From militarization to politicization

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By LEONARDO AVRITZER*

Everything indicates that there is no basis for South Africa's opening speech in The Hague, due to its fundamentally ideological character.

The Gaza war, which completed 100 days this week, has aroused all kinds of passions, in Brazil and in different parts of the world. The war began with an attack by the terrorist group Hamas on kibbutzim in the region north of the Gaza Strip, causing the death of more than 1.200 Israelis with extreme cruelty, which does not allow for any classification other than terrorism in relation to to a civilian population. There followed an Israeli response based on the so-called “right to defense”, which is part of the United Nations Charter.

From a political point of view, Israel's right to defense has been widely defended within the political and academic field. Perhaps his best defense was made in a joint article by members of the Frankfurt School: “The Hamas massacre aimed at eliminating Jewish life in general led Israel to react with an attack. How this retaliation, which is in principle justified, will be conducted is subject to controversy: principles of proportionality, prevention of civilian deaths and conducting war with the purpose of future peace must be the guiding principles.”[1]

The letter signed by four distinguished members of the Frankfurt School, Nicole Deitelhoff, Rainer Forst, Klaus Günther and Jürgen Habermas, establishes what is, in my opinion, the basis of what should be an honest intellectual debate about the current Gaza war. Unfortunately, these principles of international law are little understood in the irrational political debate taking place in Brazil.

I would like to highlight some points that make this issue even more complicated: October 07th took Israel by surprise, not only from a military point of view, but mainly from a political point of view. Governed by the most right-wing coalition in its history and with its prime minister's approval ratings collapsing, Israel chose to wage war with an unattainable objective: the destruction of Hamas. This generated an unprecedented level of military violence compared, at least, to other wars in the region, those of 1948, 1967 and 1973.

But, in addition to the level of violence that ended up causing absurd damage to the Palestinian civilian population, it is worth thinking that the biggest mistake is not military, but political. The destruction of Hamas, which, in my opinion, is a desirable objective if possible, will only be achieved politically within a long negotiation for an autonomous government in Gaza and for a Palestinian state in Gaza and the West Bank. The way Israel has acted in Gaza has led to the deaths of civilians, the destruction of infrastructure and the formation of a future generation of new Hamas members. The possibility is also being raised that Hamas will become hegemonic in the West Bank if political measures are not taken to strengthen the Palestinian Authority.

An additional question arises here and I would like to discuss it: it is whether the principle of proportionality specific to international law was followed in Gaza. Although Israel initially attempted to displace civilians from the northern part of the Gaza Strip, in accordance with Article 58 of Protocol I of the Geneva Convention,[2] as a way of minimizing civilian damage, it seems quite clear that this did not occur, either due to the capacity that Hamas developed to create military installations in areas with a heavy concentration of civilians, or due to the lack of a principle of self-restraint by the Israeli army itself.

In any case, the number of civilians killed in Gaza does not seem to comply with this principle of proportionality. Still, the question remains of how to classify it. Would it be a case of genocide or would it be a case of harm to civilians that should be treated by international law as a war crime? I will try to answer this question with an analysis of the hearings at the Hague Court on the 11th and 12th of this month.

On December 29 last year, South Africa filed a representation against Israel at the International Court of Justice in The Hague, using a figure of international law known as erga omnes, that is, the idea that any state that is a signatory to the international convention against genocide has the right to feel affected and sue the court. This legal institute has only one precedent in the history of the court, which is the case of Gambia versus Myanmar, which was accepted by the court after careful examination.

Thus, we have an international conflict with civilians killed on both sides and with a third party alleging genocide by a state, in this case the State of Israel. It is worth discussing the concept of genocide in intentional law, the 1948 international convention against genocide and, finally, the allegations made by each party in The Hague in recent days.

The concept of genocide was coined by the Polish jurist of Jewish origin Raphael Lemkin. Lemkin's personal life was marked by the military conflicts of the 20th century. In the 1920s he began studies that resulted in an essay entitled “Barbaric crime”, presented at an international conference in Madrid, in 1933. There he argued, for the first time, that only international law would be capable of preventing such crimes. Lemkin fled Warsaw on the same day as the German invasion, at the beginning of the Second World War, and managed to pass through Lithuania until reaching Sweden. Crossing the entire Soviet Union, he arrived in the United States in early 1942, where he became a professor at the dukeuniversity.

