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Commentary: Between law and politics
Published in Al-Ahram Weekly on 10 - 03 - 2005

In calling for Ariel Sharon to be prosecuted as an international criminal, London's mayor poses the choice between a world governed by the rule of law and a world based simply on the convenience of power, writes Curtis Doebbler*
Recently London Mayor accused Israel of ethnic cleansing and called for the arrest of Israeli Prime Minister Ariel Sharon as an international criminal for his crimes against the Palestinians.
As one might expect, the Israeli government reacted with outrage, demanding that Livingstone apologise. International law and history, however, seem to require otherwise.
A glimpse back at recent history indicates, as Livingstone stated, that many groups have been persecuted in the past.
The Jews -- among other minorities -- were persecuted by the Nazis. There is no question that this was a terrible cruelty, affected by a government that claimed to want to exterminate the Jewish population entirely.
Muslims have been persecuted too. In Algeria, French colonial government brutally dispensed with Muslim claims to self-determination. In Libya, Hitler's Italian allies in 1931 summarily executed Omar Mukhtar for trying to realise the same ambition. After World War II, Italian General Rodolfo Graziani was found to be a war criminal for his role in suppressing Libyan self-determination. And perhaps the most deadly of campaigns against Muslims were the religiously motivated European crusades.
History does not justify persecution. One might think that it would teach us not to make the same mistakes our predecessors made. One might think that the Jews, for example, having being persecuted, would not persecute others. Indeed, having lived through such a horrific tragedy as the holocaust, one might have thought the Jews would be the people most willing to avoid its repetition.
This has not been the case and the situation is more complex still, in that the Jews who founded Israel were already busy with their own persecution of Muslims in Palestine when they were confronted by Nazi persecution. The confiscation of Palestinian land and the attempt to imposed conditions of life on Palestinians to drive them from their homes did not begin after the Jews were persecuted in World War II. Already by the beginning of the 20th century it was well underway.
In the 1920's Palestinians relentlessly, and with little effect, tried to convince the British occupiers of their land to limit its confiscation by Jews immigrating to Palestine under the pretext of an ancient right. By the start of World War II, one of Israel's founders, Ben Gurion, was writing of a fait compli whereby the leaders of the new State of Israel were now in a position to remove "the Arabs and take their place".
Needless to say the confiscation of Palestinian land was a serious violation of international law. This law does not recognise the right of peoples to take land based on title claims that are several thousand years old and that have remained dormant all those years. Instead, international law recognises the right of peoples who have lived on land for hundreds of years to acquire title to that land and more importantly to be able to exercise their right to self-determination. In violation of this law the Palestinians were herded like slaves of the British into a partitioned state in 1948 that ironically, just like apartheid in South Africa for many years, received the blessing of the United Nations.
But Livingstone was not giving a lesson in history. He was talking about what is happening today and how that violates international law. Surely he was being blunt, but he was not, as the Israeli ambassador himself was doing, misrepresenting the law when he called Israel's action in Palestine "ethnic cleansing", although he might have been more specific.
The crimes of which Livingstone spoke that are being perpetrated by Israel on the Palestinians are best understood as crimes against humanity or the crime of genocide.
The distinction between the two is small, but important. But it is equally important to emphasise that ethnic cleansing can be either crime, depending on slightly different conditions being met.
Perhaps the crime against humanity that best describes Israel's action is the crime of persecution on political and religious grounds. The intention, or mens rea, of persecution must be to use force against members of a group in a way that causes serious violations of their human rights. The Israeli policy of assassinations is evidence enough of the crime of persecution. It is a policy of the state. It involves the use of force. And it is aimed at individuals whose politics the Israelis do not like.
There can be little doubt that Israel's consistent use of force to arbitrarily kill Palestinians in the occupied territories is a crime against humanity.
There are many more such crimes. A half century of horrifying human rights reports by credible NGOs and governments have documented these abuses. The United Nations, despite the obstruction of the United States, has even been driven to form a special commission answerable to the General Assembly to record the gross and systematic violations of the human rights of Palestinians.
The acts these bodies have recorded include arbitrary killing or murder of men, women and children; the imposition of inhumane conditions of life on Palestinians that have the consequences of exterminating them; the willful causing of physical injury and suffering or torture; the deportation and confinement of civilians; and the taking of civilians as hostages. This is not a complete but only partial list of all the acts Israel undertakes that are crimes against humanity as well as war crimes.
The crime of genocide is committed when an individual acts with intent to destroy, in whole or in part, a national, ethnic, racial or religious group. Thus the additional element is the intention to destroy the group. This difference can be seen in the statement of the International Criminal Tribunal for the Former Yugoslavia that was charged with deciding cases concerning crimes against humanity and genocide. The tribunal has held in the Kupreskic and Others Case that "when persecution escalates to the extreme form of willful and deliberate acts designed to destroy a group or part of a group, it can be held that such persecution amounts to genocide."
