Introduction
Palestine is a litmus test and, as I wrote in a recent article in the International Journal of Transnational Justice, is unearthing “who has historically been entitled to levy the charge of genocide, which genocides have been cognizable, and which have been unremembered.” A technical and legal discourse abounds about whether particular standards are met for international crimes. The hyper-focus on labeling can conceal the incredibly unjust status quo, divert attention from its oppressive character, and potentially limit organizing for alternative ways of being.
The rhetorical power to name and, crucially, fail to name has historically been wielded against subordinated groups. Concomitantly, many individuals, groups, civil society organizations, and States engage in advocacy, which explicitly rely on the symbolic power of naming and acknowledging harms. As legal scholar Natalie Hodgson observes, this can provide “civil society with a way to sociologically criminalize the state from below and challenge the hegemonic beliefs that enable state crime.” Naming allows for identification and acknowledgement, clarification, confirmation, affirmation, and perhaps validation. I argue that “the very act of naming has an expressive condemnation function,” which “operates to stigmatize an offender for a violation and to alert the public about an offense.” I contend that “proceedings and their outcomes can serve as forms of moral communication used to express condemnation, revalidate a victim’s worth and strengthen social solidarity.”
This piece analyzes some of the most recent pronouncements of international bodies on Palestine, to surface what they have chosen to condemn as violations of community norms. The expressive power in naming a given situation of mass atrocity a genocide or not, a crime against humanity or not, and so forth, has social meaning and effects that are independent from legal connotations. Yet, power has often resolved the question of who is entitled to define and invoke these charges legally, socially, and practically. In this context, appeals for more international law, or to the rule of law, and universal principles, must be sensitive to how law is made, how it operates in practice, and how it is often selectively applied and enforced against racialized others.
The Commission of Inquiry
On June 19, 2024, the United Nations Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel presented its report to the U.N. Human Rights Council. The report presents the Commission’s legal findings.
The Commission concluded that “both the 7 October attack in Israel and Israel’s subsequent military operation in Gaza should not be seen in isolation.” To stop the recurring cycles of violence, the Commission called for strict adherence to international law, including “ending the unlawful Israeli occupation of Palestinian territory, discrimination, oppression and the denial of the right to self-determination of the Palestinian people and guaranteeing peace and security” for Israelis and Palestinians. The Commission found that on Oct. 7, 2023, members of Hamas’ military wing and the military wings of other Palestinian armed groups, and Palestinian civilians, committed the following war crimes: intentionally directing attacks against civilians, murder or wilful killing, cruel treatment, inhumane treatment and torture, taking hostages, and acts of sexual violence, amongst others. The Commission also found that “Israeli authorities failed to protect civilians in southern Israel on almost every front,” and that in several locations Israeli forces “applied the so-called ‘Hannibal Directive’” and killed Israeli civilians.
Additionally, the Commission determined that “Israeli authorities are responsible for war crimes and crimes against humanity committed during the military operations and attacks in Gaza since 7 October 2023.” The Commission asserted that Israel committed the “war crimes of starvation as a method of warfare; murder or willful killing; intentionally directing attacks against civilians and civilian objects; forcible transfer; sexual violence; outrages upon personal dignity; and” sexual and gender-based violence, “amounting to torture or inhuman and cruel treatment.” The Commission found that “Israel inflicted collective punishment on the Palestinian population in Gaza, in direct violation of” international humanitarian law. Further, it remarked that Israeli forces directed attacks against civilian and civilian objects in violation of “principles of adequate precautions, distinction, proportionality, and special protections for children and women,” under international humanitarian law.
The Commission also noted that Israel committed crimes against humanity including: “extermination; murder; gender persecution targeting Palestinian men and boys; forcible transfer; and torture and inhuman and cruel treatment.” Additionally, it determined that Israel violated several international human rights obligations including: “the rights to family life, adequate food, housing, education, health, social security, and water and sanitation, particularly impacting children and persons in vulnerable situations.” Also, the Commission observed that Palestinian fatalities in the West Bank have exceeded “any other period since 2005,” due to “a surge in violent settler attacks on Palestinian communities, often assisted or condoned” by Israeli forces.
