Al-Ahram Weekly Online   22 - 28 January 2009
Issue No. 931
Published in Cairo by AL-AHRAM established in 1875

'Crime of crimes'

Former judge at the International Criminal Tribunal for the Former Yugoslavia, Fouad Riad, tells Amira Howeidy that Israel is guilty of genocide in its 22-day war on Gaza

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PALESTINE 1948, GAZA 2009: It is "imperative", says Riad, to view the current Israeli atrocities in Gaza within the historical context of the Zionist ideology and occupation of Palestine in 1948

Never before in the 60-year-old history of Israel has it been the subject of such intense and vigorous condemnation for what it has been doing since coming into existence: genocide, war crimes and crimes against humanity. While most critics point an accusing finger at its "war crimes" alone, some, like ex-judge at the International Criminal Tribunal for the Former Yugoslavia (ICTY), Fouad Riad, have the courage to brush diplomatic language aside and call things by their name.

"What Israel did in Gaza is genocide," Riad tells Al-Ahram Weekly. It "deliberately killed Palestinian children" with the aim of exterminating the population, he says.

Riad served on the ICTY in The Hague for seven years. In February 2001, Riad and others judged that the 1995 Srebrenica massacre committed in the former Yugoslavia was "genocide". Nothing in the language of international law matches the magnitude of genocide, which is considered the "crime of crimes". It is the most extreme consequence of racial discrimination and ethnic hatred.

The 1948 Genocide Convention defines genocide as any of a number of acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group: 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 forcibly transferring children of the group to another group.

"There is no doubt that Israel has been committing these crimes ever since 1948," Riad says. In 1948, after the Irgun Zionist militia carried out a massacre in Palestinian Deir Yassin village, then-Irgun leader Menachim Begin (later Israel's prime minister) was quoted as saying that the massacre's objective was accomplished because it exterminated the village's population and ethnically cleansed the area of Arabs, says Riad.

Riad cites "native" Israeli historian, Ilan Pappé, who published a damning commentary in the webzine, Electronic Intifada, 2 January entitled "Israel's righteous fury and its victims in Gaza". Not only does Pappé describe the Israeli war on Gaza as "genocidal", he says Israel is "more busy than any other state in the world in destroying and dispossessing an indigenous population."

"Zionism is an ideology that endorses ethnic cleansing, occupation and now massive massacres," wrote Pappé, who is chair of the Department of History at the University of Exeter. The genocide in Gaza, he said, is connected in every respect to the racist "hegemonic Zionist" ideology upon which Israel was founded and that it has continued to practise throughout the past 60 years.

It is "imperative", according to Riad, to view the war on Gaza in "this very context that links the past with the present". While Pappé draws the link to justify the call for boycott, divestment and sanctions on Israel, ex-ICTY judge Riad wants to see the power of international criminal justice brought to bear on all five continents, not just some of them.

To date, ad-hoc war crimes tribunals were set up for the Nazis, the former Yugoslavia, Rwanda, the Khmer Rouge, Sierra Leone and East Timor. In addition, the International Criminal Court opened investigations into four situations in Northern Uganda, the Democratic Republic of the Congo, the Central African Republic and Darfur. The Lebanese parliament is yet to agree on a UN-backed international tribunal on the assassination of former premier Rafik Al-Hariri.

The closest the world has come to demanding judicial remedy for the Palestinians has been in the past four weeks as Israel pounded, with one-ton bombs, white phosphorous and biological weapons, the world's biggest prison -- Gaza -- whose 1.5 million inhabitants had already suffered an 18-month old cruel economic blockade. The Palestinian toll: over 1,320 killed, including 400 children, and more than 5,350 injured (maimed, deformed and suffering from injuries caused by unknown experimental weapons that have left doctors powerless as to their treatment), including 1,900 children.

Hospitals, UN schools, the largest Palestinian university, and dozens of mosques were shelled. Both the Red Cross and UNRWA (the UN Palestinian refugee agency) said several of their workers were killed and injured.

UN humanitarian workers say hundreds of millions of dollars in emergency aid supplies will be needed for the people of Gaza. More than 100,000 people have been displaced and left homeless by the war. The Hamas government says that 5,000 buildings were completely destroyed and another 20,000 damaged or partially destroyed in the fighting. Israel concedes that 10 of its soldiers were killed.

