Palestinian Freedom on Hold: Hunt for Israeli War Criminals

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(The author served as Legal Adviser to the Palestinian Delegation to the Middle East peace Negotiations from 1991 to 1993. The viewpoints expressed here are his own.)

On 28 September 2000, General Ariel Sharon, the Butcher of Beirut, the architect of the Israeli invasion of Lebanon that had exterminated about 20,000 Arabs, the man personally responsible for the massacre of about 2,000 innocent Palestinian and Lebanese civilians at the refugee camps in Sabra and Shatilla, a man cashiered by his own government, on that day appeared at Haram Al-Sharif in Jerusalem — the third holiest site in Islam, where there is the Al Aqsa Mosque on the one hand, and the Dome of the Rock on the other, where Mohammed (May Peace Be Upon Him!) had ascended into Heaven — surrounded by about 1,000 armed Israeli forces with the full approval of Prime Minister Barak. General Barak and General Sharon knew exactly what they were doing! General Barak and General Sharon knew exactly what the reaction of the Palestinian People would be to Sharon’s deliberate desecration of, and provocation at, their holiest religious site. And if there had been any lingering doubt about the matter, Israeli armed forces returned the next day and shot dead several unarmed Palestinians on Haram Al-Sharif, thus setting off what has come to be known as the Al Aqsa Intifada — the uprising in support of the Al Aqsa Mosque.

Security Council Resolution 1322

Now on 7 October 2000, the United Nations Security Council adopted Resolution 1322 (2000), which is critical for this analysis. The vote was fourteen to zero, with the United States government abstaining. The United States Government could have vetoed this Resolution, but did not. And so this Resolution became a matter of binding international law. I will not go through the entire Resolution here, but I do want to spend just a few moments commenting on its most important provisions.

In paragraph 1, the Security Council: “Deplores the provocation carried out at Al-Haram al-Sharif in Jerusalem on 28 September 2000 and the subsequent violence there….” Notice, the Security Council by a vote of 14 to 0 made it crystal clear that it was Sharon’s desecration of the Haram Al-Sharif with the support of Prime Minister Barak that is responsible for the start of the current round of warfare and bloodshed perpetrated by Israel against the Palestinian People living in occupied Palestine. Nothing could be further from dispute than this factual finding, adopted 14 to 0, by the Security Council itself. A matter of obligatory international law.

Even the United States did not vote against that determination, and thus deliberately let it pass permanently into binding international law. Hence, there is no factual dispute about who and what started the Al Aqsa Intifada: It was the “provocation” deliberately inflicted by General Ariel Sharon, now the Prime Minister of Israel, with the full support and approval of General Barak, who was at the time the Prime Minister of Israel.

Israel’s Belligerent Occupation of Palestine

In paragraph 3 of Resolution 1322 (2000), the Security Council, again 14 to 0: “Calls upon Israel, the occupying Power….” “Occupying power” has a definite meaning in public international law. Israel only “occupies” the West Bank, the Gaza Strip, and the entire City of Jerusalem. Israel is what international lawyers call a “belligerent occupant.” As such, Israel has no sovereignty over the West Bank, or the Gaza Strip, or the entire City of Jerusalem.

Israel is not and has never been the sovereign there. Israel only belligerently occupies this Palestinian Land. And so what goes on there now is a war being waged by the belligerent occupant Israel against the Palestinian People living on their own Land. Under international law and practice, a People living on their own Land is the essence of Sovereignty. It is the Palestinian People who are the Sovereign in occupied Palestine.

So Israel has no sovereignty over the West Bank, or the Gaza Strip, or the City of Jerusalem. This is not sovereign Israeli land as far as the Security Council is concerned, as far as international law is concerned, as far as the entire international community is concerned, and even as far as the United States of America is officially concerned. And that has been the case for the West Bank and Gaza Strip since the war of 1967. That has been the case for East Jerusalem since the war of 1967.

As for West Jerusalem, the world has never recognized Israel’s annexation of West Jerusalem as valid either. That is why the United States’ Embassy and the embassies of almost every country in the world that has diplomatic relations with Israel — except for a few banana republics that have been bought and paid for — have their embassies in Tel Aviv and not Jerusalem. That is also why Clinton’s public threat to move the U.S. Embassy to Jerusalem was clearly illegal — threatening to recognize Israel’s bogus claim to sovereignty over Jerusalem.

The International Laws of Belligerent Occupation

Belligerent occupation is governed by the Hague Regulations of 1907, as well as by the Fourth Geneva Convention of 1949, and the customary laws of belligerent occupation. Security Council Resolution 1322 (2000), paragraph 3 continued: “Calls upon Israel, the occupying Power, to abide scrupulously by its legal obligations and its responsibilities under the Fourth Geneva Convention relative to the Protection of Civilian Persons in a Time of War of 12 August 1949;…” Again, the Security Council vote was 14 to 0, becoming obligatory international law.

The Fourth Geneva Convention applies to the West Bank, to the Gaza Strip, and to the entire City of Jerusalem, in order to protect the Palestinians living there. The Palestinian People living in occupied Palestine are “protected persons” within the meaning of the Fourth Geneva Convention. All of their rights are sacred under international law. That top P.L.O. official mentioned above had absolutely no comprehension of the vital importance of the Fourth Geneva Convention to his own People. Maybe he does today.

