The Meaning of Gaza

David Forte

January 1, 2009

Last month, the world observed a solemn anniversary. In December 1948, the United Nations General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide. The same month, Israel began its offensive against Hamas. It was an appropriate coincidence. Now Israel has withdrawn its troops with the long term results still uncertain. But it would be good not to lose sight of what Israel has been fighting for.

The Genocide Convention is now a foundational part of International Human Rights Law. Article 3 of the Convention makes punishable not only (a) genocide, but also, (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide.

It is, in fact, a descriptive summary of Hamas’s program.

The preamble of Hamas’ Charter quotes the founder of the Muslim Brotherhood, Hassan al-Banna: “Israel will exist and will continue to exist until Islam will obliterate it, just as it obliterated others before it.” The Charter claims that Palestine is an Islamic Waqf (land placed in a perpetual and inalienable trust) and only Islam may control it. Quoting a tradition ascribed to Muhammad, the Charter states, “The Day of Judgement will not come about until Moslems fight the Jews, when the Jew will hide behind stones and trees. The stones and trees will say O Moslems, O Abdulla, there is a Jew behind me, come and kill him.” Truces are allowed, but only for the purpose of gathering one’s forces for the final act of destruction. There is, obviously, no room for a two-state solution, and those Muslim leaders that accept Israel are subject to the jihad against them as well. The document is Leninist and totalitarian to the core, written in an Islamic modality.

Hamas leaders and clerics are unabashedly genocidal. In a video created before the current war in Gaza and released by The Middle East Media Research Institute (MEMRI), Hamas leaders see the “annihilation of Israel” as a “blessing,” and one proclaims, “Kill every one, down to the last one.”

The Convention was designed, in its own title, for the “Prevention and Punishment” of genocide. Yet the international community’s record on the punishment of genocide has been desultory and its record on prevention almost non-existent. Even when something could have been done, little was done in places like Cambodia, the Sudan in the 1980s and Darfur now, Tibet, Rwanda, and for a number of years, Bosnia. Only Israel has had the moral courage combined with its historically tutored self-interest to try to prevent a program of genocide from ripening and succeeding. Far from being a violator of international law in Gaza, Israel was enforcing one of international law’s most urgent commands.

Article I of the Genocide Convention declares that “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.” This means, according to many international law commentators, that perpetrators of genocide, along with pirates, slave traders, and torturers, are, in legal terms, hostis humanis generis, “enemies of all mankind,” allowing any state to assert jurisdiction to try and punish such persons wherever they may be found. Yet we still hear calls for bringing Hamas not to trial but to the international negotiating table. Thus is the legal effect of the Convention against Genocide neutered by contemporary politics.

In fact, much of the history of diplomacy in the Middle East is based on a morally questionable premise, namely, that in return for a recognition for “Israel’s right to exist,” Israel will make certain kinds of concessions. In other words, if Syria or al-Fatah gives up on its premise of genocide, then certain political concessions will follow. But the point of the 1948 convention is that genocide is a legally illegitimate act or objective for a state. It is in category that international lawyers call jus cogens, or, “peremptory norms of international law.” No state may legitimately act against such norms, nor are any such actions like genocide recognizable as a proper subject for treaties. Notwithstanding, diplomacy in the Middle East gives the genocidal objectives of Israel’s enemies a status to be negotiated away.

On the other side of the dispute, some observers equate Hamas and their radical allies with Islam itself. Such reductionism is common whenever we have faced an incorrigible enemy. But it is a distortion of reality. Hitler was not the quintessential German, but an enemy of German culture. Stalin was not just another Russian Czar, but a murderer of millions of Russians. And Mao was not a Chinese Emperor, but an enemy of the Chinese spirit. Likewise, Hamas and their ilk are not the essence of Islam. They are, rather, virulent infections on the body of Islam, wounding it grievously, as the thousands of their Muslim victims bear witness.

Israel, in the crosshairs of radical enmity, has a much more nuanced understanding of what it is up against. For the most part, Israelis do not see Islam, qua Islam, as the enemy, else they would expel all Muslims instead of giving them equal citizenship. Instead, Israel understands the difference between those who may be political and diplomatic adversaries and those who will stop at nothing to destroy it, and Israel tailors its actions accordingly. It is not without significance that in the midst of the Israeli offensive, there were reports that Hamas continued to execute Fatah supporters.

The campaign against genocide proceeds in pieces, and it depends on what Israel has gained from its Gaza incursion, and why it chose to end its military activities at this point. It may be that Israel has gained the promise of European presence in Gaza, and the Europeans do not want to deal with Hamas. It may be that Israel thinks enough damage was done to Hamas to allow Fatah to regain control. It could be that the costs in civilian and Israeli lives for fighting Hamas in the streets of Gaza city was not worth the marginal gains to be had. Israel also likely calculated that it could not afford a full reoccupation of Gaza, and that it had significantly destroyed Hamas’s military wing. Its threat to resume an offensive if the rockets begin again has credibility.

Hamas knows that Fatah wanted an Israeli victory (and that Fatah may have given Israel good intelligence on where to strike in Gaza). To regain legitimacy, Hamas tries the age-old Arab victor/victim play claiming that it had won while wheedling for sympathy for what it suffered.

The uncertain political resolution of Israel’s invasion should not obscure the fact that Hamas stands for genocide and that Israel acted to defeat the unspeakable from happening again. Iran and the international law champions of the Obama Administration should take notice. Israel was attempting to enforce the moral command of the Genocide Convention: that genocide as a political objective is anywhere and everywhere unacceptable.

David Forte is an adjunct fellow of the Ashbrook Center and a Professor of Law at Cleveland-Marshall College of Law in Cleveland, Ohio. He is Senior Visiting Scholar at the Center on Religion and the Constitution at the Witherspoon Institute.