By Mark LeVine and Eric Cheyfitz
May 02 2017
Israeli Officials’ Position on the Destruction of Palestine
In recent years, several Israeli officials and leading media outlets have suggested the state’s “right” to eradicate Palestinians, and have called for large-scale murder and even genocide of Palestinians. For example, the Chief Army Rabbi, Eyal Qarim, has explicitly advocated the rape of “gentile women”—in this case Palestinians, while the current Justice Minister, Ayelet Shaked, declared that “the entire Palestinian people is the enemy” and called for its destruction, “including its elderly and its women, its cities and its villages, its property and its infrastructure.” As should be clear from the discussion above, Shaked’s statement is an unambiguous call for genocide, and similar calls are being made by senior Israeli officials who directly shape the policies of the government and influence attitudes of soldiers towards Palestinians.
Although the standards and consequences of incitement in international case law remain underdeveloped, the United States Holocaust Museum declares that “public incitement to genocide can be prosecuted even if genocide is never perpetrated.” The power of this language regarding incitement could be mobilized in regard to ubiquitous calls for “death to Arabs” or certain officials’ stated desire to turn Gaza into “a graveyard.” With each passing year, accusations of incitement to commit genocide are becoming increasingly plausible, especially when linked to large-scale crimes that have been committed in the assaults on Gaza over the last decade.
Despite the heinousness of Israel’s actions in the occupied territories, under the current legal interpretations of genocide, it would be practically impossible to prosecute any Israeli leaders or state-sponsored individuals for this crime. Quite simply, the number of people killed and their percentage in the larger Palestinian population in the historic homeland or in diaspora do not rise to the levels that have occurred in conflicts where genocide prosecutions have taken place, given that current interpretations and enforcement proceedings hinge on the issue of “scale.”
If we focus on the most recent conflicts, in Gaza in 2008-09 and 2014, the numbers of civilian deaths are approximately nine hundred in 2008-09 and fifteen hundred in 2014. Another one hundred-plus civilian were killed during the briefer but still intense 2012 conflict. All told, the number of Palestinians killed by Israel during the last fifty years constitutes less than one percent of the worldwide Palestinian population today.
These numbers are horrific and unjustifiable by any legitimate military or strategic logic based on the criteria of distinction and proportionality or the laws of belligerent occupation, which limits the use of force by an occupying power to policing and prohibits the kinds of heavy weapons and indiscriminate attacks favored by Israel. (We do not discuss Israeli casualties and deaths or the use of terrorism by Palestinians here, both because no serious argument has been or can be made that they constitute an attempt or even incitement to genocide and because the intent and scope of Palestinian violence against Israelis does not excuse or mitigate Israeli violations of international law and are thus irrelevant to this discussion.) The question before us is whether, in the context of the evolving legal and jurisprudential history of genocide described above, the level of violence against Palestinians, both the numbers of dead and the far greater numbers of wounded, imprisoned, pushed from their lands and otherwise suffering from Israeli war crimes, crimes against humanity, apartheid, and the everyday structural violence of a half century of occupation, rises to the level of genocide as defined in international law.
Many critics of Israeli state violence, including some Israeli and non-Israeli Jews and even Vatican officials, have in fact compared the situation in Gaza to the plight of Jews in Nazi concentration camps or the Warsaw Ghetto. Statistically the comparison does not hold; ninety-eight percent of Warsaw's Jews ultimately perished, while sixty-three percent of Europe's pre-war Jewish population were killed during the Holocaust, compared with .5 Gazans and .2 percent total Palestinians killed since Israel withdrew its soldiers and settlers from Gaza in 2005. In comparison, upwards of eight hundred thousand Rwandan Tutsis (seventy-five percent of the population) were murdered during the hundred days of genocide in 1994, while over two hundred thousand Bosnian Muslims (ten percent of the pre-war Muslim population) were killed by Serbs between 1993 and 1995.
If we move beyond the number of Palestinians killed by Israel to other aspects of life under occupation, including the siege of Gaza since 2005 (which is an illegal form of collective punishment and a crime against humanity), the occupation clearly has taken a high toll on Palestinian economic, social, and political development, including devastating effects related to the most basic human development levels such as malnutrition and food insecurity (which reached chronic levels, as the World Health Organization, Red Cross, and other relief organizations have documented). Harvard University scholar Sara Roy aptly has described the overall trend as far beyond mere frustrated or stunted development; reaching rather a condition she terms “de-development,” meaning that Israel has actively pushed back the trajectory of development within Palestinian society.