On 12 January, the UN Human Rights Council issued a non-binding resolution that accuses Israel of massive violations of the human rights of the Palestinian people. It also decided to dispatch an urgent independent international fact- finding mission to investigate all violations of international human rights law and international humanitarian law in the Palestinian occupied territories. The mission's findings will be presented to the council's next session in March, putting a "spotlight" on the violations.

On Monday, Amnesty International accused Israel of committing war crimes for repeatedly shelling densely populated areas with white phosphorous. When white phosphorous meets human skin it burns through muscle to the bone. Human Rights Watch previously accused Israel of using the incendiary weapon, but did not term it a war crime. UN High Commissioner for Human Rights Navi Pillay said some Israeli actions reported in Gaza might warrant prosecutions for war crimes.

The Arab Economic summit in Kuwait Tuesday issued a statement demanding an investigation into Israel's "war crimes". While this seems warranted, it also appears, from Arab states, to betray an element of hypocrisy. To date, 108 states have signed the Rome Statute of the International Criminal Court. Only three Arab countries -- Jordan, Djibouti and Comoros Islands -- have ratified it.

Israel, naturally, is not a High Contracting Party to the ICC. There is no Palestinian state, so it can't be a member. The court can exercise jurisdiction only in cases when the accused is a national of a state party, or upon referral by the UN Security Council (UNSC). Any attempt to pressure the UNSC to demand an investigation of Israel's war crimes will be met by a US veto.

"Courts of justice are made to protect victims," says Riad. "We are victims and yet we refuse to be members of the ICC." Had Arab states ratified the Rome Statute, he added, they could have "had their word" and brought cases before the court. "International justice is important, and we are out of it. It's a great loss."

Lebanon, Riad says, was on the verge of ratifying the Rome Statute before Israel waged its war on the country in July 2006. Had it done so, "it could have taken Israeli war criminals to the ICC."

Meanwhile, dozens of Arab rights activists and lawyers are making the news with claims of "dragging" Israeli war criminals to the ICC. Their claims are based on Article 15 of the Rome Statute that enables the Office of the Prosecutor to initiate an investigation by proprio motu, or his own initiative when referred to him by civil society groups. Riad says the prosecutor investigates if these cases fall within the court's jurisdiction. "Outside this circle, the prosecutor can't proceed with an investigation."

The alternative route for bringing Israeli war criminals to justice is resorting to countries that have laws of "universal jurisdiction" with respect to genocide, crimes against humanity and war crimes. This principle allows states to claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other relation with the prosecuting country. According to Riad, Belgium was the first European country to introduce this principle to its laws and other countries followed suit.

"Many of the targets of these tribunals are Israeli," he says. "The percentage of Israeli leaders who are being prosecuted according to universal jurisdiction is much greater than any other nationality." None, however, has been arrested, and universal jurisdiction will not, in the present case, force Israel to extradite its leaders.

That leaves a third path open: popular tribunals. "At face value they might not appear convincing but in practice they can be very effective," Riad says. A popular tribunal can expose war crimes to the world, tarnishes a leader's name in history, and can be "very satisfying for the victims". The model -- an independent international body consisting of notable figures to investigate war crimes -- was initiated in 1966 by English philosopher Bertrand Russell who constituted such a tribunal to investigate alleged US genocide in Vietnam.

In 2006, the Arab Lawyers Union convened a popular tribunal in Cairo to investigate war crimes committed by former US president George W Bush, former British prime minister Tony Blair, and former Israeli prime minister Ariel Sharon. It was headed by former Malaysian Prime Minister Mahathir Mohamed.

Such trials, according to Riad, can "serve as an introduction to future tribunals for Israeli war crimes before international courts", as crimes against humanity, war crimes and genocide are not "subject to statutes of limitation". "We cannot completely exclude in the long run the intervention of the international community to bring [Israeli] crimes in the occupied Palestinian territories before an international court," Riad says.

Some in Israel are already voicing concern about this exact scenario. Gideon Levy of the Israeli daily Haaretz wrote on 12 January: "Despite all the slack the world has cut us since as long as we can remember, despite the leniency shown towards Israel, the world might say otherwise this time. If we continue like this, maybe one day a new, special court will be established in The Hague."

If and when that day comes, it would not be a day too soon.

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