For other articles in this series 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11
When I first set out to prove that Israel is committing the crime of genocide against the Palestinian people, I focused mostly on its genocidal acts. While there’s consensus between pretty much anyone that bothered to examine the Convention of Prevention of Genocide [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16] on the fact that Israel is committing the first three out of five genocidal acts:
(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;
A debate remains about Israel’s intent to bring about the Palestinian people’s “destruction in whole or in part”. The Russell Tribunal, in its latest “Extraordinary Session on Gaza” and the 2009 “Fact Finding Committee On Gaza” chaired by John Dugard, both illustrate a narrative of colonialist destruction of the social fabric and a partial wiping out of the indigenous population. Frustratingly enough, both stop short of ruling genocide. While the Russell Tribunal simply says “it would be for a criminal court to determine”, the Dugard report goes into much greater detail.
Palestine in Whole or in Part
It’s not for naught that the term “genocide” cropped up in 2009, just as it has now, after “Protective Edge”. As the Dugard report states, “the number of persons killed and wounded by Israel in the conflict would certainly allow an inference of specific intent to commit genocide to be drawn. ” Even so, I believe that one of the major flaws of these two committees is the focus on Gaza, while trying to ascertain genocide. It is almost a continuation of Israel’s crimes of discrimination, segregation and apartheid, to consider just one part of the Palestinian population instead of regarding all 11 million- in Gaza, the West Bank, within the 1948 armistice line and in exile- in the particular context of Israel’s crimes against them. This is exacerbated when trying to ascertain a crime which is assessed by its overall systematicness.
The second flaw is to only examine one single incident- as horrific and grand in scale as it may be- in 66 years of historic colonialist atrocities. These isolations constrict the analysis in a way that doesn’t allow the examination of a plan, process, or system, which would indicate intent, even though the Dugard report states that “there is no question Israel’s action was the result of a plan or policy. ”
While obviously “Cast Lead”- as the Dugard report states- “would appear to be sufficient to justify a reasonable inference that Israel had the required genocidal intent. ” and “that Israel has violated paragraphs (a) to (c) of Article 2 of the Genocide Convention in that it has killed, caused serious bodily harm to and deliberately inflicted on the Palestinian people of Gaza conditions of life calculated to bring about their physical destruction in whole or in part ”, it concluded that “its intention was probably not to destroy the group in whole or in part but rather to engage in a vicious collective punishment campaign designed to punish and subdue. Although much of the evidence pointed in the direction of a specific intent to destroy, this was not the only possible inference to be drawn from the facts as there is clear evidence of an intent to punish as the primary motivation for Israel’s actions. ”
In that particular point in time the committee interpreted Israel’s intent as “to punish the people of Gaza for having substantially contributed to the election of Hamas in 2006 and for having allowed Hamas to seize control of Gaza in mid 2007. ” In the narrow context of the wonton destruction and mass massacres of “Cast Lead” and the tactical considerations Israel was making in order to excuse it, one might be satisfied with this analysis. The same applies to the more recent “Protective Edge”, which was waged by Israel with the explicit goal of breaking up the new Palestinian unity government. If we are to believe that Israel’s goal in the massive destruction it waged on the besieged Gaza strip is any other than that of “destruction in whole or in part” of a national/religious/racial/ethnic group (and there are other very plausible goals), then we must consider that the UN Office of the Special Adviser on the Prevention of Genocide, on its website and in its report, “Framework of Analysis of Atrocity Crimes – A Tool for Prevention”, lists “elections” as a possible “triggering factor to genocidal violence”. In fact, the Adviser’s report warns [bolds by me]:
The Dynamics of atrocity crimes are not the same in all cases. in fact, they can vary considerably. The commission of atrocity crimes may progress at a faster pace if the perpetrators have a clear plan and the immediate capacity to implement it. In other situation the commission of atrocity crimes might unfold at a late stage of a situation of serious crisis or tension that may have been lasting for a long period of time. It can also happen that unpredictable events or circumstances aggravate conditions or spark a sudden deterioration in a situation, prompting the perpetration of atrocity crimes. an adequate early warning assessment should be mindful of all such events or circumstances and consider their potential impact, even if they appear to be unrelated or structural risk factors.
Intent to Destroy or Several Reasonable Conclusions?
In my earlier articles in this series, I argue that genocide is in fact being committed and that we are past the stage of “adequate early warning” and at the stage of “manifestly failing”. However the bar on genocide is the most limited among these types of crimes, in order to differentiate its inherent systematicness and single-mindedness from the others. The Dugard report cites the following precedent among the legal limitations:
“extermination” [in Gaza in 2009] was committed as a result of the mass killing of civilians, but possibly not as a result of its intentional infliction of conditions of life “calculated to bring about the destruction of part of a population … the International Criminal Court has recently held – in the case of Prosecutor v Omar Al Bashir – that the required specific intent [to commit genocide] should not be inferred from the factual circumstances if it “is only one of several reasonable conclusions available on the materials provided .
