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| IMAGE: The Guardian 30 March 2024 |
United Nations, The Question of Palestine
Anatomy of a Genocide – Report of the Special Rapporteur on the situation of human rights in the Palestinian territory occupied since 1967 to Human Rights Council – Advance unedited version (A/HRC/55/73)
March 24, 2024
Human Rights Council
Fifty-fifth session
26 February–5 April 2024
Agenda item 7
Human Rights situation in Palestine and other occupied Arab territories
Anatomy of a Genocide
Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Francesca Albanese*
Summary
After five months of military operations, Israel has destroyed Gaza. Over 30,000 Palestinians have been killed, including more than 13,000 children. Over 12,000 are presumed dead and 71,000 injured, many with life-changing mutilations. Seventy percent of residential areas have been destroyed. Eighty percent of the whole population has been forcibly displaced. Thousands of families have lost loved ones or have been wiped out. Many could not bury and mourn their relatives, forced instead to leave their bodies decomposing in homes, in the street or under the rubble. Thousands have been detained and systematically subjected to inhuman and degrading treatment. The incalculable collective trauma will be experienced for generations to come.
By analysing the patterns of violence and Israel’s policies in its onslaught on Gaza, this report concludes that there are reasonable grounds to believe that the threshold indicating Israel’s commission of genocide is met. One of the key findings is that Israel’s executive and military leadership and soldiers have intentionally distorted jus in bello principles, subverting their protective functions, in an attempt to legitimize genocidal violence against the Palestinian people.
…
Conclusions
93. This report finds that there are reasonable grounds to believe that the threshold indicating the commission of the following acts of genocide against Palestinians in Gaza has been met: killing members of the group; causing serious bodily or mental harm to groups’ members; and deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part. Genocidal acts were approved and given effect following statements of genocidal intent issued by senior military and government officials.
94. Israel has sought to conceal its eliminationist conduct of hostilities sanctioning the commission of international crimes as IHL-abiding. Distorting IHL customary rules, including distinction, proportionality and precautions, Israel has de facto treated an entire protected group and its life-sustaining infrastructure as ‘terrorist’ or ‘terrorist-supporting’, thus transforming everything and everyone into either a target or collateral damage, hence killable or destroyable. In this way, no Palestinian in Gaza is safe by definition. This has had devastating, intentional effects, costing the lives of tens of thousands of Palestinians, destroying the fabric of life in Gaza and causing irreparable harm to its entire population.
95. Israel’s genocide on the Palestinians in Gaza is an escalatory stage of a longstanding settler colonial process of erasure. For over seven decades this process has suffocated the Palestinian people as a group – demographically, culturally, economically and politically –, seeking to displace it and expropriate and control its land and resources. The ongoing Nakba must be stopped and remedied once and for all. This is an imperative owed to the victims of this highly preventable tragedy, and to future generations in that land.
VIII. Recommendations
96. The Special Rapporteur urges member states to enforce the prohibition of genocide in accordance with their non-derogable obligations.309 Israel and those states that have been complicit in what can be reasonably concluded to constitute genocide must be held accountable and deliver reparations commensurate with the destruction, death and harm inflicted on the Palestinian people.
97. The Special Rapporteur recommends that member states:
(a) Immediately implement an arms embargo on Israel, as it appears to have failed to comply with the binding measures ordered by the ICJ on 26 January 2024, as well as other economic and political measures necessary to ensure an immediate and lasting ceasefire and to restore respect for international law, including sanctions;
(b) Support South Africa having resort to the UNSC under article 94(2) of the UN Charter following Israel’s non-compliance with the above-mentioned ICJ measures;
(c) Act to ensure a thorough, independent and transparent investigation of all violations of international law committed by all actors, including those amounting to war crimes, crimes against humanity and the crime of genocide, including:
(i) cooperating with international independent fact-finding/ investigative and accountability mechanisms;
(ii) referring the situation in Palestine to the ICC immediately, in support of its ongoing investigation;
(iii) discharging their obligations under the principles of universal jurisdiction, ensuring genuine investigations and prosecutions of individuals who are suspected of having committed, or aided or abetted, in the commission of international crimes, including genocide, starting with their own nationals;
(d) Ensure that Israel, as well as States who have been complicit in the Gaza genocide, acknowledge the colossal harm done, commit to non-repetition, with measures for prevention, full reparations, including the full cost of the reconstruction of Gaza, for which the establishment of a register of damage with an accompanying verification and mass claims process is recommended;
(e) Within the General Assembly, develop a plan to end the unlawful and unsustainable status quo constituting the root cause of the latest escalation, which ultimately culminated in the Gaza genocide, including through the reconstitution of the UN Special Committee against Apartheid to comprehensively address the situation in Palestine, and stand ready to implement diplomatic, economic and political measures provided under the United Nations Charter in case of non-compliance by Israel;
(f) In the short term and as a temporary measure, in consultation with the State of Palestine, deploy an international protective presence to constrain the violence routinely used against Palestinians in the occupied Palestinian territory;
(g) Ensure that UNRWA is properly funded to enable it to meet the increased needs of Palestinians in Gaza.
