To a crowded courtroom on the
late afternoon of November 25, presiding Judge Lamin Mohd Yunus
announced the verdict by an international panel of seven jurists:
“The Tribunal is satisfied, beyond reasonable doubt, that the
first defendant, (General) Amos Yaron, is guilty of crimes against
humanity and genocide, and the second defendant, the State of Israel, is
guilty of genocide.”
–
The landmark ruling against Israel for its genocide against the
Palestinian people rendered by the Kuala Lumpur War Crimes Tribunal is
significant for several reasons:
- In contrast to other
non-official courts of conscience on Palestinian rights, for example,
the Russell Tribunal on Palestine (New York 2012), the prosecution in
Kuala Lumpur took a step beyond war crimes and crimes against humanity
to the higher and broader charge of genocide.
- The decision was rendered
during the ongoing commission of the alleged crime by the defendant,
rather than after the fact as in earlier genocide cases.
- Instead of limiting its ruling
to individuals who ordered genocidal actions, the jurists also charged
the state as a defendant.
- As a consequence, this case
breaks the tradition of immunity of nation-states from criminal
prosecution under international law.
- The decision introduces a legal
basis for international action to protect minorities from genocide as a
lawful alternative to the current response of so-called humanitarian
intervention, invasion, occupation and regime change, which have often
been as illegitimate and more destructive, and in some cases as
genocidal as the original violation being punished.
The Kuala Lumpur Tribunal based its momentous decision on the 1948
Genocide Convention, which prohibits and punishes the killing, causing
of harm and deliberate infliction of conditions of life calculated to
bring about the physical destruction of a group of people, targeted for
their ethnicity, religion or race. In instances of genocide, these
criminal acts are done with the specific intent of destroying as a part
or in whole of the targeted group, as in this plight the Palestinian
people.
The defendants, Gen. Yaron and the Israeli State , through its
representatives, refused to accept the Tribunal summons and appear in
court.
Prominent Israeli legal scholars also refused invitations to serve as
defense counsel. The Tribunal therefore appointed an Amicus Curae
(defense counsel, referred to by the Latin term for “friends of the
court”), including attorneys Jason Kay Kit Leon, Larissa Cadd, Dr.
Rohimi Shapiee and Matthew Witbrodt, to defend the accused. Even absent
Israeli participation, the defense proved to be forceful and often made
heated remarks in Israel’s defense, especially during the
cross-examinations of expert witnesses.
Why Not New York , London , Paris or Berlin
One point to note is that the sponsoring Kuala Lumpur Commission on
War Crimes and its associated international Tribunal is unrelated to
Malaysia and its legal system, aside from the participation of some
Malaysian jurists and citizens in its proceedings. Malaysian laws are in
many areas quite different from and sometimes in diametric opposition
to the legal opinions of the international Tribunal. The independence of
this “court of conscience” allows an approach to international law
unconstrained by local norms, but this also means that the Tribunal
lacks an enforcement capability.
That the first-ever Tribunal to prosecute Israel for genocide was
initiated in Southeast Asia offers some indication of the continuing
sensitivity within the traditional “center” of international law,
Western Europe and North America, toward the circumstances behind
Israel’s creation.
The Kuala Lumpur proceedings are bound to raise controversy and
discomfort, especially among a reluctant West, since the historical
motive behind creating a modern Jewish state in 1948 was largely a
response to the abandonment of European Jewry to the pogroms and
extermination program of the Third Reich, which in its early stages went
unopposed by Western governments and prominent opinion leaders in the
Atlantic community.
The courage to finally confront Israel after nearly seven decades of
eviction and merciless brutality against the Palestinian people was
summoned not by the Atlantic community but in faraway Southeast Asia ,
where a law case could be pursued with critical distance, logical
dispassion and an absence of historical complicity. In short, an
evidence-based fair trial found Israel to be guilty of genocide.
Why Israel
Why then was Israel singled out by the Kuala Lumpur War Crimes
Commission on genocide charges before its Tribunal, when many other
states have gone unpunished? Chief prosecutor Gurdial Singh explained:
“Other settler states, for example Australia, have
offered compensation and apologized for the dispossession and harm to
their indigenous populations, while Israel remains unapologetic and
continues its campaign of destruction against Palestinians and to make
their conditions unlivable inside and outside its borders.”