Raphael Lemkin coined the term genocide for a crime that, as Winston Churchill once said, was a crime without a name. He proposed the name genocide from a mixture of two terms, one in Greek and the other in Latin, to express attempts to eliminate ethnic groups. Raphael Lemkin had in mind not only the massacre of Jews carried out by Nazism, but also the massacre of Armenians by the Turkish regime in formation. Its objective, later incorporated into the United Nations genocide convention, was not to contemplate any crimes, but to name and standardize “the crime of crimes”.

It is precisely because genocide constitutes the crime of crimes that the criteria for establishing whether it actually occurs is quite high: it is necessary to show that there are three elements present: quantitative, that is, there must be an effort to physically eliminate the members of a certain people; there must be proof of intention (which is why the work of Raul Hilberg was so important[3] and Hannah Arendt to prove the decision to exterminate the Jews made at the Wannsee conference).

Finally, it is necessary to show an effort to implement the decision. Once again in the case of Nazi Germany, this decision involved everything from the creation of a network of railways capable of transporting Jews from Paris to Auschwitz and the intention of reducing food rations for the Warsaw ghetto to the construction of an industry of extermination of human beings implemented in the countries of Eastern Europe. Was there something similar being done in Gaza? It is the role of the International Court of Justice to find out.

The representation of South Africa and its defense by nine lawyers in The Hague had three main points, one weak and two strong: the weakest point of the representation, and especially of the first oral defense, was the attempt to temporally expand the accusation of genocide, trying to establish a relationship between colonialism and genocide, in open contradiction with the established literature on the subject (Bartov, 2023). Even though there was the case of the Herero people in Africa in 1904, usually considered genocide by the German army, the literature shows substantial differences between the massacre of the Hereros and the genocide promoted by Nazi Germany.

The same occurs in the case of the Armenian genocide, which occurred exactly at the moment when Turkey ceased to be the center of a colonial empire, the Ottoman Empire. In the German case, even if we consider the occupied European countries, it would still have to be explained the difference in treatment of Jews in relation to non-Jews in Europe and the way in which the genocide took place in the central regions of the Nazi empire, Germany and Austria. . Thus, everything indicates that there is no basis for South Africa's opening speech in The Hague, due to its fundamentally ideological character.

South Africa presented, from a technical point of view, two strong arguments: the first is that it tried to base its legal action not on the idea of ​​genocide, but on the plausibility of genocide or genocidal acts. Evidently, it is very difficult to prove the five elements of article 2 of the genocide convention, in particular that there is coercion or violence in relation to births or that children are being displaced in Gaza and handed over to other ethnic groups. Even so, the argument about humanitarian aid is almost impossible to prove.

South Africa also resorted to another argument that could have strong legal implications in the coming years, if accepted by the Hague Court: the plausibility of genocide or the commission of genocidal acts. Although all two accusations are to a lesser degree than required by the international convention on genocide, South Africa may have a strong point in having broken new ground on this issue.

In this case, it would be necessary to recognize that, even though there was no intention or explicit order from the Israeli government for these acts to be committed, that the form of the military operation led to the excessive death of civilians. The court can thus issue a desperately needed cessation of conflict order, even without recognizing the elements of genocide. This is a possible solution, which will point to greater activism by the court in armed conflicts and which can significantly improve international human rights institutions.

Still, there remains one issue that the international court cannot ignore, which is the statements in favor of ethnic cleansing made by Israeli far-right cabinet ministers. South Africa also argued, and in this case rightly so, that Israel ignored or at least failed to punish incitements to genocide or ethnic cleansing by cabinet members.

Thus, in the two strong points that South Africa highlighted, we moved from the militarization of the conflict in Gaza to politicization, which will depend on the formation of a political force capable of governing the enclave at the end of hostilities. Whether this political force will be Palestinian, pan-Arab or international will depend on the correlation of forces and how the Palestinian Authority will restructure itself at the end of the conflict. Still, any of these forces will depend on a change of government and stance on the part of the state of Israel.

*Leonardo Avritzer He is a professor at the Department of Political Science at UFMG. Author, among other books, of Impasses of democracy in Brazil (Brazilian civilization) [https://amzn.to/3rHx9Yl]

Originally published on GGN newspaper.

Notes


[1] https://www.normativeorders.net/2023/grundsatze-der-solidaritat/

[2] https://ihl-databases.icrc.org/fr/customary-ihl/v2/rule24

[3] Hilberg, Raul. The destruction of European Jews.


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