestinians from humiliation and annihilation. This fundamental tenet of humanitarian law states that civilians and all those not taking part in the fighting must, under no circumstances, be attacked and should be spared and protected. The only way to ensure POC in occupied territories is to establish and deploy an International Protection Force (IPF) to safeguard Palestinian civilians. The Pakistan Army, with its extensive experience in peacekeeping, should aspire to become a part of such a force.


The writer is a retired Brigadier and former Dean of the Centre for International Peace and Stability at NUST.
E-mail: [email protected]


1.“A/RES/96(I).” 2024. Undocs.org. 2024. https://undocs.org/Home/Mobile?FinalSymbol=A%2FRES%2F96(I)&Language=E&DeviceType=Desktop&LangRequested=False.
2.United Nations. 1948. “Convention on the Prevention and Punishment of the Crime of Genocide.” United Nations. https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf. ‌
3. Ibid.
4. International Criminal Court. 1998. “Rome Statute of the International Criminal Court.” International Criminal Court. https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf. 

 

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Brig Dr. Tughral Yamin (R)

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