In contrast with previous special courts involving genocide charges,
this Tribunal left the time frame of events open-ended, by starting just
before the creation of the State of Israel until the present and,
presumably, into the future until Israel ceases its expansionist
campaign against the Palestinians and offers instead justice and
reconciliation. By comparison in prior cases invoking the Genocide
Convention, including those against former Yugoslavia, Rwanda, Cambodia
and Sierra Leone, the mass killings of civilians were perpetrated within
a short time-frame by political leaders of the then-governing regime or
by a major political faction.
The Kuala Lumpur Tribunal asserted that the modern Jewish state, in
contrast to other cases, had since even before its inception pursued a
genocidal program as a consistent feature and indeed a foundation of
state policy. Therefore, genocide in the Israeli case cannot be solely
attributed as the isolated action of a leader, political party or
elected government but remains the responsibility of the state itself.
Genocide as Response
The specific intent of Israeli state policy, since even before the
founding of Israel, was discussed in a live-video transmission by expert
witness Ilan Pappe, an Israeli historian at University of Exeter in the
UK and the director of the European Centre for Palestine Studies. His
research has revealed that a planning group of top-ranking Jewish
military leaders in the Haganah militia, led by David Ben Gurion (who
later became Israel’s first prime minister) devised an ethnic-cleansing
program to rid the future Israel of its Arab predecessors. Called Plan
Dalet (the letter “D” indicating the fourth plan of a colonialist
agenda) was to be activated as soon as the British suspended the
Palestine Mandate.#
With the declaration of Israeli statehood in 1948, a coordinated
armed campaign by Israeli military forces and paramilitary units against
hundreds of Palestinian urban neighborhoods and rural villages led to
the flight of an estimated 700,000 refugees from Palestine and parts of
neighboring Trans-Jordan, including Jerusalem . Although the Israeli
intent was intended to intimidate the Palestinians into relocating
outside the borders, but before long village populations that refused to
flee were mass murdered.
The forcible deportation of indigenous inhabitants from their homes
and land was a criminal act of ethnic cleansing, Pappe said. That
policy, however, soon metamorphosed into a systematic campaign to
destroy Palestinians, that is, genocide. Under cross-examination by
defense team, the historian explained, that as an Israeli citizen and
son of Jewish refugees who escaped Nazi-ruled Germany , it is morally,
ethically and historically inconsistent to condemn the genocide against
Jews while endorsing a new one against Palestinians.
Cumulative Record of Crimes
The Israeli record of massacres, extrajudicial killings and daily
harassment of Palestinian comprises a continuum of criminal behavior
over the past 67 years. Given the overwhelming evidence, the prosecution
team therefore decided to focus on key cases, which were extensively
reported in the news media and/or were subject of investigations. These
included:
- the September 1982 massacre of
Palestinians, mainly women and children, at the Sabra and Shatilla
refugee camps in a southwest district of Beirut, Lebanon;
- lethal firing of teargas
canisters and “rubber” bullets by Israeli Defense Forces that resulted
in the deaths of unarmed civilians during the Intifada campaigns and
subsequent protests; and
- intensive and indiscriminate aerial bombing and artillery shelling of civilian quarters in the Gaza Strip in 2008.
Among the witnesses who testified in person or via video transmission included:
- a former university student who
was shot without warning at a peaceful protest by an Israeli sniper
firing a fragmentary bullet that caused extensive and permanent damage
to his internal organs;
- a Christian resident of the West Bank who was repeatedly imprisoned and tortured on grounds of subversion;
- a female resident of Nablus who suffered mental anxiety due to her imprisonment and subsequent social ostracism; and
- two men from the Al Sammouni
clan of Gaza, which lost 21 family members, mainly children and women,
in an Israeli commando raid on their home.
- a Palestinian physician who
conducted studies on the psychological trauma inflicted, particularly on
children, as result of constant intimidation, massive violence and
state terror during and following the second Intifada;
- Expert witness Paola Manduca,
an Italian chemist and toxicologist, who found extreme levels of toxic
contamination of the soil and water across the Gaza Strip caused by
Israeli weapons made of heavy metals and cancer-causing compounds.
Killing Fields
Professor Pappe said that the mass killing of defenseless civilians
trapped without avenues of escape within a cordon or enclosure is clear
evidence of genocidal policy, as happened inside the Beirut refugee
camps surrounded by Israeli tanks and hostile Phalangist militiamen and
inside Gaza cities that are ringed by a wall-fence.
For the Beirut atrocity, Israeli Defense Force commander General Amos
Yaron was charged in absentia for crimes against humanity and genocide.
