The Criminalization of International Justice, Putting an End to the Genocide Against the People of Palestine. A Proposal

Disobey Unlawful Orders, Abandon the Battlefield Under Principle IV of the Nuremberg Charter

[Read this article on Global Research.]

The Republic of South Africa’s Legal Procedure Against the State of Israel

Below is the introductory section of South Africa’s submission to the International Court of Justice: 

APPLICATION INSTITUTING PROCEEDINGS

To the Registrar of the International Court of Justice, the undersigned, being duly authorised by the Government of the Republic of South Africa, state as follows:

In accordance with Articles 36 (1) and 40 of the Statute of the Court and Article 38 of the Rules of Court, I have the honour to submit this Application instituting proceedings in the name of the Republic of South Africa (“South Africa”) against the State of Israel (“Israel”). Pursuant to Article 41 of the Statute, the Application includes a request that the Court indicate provisional measures to protect the rights invoked herein from imminent and irreparable loss.

I. Introduction

1. This Application concerns acts threatened, adopted, condoned, taken and being taken by the Government and military of the State of Israel against the Palestinian people, a distinct national, racial and ethnical group, in the wake of the attacks in Israel on 7 October 2023. South Africa unequivocally condemns all violations of international law by all parties, including the direct targeting of Israeli civilians and other nationals and hostage-taking by Hamas and other Palestinian armed groups. No armed attack on a State’s territory no matter how serious — even an attack involving atrocity crimes — can, however, provide any possible justification for, or defence to, breaches of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (‘Genocide Convention’ or ‘Convention’),

Read complete document here (84 pages).

Video: Middle East War Genocide in Palestine 

There Is a Sense of Urgency

The fundamental question is whether a lengthy legal procedure of the Republic of South Africa against the State of Israel under the auspices of the ICJ will contribute to repealing the ongoing genocide and saving the lives of tens of thousands of civilians.

“Pursuant to Article 41 of the Statute, [South Africa] has  included a request that the Court indicate provisional measures to protect the rights invoked herein from imminent and irreparable loss.

The ICJ is under the spotlight of Washington.

It is unlikely that provisional measures will be granted, which means that by the time this legal procedure is implemented, Israel will have in large part reached its goal of “Wiping Gaza off the Map” and excluding Palestinians from their homeland. 

Important Questions: Enforcement and Compliance

A lengthy legal procedure is envisaged. Moreover, there is the issue of “Enforcement” and “Compliance”. Paul Larudee in an incisive article begs the question:

“If the International Court of Justice rules that Israel has committed and is committing genocide, will it save Gaza?” 

The Answer is NO:

A lot of hope is being placed in the ruling of the ICJ. But even if the decision is, as expected, a powerful one, the only enforcement mechanism is the agreement of the parties to the convention that they will take all necessary actions to end the culpable actions and prosecute the perpetrators.

Will Israel comply with the court’s decision? Will the US? Neither nation has much respect for international law, so we may assume that neither country will do anything but denounce the ICJ and South Africa as antisemitic and offer angry excuses as for refusing to comply to the convention to which they both agreed.” (Paul Larudee)

While diplomacy and legal procedures at the ICJ should continue, they cannot be relied upon to put a rapid end to the genocide. 

Failure of Diplomacy and Judicial Procedures. The Criminalization of the ICC

It is not through “negotiations” with Prime Minister Netanyahu and President Biden, both of whom are responsible for “crimes punishable under international law” that we will be able to put an end to the genocidal attack against the People of Palestine.

Put an end to the genocide is ultimately is our objective, in solidarity with the people of Palestine.

Concurrently with South Africa’s initiative at the ICJ, a large number of NGOs and civil society organizations are involved in legal actions under the auspices of the International Criminal Court (ICC). These initiatives will lead us into impasse.

Why? Because the ICC is a criminal entity, which is fully aligned with Israel, supportive of Netanyahu’s genocidal attack against Gaza. 

ICC Prosecutor, Karim A. A. Khan, K.C., was in Israel in early December 2023.  He was in Tel Aviv and Ramallah, but he did not go to Gaza to see with own eyes what was happening. Amply documented, he is a puppet and a de facto mouthpiece for the Netanyahu regime. (Read his complete statement here.)

We should call for his immediate resignation.

The ICC President Piotr Hofmański is also a proxy. In early December, he met U.N. Secretary-General Guterres:

“During the meeting, President Hofmański “conveyed to the Secretary-General his deep sense of gratitude … which is particularly important as the Court is facing pressures and attacks on account of its independent work in addressing the most serious crimes under international law“, (see his complete statement.)

“Pressures and attacks,” Why? No concern by the ICC regarding the people of Palestine, namely ICC President Hofmanski’s unbending support of Netanyahu.

ICC President Piotr Hofmański and Secretary-General António Guterres meet at UN Headquarters © UN Photo/Evan Schneider

Principle IV of the Nuremberg Charter

This section presents a possible solution to put an end to the ongoing genocide. It is a proposal which has not been the object of debate by anti-war activists in solidarity with Palestine.  

It is based on Principle IV of the Nuremberg Charter which defines the responsibility of combatants “to refuse the orders of Government or a superior … provided a moral choice [is] possible.“

Based on Nuremberg, what is required is a campaign encouraging:

Israeli, American and NATO combatants to “disobey unlawful orders” and “abandon the battlefield”. 

The Campaign would focus on making that “moral choice” possible, namely to enable enlisted Israeli, American, and NATO servicemen and women to “abandon the battlefield.”

The “Abandon the Battlefield” campaign will in large part be waged in Israel. Already there are unfolding divisions in the IDF command structures, political divisions, coupled with a protest movement against Netanyahu.

IDF soldiers must be informed and briefed on the significance of Nuremberg Principle IV. 

Click here to access full document (pdf).

Nuremberg Charter. Principle VI 

Both Prime Minister Bibi Netanyahu as well as President Joe Biden are responsible for “war crimes”, “crimes against peace” and “crimes against humanity” as defined under Principle VI of the Nuremberg Charter:

The crimes hereinafter set out are punishable as crimes under international law:

(a) Crimes against peace:

(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).

(b)  War crimes:

Violations of the laws or customs of war which include, but are not limited to, murder, ill- treatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.

(c)  Crimes against humanity:

Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are

Disobey Unlawful Orders, Abandon the Battlefield 

According to Principle IV of the Nuremberg Charter:

“The fact that a person [e.g. Israeli, U.S.soldiers, pilots]  acted pursuant to order of his [her] Government or of a superior does not relieve him [her] from responsibility under international law, provided a moral choice was in fact possible to him [her].”

Let us make that  “moral choice” possible, to enlisted Israeli, American, and NATO servicemen and women.

Let us call upon Israeli and American soldiers and pilots “to abandon the battlefield”, as an act of refusal to participate in a criminal undertaking against the people of Gaza.  

As mentioned earlier, South Africa’s legal procedures at the ICJ should proceed. While they cannot be relied upon to put a rapid end to the genocide, they provide support and legitimacy to the “Disobey Unlawful Orders, Abandon the Battlefield” campaign under Nuremberg Charter Principle IV.

For further details see: Michel Chossudovsky, Global Research, December 2023.

[This article was originally published by Global Research.]