Legal scholar, Shahd Hammouri spells out several ways that the “commission fell short of meeting its obligation of truth-telling.” Notably, the Commission did not make legal findings pertaining to genocide, nor engage in analysis on the prevention of genocide. It declared Israeli officials’ statements constituted “incitement and may constitute other serious international crimes.” The report also highlights statements “aimed at systematically dehumanizing Palestinians.” The Commission’s investigations cover the period from Oct. 7, 2023, to Dec. 31, 2023. Its investigations are ongoing. Yet, by November 2023, several U.N. experts were already “calling on the international community to prevent genocide against the Palestinian people.” Further, in October 2023, scholars were warning about the “potential for genocide.” Yet, the report only recommends that the Israeli government comply “fully and immediately” with the International Court of Justice’s (ICJ) orders in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel) case. Notwithstanding the Commission’s seeming reluctance to consider whether Israel is currently committing genocide, a report by Francesca Albanese, the Special Rapporteur on the human rights situation in the Palestinian territories occupied since 1967, concludes that there are reasonable grounds to believe this threshold is met.
A U.N. snapshot of the reported impact on Palestinians in Gaza, as of July 10, is 38,295 fatalities, 88,241 injuries, 1.9 million internally displaced persons (90 percent of Gaza), and 96 percent of the population projected to face crisis or worse levels of food insecurity (745,000 facing emergency levels, and 495,000 facing catastrophic levels). Moreover, U.N. experts recently declared that “Israel’s intentional and targeted starvation campaign against the Palestinian people is a form of genocidal violence and has resulted in famine across all of Gaza.” The slaughter in Gaza has meant that approximately 21,000 children are missing, “many trapped beneath rubble, detained, buried in unmarked graves, or lost from their families.” Israel has decimated an estimated 70 percent of all civilian infrastructure in Gaza, including schools, industrial facilities, health facilities, religious institutions, press offices, and water systems, which is rendering Palestine uninhabitable. A U.N. Development Program report in May 2024 estimates that Gaza will need 80 years to “restore all the fully destroyed housing units.” Further, a U.N. official remarked that the massive level of destruction in Gaza in such a short time, has not been seen since World War II and that “[a]ll investments in human development . . . for the last 40 years in Gaza have been wiped out.” This has laid the groundwork for a “lethal combination of hunger and disease,” and an entirely preventable public health emergency that will have long-lasting ramifications. A study published in the Lancet, a premiere medical journal, on the “indirect health implications beyond the direct harm from violence,” estimated conservatively (based on 4:1 indirect deaths per direct deaths, and using an approximate death total from June 19, 2024 of 37,396) that “up to 186,000 or even more deaths could be attributable to the current conflict in Gaza.” The U.N. snapshot of the impact of October 7th in Israel estimates over 1,200 fatalities, 5,400 injuries, over 200 hostages taken and approximately 120 remaining in Gaza.
The International Criminal Court
While the Commission can only investigate individual criminal and command responsibility, the International Criminal Court (ICC) is empowered by the Rome Statute to investigate and to try individuals charged with “the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression.” Palestinian representatives have repeatedly sought to get the ICC to invoke its jurisdiction over crimes taking place in its territory dating back to 2009 and 2015. Palestine was formally recognized and allowed to become a State Party to the Rome Statute in 2018. It then submitted a referral to the prosecutor “to investigate, in accordance with the temporal jurisdiction of the Court, past, ongoing, and future crimes within the Court’s jurisdiction, committed in all parts of the territory of the State of Palestine.” The ICC finally opened an investigation in 2021 to cover alleged crimes committed “in the occupied Palestinian territory. . . since 13 June 2014.” In 2021, legal scholars Noura Erakat and John Reynolds observed that the delay by the Court reflects a lack of a sense of urgency and political will to proceed with the situation in Palestine in earnest.