Among the witnesses who testified in person on the Camps Sabra and
Shatilla events were:
- Chahira Abouardini, a widow
whose husband and three children were murdered by Israeli-allied
militiamen at Camp Shatilla, provided a graphic account of the carnage,
describing piles of bullet-riddled bodies and, in one case, of a
pregnant women whose belly had been slit open and with her dead unborn
child left on top of her corpse. She recounted how refugees were rounded
up from their homes and lined against walls for summary execution by
automatic weapons fire.-
- Dr. Ang Swee Chai, a
London-based Singaporean surgeon and medical volunteer at the time at a
hospital run by the Palestinian Red Crescent Society, with the aid of
the International Committee of the Red Cross, testified that another
Beirut hospital had been bombed by Israeli jets, all Palestinian
facilities including schools and hospitals were deliberately destroyed
by artillery barrages and explosive charges, and ambulances were
intercepted and their drivers shot dead. She stated that an Israeli
observation post positioned in the 7-storey Kuwaiti Embassy, located on a
hilltop, had an unobstructed view of the refugee camp, indicating that
the Israeli forces were directing a joint operation to exterminate the
refugees left behind under the international plan to withdraw the PLO
from Lebanon . In her forensic investigation of the bullet wound that
injured a male nurse at her hospital, Dr. Ang determined that the sniper
fire had come from the Israeli-occupied Embassy building
Considering the Israeli checkpoints on roads and its vantage points,
Brigadier General Amos Yaron as field commander of the Beirut incursion
and occupation, had effective control over the camps. His close liaison
with the local militia leader meant that Yaron had condoned the 36-hour
rampage by militiamen, which led to an estimated 3,500 civilian deaths.
No orders were issued to prevent the one-sided violence, prosecutor Aziz
Rahman argued before the Tribunal. A 1983 special commission report,
under its chairman Nobel Laureate Sean MacBride, concluded that Israel
had “complicity in genocide”. Research findings gathered since then
indicate that Yaron was not merely complicit but held personal
responsibility for the massacre.
A point contested by the Amicus Curae defense team was that then
Israeli Defense Minister Ariel Sharon, an official of superior rank,
should have been prosecuted instead of Gen. Yaron. (The prosecution had
earlier declined to serve notice on Sharon, who has been in a coma for
many years and is unable to testify in hisown defense. Moreover, Yaron
had wide sway of authority as field commander in a battle zone outside
the borders of Israel .) Prosecutor Gurdial Singh pointed out that
Israel not only failed to file criminal charges against Yaron and his
subordinates but subsequently awarded and repeatedly promoted the
general and his circle. Yaron was therefore found guilty as accused.
Responsibility of the State
International law has traditionally taken for granted the immunity of
states from prosecution by a court in another country. There are
several reasons for immunity of states, even for high crimes such as
genocide and serious violations of various humanitarian codes.
- International law and the
treaty system are based on the principle of equality among states, which
are parties to and enforcers of international agreements. The criminal
conviction of a state for serious crimes would automatically weigh
against the accused party, thereby causing an imbalance in relations and
introducing unfairness to the international system.
-The sovereignty of states is a
fundamental protection against aggression or undue interference by a
foreign state or alliance of nation-states.
- As argued by defense counsel
Matthew Witbrodt, prosecution of and penalties imposed on a state would
result in collective punishment of all of its citizens. (Since the
Treaty of Versailles that ended World War I, the international community
has tried to avoid forms of collective punishment, including heavy war
reparations.)
On the other side of the coin, total immunity for the state can
encourage violations of international law by dictatorial, racist and/or
bigoted regimes. The absence of legal challenge by foreign courts
therefore leaves few legitimate means to pressure the offending state.
The more “peaceful” methods include economic sanctions, which can be
interpreted as a type of collective punishment against a victimized
citizenry.
With no legal recourse to counter mass atrocities, other states then
must launch interventions through extralegal and often illegal
strategies of covert warfare, proxy insurgencies or biased peacekeeping
operations. The subsequent invasion and occupation by self-appointed
saviors can be more harmful to the people, and to the principles of law,
than the original violations of the offending regime.
Thus, quoting its opinion upon the verdict, a “reason the Tribunal
wishes to reject the doctrine of absolute state immunity from
prosecution in matters of genocide, war crimes and crimes against
humanity is that the existing international law on war and peace, and
humanitarianism, is being enforced in a grossly inequitable manner.
Small, weak nations, mostly in Africa and Asia , are periodically
subjected to devastating sanctions, military interventions and regime
changes. At the same time, unbearable atrocities and brutalities are
inflicted on the military weak nations of Latin America, Africa and Asia
by powerful nations in the North Atlantic and their allies go
unscrutinized and unpunished.”
