Last week a weighty tome released by the controversial UN Human Rights Council arrived on my desk. The council you may recall, is controversial for its appointment of Ali Bahreini, Ambassador of the Islamic Republic of Iran to chair its 2023 social forum.
The report: “Legal analysis of the conduct of Israel in Gaza pursuant to the Convention on the Prevention and Punishment of the Crime of Genocide” issued as a “Conference room paper of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel” is significant for a number of reasons.
Firstly because it was signed off by South Africa’s Navi Pillay, a “Jurist and former President of the International Criminal Tribunal for Rwanda”, its findings thus pre-empt the outcome of an ongoing legal process in which South Africa is a party to a complaint brought before the International Court of Justice on 29 December 2023 regarding Israel’s conduct in Gaza.
Secondly, the UNHRC is not a court of law, and its determinations are not enforceable as such. The document thus purports to be a “Legal Analysis” yet begins with a series of a priori findings, for example the statement “previous reports to the Human Rights Council and the General Assembly, the Commission found that the Israeli security forces have committed crimes against humanity and war crimes”.
Thirdly, the legal framework that is offered up by way of this ‘analysis’ suggests the council is more interested in apportioning original sin, actus rea (prohibited or guilty acts), than it is in delivering a legal opinion. One has merely to examine the standard of proof ‘reasonable grounds to conclude’ and the outline of what is meant by the term “Genocide”.
Where is the intent?
The report notably avoids any analysis of the critical ‘specific intention’ requirement for the crime of genocide (dolus specialis) by focusing on mens rea (ability to comprehend a criminal act) to make out a case that appears to be one of ‘dolus eventualis‘, in other words, Israel should have foreseen that its actions in Gaza would result in the deaths and suffering of the protected group in question.
However dolus eventualis is not the current standard of proof in this crime. None of the points raised in its preliminary statements make any sense given the context of the acts referred to during a period of a defensive war, however they make a lot more sense if Hamas are entirely absent from the battlefield. The UNHRC thus proceeds to aver the bizarre situation in which there is not a single combatant in Gaza, only victims.
Inversion of Reality
In its ‘Summary of factual findings’ UNHRC makes an astonishing claim: “On 7 October 2023, Israel launched its military offensive in Gaza, which included airstrikes and ground operations. The hostilities since then have seen tens of thousands of deaths …”
Not only is this statement a blatant fabrication and inversion of reality, but it casts a defensive war as an offensive campaign in order to fit the logic of a narrative in which Israel is a priori guilty of genocidal acts. As a witness to the livestreamed Jihad which occurred on a Jewish holiday, the 50th Anniversary of the Yom Kippur War, I can tell you that I am shocked to see Navi Pillay parroting a political position, posing as a legal opinion.
The claim that Israel is the aggressor in this conflict, responsible for launching an attack against Gaza on 7 October 2023 must be rejected . And no matter how one views the conduct of war, (I am opposed to war as a means to solve political disputes), there is no room for dishonesty when it comes to defending the rights of all people in the region, to live in peace and harmony.
Claims are not new
These self-serving ‘genocide’ claims are not new claims, and have been repeatedly stated by government officials including Naledi Pandor and our own President Cyril Ramaphosa. His address on the anniversary of the conflict last year was replete with facetious allegations that the event ‘marked the start of the onslaught against Gaza’, not the launch of Operation Al Aqsa Flood by Hamas.
In 2020 President Mahmoud Abbas claimed Israel has caused “50 Holocausts” against the Palestinians. The claim is central to Nakba theology, where the Nakba itself is a claim of genocide.
In a similar vein, the Nakba is commonly alleged to have “began during the 1948 Palestine war“. During the war, “Zionist forces” are said to have “conquered territory and established the State of Israel, over 700,000 Palestinians fled or were expelled.” I am quoting the current Wikipedia article to demonstrate the manner in which the 1948 Arab-Israel War — in which 5 Arab States attacked the fledgling state, seeking to eliminate the Yishuv comprising all Jews living in Palestine before the first Zionist immigration wave (aliyah) of 1882 — has been stripped of any context, in order to support claims being made upon the world stage — that Israel is genocidal, and its creation was an act of genocide.
If no Arab armies attacked Israel in 1948 and instead Israel attacked Gaza on 7 October 2023, I can only imagine what the youth of today must think of the situation.