Guilty As Charged

Stanley Cohen ✊ Is it too much to ask to hear your grandchildren’s giggle as they chase butterflies in fields while your mind’s eye journeys back to olive groves seeded for time immemorial by winds of warmth?

Is it too much to ask to joyfully dance Al-Sha’rawiyya or Dabke niswaniyyah while flirting with Ai’sha or Mohamed as they peek away in blush?

Is it too much to ask for children to be left uncaring to chase waves in peace while the sun sets over the shore and mussakhan readies for them to adore in the tabun?

Photo by Cole Keister

This is Palestine … in all its shining beauty …. in all its history … in all its age-old smile and gift.

Today in Gaza:

With Israel having fired some 30,000 air-to-ground munitions, 50% unguided and some 15000 tank shells lobbed into its residences, hospitals, schools, Masjids, churches, shelters, and refugee camps:

25,000 civilians (or 1 out of every 100) slaughtered, including all members of over 600 families;

12,500 plus children slaughtered;

57,000 plus wounded;

10,000 missing;

250-plus attacks on healthcare workers, vehicles and facilities with 600 medical workers slaughtered;

more than 105 journalists slaughtered;

100-plus employees of UNRWA slaughtered;

1.9 million people displaced … 85 percent of the population;

100,000-plus buildings and residences damaged or completely destroyed;

50,000-plus housing units destroyed;

234,000 homes damaged;

28 of 35 hospitals damaged, destroyed or closed;

More than a thousand children given amputations without anesthesia;

70 percent of school buildings damaged or destroyed;

200-plus registered heritage or archeological sites damaged or destroyed;

200-places of worship, Masjids and Byzantine churches, damaged or destroyed;

Northern Gaza leveled, isolated from the rest of the territory;

unemployment of 85 percent;

50% experiencing severe hunger;

400,000 cases of infectious diseases; and

with destruction of health care and essential infrastructure systems, tens perhaps hundreds of thousands will grow seriously ill, possibly die of infectious diseases.

Described by experts in the field of urban warfare and damage as “among the most destructive in history” Corey Scher of the CUNY Graduate Center and Jamon Van Den Hoek of Oregon State University, have noted:

It’s just the sheer speed of the damage … All of these other conflicts that we’re talking about Ukraine, Syria, Yemen are years long. This is a little over two months. And the sheer tempo of the bombing — not just the scale of it but the sheer tempo — there’s nothing that tracks this in such a short timeframe.

They conclude by noting the bomb tonnage dropped by Israel on Gaza had surpassed that dropped on London during the Blitz, and the atomic bomb dropped on Hiroshima with the percentage of damaged and or destroyed buildings having already surpassed that of the German cities destroyed in World War II.

Rising from the remains of 38,000,000 civilians who lost their lives in WWII to little more than wrong place … wrong time … or wrong faith, color or culture, an international tribunal emerged to hold the primary political leaders of the Third Reich and Japan responsible for unspeakable war crimes. The Nuremberg Tribunal which went on to try and convict several dozen war criminals relied on the testimony of the accused and hundreds of their victims; hundreds of thousands of exhibits; forensic evidence; numerous public declarations; and documented records of the accused’ individual activity. Although there are many thousands of pages of judgments, judicial opinions and findings one paragraph stands out in summing up, at least as to Nazis, the horrors they unleashed and the harms they brought:

The evidence relating to war crimes has been overwhelming, in its volume and its detail. It is impossible for this Judgment adequately to review it, or to record the mass of documentary and oral evidence that has been presented. The truth remains that war crimes were committed on a vast scale, never before seen in the history of war. They were perpetrated in all the countries occupied by Germany, and on the High Seas, and were attended by every conceivable circumstance of cruelty and horror. There can be no doubt that the majority of them arose from the Nazi conception of ” total war “, with which the aggressive wars were waged. For in this conception of ” total war”, the moral ideas underlying the conventions which seek to make war more humane are no longer regarded as having force or validity. Everything is made subordinate to the overmastering dictates of war. Rules, regulations, assurances and treaties all alike are of no moment, and so, freed from the restraining influence of international law, the aggressive war is conducted by the Nazi leaders in the most barbaric way. Accordingly, war crimes were committed when and wherever the Fuehrer and his close associates thought them to be advantageous. They were for the most part the result of cold and criminal calculation.

With these words, the Nuremberg Tribunal offered the world a terrifying vision of what most had long known but refused to accept, let alone act upon until it was far too late. That falter left millions dead and as many wishing they were for little more than their faith, their culture, their presence. Then it was Jews, here and now … Palestinians.

What can the global village possibly say to those who feel abandoned to inspire hope?

What can the global village possibly say to those who bury their dead in mass unmarked graves wishing it was them instead?