Several States and organizations have filed complaints and referrals to the ICC following Oct. 7, 2023. On May 20, 2024, the Office of the Prosecutor of the ICC applied for arrest warrants. The Prosecutor’s office states it has reasonable grounds to believe that Yahya Sinwar (Head of Hamas), Mohammed Diab Ibrahim Al-Masri, (Commander-in-Chief of the military wing of Hamas, Al-Qassam Brigades), and Ismail Haniyeh (Head of Hamas’ Political Bureau) bear criminal responsibility for the following crimes against humanity: extermination, murder, and other inhumane acts. Additionally, they are alleged to bear criminal responsibility for rape and other acts of sexual violence as well as torture as both crimes against humanity and war crimes. Moreover, the application names them as potentially bearing criminal responsibility for the following war crimes: taking hostages, cruel treatment, and outrages upon personal dignity.
Further, the application asserts that there are reasonable grounds to believe that Benjamin Netanyahu, the Prime Minister of Israel, and Yoav Gallant, the Minister of Defense of Israel, bear criminal responsibility for both crimes against humanity and war crimes. The application alleges crimes against humanity including: extermination, murder, persecution, and other inhumane acts, as well as allegations of war crimes, including: starvation of civilians as a method of warfare; willfully causing great suffering, serious injury to body or health, or cruel treatment; willful killing or murder; and intentionally directing attacks against a civilian population.
Strikingly, there is a discrepancy between who the ICC named and who the Commission deemed the most responsible for the international crimes it investigated. This includes, for example, “senior members of the political and military leadership of the Israeli State, including members of the War Management Cabinet and the Ministerial Committee on National Security, other Ministers of the Government and leaders of the” Israeli military. Some Palestinians have also expressed concerns about false equivalence given the magnitude of how many Palestinians have been killed and harmed. The perception of double standards and selective accountability has also played out in the ICC’s investigation with the relative under-resourcing and under-staffing of this situation. Similarly problematic is the length it comparatively took for harms to be named, from 2021 to 2024. Additionally, the prosecutor’s authority to investigate extends back to 2014, but thus far, arrest warrants temporally focus on October 2023 and afterwards.
Moreover, there are significant omissions from the substance of what has been named and recognized by the ICC as a potential violation of community norms. Consider Palestinian human rights organizations Al-Haq, Al Mezan, and the Palestinian Center for Human Rights’ request that the Prosecutor weigh “the inclusion of crimes against humanity, notably apartheid, and the crime of genocide, in the ongoing investigation into the situation in the State of Palestine.” Conspicuously, the Prosecutor’s application for arrest warrants does not include charges of genocide, nor apartheid. Yet, groups like Law for Palestine have documented over 500 instances of incitement to genocide by Israeli officials. Additionally, Human Rights Watch determined in 2021, and Amnesty International concluded in 2022, that Israel is committing apartheid against Palestinians. As socio-legal scholar Kamari Clarke argues, the act of “naming and ordering, without naming or prioritizing other global acts that are part of the world’s context for violence, perpetuates structural inequalities” and racial subordination. It is also why legal commentators like Rabea Eghbariah forcefully maintain that the “law does not possess the language that we desperately need to accurately capture the totality of the Palestinian condition.” The creation of new law and legal concepts is an urgent and necessary priority. Especially when we consider how extant laws silo and disaggregate harms in ways that render invisible the whole from the sum of its parts, such that we are less able to perceive and name the structural and embedded nature of harms.
The International Court of Justice
The International Court of Justice has been called on to adjudicate both structural and direct violence in Palestine. Unlike the ICC, the ICJ is a reactive body and does not initiate investigations. The ICJ is the principal court that can hear general disputes between States and give advisory opinions on international legal issues. It is an organ of the U.N. and focuses on determining State responsibility, as opposed to individual criminal responsibility. The Court issued an advisory opinion in the 2004 case on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. The ICJ also held a six-day hearing beginning on Feb. 19, 2024 in the Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory case, where an unprecedented 52 States and three international organizations presented arguments about Israel’s prolonged occupation of the Palestinian territories.
