The Palestinian Genocide by
Israel
By Professor Francis A. Boyle
Before
The Kuala Lumpur War Crimes Tribunal
August 21-24, 2013
(Check against oral delivery.)
As-salam alaykum. Distinguishable Judges of the Kuala Lumpur
War Crimes Tribunal. May it please the Tribunal:
The
Palestinians have been the victims of genocide as defined by the 1948
Convention on the Prevention and Punishment of the Crime of Genocide. I
say that because of my
practical experience: On 8 April 1993 and 13 September 1993 I
single-handedly won two World Court Orders on the basis of the 1948
Genocide Convention that were overwhelmingly in favor of the Republic of
Bosnia and Herzegovina against Yugoslavia to cease and
desist from committing all acts of genocide against the Bosnians in
violation of the 1948 Genocide Convention. This was the first time ever
that any Government had won two such Orders in one case since the World
Court was founded in 1921. On 5August 1993
I also won a so-called Article 74(4) World Court Order for Bosnia
against Yugoslavia for genocide. According to I.C.J. Statute Article
74(4), when the full World Court is not in session in The Hague, the
President of the Court exercises the full powers of
the Court and can issue an Order to the parties in a lawsuit that is
legally binding upon them.
Article II of the Genocide Convention defines the international crime of genocide in relevant part as follows:
In the present 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:
(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;
….
As documented by Israeli historian Ilan Pappe in his seminal book
The Ethnic Cleansing of Palestine (2006), Israel’s genocidal
policy against the Palestinians has been unremitting, extending from
before the very foundation of the State of Israel in 1948, and is
ongoing and even now intensifying against the 1.75 million
Palestinians living in Gaza as this Tribunal convenes here today. As
Pappe’s analysis established, Zionism’s “final solution” to Israel’s
much-touted and racist “demographic threat” allegedly posed by the very
existence of the Palestinians has always been
genocide, whether slow-motion or in blood-thirsty spurts of violence.
Indeed, the very essence of Zionism requires ethnic cleansing and acts
of genocide against the Palestinians. For example, concerning the
2008-2009 Israeli slaughter of Palestinians in
Gaza – so-called Operation Cast-lead -- U.N. General Assembly President
Miguel d’Escoto Brockmann, the former Foreign Minister of Nicaragua
during the Reagan administration’s contra-terror war of aggression
against that country which was condemned by the World
Court, condemned it as “genocide.”[1]
Certainly, Israel and its predecessors-in-law—the Zionist agencies,
forces, and terrorist
gangs—have committed genocide against the Palestinian people that
actually started on or about 1948 and has continued apace until today in
violation of Genocide Convention Articles II(a), (b), and (c). For
over the past six and one-half decades, the Israeli
government and its predecessors-in-law—the Zionist agencies, forces,
and terrorist gangs—have ruthlessly implemented a systematic and
comprehensive military, political, religious, economic, and cultural
campaign with the intent to destroy in substantial part
the national, ethnical, racial, and different religious group (Jews
versus Muslims and Christians) constituting the Palestinian people.
This Zionist/Israeli campaign has consisted of killing members of the
Palestinian people in violation of Genocide Convention
Article II(a). This Zionist/Israeli campaign has also caused serious
bodily and mental harm to the Palestinian people in violation of
Genocide Convention Article II(b). This Zionist/Israeli campaign has
also deliberately inflicted on the Palestinian people
conditions of life calculated to bring about their physical destruction
in substantial part in violation of Article II(c) of the Genocide
Convention.
Nevertheless, apologists for Israel have argued that since these mass
atrocities are not
tantamount to the Nazi Holocaust against the Jews, therefore they do
not qualify as “genocide.” Previously, I had encountered and refuted
this completely disingenuous, deceptive and bogus argument against
labeling genocide for what it truly is, when I was
the Lawyer for the Republic of Bosnia and Herzegovina arguing their
genocide case against Yugoslavia before the International Court of
Justice. There the genocidal Yugoslavia was represented by Shabtai
Rosenne from Israel as their Lawyer against me. Rosenne
proceeded to argue to the World Court that since he was an Israeli Jew,
what Yugoslavia had done to the Bosnians was not the equivalent of the
Nazi Holocaust against the Jews and therefore did not qualify as
“genocide” within the meaning of the 1948 Genocide
Convention.
