“This second part of the column by Professor Beres (“After Annapolis: Israeli Rights, Arab/Islamic Anti-Semitism and International Law”) continues his legal examination of Arab/Iranian anti-Semitism, with particular reference to pertinent norms under international law and to recommended strategies for authoritative enforcement of Israel’s fundamental human rights.”
Some years ago, following one of the devastating suicide bombings in which small Jewish children were blown to bits, prominent Palestinian columnist Fahd al-Rimawi – then writing with obvious approval of Nobel Peace laureate Yassir Arafat in Amman’s al-Majd newspaper, gleefully celebrated the monstrous act of terror: “Let us rejoice and applaud the operation with the sweetest of songs and ululations (sic). We greet that act of ingeniousness with the sweetest of chants and we bid farewell to our bold martyrs who have lit the night of Jerusalem…and given luster and meaning to Arab valor…. We will not apologize for the Jewish blood that will be spilt nor denounce the heroic actions of the Mujahideen who represent the soul of this nation and echo the pulse of the masses and the Palestinian people’s conscience….”
While most of the world still chooses to ignore such calls for international crime (the UN’s International Court of Justice at The Hague chose not to rule on the manifest illegality of Palestinian terrorism or Palestinian calls for genocide, preferring instead to consider the legality of Israel’s “fence” that is designed to prevent anti-Israel terror and genocide), international law has an unswerving obligation to act. Expressed by leaders of the major states in world politics, the relevant norms and principles of international law should be invoked in time – before calls for genocide against Israel’s Jews are allowed to become the materialized foreign policy of certain Islamic states and/or terror groups armed with chemical, biological or even nuclear weapons. Lest anyone be overly optimistic, the fusion of genocidal intent with genocidal capacity is now almost within reach of several states anxious to excise the “Jewish cancer” from the Dar al Islam, the world of Islam in the Middle East. Presently, there is a special and continuing urgency regarding Iran, which is making steady progress toward nuclear weapons capacity in spite of intermittent threats of sanctions from the United States and from the International Atomic Energy Agency (IAEA). In this connection, the Iranian danger has recently been sharply exacerbated by the outrageously false U.S. National Intelligence Estimate (NIE). This Estimate declares, inter alia, that Iran is no longer interested in nuclear weapons. Alas, Israel must surely ask each day: “With friends like these”
Let us return to the “moderate” Palestinian Authority. The PA and its associates are distinctly obligated to refrain from incitement against Israel. Going back even to the legal antecedents of the current peace process, the Interim Agreement (Oslo 2) states, at Article XXII, that Israel and the PA “shall seek to foster mutual understanding and tolerance and shall accordingly abstain from incitement, including hostile propaganda, against each other….” In the Note for the Record, which accompanies the Hebron Protocol of January 15, 1997, the PA reaffirmed its commitment regarding “Preventing Incitement and Hostile Propaganda, as specified in Article XXII of the Interim Agreement.” Similar – if more general – reaffirmations can be found in the conveniently warmed-over Oslo Agreement (here my readers will recognize what I called a “cartography of lunacy” in certain earlier columns) now deceptively called a “Road Map.”
What has not yet been broadly acknowledged is that the Genocide Convention criminalizes not only the various acts of genocide, but also (Article III) conspiracy to commit genocide and direct and public incitement to commit genocide. Articles II, III and IV of the Genocide Convention are fully applicable in all cases of direct and public incitement to commit genocide. For the Convention to be invoked, it is sufficient that any one of the State parties call for a meeting – through the United Nations – of all the State parties (Article VIII). Although this has never been done, the United States should consider very seriously taking this step while there is still time. Israel, too, should be an obvious participant in this call, but it is unlikely that any government in Jerusalem, correctly aware of still-expanding global indifference to Jewish life, will seek formal redress under multilateral conventions. An alternative remedy would involve the issuance of specific criminal indictments for crimes against humanity by Israel’s Justice Ministry to the key Palestinian broadcasters and journalists now engaged in daily anti-Semitic harangues. Said heroic Israeli attorney Nitsana Darshan-Leitner back in February 2004: “Those who operate Palestinian television and radio stations and the printing presses engaged in hate speech should be arrested along with the other suspected killers.” Amen.
Any public trial before an Israeli tribunal would have grave geopolitical risks, to be sure. For one, as no Arab or Iranian authority could ever be expected to extradite alleged wrongdoers to Israel for trial, it would inevitably be up to Israeli military and police authorities to acquire custody over defendants. This is the case, although such expected Arab/Iranian disregard for Israeli extradition requests would be a manifestly serious violation of international criminal law. Even if an Israeli trial could afford opportunity for a direct evidentiary connection between Palestinian media incitement and Palestinian terrorism, much of the world would be focused instead on the means by which Israel took custody of the inciters. After all, when Israel captured major Nazi war criminal Adolph Eichmann in 1960, more states chose to condemn the abduction than to recall the prisoner’s role as murderer of 1,000,000 Jewish children. With regard to Israel and the Jewish People, there is nothing new under the sun.
The Genocide Convention, the London Charter and the December 2003 ICTR decision on Rwanda are not the only authoritative codifications that should now be invoked against relentless media and leadership calls for the mass killing of Jews. The 1965 International Convention on the Elimination of All Forms of Racial Discrimination should also be brought productively into play. This treaty condemns “all propaganda and all organizations which attempt to justify or promote racial hatred and discrimination in any form,” obliging, at Article 4(a) State parties to declare as “an offense punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons.”
Article 4(b) affirms that State parties “Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offense punishable by law.” Further authority for curtailing and punishing Palestinian calls for genocidal destruction of Jews can be found at Article 20(2) of the International Covenant on Civil and Political Rights: “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”
The overriding point of the judgments at Nuremberg was to ensure that all future crimes against humanity be identified, prosecuted and punished. Fully aware of these judgments, the International Criminal Tribunal in Rwanda ruled in December 2003 that “mere words” can contain substantial criminal liability, and may warrant very severe punishments. Understood in terms of ongoing homicidal and genocidal Arab and Iranian calls for violence against Israel, it is essential that every state in the United Nations now be reminded of its binding obligation not to encourage another Holocaust. This is a fully legal obligation, and it must not be taken lightly.
Copyright © The Jewish Press, February 29, 2008. All rights reserved.
LOUIS RENÉ BERES was educated at Princeton (Ph.D., 1971) and is the author of many books and articles dealing with genocide, terrorism, war and international law. Strategic and Military Affairs columnist for THE JEWISH PRESS, he is Professor of International Law at Purdue University.