Ironically, the term "genocide" was coined by Raphael Lemkin in the aftermath of the Nazi persecution of the Jews. He thought that persecution was so serious that there must be a worldwide prohibition that would prevent this from happening again. His efforts lead to the adoption of the Genocide Convention in 1951, which almost every state in the international community is a party to, including Israel. Unfortunately, Israel seems to have used this treaty to develop state policy instead of viewing it as a restriction on such policies.
This can be seen in a comparison of Israel's policies towards the Palestinians with the Genocide Convention. The convention lists specific acts as prohibited when they are intended to destroy part or a whole group of people, such as the Palestinians, who have a national, religious and ethnic identity. The Palestinians are without doubt the type of group that this treaty was intended to protect. The listed acts include killing members of the group, causing serious bodily or mental harm to members of the group, and deliberately inflicting upon members of the group conditions of life calculated to bring about the physical destruction of the group in whole or in part.
Again, the Israeli policy of targeted killings and its liberal use of force clearly meet the criteria of killing members of the group. The thousands of Palestinian fatalities attest to this. The state policy allowing security forces to torture detained persons undoubtedly causes serious physical and mental harm to the thousands of Palestinians who have been subject to it. And the wall being constructed by Israel is one example of action that causes mental distress for Palestinians and can be interpreted as an act meant to deliberately inflict upon Palestinians conditions of life calculated to bring about the physical destruction of the group in whole or in part by depriving them of their ability to acquire education, adequate work and development.
If Sharon was put in the dock as Livingstone has suggested would be appropriate, and as international law surely indicates is appropriate, he might challenge the most difficult constituent of the crime of genocide. In doing so he would be arguing that he is only guilty of crimes against humanity, but like many international criminals before him he would be entitled to raise all relevant defences. The element of the crime of genocide that he might challenge would be the mens rea or dolus specialis of intending to destroy the Palestinians in whole or part. This element is so difficult to prove that one prominent scholar who several years ago penned a treatise on the crime of genocide claimed that it might be impossible to ever convict someone of the crime. He was wrong.
In 1998, several cases before the International Criminal Tribunal for Rwanda found individuals guilty of genocide. One of these cases involved the former prime minister of Rwanda Jean Kambanda. The charges did not claim that Kambanda himself actually did anything, but merely that as prime minister he should have taken steps to stop an ongoing massacre. In other words, the act, or actus reus, was a failure to act. But it is the intention, or mens rea, which concerns us here. In relation to intention, the tribunal recognised the difficulties involved in proving intention and thus decided that the "perpetrator's actions, including circumstantial evidence, however may provide sufficient evidence of intent." The tribunal found several facts to constitute evidence of intention.
First, there was the large number of members of the group that were targeted by actions that Kambanda did not prevent. Sharon's policies have targeted at least every Palestinian living in the occupied territories; estimated at more than four million.
Second, there was the fact that the actions that took place were part of a policy or plan. This was established because Kambanda was prime minister at the time the alleged massacres took place and they were acts that could not reasonably be believed to have taken place without some indirect involvement on the part of the state. Similarly, the killing and persecution of the Palestinian people is continuing on Sharon's watch and there is overwhelming evidence of this being done as part of his government's policy. Even since the ceasefire agreed in Egypt on 8 February 2005, Israeli soldiers have continued killing, including the shooting to death of two children.
If Kambanda had the intention to commit genocide there can be no doubt that Sharon can be found to have the same intention. The question that should have been put to Livingston, therefore, was not whether Sharon should be prosecuted as an international criminal, but how this can be done.
Like its paymaster the US, Israel has done its best to shield itself from the reach of international law. Like America it frequently ratifies human rights treaties but then just as quickly indicates its bad faith in implementing their provisions by failing to submit to the individual complaint procedures that require separate agreement.
But Livingston, having faith in the United Kingdom's adherence to the rule of law may have been thinking of his own country's forums for justice. Indeed, not so long ago the UK's courts indirectly allowed the prosecution of General Augusto Pinochet to go ahead by ruling that he could be extradited to Spain to stand trial. It is true that the British government wiggled out of this surprisingly honest application of the law by finding health grounds upon which to send the Pinochet back to Chile. But the British government must have been embarrassed when Chilean courts held that Pinochet was healthy enough to stand trial.
Perhaps Livingstone was thinking that this embarrassment, and the subsequent faux paux of becoming ensnared in the legal quagmire of Iraq, might have encouraged his government to take extra steps to ensure respect for the law. Perhaps he was thinking that although it might be difficult to prosecute Sharon at this moment, preparations should be made, nonetheless, for the day he leaves office.
In any event, there can be little doubt that Livingstone had the law on his side when he challenged his country and the world to prosecute Sharon as an international criminal. Consequently, there can be equally little doubt that the criticism that has come his way is based on subjective political interests, not the rule of law.
Maybe the time has come where we decide whether we are to live in an international community respecting the rule of law or the rule of political convenience. This is perhaps what Livingstone was asking.
* The writer is professor of law at An-Najah National University in Nablus, Palestine, where he teaches international criminal law.


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