I admit that there are “several reasonable conclusions” available. From the unity government; to the experimentations of new weapons; to the promotional marketing campaigns around these weapons; to the testing of strategies in so-called “a symmetrical warfare”, which Israel also sells around the globe and is considered a leading expert in the field; to the collective punishment of Palestinians from Gaza to the West Bank (lest we forget operation “Brother’s Keeper”) for the abduction and killing of the three settler youth; to good old fashioned “deterrence” and “restoring calm”. However, I still find this definition extremely restrictive, especially considering the current reality. While one could (sort of) be excused for interpreting “Cast Lead” as collective punishment for the achievement of “deterrence” rather than genocide, it’s hard to apply the same analysis after “Pillar of Cloud” and specifically “Protective Edge”, in which Israel exterminated 89 Palestinian families off the face of the register, not to mention the massive destruction of civilian infrastructure, which sure looks like “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.”
In his article “Proving Genocidal Intent: International Precedent and Eccc Case 002”, Law Clerk, Ryan Park, states something rather to the contrary of Dugard’s conclusion from that particular precedent:
International tribunals have repeatedly emphasized the importance of “distinguish[ing] between motive and intent,” as “in genocide cases, the reason why the accused sought to destroy the victim group has no bearing on guilt.” Thus, while a perpetrator may be motivated by any number of unrelated objectives—such as personal economic gain, tactical military advantage, or the desire to expel a group from a given territory—this does nothing to neuter the specific intent to achieve these objectives through genocidal means. [p. 149-150]
In 2009, after “Cast Lead”, echoing Park’s analysis and the analysis of the UN Office of the Special Adviser on the Prevention of Genocide, genocide scholar, Prof. Martin Shaw (who also didn’t classify “Cast Lead” as driven by genocidal intent) wrote his analysis on “Palestine in an International Historical Perspective on Genocide”:
The trend among scholars has been to move away from the absolutist, singular conceptions of ‘intention’ (apparently demanded by the law of genocide), regarding these as historically and sociologically unrealistic. The trend here was set in Holocaust studies: despite Hitler’s undeniably genocidal ideology that can be traced to Mein Kampf and before, few now believe that the Nazis had a consistent aim of mass extermination before 1941, and all serious historians acknowledge that they developed policy piecemeal and in response to changing situations. Mann (2005: 7) generalises this: ‘Murderous cleansing [his preferred term] is rarely the original intent of perpetrators [but] typically emerges as a kind of Plan C, developed only after the first two responses to a perceived ethnic threat fail … To understand the outcome, we must analyze the unintended consequences of a series of interactions yielding escalation’… Thus to regard the Nakba as an episode of genocide it is not necessary to demonstrate a completely pre-formed, consistent intention on the part of Zionist leaders. On the contrary, it would be surprising if, in the context of a fast-moving political and military situation, it had not developed and adapted its policies in the light of new constraints and opportunities.
Contrary to the analysis of the Dugard report, both Park and Shaw’s arguments point to the conclusion that the additional “several reasonable conclusions” available, actually allow us to infer genocidal intent from the factual circumstances, rather than not:
the ICTR recognized that— since, absent extraordinary circumstances or a confession, direct evidence of genocidal intent will very rarely if ever be available— courts must rely on inferences from the surrounding factual circumstances in order to determine whether a defendant acted with the requisite genocidal intent. [Park, p. 151]
Factual Circumstances: A Roadmap to Genocide
Park goes on to list “four key factors… that courts look to when engaging in this highly-contextual analysis” [p.152]:
- statements indicating genocidal intent;
- the scale of the atrocities committed;
- systematic targeting of the protected group; and
- evidence suggesting that commission of the genocidal actus reus was consciously planned.
So once again, we go into checklist mode:
1. Statements indicating genocidal intent
As I’ve argued in the first article of this series, statements indicating genocidal intent were historically, and are presently part and parcel of the Zionist movement and characterized its leadership. As Shaw astutely contextualizes:
we need also to pay attention to how prevalent a genocidal mentality was among nationalist elites in Eastern Europe – the milieu in which Zionism itself was formed. It had become normal, in formulating a project for a nationally homogenous state, to envisage removing populations who did not fit. Outside the context of war, such projects were often proposed in relatively benign ways, for example as involving voluntary ‘transfers’ or ‘exchanges’ of populations. In the aftermath of the First World War, the Western Allies (the United States, Britain and France) had endorsed proposals of this type, for example between Greece and Turkey.
Shaw also hints as to how genocide is- what I refer to as- a culture, where socio-political events feed on each other:
Scholars are also less inclined to see genocide as a purely top-down affair: there is always a relation between different levels of state and society, involving what Mann (2005: 7) calls the relationships between three elements: radical elites, paramilitaries, and ‘core constituencies’ in society.