What can the global village possibly say to children sobbing for their mothers and fathers; parents wailing for babies lost to indifference?

Nothing.

In a just world, we are born into a dream of a healthy, long and peaceful journey; one filled with aspiration, love and personal chase … an opportunity built of equality- with no one life or community more important than any other. A chant that defies oath, anthem and flag. An unspoken talisman that every parent holds near and dear and close to their heart while beaming at what they have brought into being.

Yet some children… some faiths … some communities… some tomorrows are from birth deemed less worthy than others. Seventy-five years ago, it was Jews. Here and now Palestinians.

War crimes: namely, violations of the laws or customs of war, such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.

With these words, academics, scholars and jurists alike have spent careers teaching, writing, and litigating across the globe in the hope of humanity and the pursuit of justice. With no shortage of Conventions, Treaties and potential sanctions, those of us who pursue justice would like to think that with each generation that travail grows less daunting … that it becomes more powerful and consistent. It is, after all, a terrible trek to chase what is always just beyond our reach unless the victim is of the right faith, skin tone or politics. Then it applies. Once again, in Palestine, supremacy and privilege have swallowed law and numbed justice.

Although politicians, journalists and wannabe pundits alike continue to ramble on describing with blurred defective shouts what happened on October 7th but several miles from the massive Gaza Gulag, I am not one. I was not there. Nor were they. What began with bogus allegations of mass execution and wholesale civilian rape, with incinerated babies and hundreds of vehicles, buildings and homes bombed by the Qassam Brigades, has with the passage of time surely begun to whittle away as largely convenient political chant and useful fuel for retaliatory genocide and Western applause.

With increasing evidence, it appears the majority of those killed were in fact active-duty or military reservists, armed settlers or security personnel and thus potential legitimate targets under international law. So, too, firsthand accounts from Israeli civilians, various military sources and uncovered forensic evidence further dispel the calculated rewrite of what in fact occurred on October 7th. To be sure, having survived Israeli censors, there are now numerous verified reports of multiple instances where civilians lost their lives not to Palestinian execution, but reckless Israeli gunfire including tank artillery, helicopter auto-cans and rockets. Photos of destroyed buildings serving as military and security outposts and hundreds of wrecked vehicles, including heavy-duty Israeli ground combat equipment, clearly establish carnage the result of Israeli shells not Palestinian rifle fire.

But let’s assume civilians were in fact killed or assaulted by members of the Qassam Brigades or by unaffiliated armed fighters who apparently broke through the barbed wire doors of Gaza as well. If established by direct proof, not political prance, at an independent trial these would be clear violations of the law of war and those responsible should be held accountable. On this point, it bears noting, that years ago the Palestinian State and its various resistance movements, including Hamas, agreed to the jurisdiction of the International Criminal Court and to abide by any of its findings following a full and fair trial based upon evidence, not chant; facts … not made-to-order fiction. If possessed of direct evidence of Palestinian crimes on October 7th why does Israel flee, as it always does, an independent judicial process and investigation resting instead not on a reliable search for truth, but on bombs and bombast driven by a relentless flow of shrill detoured deception?

Fueled by public screams for revenge, Israel, now in its third month of an unrestrained raging assault upon all of Gaza and all its population, is no doubt in clear violation of Article 33 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War 1949, under which no civilian may be punished for an offense they have not personally committed. More specifically, Common Article 33 of the Fourth Geneva Convention and Article 4 of the Additional Protocol II criminalize any and all collective punishment imposed against civilians and or their property. Guilty as charged.

This unmistakable command, which is neither new nor ambiguous, is echoed throughout long-settled international law. In strict and powerful terms, total warfare is absolutely prohibited under international humanitarian law. As noted in Article 48 of Protocol Additional I of 1977 to the 1949 Geneva Conventions for the Protection of War Victims, entitled “Basic rule:” “the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.” Guilty as charged.

This prohibition is not alone: Under Rule 129 (b) of the ICRC parties to a non-international armed conflict may not order the displacement of the civilian population, in whole or part, for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand. Guilty as charged;

Article 8 of the Rome statute, which established the International Criminal Court (ICC) in The Hague, includes “intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected” as war crimes. Guilty as charged;

Article 6(b) of the Constitution of the International Military Tribunal provides that “ill-treatment . . . of the civilian population of or in occupied territory . . . killing of hostages . . . wanton destruction of cities, towns or villages ” shall be a war crime. Guilty as charged;

Article 6 (c) “namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated” shall be a crime against humanity.” Guilty as charged.

There was nothing original about these Articles when incorporated into the body of controlling jurisprudence at the Nuremberg Tribunals. They were a restatement of existing laws of war as expressed by the Hague Convention, Article 46, which states “Family honor and rights, the lives of persons and private property, as well as religious convictions and practices must be respected.” Guilty as charged.