Currently, the ICJ is hearing a case initiated by South Africa in December 2023 against Israel. Most States around the world have ratified the Genocide Convention of 1948. South Africa followed the precedent set by the Gambia, when it brought Myanmar to the ICJ and secured provisional measures against it for alleged genocidal actions against the Rohingya ethnic minority. South Africa relied on the Court’s holding that the Genocide Convention creates obligations between its signatories, allowing them to hold each other accountable for breaches.
South Africa submits that “Israel has engaged in, is engaging in and risks further engaging in genocidal acts against the Palestinian people in Gaza.” It requested a provisional order “as a matter of extreme urgency” to protect Palestinians from “further, severe and irreparable harm.” The Court granted six of the nine provisional measures sought by South Africa in January 2024. This indicates the legal plausibility of South Africa’s case moving forward. Legal scholar Nimer Sultany aptly remarked that South Africa “seeks to protect lives that western countries seem not to care about – and for that reason, it [intervention] is both justifiable and honourable.”
South Africa repeatedly returned to the ICJ to seek additional emergency orders. For instance, the Court’s January 2024 order required Israel to “enable the provision of urgently needed basic services and humanitarian assistance” to the people of Gaza. Several groups have criticized Israel for not complying with the Court. On Mar. 6, 2024, South Africa asked the Cout for additional provisional measures concerning widespread starvation in Gaza. The ICJ found “that famine is setting in,” and on Mar. 28, 2024, issued an emergency order, indicating that Israel, “ensure, without delay . . . the unhindered provision at scale . . . of urgently needed basic services and humanitarian assistance.” Further, on May 24, 2024, the ICJ ordered additional provisional measures. The Court directed Israel to “halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.” The ICJ will not deliver a final judgment on the merits of this case for several years.
The fraying seams of the racially unjust world order are increasingly visible as Israel’s carnage of Palestine continues unabated. The ICJ depends on the U.N. Security Council for enforcement. However, the United States uses its permanent seat and veto on the Council to provide political cover for Israel and has repeatedly vetoed resolutions calling for a humanitarian ceasefire. The Security Council could only pass a temporary cease-fire resolution for the month of Ramadan, because the United States abstained. There is a prominent American seal on Israel’s decimation of Palestine. At the time of writing, a permanent cease-fire agreement remains elusive as Israel has indicated that it is not willing to stop “until all of objectives of the war have been achieved.”
What Is Remembered
In many ways, law helps to shape collective memory. I have noted with concern how the Genocide Convention’s provisions “apply prospectively and do not extend to any of the earlier genocides conducted on Black, Indigenous, and other subordinated groups, nor did it apply to the victims of the Holocaust.” The legality principle has functioned, as Kamari Clarke observes, “in one fell swoop” to remove “the numerous atrocities attendant to colonization and empire-building by Western powers from the gaze of this body of law.”
The forced forgetting of earlier genocides is on vivid display. For example, when Germany indicated its plans to intervene in support of Israel at the merits stage of the case, the Namibian president took umbrage. He declared that on:
Namibian soil, Germany committed the first genocide of the 20th century in 1904-1908, in which tens of thousands of Namibians died in the [most] inhumane and brutal conditions. The German Government is yet to fully atone for the genocide it committed on Namibian soil. . . in light of Germany’s inability to draw lessons from its horrific history, [Namibia] expresses deep concern with the shocking decision.
Germany has not provided redress, nor paid reparations for its actions in Namibia. Germany’s apparent “racial aphasia,” and Namibia highlighting the racialized politics of the historical recognition of genocide, is striking. The first lady of Namibia also took Germany to task on the 120th anniversary of the Herero-Nama genocide in January 2024. Germany only recently acknowledged that its actions in Namibia constituted a genocide at the time they engaged in it.