I
rebutted Rosenne by arguing to the World Court that you did not need an
equivalent to the Nazi Holocaust against the Jews in order to find that
wholesale atrocities against
a civilian population constitute “genocide” in violation of the 1948
Genocide Convention. Indeed the entire purpose of the 1948 Genocide
Convention was to prevent another Nazi Holocaust against the Jews. That
is why Article I of the Genocide Convention clearly
provided: “The Contracting Parties confirm that genocide, whether
committed in time of peace or in time of war, is a crime under
international law which they undertake
to prevent and to punish.” (Emphasis supplied.) You did not need six million dead human beings in order to constitute “genocide.”
Furthermore,
in support of my successful 1993 genocide argument to the World Court
for Bosnia, I submitted that Article II of the 1948 Genocide Convention
expressly provided:
“In the present Convention, genocide means any of the following acts
committed with the intent to destroy, in whole or in part, a
national, ethical, racial or religious group, as such…” (Emphasis
supplied.) In other words, that to be guilty of genocide
a government did not have to intend to destroy the “whole” group as the
Nazis intended to do with the Jews. Rather, a government can be guilty
of genocide even if it intends to destroy a mere “part” of the group.
Certainly Yugoslavia did indeed intend to
exterminate all Bosnian Muslims if they could have gotten away with it,
as manifested by their subsequent mass extermination of at least 7,000
Bosnian Muslim men and boys at Srebrenica in July of 1995. I would
later become the Attorney-of-Record for the Mothers
of Srebrenica and Podrinja at the International Criminal Tribunal for
the Former Yugoslavia (I.C.T.Y.). In that capacity, I convinced the
I.C.T.Y. Prosecutor Carla Del Ponte to indict Yugoslav President
Slobodan Milosevic for every crime in the I.C.T.Y. Statute
for the atrocities he inflicted upon the Bosnians, including two counts
of genocide -- one count of genocide for Bosnia in general, and the
second count of genocide for Srebrenica in particular. Milosevic died
while on trial in The Hague after the I.C.T.Y
denied his Motion to Dismiss these charges after the close of the
Prosecution’s case.
But in 1993 it was not necessary for me to argue to the World Court that Yugoslavia intended to exterminate
all the Bosnian Muslims. Rather, I argued to the World Court
that at that point in time the best estimate was that Yugoslavia had
exterminated about 250,000 Bosnians out of the population of about 4
million Bosnians, including therein about 2.5 million
Bosnian Muslims. Therefore, I argued to the World Court that these
dead victims constituted a “substantial part” of the group and that the
appropriate interpretation of the words “or in part” set forth in
Article II of the Genocide Convention should mean
a “substantial part.”
The World Court
emphatically agreed with me and rejected Rosenne’s specious,
reprehensible, and deplorable arguments. So on 8 April 1993 the
International Court of Justice
issued an Order for three provisional measures of protection on behalf
of the Republic of Bosnia and Herzegovina against Yugoslavia that were
overwhelmingly in favor of Bosnia to cease and desist from committing
all acts of genocide against all the Bosnians,
both directly and indirectly by means of its Bosnian Serb surrogates.
This World Court Order for the indication of provisional measures of
protection was the international equivalent of a U.S. domestic Temporary
Restraining Order and Injunction combined.
The same was true for the Second World Court Order with three
additional provisional measures of protection that I won for the
Republic of Bosnia and Herzegovina against Yugoslavia on 13 September
1993. The same was true for the Article 74(4) Order I won
for Bosnia against Yugoslavia from the World Court on 5 August 1993.
In its final Judgment on the merits in the
Bosnia case that was issued on 26 February 2007, the World Court
definitively agreed with me once and for all time that in order to
constitute genocide, a state must only intend to destroy a “substantial
part” of the group “as such”:
198. In terms of
that question of law, the Court refers to three matters relevant to the
determination of “part” of the “group” for the purposes of Article II.
