On Monday I asked about Israel’s genocide against the Palestinians at the State Department, including if the US government is trying to stop Abbas from invoking the Genocide Convention at the International Court of Justice — also known as the World Court — in the Hague. I also asked if State Department personal may face prosecution.
International law professor Francis Boyle notes that the US Genocide Convention Implementation Act stipulates:
d)Attempt and Conspiracy.—
Any person who attempts or conspires to commit an offense under this section shall be punished in the same manner as a person who completes the offense.
AFP reports: “Palestinian president Mahmud Abbas decried Sunday Israel's "genocide" in the Gaza Strip amid its war on Hamas militants there, in remarks to visiting US Secretary of State Antony Blinken.” But Abbas has not tried to invoke the Genocide Convention.
In response to my question, State Department representative Vedant Patel claimed that the US government has not been pressuring the Palestinian Authority to not invoke the Genocide Convention or any other legal mechanism. In fact, international law professor John Quigley states: “Of course, the US has been pressuring Abbas for several years not to go to the International Criminal Court or International Court of Justice for anything.”
The record backs up Quigley. The Times of Israel reported in 2021 “Biden officials privately pushed Abbas to shelve ICC probe against Israel” and Axios reported in 2022: “Abbas rejects U.S. request to not push for UN court opinion on Israeli occupation,” quoting a State Department spokesperson: “We believe it is critical for Israel and the Palestinian Authority to refrain from unilateral steps that exacerbate tensions and undercut efforts to advance a negotiated two-state solution.”
Regardless of US pressure, the question to Abbas is, why has he not invoked the Genocide Convention? Moreover, it is quite possible that other countries are wanting to invoke the Genocide Convention at the International Court of Justice (also known as the World Court), but Abbas is holding them back.
That is what Francis Boyle has been recommending as I noted in my questioning, below. Such a maneuver, Boyle argues, may be the strongest legal avenue since the International Criminal Court “is rigged and has done nothing for the Palestinians.”
Patel claimed the State Department has a “rigorous process for evaluating whether something constitutes genocide.”
Boyle charged in an email to me that the “Internal State Department Review on Genocide is always political. For example, after I won my first Order at the World Court for Bosnia to the Yugoslavians to cease and desist from committing all acts of Genocide, [then Secretary of State] Warren Christopher started a propaganda campaign by State to detract and undercut its significance.”
Boyle added: “‘Diplomacy’ by the Biden administration and Blinken in particular is in fact just their international stage-managing of the Zionist genocide against the Palestinians.”
Patel repeated the US establishment mantra backing “Israel's right to defend itself against these terrorist attacks by Hamas” but legal scholar Richard Falk emailed me: “Gaza remains from the perspective of international law and the UN an 'Occupied Palestine Territory' subject to the Forth Geneva Convention. This means that Israel as Occupying Power has a primary obligation to safeguard the safety of the civilian population. It is entitled to take reasonable lawful means to restore its security in the aftermath of such an attack. As such, it has no international legal right of self-defense; even if it had a right of self-defense it would have no legal or moral basis for engaging in a genocidal assault, the character of which has been strongly confirmed by Israel's top leaders, Netanyahu, Gallant, and to a more indirect sense, Herzog. … I do not share the view that Hamas can be written off as 'terrorist' while Israel remains a legitimate state despite its record of state terrorism.” See Falk’s recent piece “Israel-Palestine war: Israel's endgame is much more sinister than restoring 'security'“.
Transcript of exchange at State Department:
HUSSEINI: President Lula of Brazil recently joined a growing list of world leaders [Colombia, South Africa, Pakistan] condemning Israel not just simply for war crimes, not just simply for crimes against humanity, but for genocide. The late president of the Center for Constitutional Rights, Michael Ratner, during Israel’s 2014 assault on Gaza which killed 2,000 Palestinians, advocated that the Genocide Convention be invoked in that case against Israel, saying that legally, for genocide, quote, “You don’t need to kill all of them. You just need to have the mental intent to kill part of them.”
Craig Mokhiber, who just resigned as director of the New York office of the UN High Commissioner for Human Rights, noted that intent, usually the hardest part of genocide to prove, isn’t in this case. He wrote in his resignation letter, quote, “Explicit statements of intent by leaders in the Israeli Government and military" leave “no room for doubt or debate.”
Finally, Francis Boyle, who successfully prosecuted – or who successfully represented Bosnia and Herzegovina in their genocide case against Yugoslavia before the International Court of Justice, has similarly argued that the Palestinians, or any other signer to the Genocide Convention, should immediately instigate a – initiate an emergency legal process invoking the Convention at the International Court of Justice, yet no government has done so.
My question to you --
PATEL: Do you have a question soon?
HUSSEINI: My question to you is: Has the US Government pressured or bribed or threatened in any way, shape, or form Abbas, the people around him, institutions around him, from invoking this or any other legal mechanisms against Israel to stop its attack?
PATEL: I don’t even know where to start there, Sam. No, the US has not been involved in pressuring or anything like that to any officials within the Palestinian Authority. What I will just say again in the context of this conflict: We have been incredibly clear that as Israel defends itself and defends its security that it is imperative that it continues to make a distinction between Hamas terrorists and Palestinian civilians, and that’s something we’ll continue to raise directly with Israeli counterparts.
I will also note that we, within the US Government, have a rigorous process for evaluating whether something constitutes genocide, and we have not made that assessment in this case. And it’s really important to remember that Hamas bears responsibility for sparking this war and they brought this tragic war to Gaza. They have compounded and perpetuated the suffering of the Palestinian people at every step of this crisis. And as I said, we continue to support Israel's right to defend itself against these terrorist attacks by Hamas.
HUSSEINI: You claim – excuse me. You claim that you want Israel to make the distinction, but you don't seem to be — making the distinction.
PATEL: We absolutely make this distinction, Sam.
HUSSEINI: If I might – I didn't interrupt you. I didn't interrupt you. The Center for Constitutional Rights just put out a statement: "Legal Organizations Put Members of Congress on Notice for Complicity on Genocide." Quote: "Please take note” — this is a letter that they sent to members of Congress. Center for Constitutional Rights: "Please take notice that should you vote in favor of that package," the Biden package for Israel, "you risk facing criminal and civil liabilities for aiding and abetting genocide, war crimes and crimes against humanity under international law, and may face investigation and prosecution." Do members of the State Department face similar possibilities?
PATEL: Again, Sam, as I said, we have – the US Government has a rigorous process in place for evaluating whether something constitutes genocide, and we have not made that assessment in this case.
HUSSEINI: But you continue to pretend —
PATEL: I'm going to – I've taken —
QUESTION: — that the bombing of hospital after hospital, bakery after bakery, university after university – and somehow you keep pretending that, oh, they're just after military people of Hamas.
PATEL: I appreciate – I appreciate your questions, Sam. I've taken two of them. Now I'm going to work the room a little bit.
Full video and transcript according to the State Department is here.
Note: This is the first time I was called on at a State Department briefing since Israel started its current bombing campaign against Palestinians in Gaza. This despite having gone to most of the briefings with my hand raised at virtually every opportunity. (I did inject myself into the Oct. 10 news conference but was never actually properly called on.)
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