Germany’s politics of genocide remembrance and its contradictions are also evident when examining how Germany’s historical culpability, shame, and guilt for the Holocaust are surfacing in its policies of unconditional loyalty, support, and refusal to criticize Israel for its actions against Palestinians. Germany faces allegations of complicity in genocide. Nicaragua sought an emergency order from the Court requesting that Germany, “immediately suspend its aid to Israel, in particular its military assistance including military equipment.” Nicaragua claims that Germany’s support violates its obligations under the Genocide Convention as well as other international law norms. Although the Court has declined to indicate provisional measures so far, it is incredibly rare to see actors called to account for their purportedly genocidal actions internationally.
Moreover, the hypocritical positions of parties in analogous legal cases makes plain the extent of the mask-off moment we are experiencing in the racialized politics of recognition and remembering of genocides. A good illustration of this is how Germany, the United Kingdom, Canada, Denmark, France, and the Netherlands intervened in the Myanmar case before the ICJ to advance a broad definition and lower threshold for determining genocide. They contended that since declarations of intent to commit genocide are rare, the Court should not solely focus on explicit statements or numbers killed, but reasonable inferences drawn from a pattern of conduct and factual evidence. Additionally, they maintained that genocidal actions can also include forced displacement from homes, deprivation of medical services, and the imposition of subsistence diets, if systematic. Yet, thus far, they have not sought to extend this reasoning to apply to Israel’s conduct in Palestine, and to intervene to support South Africa’s case at the ICJ.
I insist we recognize “international law does not operate in an ahistorical vacuum. The memory of racial and colonial violence is ever present and current manifestations of racial and colonial violence trigger earlier ones.” Acknowledging the erasure of a multiplicity of genocides from Namibia, to King Leopold’s Congo, wherein approximately ten million were killed through omission and commission, to the genocides of Indigenous peoples in the Americas, which decreased the population by approximately 90-95 percent, and other genocides, is incredibly urgent and meaningful. Discounting of this past renders more invisible and less discernable ongoing genocides, crimes against humanity, war crimes, and atrocities from the Sudan, to the Democratic Republic of Congo, to Ethiopia, Palestine, and beyond.
Redux
On May 29, 2024, South Africa delivered a public dossier of evidence on Israel’s intent and incitement to commit genocide against the Palestinians in Gaza to the President of the U.N. Security Council. It recalls to mind when the Civil Rights Congress in 1951 sought to petition “the General Assembly of the United Nations on behalf of the Negro people in the interest of peace and democracy, charging the Government of the United States of America with violation of the Charter of the United Nations and the Convention on the Prevention and Punishment of the Crime of Genocide.” The We Charge Genocide petition condemns the U.S. government: “[o]ut of the inhuman [B]lack ghettos of American cities, out of the cotton plantations of the South, comes this record of mass slayings on the basis of race, of lives deliberately warped and distorted by the willful creation of conditions making for premature death, poverty and disease.”
As I wrote recently, the “We Charge Genocide petition concerned not just the direct and spectacular physical violence of lynchings, but also the structural and systemic nature of violence against Black people.” The petitioners were relying on a structural account of genocide, which is provided for in the text of the Convention. It defines genocide to include “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.” The petition illuminates how Black, Indigenous, and other subordinated peoples on the receiving end of genocides understood conceptually what genocides entail due to their lived experience.
Holocaust survivor and lawyer Raphael Lemkin is credited with originating the term “genocide” during the Second World War and subsequently giving it meaning in international law. Genocide scholar Alexander Hinton discusses how Lemkin feared that the We Charge Genocide petition would undermine his bid to get the United States government to ratify the Genocide Convention. Lemkin sought to stigmatize the petitioners as “communist sympathizers.” Lemkin also “downplayed the long history of violence committed against Black Americans,” and insisted that “[g]enocide means annihilation and destruction,” and “not merely discrimination.”