In the
first place, the intent must be to destroy at least a substantial part
of the particular group. That is demanded by the very nature of the
crime of genocide: since the object and purpose of the Convention as a
whole is to prevent the intentional destruction
of groups, the part targeted must be significant enough to have an
impact on the group as a whole. That requirement of substantiality is
supported by consistent rulings of the ICTY and the International
Criminal Tribunal for Rwanda (ICTR) and by the Commentary
of the ILC to its Articles in the draft Code of Crimes against the
Peace and Security of mankind (e.g.
Krstić, IT-98-33-A, Appeals Chamber Judgment, 19 April 2004, paras. 8-11 and the cases of
Kayishema, Byilishema, and Semanza there referred to; and Yearbook of the International Law Commission, 1996, Vol. II, Part Two, p. 45, para. 8 of the Commentary to Article 17).
In other words, in
order to find Israel guilty of genocide against the Palestinians, it is
not required to prove that Israel has the intention to exterminate
all Palestinians. Rather, all that is necessary is to establish
that Israel intends to destroy a “substantial part” of the
Palestinians. Furthermore, in paragraphs 293 and 294 of its 26 February
2007
Bosnian Judgment, the World Court found that you did not even
need 250,000 exterminated Bosnians in order to constitute genocide --
let alone six million exterminated Jews. Rather, even the seven
thousand exterminated Bosnian Muslim men and boys at
Srebrenica were enough to constitute genocide. According to the World
Court, these victims constituted about one-fifth of the Srebrenica
community.
Starting in 1948
Israel obliterated about 500 Palestinian villages from off the face of
the earth, literally reducing them to rubble now scattered across the
Palestinian
countryside in order to prevent their ethnically cleansed inhabitants
from ever again returning to their homes because they no longer exist.
And the list of Israeli genocidal massacres of Palestinian communities
is quite extensive. To name just a few of
Israel’s most notorious acts of anti-Palestinian genocide: Deir Yassin,
Tantura, Sabra and Shatilla, Jenin, Nablus, and repeatedly and
continuously Gaza. As we meet here today, Israel is “deliberately
inflicting on the [1.75 million Palestinians in Gaza]
conditions of life calculated to bring about [their] physical
destruction in whole or in part” in gross and flagrant violation of
Genocide Convention Article II(c).
In order to prevent
yet another and predictable wholesale slaughter and acts of genocide by
Israel against the Palestinians in Gaza, the West Bank, Jerusalem, and
elsewhere,
we most respectfully request this Tribunal to condemn Israel guilty as
charged for genocide as well as for war crimes and crimes against
humanity. Article I of the Genocide Convention requires: “The
Contracting Parties confirm that genocide, whether committed
in time of peace or in time of war, is a crime under international law
which they undertake to prevent and to punish.” The Genocide Convention
has been incorporated into the Charter of Kuala Lumpur War Crimes
Tribunal by means of Article 10.
Pursuant thereto, it
is respectfully submitted that this Tribunal must “undertake to prevent
and to punish” Israel for its genocide against the Palestinians by
finding
Israel guilty as charged. Should this Tribunal find Israel guilty as
charged for genocide, it will then trigger the solemn obligation found
in Article I of the Genocide Convention for every state in the world
community to likewise “undertake to prevent and
to punish” Israel for its ongoing genocide against the Palestinians.
The Kuala Lumpur War Crimes Tribunal must issue this shot heard around
the entire world on behalf of the Palestinians by finding Israel guilty
of genocide against them.
This is exactly what
the International Court of Justice did for Bosnia and the Bosnians in
1993 when it ruled against Yugoslavia on genocide. The World Court
deliberately
shook up the entire world and propelled humanity to act to save Bosnia
and the Bosnians from annihilation and extermination by Yugoslavia.
Bosnia and the Bosnians are still alive today thanks in significant part
to that 1993 World Court ruling on genocide.
I am respectfully
asking the Kuala Lumpur War Crimes Tribunal to do the same today for
Palestine and the Palestinians. Shake up the entire world! Get humanity
to act to
save Palestine and the Palestinians from further annihilation and
genocide by Israel! Make sure that Palestine and the Palestinians are
still alive twenty years from now! Convict Israel for genocide!
Thank you. And may God be with you when you retire to deliberate upon your Judgment.
Francis A. Boyle
Law Building
504 E. Pennsylvania Ave.
Champaign, IL 61820 USA
francis a. boyle
