While most of the world outside of Washington and Jerusalem chooses to ignore calls identifying Palestinian terrorism as attempted genocide, international law has an unswerving and renewed obligation to do so.
The UN’s International Court of Justice at The Hague recently chose not to rule on the manifest illegality of Palestinian terrorism or Palestinian calls for genocide, preferring instead to consider the legality of Israel’s “fence” that is designed only to prevent anti-Israel terror and genocide.
The norms and principles of international law should be invoked in time – before calls for genocide against Israel’s Jews are allowed to become the foreign policy of certain Islamic states and/or terror groups armed with chemical, biological or even nuclear weapons. Lest anyone be overly optimistic, the fusion of genocidal intent with genocidal capacity is now almost within reach of several states anxious to excise the “Jewish cancer” from the Dar al Islam, the “world of Islam” in the Middle East. Presently, there is a special urgency regarding non-Arab Iran, which is making steady progress toward nuclear weapons capacity in spite of threatened sanctions from the United States and from the International Atomic Energy Agency (IAEA).
Let us return to the Palestinian Authority. The PA and its associates are additionally obligated to refrain from incitement against Israel. The Interim Agreement (Oslo 2) states, Article XXII, that Israel and the PA “shall seek to foster mutual understanding and tolerance and shall accordingly abstain from incitement, including hostile propaganda, against each other….” In the Note for the Record which accompanies the Hebron Protocol of January 15, 1997, the PA reaffirmed its commitment regarding “Preventing Incitement and Hostile Propaganda, as specified in Article XXII of the Interim Agreement.”
What has not been broadly acknowledged is that the Genocide Convention criminalizes not only the various acts of genocide, but also (Article III) conspiracy to commit genocide and direct and public incitement to commit genocide. Articles II, III and IV of the Genocide Convention are fully applicable in all cases of direct and public incitement to commit genocide. For the Convention to be invoked, it is sufficient that “any one of the State parties call for a meeting, through the United Nations, of all the State parties” (Article VIII). Although this has never been done, the United States should consider very seriously taking this step while there is still time. Israel, too, should be an obvious co-participant in this call, but it is unlikely that a government in Jerusalem, correctly aware of still-expanding global indifference to Jewish life, will seek redress under multilateral conventions. An alternative remedy, proposed by Israeli attorney Nitsana Darshan-Leitner, would involve the issuance of specific criminal indictments for crimes against humanity by Israel’s Justice Ministry to key Palestinian broadcasters and journalists now engaged in daily anti-Semitic harangues.
Says Darshan-Leitner correctly: “Those who operate Palestinian television and radio stations and the printing presses engaged in hate speech should be arrested along with the other suspected killers.”
A public trial before an Israeli tribunal would have its geopolitical risks, to be sure. As no Arab authority could ever be expected to extradite alleged wrongdoers to Israel for trial, it would inevitably be up to Israeli military and police authorities to acquire custody over defendants. This is the case although such expected Arab disregard for Israeli extradition requests would be a manifestly serious violation of international criminal law.
Even if an Israeli trial could afford opportunity for a direct evidentiary connection between Palestinian media incitement and Palestinian terrorism, much of the world would be focused instead on the means by which Israel took custody of the inciters. After all, when Israel captured major Nazi war criminal Adolph Eichmann in 1960, more states chose to condemn the abduction than to recall the prisoner’s role as murderer of one million Jewish children.
The Genocide Convention, the London Charter and the recent ICTR decision on Rwanda are not the only authoritative codifications that should now be invoked against relentless Palestinian media and leadership calls for the mass killing of Jews. The 1965 International Convention on the Elimination of All Forms of Racial Discrimination should also be brought productively into play. This treaty condemns “all propaganda and all organizations which attempt to justify or promote racial hatred and discrimination in any form,” obliging state parties to declare as “an offense punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons” (Article 4(a). Article 4(b) affirms that State parties “Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offense punishable by law.” Further authority for curtailing and punishing Palestinian calls for genocidal destruction of Jews can be found at Article 20(2) of the International Covenant on Civil and Political Rights: “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”
The overriding point of the judgments at Nuremberg was to ensure that all future crimes against humanity be identified, prosecuted and punished. Fully aware of these judgments, the International Criminal Tribunal in Rwanda recently ruled that “mere words” can contain substantial criminal liability, and may warrant very severe punishments. Understood in terms of ongoing homicidal and genocidal Arab calls for violence against Israel, it is essential that every state in the United Nations now be reminded of its binding obligation not to encourage another Holocaust. This is an obligation not to be taken lightly.
Copyright (c) The Jewish Press, 2004. All rights reserved.
LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is the author of many books and articles dealing with genocide, terrorism, war and international law. Strategic and Military Affairs columnist for THE JEWISH PRESS, he is Professor of International Law at Purdue University, and is currently participating in the preparation of legal arguments for the prosecution of Saddam Hussein.