David Sheen’s horrific testimony at the Russell Tribunal illustrates this point and also provides us with more statements indicating genocidal intent, complementing my original article:
2. The scale of the atrocities committed
As I’ve mention above, the Dugard report found the scale of the atrocities Israel committed just in “Cast Lead” to sufficiently infer genocidal intent:
On their face, Israel’s actions appear to allow an inference of a specific intent to destroy the group in whole or in part. Israel’s attack consisted of massive aerial bombings, followed by a brutal land offensive, resulting in the deaths of 1,417 persons, and wounding over 5,000 persons – mainly civilians; the terrorising of the entire population of the territory by bombing, shelling and confusing warnings to evacuate; the systematic and widespread destruction of property, including mosques, hospitals and cultural institutions; the shooting of ambulances and obstruction of humanitarian assistance; and the siege imposed before, during and after the offensive, which has resulted in serious shortages of food and medical supplies, fuel and power. Such actions would appear to be sufficient to justify a reasonable inference that Israel had the required genocidal intent. 
And though the report concluded other “several reasonable conclusions” as overriding the possibility that it was part of an all-encompassing genocidal intent, I remind the reader (again), that “Cast Lead” was but one “episode of genocide” in Israel’s history, and others have preceded it, and others have followed it. And lest we forget that Israel’s systematic segregation, apartheid, prohibition of return of refugees, deprivation of water, mass imprisonment and torture, military occupation, settler presence and violence, extrajudicial executions, land annexation, and many other modes of oppression against the Palestinian people, is an ongoing, daily atrocity, which’s scale is very hard to measure, but without a doubt has a destructive effect on each and every member of Palestinian society.
3. Systematic targeting of the protected group
I return again to my first article, where I argue that the group under attack is ethnic (Arab), a racial group (being brown-skinned), religious (Muslim), and national (Palestinian, i.e. indigenous). If you refer back to Factor 1, you’ll find the use of the word “Arabs” to be most common. I refer you to factor 2 above, Factor 4 below, and again back to my first article in the series, in order to infer systematicness.
4. Evidence suggesting that commission of the genocidal actus reus was consciously planned
We can start from Israel’s original genocidal sin, the Nakba. Martin Shaw asserts:
Ilan Pappe’s Ethnic Cleansing of Palestine (2007). Pappe provides sustained evidence of systematic preparations for the dispossession of the Arabs by Ben-Gurion’s leadership group, the ‘Consultancy’, prior to the war, and how these were implemented during it. On his account, it is clear that there had been extensive collection of information concerning the Arab population with a view to removing most of them from the areas allocated to Israel under the UN proposals, so as to achieve a Jewish majority in the new state. It is also clear that a coherent policy of removal was pursued during the war, even if its implementation was influenced by decisions on the ground during the conflict.
And move on to Israel’s three last extermination campaigns in Gaza, “Cast Lead”, “Pillar of Cloud”, and “Protective Edge”. This August, while “Protective Edge” was raging, John Reynolds, a Lecturer in International Law, was just one of the people [1, 2, 3, 4, 5, 6] who wrote the following- by now- commonly known observation:
What the world witnessed in Gaza over the course of Operation Protective Edge was the calculated implementation of the ‘Dahiya doctrine’. Dahiya is an area of Beirut that was levelled by the Israeli army during its war on Lebanon in 2006. The military doctrine to which its name has been lent deploys the tactics of targeting civilian infrastructure and collectively punishing the civilian population, in pursuit of a broader strategy of eradicating all forms of opposition to military occupation and foreign rule… Israeli military Deputy Chief-of-Staff Major-General Gadi Eizenkot has stated openly in relation to any city, town or village from which shots are fired in the direction of Israel: “We will wield disproportionate power against it and cause immense damage and destruction. From our perspective, these cities are military bases. This isn’t a suggestion. It’s a plan that has already been authorised.” This approach has been consistently applied in Israel’s periodic incursions in Gaza over the years, such that lawyers in Palestine have now taken to labelling it the ‘Gaza doctrine’. Following investigations into Operation Cast Lead in 2009, the United Nations Fact-Finding Mission held that Israeli forces had systematically targeted civilians and civilian infrastructure. Referring directly to the Dahiya doctrine, the Mission’s report concluded that the target of Israel’s offensive was not merely individual rocket-launchers or tunnel-diggers, but Gaza’s population as a whole, as part of an overarching policy designed to punish and terrorise that population. This policy reverberated through Operation Protective Edge in the bombardment of Gaza’s hospitals, universities, beaches and markets, the destruction of its only power plant, and the multiple strikes on UN schools in which civilians were being sheltered.The violence against civilian areas and infrastructure in Palestine, over the past month and over the past several decades alike, is far from gratuitous. It is underpinned by a measured logic of conquest and control.
If we continue the logic that it’s not only Israel’s particular “genocidal episodes”, but its continuous modes of oppression in the West Bank that constitute “factual circumstances” that “determine whether a defendant acted with the requisite genocidal intent”, then it’s instructive to also look at reports such as the 2013 Falk report, “Human rights situation in Palestine and other occupied Arab territories”. While by no means exhaustive, or the definitive word on all of Israel’s violations, the report illustrates a matrix of control that cannot be considered a result of some “rotten apples” in an otherwise nurturing tree. Israel’s military and segregation construction (including military bases, posts, and checkpoints), hundreds of illegal colonial settlements, permit system, military courts and prisons, are a consciously planed act. I argue, a consciously planed act of genocide.