From the very day that the United Nations commandeered it from Palestine, it has been clear that Israel respects nothing of international law or human rights. It simply believes that any such legal standard or civil command is inapposite to its very public and privileged march. Once again, without ambiguity, and on full obscene display, over these past several months the international ban on total warfare and the requirement that a warring state must distinguish between a civilian population and objects and combatants and military objectives is a message without meaning to Israel. According to Prime Minister Netanyahu: “You must remember what Amalek has done to you, says our Holy Bible — we do remember,” said … Netanyahu, referring to the ancient enemy of the Israelites, in scripture interpreted by scholars as a call to exterminate their “men and women, children and infants.”

On another occasion, Netanyahu preached: “We have unanimously approved the widening of the ground invasion … Our objective is singular: to defeat the murderous enemy. We declared ‘never again’, and we reiterate: ‘never again, now [this is] Israel’s ‘second war of independence.'”

Not at all solitary in his call for the complete eradication of Gaza and all its long-entombed civilian prisoners, Israeli security cabinet member Minister Avi Dichter said “We are now rolling out the Gaza Nakba … Gaza Nakba 2023. That’s how it’ll end.” Heritage Minister Amihai Eliyahu who suggested dropping a nuclear bomb on the Gaza Strip was “one of the possibilities,” added “there was no such thing as noncombatants in Gaza.” Moshe Feiglin, the leader of the Zehut party, says a true win must “involve ‘occupation, displacement, and settlement’.” In a call for massive “depopulation” Finance Minister Bezalel Smotrich has said Gaza can only have a population of “100-200,000, Not Two Million.” Metula Settlement Council head David Azoulai said “the entire Gaza Strip should be emptied and leveled flat, just like in Auschwitz. Let it become a museum …So the whole world will learn what Israel can do.” Yoav Gallant, Israel’s Minister of Defense announced “We are imposing a complete siege on Gaza. No electricity, no food, no water, no fuel – everything is closed.”

With atrocities not at all limited to Gaza, in the occupied West Bank during 2023 at least 483 Palestinians have been killed and some 13,000 injured by Israeli military and settlers no doubt inspired by the words of Finance Minister Bezalel Smotrich, which call for the creation of a West Bank “sterile” zone.

In the law, whether domestic or international, state of mind and specific intent are cornerstones of prosecutions and defense alike. These words alone, leave no doubt as to the knowing and willing resolve of Israeli leadership of all positions to ignore Article II of the Convention on the Prevention and Punishment of the Crime of Genocide which, in the relevant part, reads:

[G]enocide 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; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

Under Art. II, it is clear that violations of the genocide prohibition are ultimately based not on the number of lives stolen, but the intent of the thief. Guilty as charged.

Make no mistake about it, Netanyahu and his Brooklyn Kahanists have not undertaken their Gaza rampage on the spur of the moment or haphazardly. And while endless commentary has occupied much of the Western focus on the planning necessary for the resistance to further its legitimate armed struggle, the purported Israeli response to the events of October 7th shows a ticking time bomb long awaiting a trigger. Lest there be any debate, Israel not by words, but clear unapologetic horrific deeds, and with the support of most of its population, has unleashed a limitless carnage intended to inflict as much pain, suffering, death and destruction in Gaza as possible. It is this crime of ethnic cleansing, of total warfare and premeditated genocide, that shreds in full any and all international humanitarian law.

Elsewhere Israel’s hideous, chest-pounding violations of the Geneva Conventions, of international humanitarian law, of the law of war, and the Rome Statute posit veritable primers for prosecution of its political, military and settler leadership for irrefutable violations of international law:

Article 54 of Additional Protocol I to the 1949 Geneva Conventions provides the absolute prohibition on starvation as a method of warfare, prohibiting combatants “to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs”. This comports with Rule 53 of the International Committee of the Red Cross (ICRC) Law Database which also cites the prohibition of starvation as a customary rule of international law. The deprivation of basic supplies necessary for the survival of the population, including food and clean water also amounts to a war crime under Article 8(2)(b)(xxv) and to a crime against humanity under Articles 7(1)(b), 7(2)(b), and 7(1)(k) of the Rome Statute of the International Criminal Court. Elsewhere, in relevant part, Arts. 13, 32 mandate civilians are to be protected from murder, torture or brutality, and from discrimination on the basis of race, nationality, religion or political opinion. Under Art. 18 civilian hospitals and their staff are to be protected. Art. 27 calls for the safety, honor, family rights, religious practices, manners and customs of civilians. Arts. 33-34 prohibit pillage, reprisals, indiscriminate destruction of property and the taking of hostages. Arts. 33,49 criminalize collective punishment or deportation. Art. 55 requires occupying powers to provide food and medical supplies as necessary to the population and maintain medical and public health facilities. And Arts. 55, 58 mandate that medical supplies and objects used for religious worship are to be allowed passage. As to each Article … guilty as charged.