The alternative to the law of the jungle applied by self-appointed
unilateral powers or coalitions of the willing is the reform of
international law to balance sovereignty with the responsibility of the
state for high crimes such as genocide.
Restricting Sovereignty
In its opinion on the ruling, the Tribunal therefore offered a
rational method for limiting sovereignty in cases of gross crimes:
“Where there is a conflict between two principles of law, the one
hierarchically higher in importance should prevail. To our mind, the
international law doctrine against impleading (suing) a foreign state,
being lower than that that of the prohibition against genocide, resulted
in the charge against the State of Israel.”
The Tribunal did not spell out how a genocide ruling can be enforced
or provide a model for a reconstitution of state. Presumably and
theoretically, the general effect of genocide-based restrictions on
sovereignty would be to dissuade and deter state administrations from
perpetrating mass atrocities with impunity. Under a legal standard for
common action to stop genocide, a preventive intervention could then
proceed under accepted rules of engagement and with safeguards against
unwarranted violence by peacekeepers. When an inherently extreme policy
in embedded in the constitution or state regulations, a lawfully
grounded international authority could then abolish that state structure
and reconstitute a legitimate state subject to a referendum. A legal
process for constitutional change is far preferable to the current
method of arbitrary regime change favorable to the interests of and
politically subservient to an occupation authority. This remains
hypothetical, showing only that the international community is yet to
seriously consider the alternative to the present unlawful model.
Restriction of state sovereignty, as the Tribunal noted, is a new and
evolving trend in international law. The U.S. permits its citizens to
file lawsuits in federal court against states that harbor terrorists,
and although this is covered under tort law, such cases inherently
restrict the sovereignty of foreign countries. The European Union has
also constrained the sovereignty of member states. Under the 1978 State
Immunity Act, the British privy council ruled that vessels owned by
foreign governments are subject to the same liability laws as commercial
vessels.
As argued by the Tribunal panel in their opinion, “We find it rather
mind-boggling when some courts can consider commercial disputes as a
reason for not allowing a state to be shielded by the state immunity
principle and yet strenuously protect such a state in cases of genocide
or other war crimes. Human lives cannot be less important than financial
gain.”
The vigorous and often well-founded arguments by the Amicus Curae
team in defense of Israel were constructive criticism that greatly
helped to focus the Tribunal on the complexities of international law.
In heated courtroom debate, defense counsel Jason Kay Kit Leon opined
that “the elephant in the room” was Palestinian terrorism against
Israeli civilians, for instance, the launching of unguided rockets at
settlements, and that Israeli forces have acted in self-defense. The
thrust of his claim was based on “In Defense of Israel” by Harvard law
scholar and attorney Alan Dershowitz.
The jurists, however, accepted the prosecution argument. “It is our
finding that much of the Palestinian-generated violence is not on
Israel’s own territory, but from and on Israeli-occupied Palestinian
land. Much of the violence perpetrated by Palestinians in a reaction to
the brutalities of the vicious racism and genocide that is a tragic
feature of Palestinian life.”
The opinion went further, by stating: “We also hold that the force of
the IDF is excessive, totally disproportionate and a violation of
international humanitarian law. The methods used are unspeakably
inhumane and amount to war crimes.”
Internal Disputes
Earlier disputes within the Commission had led to a two-month
adjournment of trial proceedings due to harsh and sometimes bitter
accusations between participants. In the conflicted process, several
judges recused themselves or were absent due to schedule conflicts and
one prominent prosecutor resigned in protest of suspected tampering of
the judicial panel. These controversies fortunately served to clarify
rather than muddy the legal issues and court procedures, resulting in
stronger arguments on both sides. Taking Israel to task is never an easy
proposition.
Thereby, a stunning precedent in international law was achieved with
the Tribunal’s unanimous decision to charge a state for the high crime
of genocide. The arguments and verdict against the State of Israel will
undoubted be a hotly debated test case for legal scholars over years to
come. Since its Charter does not allow an appeal process, the case of
“The Kuala Lumpur War Crimes Commission Against the State of Israel”
will stand as the nub of controversy for human-rights law and the
principle of sovereignty for nation-states.
While citing several precedents, the strongest argument for
implication of the state is outlined in the 2007 genocide case of Bosnia
and Herzegovina v. Yugoslavia , which covered the Sebrenica massacre of
Bosnian Muslms by Serb-dominated federal armed forces. As Canadian
jurist John Philpot, who earlier served on the Rwanda Tribunal, pointed
out following the reading of the verdict “Bosnia/Herzegovina clearly
laid out the culpability of the state and thus served as the precedent
for our judgment against Israel .”