Yet despite more than a half century of occupation, Palestinian society remains surprisingly vibrant and resilient, a “lower middle income” country whose gross levels of human development have increased significantly in the last four decades—certainly not as much as if Palestine had been an independent country, but greater than other Arab countries like Egypt or Syria (before the war). We do not argue that these figures somehow indicate a beneficent Israeli rule. Far from it; there are numerous reasons why Palestinian human development levels have increased that have nothing to do with Israeli policies, including remittances from family members working abroad and highly distortive levels of foreign aid. Moreover, the conditions of life in Palestinian refugee camps, particularly outside historical Palestine, remain far more severe than those within the occupied territories.
The question could be raised as to how the present levels of Palestinian human development would be understood in reference to a claim of incitement, conspiracy, or intent to commit genocide. We believe that Israeli officials would argue that, given their ability to inflict far greater damage on Gaza, the situation demonstrates a lack of intent to commit genocide under the current legal definition. Indeed, they have repeatedly and successfully argued that their use of force was comparatively measured by utilizing such indicators. Similarly, the desire of Israeli leaders to “keep Gaza's economy on the brink of collapse” (cited in documents released by WikiLeaks quoting Israeli diplomats) indicates the intent to commit crimes against humanity, since doing so would involve repeated violations of Article 147 of the Fourth Geneva Convention.
What might we conclude if we looked at the totality of the occupation in terms of the legal definitions of genocide? Could we argue, following Israeli historian Ilan Pappé, that the full measure of Israel's actions over half a century constitutes what he has termed an “incremental genocide”? Under the present legal understanding of genocide, the answer is most likely no, not least because no such temporal categorization has ever been recognized by the relevant courts. But Pappé is not the only one to deploy such a concept. In West Papua, Indonesia, Indigenous Papuans’ lives have been brutally disrupted by one of the world's biggest mining operations. Researchers and advocates have warned that the community is suffering“slow motion genocide” as the mines destroy their habitat and way of life. This is compounded by the government’s systematic discrimination and treatment of them as an “enemy,” and the increasing presence of non-Papuan Indonesians who have made them a minority in their own territories.
The West Papuan dynamics are not that different from those in other settler colonial settings such as Australia or Israel/Palestine. Analyzing the situation in Papua, genocide scholar Kjell Anderson argues for “developing a new analytical model" to delineate different degrees and timeframes of genocide. Specifically, Anderson distinguishes “high-intensity ‘hot’ genocides” epitomized by the Holocaust, and what he calls “atypical,” “cold,” or “slow motion genocides.” These do not involve mass murder, but rather occur “incrementally, over years, or even generations.” Crucially, Anderson argues,
Colonial or neo-colonial genocides targeting indigenous peoples often occur in such a manner. In these cases the physical destruction of the indigenous people may not be directly intended; rather, the perpetrators substantially undermine the foundations of existence for indigenous groups through systemic oppression or wilfully reckless policies. These policies are often rooted in dehumanising constructions of indigeneity whereby indigenous people are said to be primitive obstacles to the progress of civilization and the collective interests of the legitimate political community.
Would Israel's treatment of Palestinians fit Anderson's criteria for slow motion or cold genocide? On the one hand, his model is certainly closer to the situation on the ground than the traditional legal definition of genocide with its focus on the extent of intended or actual death and communal disintegration. On the other hand, even the most incremental or slow-motion attempt to “destroy” the Palestinian population would, after this much time, have taken a far higher toll on the population than has in fact has happened, or which has been suffered by the inhabitants of Western Papua. The issue of “scale” remains paramount to the legal calculus.
For these reasons, we feel it is important to raise awareness about the expanding scholarly understanding of genocide precisely because such discussions can and should ultimately lead to similar discussions in the relevant international tribunals. The idea of establishing a scale of genocidal behaviour (not to be confused with incitement, conspiracy, or intent to commit genocide) that would include the experiences of groups such as West Papuans and Palestinians, and in the process also reintegrate concepts like cultural and political genocide (originally termed “politicide”) into the matrix of legal meanings is worthy of study by scholars and advocates. Such an approach would seem to make room for the concepts of incipient (Shaw), incremental (Pappé), or slow motion (Anderson) genocides discussed here to become part of the legal discussion as the term evolves.
However, in the current legal environment, we believe it would be very difficult to prove that the Israeli government has intended or conspired to commit genocide during the occupation (whether incremental or concentrated). (Others have reached the opposite conclusion, including, most recently, an analysis published by the Center for Constitutional Rights titled “The Genocide of the Palestinian People: An International Law and Human Rights Perspective.”)
Incitement, however, is another matter. We believe that there is evidence of incitement to genocide by Israeli leaders, which should be addressed immediately at the international level. Their language is consistent with cases dating back to Nuremberg where political leaders have been prosecuted for incitement. Incitement is particularly important because it is an “inchoate” crime under international criminal law; that is, its underlying intended crime “need not actually occur for the crime to be proven,” and because it is one area of genocide law where there has been an evolution in the legal understanding and definitions of the concept, both in international and in domestic laws.