History can and has often been a rewritten testament to storytellers who have a vested interest in its narrative and a powerful pen in its record. Yet the deadly dynamics of Gaza here and now from sunrise to sunset and all hours in-between is not one open to partisan pander or convenient call. There are countless witnesses on the ground of Gaza… neither Palestinian nor Israeli … not Muslim nor Jew- these are spectators to a horrific unfolding chronicle with no vested interest in the facts of its reality. Objective but not indifferent, these voices speak with tears of outrage against a chorus of international state silence.

Tom Potokar, a chief surgeon with the International Committee of the Red Cross, working in Gaza … “For me, personally, this is without a doubt the worst I’ve seen.” Potokar has worked during conflicts in South Sudan, Yemen, Syria, Somalia and Ukraine.”

Zaher Sahloul, president of MedGlobal and a doctor who worked in Aleppo during the bloody battle for its control: “what’s happening right now in Gaza is beyond any disaster that I’ve witnessed at least in the last 15 years or so.”

Annie Shiel, U.S. advocacy director at the Center for Civilians in Conflict … “But what we are seeing in Gaza, the level of death and destruction in this relatively short period of time, is absolutely staggering in comparison. Nowhere is safe for civilians.”

“The stench of death is everywhere – in every neighborhood, every street and every house,” says respiratory physician Raed al-Astal, from Khan Younis in southern Gaza.

In 2023 there is no longer a need to chase time-tired parleys built of rumor, wish or political necessity to determine whether crimes against international law and humanity have been committed by those who fire guns or drop bombs; whether undertaken under the talismanic guise of self-defense, or the necessity of national liberation. More than 150 years ago the rules of war emerged from the mass graves of 600,000 Americans killed in its civil war. Over these many years, as conflicts have raged and civilian casualties mounted, there have been international efforts to set the standards for the “good” war from the “bad.” And while Conventions, Articles, Rules and Covenants of warfare have evolved in theory to protect civilians—in particular our young, elderly and infirm— from the military reach of despotic states such as Israel, or independent nihilist groups that seek not freedom but domination, they remain little more than a hopeful tease unless those who break these international norms are held accountable and unless, unlike here, there are international courts and states willing to hold war criminals such as Israel to task.

There are historical crossroads where the directions to be taken will surely lead to either momentous dishonor and shame, or to hope for a better tomorrow for all. These pathways of justice are neither difficult to see nor thorny to define. That intersection is upon us now where Israel commits unspeakable crimes daily against not only Palestinians but what tragically has proven to be an evasively quixotic notion of international law.

While history recalls, as it should, the legend of Nuremberg with echoes of great pride and decrees of justice, let us not forget that those who there penned with righteous fury Article 6 (b) of the Charter of the International Military Tribunal committed their own war crimes having dropped nearly two million tons of bombs on Germany, destroying some 60 cities between 1943-1945 killing more than half a million Germans. Can it be that the UK politicians who today scream anti-Semite for those who challenge Israeli carpet bombing are actually descendent from those who cried for international justice while the indiscriminate German blitz of 1940-41 saw some 43,000 civilians killed with numerous landmarks bombed including Buckingham Palace, the Houses of Parliament, the Tower of London and the Imperial War Museum. And what of France which itself lost 175,000 civilians killed or injured during WW II with well more than a million homes destroyed, now flipflopping from humanitarian concerns around Gaza to President Macron saying that “he does not and did not intend to accuse Israel of intentionally harming innocent civilians in the campaign against Hamas … and that he unequivocally supports Israel’s right and duty to self-defense.” But then again, was it not France that killed upwards of thirty percent of the entire Algerian population during its three decades of occupation.

Yes, this is a hallmark crossroad: a generational test of time and purpose and a profound challenge for all those yet to come. In the presence of indisputable overwhelming evidence of war crimes, genocide and crimes against humanity, we are painfully, perhaps predictably, witness to collective inaction by the United Nations and other international bodies and tribunals that preach from on high while perched as little more than silent witness to unspeakable Israeli crimes. That the United States and other long-time Israeli interlocutors are providing cover for the slaughter of Palestinians and the destruction of Gaza, is of no surprise. It’s but an extension of a long cheer for a ravenous European colonial project no matter how evil its aim and deadly its result. Yet, international law is itself also under siege. If it is to survive and to serve any meaningful purpose other than to inspire law students, while amusing global states, it must be emphatically and uniformly enforced against all culprits and now. Guilty as charged.

Stanley L. Cohen is lawyer and activist in New York City.