According to the Bosnia/Herzogovina ruling, “Genocide is a
international crime entailing national and international responsibility
on the part of individuals and states” and “if an organ of the state, or
a person or group whose acts are legally attributable to the state,
commits any of the acts proscribed by Article 3 of the (Genocide)
Convention, the international responsibility of that state is incurred.
A point to note: The Rwanda and Yugoslavia genocide cases, are
considered by some legal experts to be flawed by the underlying covert
and illegal factor of great-power interference. These cases were cited
infrequently and judiciously by the Kuala Lumpur Tribunal, which
exercised proper case in selection of appropriate passages, while
relying on a much wider range of legal precedents in regard to liability
of the state.
Critique: Going Beyond Reparations
Until this genocide ruling by the Kuala Lumpur Tribunal, offending
states and their foreign sponsors have evaded responsibility while the
entire burden of guilt has been placed on the individual agents of weak
nation-states. Under the Tribunal ruling, both the core state apparatus –
including the executive office, military command, intelligence
agencies, supportive ministries and, in many cases, the judiciary and
police – bear as much and, in some cases, more criminal responsibility
for genocide as individual leaders or military officers.
Yet that is still insufficient when the primary responsibility should
rest on powerful sponsor states that move from supporting the offending
regime toward punishing its rebellious hubris. The nexus of powerful
and ruthless states and global elites, with their machinery for
war-making and arms production, creates the political state of siege,
the economic strangulation and the covert weapons trade that prompt
weaker states to perpetrate genocide.
Barely addressed in just one paragraph of the Tribunal opinion is the
reality that powerful states oppose any dilution of their absolute
state immunity with the unspoken objective of preserving their
war-making powers. The dominant Atlantic allies have cited genocide
solely as a pretext to expand their global domain though invasions under
a broad and vague “responsibility to protect” principle and have
imposed new constitutions on defeated adversaries authored by foreign
legal scholars while guised as the ideals of domestic political
revolutions. Meanwhile, their own genocidal state structures, centered
in the national-security structure and military command, categorically
reject any international controls over extralegal interventions operated
under the cover of humanitarian operations.
Also, in limiting its call for remedial action to reparations from
Israel , the Tribunal wasted a precious opportunity to demand full
justice for the Palestinian nation. What is realistically required is an
international peacekeeping force to guarantee the withdrawal of the
Israeli miltary and police force from Palestinian territory until a
domestic law-enforcement and security force can take over; the
elimination of wall-fences, checkpoints and other barriers to the free
movement of citizens; the return of occupied land in Palestine;
financial restitution for the loss of lands and property inside the
boundaries of Israel; and an official apology for the countless crimes
committed.
Furthermore, the continuity of genocide perpetrated by the core state
structure and abetted by the complicity of much of the Israeli
population demands that the offending state must be reorganized under a
new constitution free of religious bias and racial discrimination to
ensure legal norms that prevent a repetition of genocide. This objective
should require an international occupation of Israel in event that
powerful elements in Israeli society refuse to comply with international
law. Israel should be spared the violence unleashed against the Third
Reich, but stern justice and strong rule of law are nonetheless required
in situations of ideological conformity based on the goals of genocide.
Courage and Wisdom
Whatever its few shortcomings, the Kuala Lumpur Tribunal demonstrated
immense courage, foresight and wisdom in leveling the long-overdue
charge of genocide against the State of Israel. The Tribunal correctly
framed genocide in the context of international law rather than merely
as a localized violation. The verdict along with the sophisticated
judicial opinion provides an important initiative toward deterring the
great powers from promoting and exploiting genocides among weaker
nations and victimized peoples.
The Tribunal verdict
raised not only a legal challenge to supporters of the Zionist cause in
the United States and Europe but also appealed to universal moral
principles in the tradition of high-minded rhetoric. “Much as we condemn
violence and pray for peace, it must be stated that no power on Earth
can douse the flame of freedom from the human spirit. As long as there
is suppression, there will always be people prepared to die on their
feet rather than live on their knees.”
The precedent-setting decision by the Kuala Lumpur Tribunal is a
giant step forward not only for dispossessed Palestinians but also for
humanity as a whole.
Author: Yoichi Shimatsu, an East and Southeast Asia focused journalist, is former editor of The Japan Times Weekly in Tokyo.