There are 149 substantive articles of the Fourth Geneva Convention that protect the rights of almost every one of these Palestinians living in occupied Palestine. The Israeli Government is currently violating, and has since 1967 been violating, almost each and every one of these sacred rights of the Palestinian People recognized by the Fourth Geneva Convention. Indeed, violations of the Fourth Geneva Convention are war crimes.

So this is not a symmetrical situation. As matters of fact and of law, the gross and repeated violations of Palestinian human rights by the Israeli army and by Israeli settlers living illegally in occupied Palestine constitute war crimes. Conversely, the Palestinian People are defending Themselves and their Land and their Homes against Israeli war crimes and Israeli war criminals, both military and civilian.

The U.N. Human Rights Commission

Indeed, the human rights situation is far more serious than that. On 19 October 2000 a Special Session of the U.N. Commission on Human Rights adopted a Resolution set forth in U.N. Document E/CN.4/S-5/L.2/Rev. 1, “Condemning the provocative visit to Al-Haram Al-Sharif on 28 September 2000 by Ariel Sharon, the Likud party leader, which triggered the tragic events that followed in occupied East Jerusalem and the other occupied Palestinian territories, resulting in a high number of deaths and injuries among Palestinian civilians.” The U.N. Human Rights Commission then said it was “[g]ravely concerned” about several different types of atrocities inflicted by Israel upon the Palestinian People, which it denominated “war crimes, flagrant violations of international humanitarian law and crimes against humanity.”

In operative paragraph 1 of its 19 October 2000 Resolution, the U.N. Human Rights Commission then: “Strongly condemns the disproportionate and indiscriminate use of force in violation of international humanitarian law by the Israeli occupying Power against innocent and unarmed Palestinian civilians…including many children, in the occupied territories, which constitutes a war crime and a crime against humanity;…” And in paragraph 5 of its 19 October 2000 Resolution, the U.N. Human Rights Commission: “Also affirms that the deliberate and systematic killing of civilians and children by the Israeli occupying authorities constitutes a flagrant and grave violation of the right to life and also constitutes a crime against humanity;…” Article 68 of the United Nations Charter had expressly required the U.N.’s Economic and Social Council to “set up” this U.N. Commission “for the promotion of human rights.” This is its Charter-mandated job.

Israel’s War Crimes against Palestinians

We all have a general idea of what a war crime is, so I am not going to elaborate upon that term here. But there are different degrees of heinousness for war crimes. In particular are the more serious war crimes denominated “grave breaches” of the Fourth Geneva Convention. Since the start of the Al Aqsa Intifada, the world has seen those heinous war crimes inflicted every day by Israel against the Palestinian People living in occupied Palestine: e.g., willful killing of Palestinian civilians by the Israeli army and by Israel’s illegal paramilitary settlers. These Israeli “grave breaches” of the Fourth Geneva Convention mandate universal prosecution for their perpetrators, whether military or civilian, as well as universal prosecution for their commanders, whether military or civilian, including and especially Israel’s political leaders.

Israel’s Crimes Against Humanity against Palestinians

But I want to focus for a moment on Israel’s “crime against humanity” against the Palestinian People — as determined by the U.N. Human Rights Commission itself, set up pursuant to the requirements of the United Nations Charter. What is a “crime against humanity”? This concept goes all the way back to the Nuremberg Charter of 1945 for the trial of the major Nazi war criminals in Europe. And in the Nuremberg Charter of 1945, drafted by the United States Government, there was created and inserted a new type of international crime specifically intended to deal with the Nazi persecution of the Jewish People.

The paradigmatic example of a “crime against humanity” is what Hitler and the Nazis did to the Jewish People. This is where the concept of crime against humanity came from. And this is what the U.N. Human Rights Commission determined that Israel is currently doing to the Palestinian People: Crimes against humanity. Legally, just like what Hitler and the Nazis did to the Jews.

The Precursor to Genocide

Moreover, a crime against humanity is the direct historical and legal precursor to the international crime of genocide as defined by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. The theory here was that what Hitler and the Nazis did to the Jewish People required a special international treaty that would codify and universalize the Nuremberg concept of “crime against humanity.” And that treaty ultimately became the 1948 Genocide Convention.

In fairness, you will note that the U.N. Human Rights Commission did not go so far as to condemn Israel for committing genocide against the Palestinian People. But it condemned Israel for committing crimes against humanity, which are the direct precursor to genocide. And I submit that if something is not done quite soon by the American People and the International Community to stop Israeli war crimes and crimes against humanity against the Palestinian People, it could very well degenerate into genocide, if Israel is not there already. In this regard, Israeli Prime Minister Ariel Sharon is what international lawyers call a genocidaire–one who has already committed genocide in the past. Sharon is ready, willing, and able to inflict genocide yet again upon the Palestinians. Unless you stop him!

Thank you. And have a most Happy Palestine Independence Day!

Mr. Francis A. Boyle is a Professor in International Law.

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