In this final part of a two-part series, ANWAR ALBERTUS calls for accountability and justice to protect Palestinian rights. He urges international authorities to issue arrest warrants against the US, Israel, and their allies for alleged human rights violations, war crimes and collective punishment.
GIVEN Israel’s irrational belief that it can act without constraints towards the Palestinians, it is not surprising that the US and its allies, in the aftermath of the recent attack by Hamas against Israel, unconditionally affirmed their support for Israel’s right to self-defence.
None of the leaders of these countries cautioned Israel against acting without restraint.
On the contrary, they engaged in their normal biased rhetoric, framing the attack by Hamas as an unprovoked terrorist assault.
This decontextualised the attack and made Israel appear as an innocent victim.
Biden’s message to Netanyahu, the Prime Minister of Israel, stating that if the United States experienced what Israel is going through, our response would be swift, decisive, and overwhelming, was, to put it bluntly, an open invitation for Israel to respond to the Hamas attack without any restraint.
This invitation disregarded the principles of Humanitarian Law, specifically the principles of distinction and proportionality.
Unfortunately, Biden’s encouragement for Israel to engage in self-defence without restraint did not stop there.
He undertook to provide additional arms to Israel, deployed the largest aircraft carrier in the US fleet to the Mediterranean Sea, and sent 2 000 foot soldiers to Israel to assist with logistics and military planning.
Other Western powers have also endorsed Biden’s message of support to Israel, along with providing military aid.
Given the uncontroverted evidence of Israel’s total blockade of the Gaza Strip by air, sea, and land, which includes cutting off the supply of water, power, fuel, food, and medicine to over two million Palestinian civilians, a cogent case can be made against Israel, the US, and its Western allies for flagrantly breaching International Law governing military engagement.
This includes the continuous indiscriminate and wanton bombing of residential and civilian infrastructure, such as hospitals, schools, rescue services, and mosques, using munitions containing white phosphorous, which is prohibited under International Law.
These actions have resulted in the deaths of thousands of civilians, predominantly children. Specifically, the Fourth Geneva Convention of 1949 and its Protocols have been violated.
The argument supporting the complicity of the US in committing war crimes, crimes against humanity, and collective punishment in Palestine is fortified by the fact that the US utilised its veto power in the Security Council on October 18, 2023, to torpedo the adoption of a draft Resolution sponsored by Brazil.
This resolution called for a Humanitarian Pause in the Israel-Gaza crisis. If it were not for the US veto, the resolution would have been adopted, and member states of the UN and NATO would have been empowered to ensure its implementation due to its coercive nature as a Security Council Resolution.
However, because of the veto exercised by the US, Israel is continuing with its murderous assault on civilian infrastructure and civilians in the Gaza Strip.
A total of 704 individuals, mostly children, were killed within 24 hours from October 23 to October 24, 2023. Israel claimed that it had hit over 400 militant sites in Gaza overnight, killing dozens of Hamas fighters, including three deputy commanders.
It defies logic and lacks credibility to believe that the Israeli military could have struck with precision 400 militant targets within a densely populated area like Gaza.
Even if this were so, out of the 704 individuals killed, only dozens were Hamas fighters.
This serves as clear evidence against Israel that it has violated both the principles of distinction and proportionality in its military assault on Gaza.
The US has sought to justify its veto on the basis that Biden and other representatives of the US administration are presently in the Middle East, engaging in diplomacy to de-escalate the conflict and seek the release of hostages taken by Hamas.
This position is untenable given the fact that the US is presently directly involved in supporting Israel in its murderous assault on Palestinians living in the Gaza Strip. Moreover, this argument by the US rings hollow because the US has consistently eroded the international community’s right to intervene in region.
By adopting this position, the US has, as in the past, expropriated for itself the right and role of the United Nations in the Middle East conflict.
Former US Presidents and their administrations have consistently assisted Israel in its military onslaught against the Palestinians.
This is not surprising, given that the Jewish lobby in the US has been extremely strong within the American administration and can properly be said to have influenced American foreign policy to a large extent in the Middle East, more particularly in relation to the Palestinian struggle for liberation. A telling comment against the American administration was made by Arthur Samuelson many years ago when writing in The Nation: ‘All too long, public debate over the Middle East has been characterised by a marked dishonesty on the part of aspirants for public office. Rather than put forward a plan to break the impasse in American-Israeli relations that has remained constant since 1967, they fall over one another in praise of Israel’s virtues…’
The duplicity of the US and its allies in their unequal treatment of Israel, as well as their complicity in Israel’s ongoing egregious violation of the rights of the Palestinians, must be judged in light of the decisive action they took against Libya in 2011. This action was purportedly taken to protect civilians and civilian populated areas under threat of attack from the Libyan armed forces. At the behest of the US, the Security Council swiftly adopted Resolution 1973, which, among other things, imposed a no-fly zone on Libya.
It is well-documented that NATO, tasked with enforcing the no-fly zone, exceeded the scope of its mandate and illegally bombed, over a five-month period, the Libyan government’s fuel depots, ammunition bases, and other strategic military facilities, as well as its armed personnel on the frontline, thereby tipping the balance of power in favour of the rebels fighting against the Libyan government.
In addition to NATO’s bombing campaign, France shamelessly supplied military hardware to the rebels, while the US deployed Predator drones for surveillance operations over Libya.
Given the ever-worsening crisis in Palestine and the US history of partisanship in favour of Israel, there can be little doubt that the only surest way of resolving this crisis is by moderating the influence of the US in the conflict and shifting the balance of power in this region to the international community, where it properly belongs.
It must be observed that the UN General Assembly has residual power to make legally binding decisions to restore international peace and security, based on the Uniting for Peace Resolution, to the extent that the conflicts of the Middle East constitute a threat to world peace.
Moreover, since the evidence indicates that the Israeli security forces are committing egregious violations of human rights, war crimes, crimes against humanity and collective punishment, serious thought ought to be given to setting up an International Criminal Tribunal for Israel.
This tribunal would have the power to inquire into, prosecute, and punish those guilty of violating the rules of war and committing crimes against humanity.
The prosecutorial authorities of countries that respect and adhere to the rule of law should also inquire into the framing of criminal indictments against all individuals in the armed forces and government of Israel, as well as the leaders of those countries who are complicit in the ongoing egregious violations by Israel of the fundamental and basic human rights of the Palestinians.
Additionally, the National Prosecuting Authority of South Africa must be pressured to issue arrest warrants, based on the doctrine of universal jurisdiction, against all individuals in the Israeli government and armed forces, as well as those in leadership positions in the US and its Western allies, on charges of committing war crimes, crimes against humanity, and collective punishment of the Palestinian people.
Click here for part one.
- MA ALBERTUS SC, is a practising member of the Cape Bar, former Chairperson of the Cape Bar and former Visiting Professor in Comparative Law at the Levine College of Law, University of Florida