Yet, the petition clarifies that it is “incorrectly thought that genocide means the complete and definitive destruction of a race or people.” Instead, the petitioners stress that the Genocide Convention, “defines genocide as any killings on the basis of race, or, in” its “specific words, as ‘killing members of the group.’ Any intent to destroy, in whole or in part, a national, racial, ethnic or religious group is genocide.” The high threshold to meet this intent requirement was only inserted in the Convention to placate powerful States. Similarly, political groups were excluded from the definition to assuage influential States’ concerns about being implicated in genocide. Reflecting on this history is revelatory because from its legal inception, the concept of genocide has been wielded and interpreted in ways that appease dominant actors.
Unsurprisingly then, the We Charge Genocide petition was never publicly heard. Unremembering these political dynamics and insisting on scrupulously enforcing genocide as neutral, exceptional, and singular, not just legally, but also socially, reinscribes the functioning of imperial power and reifies the subaltern positions of those who lack(ed) international law-making power. Yet, historically subordinated peoples, as legal scholar Darryl Li discusses, “ have long narrated their own experiences of mass violence with reference to genocide.”
There are several parallels and important disjunctions to be drawn from considering these initiatives together. In the past and now, the mainstream media has largely ignored the charge of genocide. Similarly, the United States government engaged then, and is engaging today, in a campaign to discredit the charge of genocide. In my judgment, the “Civil Rights Congress’ We Charge Genocide petition in 1951 and now with South Africa taking up the case of genocide against Israel decades later, both function as shaming sanctions from the subaltern. In some sense it matters less what the outcome of the final proceedings are, than that the case was formally made.”
Conclusion
Palestine is a litmus test for morality as June Jordan warned, because of what it is unearthing about us – both our actions and inactions in this moment. What we remember, and what we forcibly forget, what we name, as well as who we silence. As I wrote in the International Journal of Transnational Justice, my positionality compels my writing:
Images from Palestine have taken me back to one of the most triggering and traumatizing experiences of my life, seeing war through the eyes of a child. The Liberian civil war resulted from power struggles after a coup d’état disrupted settler hegemonic rule. I remember as a kid trying to make sense of what was happening. I recall distinctly going from thinking this was a big sleepover with friends and family, to understanding quickly as we hid from the sounds of war that we were seeking shelter, security and solace in each other. That I had been in a position of privilege to say I did not want to eat this or that, but we were now rationing food and I was instead begging for leftovers.
I also remember asking my mother what ethnicity I should say I was, if asked by a militant. My mother is the descendent of formerly enslaved peoples who are termed Americo-Liberians, and my father is from a large ethnic group in West Africa: Mandingo. I knew enough about the history of Liberia to understand that membership in both groups was not ideal. One because of a history of settler colonialism, the other because Mandingos are viewed as outsiders having immigrated into Liberia from Guinea over the past 200 to 300 years.
When we fled Liberia, I remember seeing death and destruction on the path to the United States embassy. Decomposing bodies and dogs eating carcasses. I understood even at that early age that my ability to leave family and friends behind was conditioned on things that I had no control over. Status, hierarchy, and privilege were determinative. Things like where I was born, my ethnicity, my race, my class, all these things had a material impact on my chances in life. I learned early on that constructions like my nationality, and having citizenship in the imperial core, and my immediate family members having papers and green cards to the United States, meant that we could leave when others could not and had to stay on the periphery. My rights, my freedoms, my security and my chances were contingent, and based on arbitrary things not within my control.
And, so today, as American tax dollars are underwriting the evisceration of Palestine, supplying weapons, providing political cover, and ensuring that children’s earliest memories will be filled with atrocities, it is impossible to be silent.
What we can name and render cognizable and what we must un-remember and forcefully forget is deeply connected to the numerous atrocities embedded in the international order. The capacity to define who matters and who does not, who is disposable and who is not, as well as who deserves empathy and recognition, and who does not, is linked to racial and colonial logics and projects, both past and present. Thus, we must continually question who has the power and moral authority to name and shape collective memory through law and beyond.