98. The Special Rapporteur calls on the Office of the High Commissioner for Human Rights to enhance its efforts to end the current atrocities in Gaza, including by promoting and accurately applying International Law, notably the Genocide Convention, in the context of the oPt as a whole.....
The full 25 page report can be found and downloaded at:
Further excerpts.....
III. Legal Framework
15. The 1948 Convention on the Prevention and Punishment of the Crime of Genocide
(“the Convention”) codifies genocide as an international crime the prohibition of which is a
non-derogable peremptory norm (jus cogens). The erga omnes obligation to prevent and punish genocide binds all states under both the Convention and customary international law and requires them all to prevent and prosecute genocidal acts.31 Genocide cannot be justified under any circumstances, including purported self-defence.32 Complicity is expressly prohibited, giving rise to obligations for third states.33 16. The ICJ and the International Criminal Court (“ICC”) have jurisdiction over the crime of genocide,34 and so do State domestic courts. Prior to the establishment of the ICC, ad hoc international criminal tribunals advanced their interpretation of what constitutes genocide,35 its intent and required evidence.36
A. Constitutive elements of genocide
17. The Convention codifies genocide as “any of the [specified] acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”37
Accordingly, the crime of genocide comprises two interconnected elements:
(a) The actus reus: the commission of any one or more specific acts against a protected group, namely:
(i) killing members of the group;
(ii) causing serious bodily or mental harm to members of the group;
(iii) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(iv) imposing measures intended to prevent births within the group;
(v) forcibly transferring children of the group to another group.38
(b) The mens rea: the intent behind the commission of one or more of the abovementioned acts that must be established, which includes two intertwined elements:
(i) a general intention to carry out the criminal acts (dolus generalis), and
(ii) a specific intention to destroy the target group as such (dolus specialis).39
18. Both components must be satisfied for conduct to legally constitute genocide.40 The perpetrator’s intent to destroy the group in whole or in part distinguishes genocidal acts from other international crimes.41 Specific intent may be established by direct evidence, e.g. statements by high command or official documents, or inferred from patterns of conduct.42
In the latter case, the patterns of conduct or the manner in which the acts are perpetrated must be such that they “only point to the existence of such [genocidal] intent”,43 and the existence of intent results in “the only inference that could reasonably be drawn.”44
19. Evidence of the result is required to establish the commission of three of the underlying acts (killing, inflicting harm and transferring children).45 For the remaining two acts (inflicting conditions calculated to destroy the group and preventing births), the evidentiary threshold requires proof of an intent to achieve a given outcome, rather than its achievement. 46 Accordingly, if displacement, ethnic cleansing or mass deportation are perpetrated with the requisite intent to destroy the protected group as such, this may amount to genocide.47 Similarly, these displacement actions can also be evidence of specific genocidal intent.48.....
IV. Genocidal Acts in Gaza
21. Genocidal acts can include deliberate actions or omissions, including the failure to protect the group from harm.54 The evidence presented in the following sections suggests Israel has committed at least three of the acts proscribed in the Convention.
A. “Killing Members of the Group”
22. This act encompasses deaths resulting from direct actions or arising from neglect, including those caused by deliberate starvation, disease or other survival-threatening conditions imposed on the group.55
23. Since 7 October, Israel has killed over 30,000 Palestinians in Gaza, equivalent to approximately 1.4 percent of its population, through lethal weapons and deliberate imposition of life-threatening conditions. By the end of February, a further 12,000 Palestinians were reported missing, presumed dead under the rubble.56
24. During the first months of the campaign, Israel’s army employed over 25,000 tons of explosives (equivalent to two nuclear bombs)57 on innumerable buildings, many of which were identified as targets by Artificial Intelligence.58 Israel used unguided munitions (“dumb bombs”)59 and 2000-pound “bunker buster” bombs on densely populated areas and “safe
zones”.60 In the initial weeks, Israeli forces killed around 250 people daily, including 100 children,61 in attacks obliterating entire neighbourhoods and essential infrastructure.62 Thousands were killed by bombing, sniper fire or in summary executions;63 thousands more were killed while fleeing via routes and in areas declared “safe” by Israel.64 The victims
included 125 journalists and 340 doctors, nurses and other health workers (four percent of Gaza’s healthcare personnel), students, academics, scientists and their family members.65
25. Seventy percent of recorded deaths have consistently been women and children. Israel
failed to prove that the remaining 30 percent, i.e. adult males, were active Hamas combatants – a necessary condition for them to be lawfully targeted. By early-December, Israel’s security advisors claimed the killing of “7,000 terrorists” in a stage of the campaign when less than 5,000 adult males in total had been identified among the casualties, thus implying that all adult males killed were “terrorists”.66 This is indicative of an intent to indiscriminately target members of the protected group, assimilating them to active fighter status by default.
26. Moreover, Israel’s heightened blockade of Gaza has caused death by starvation, including 10 children daily, by impeding access to vital supplies.67 Lack of hygiene and overcrowded shelters could cause more deaths than bombings,68 having created “the perfect storm for disease”.69 A quarter of Gaza’s population could die from preventable health conditions within a year.70....
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