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By Michael Olukoye, Advocate of the High Court of Kenya, Secretary to the Communist Party of Kenya Legal League (CPKLL)

 and member of the Kenya Palestinian Solidarity Movement (KPSM).

May 2024, Tehran, Iran

 

The enforcement of international law has long been marred by scepticism regarding its true efficacy, particularly in the realm of international human rights and humanitarian law. This scepticism, often referred to as 'sceptical internationalism,' raises doubts about the ability of international institutions to enforce these laws effectively. This debate is highly pertinent in the context of Israel’s 76-year apartheid occupation of Palestine, which has now escalated into full-scale ethnic cleansing, a genocide akin only to the Holocaust against the Palestinian people. Despite criticism from multiple political and legal institutions for their failure to intervene meaningfully, this article seeks to explore whether mechanisms exist beyond contemporary international law institutions to enforce these norms.

 

i) Palestine in a Genocidal Context

The Palestinian genocide can be understood within the framework of Israel’s apartheid occupation of Palestine, which began in 1948. The Human Rights Council’s Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Francesca Albanese, highlighted this stark, gradual deterioration of the Palestinian condition in a report to the council on April 5, 2024.

Practices aimed at ethnic cleansing started as early as 1947 with the mass expulsion of Palestinians from their homes and villages, displacement, killings, and denial of their right to return to their lands. Known as the Nakba (Arabic for catastrophe), it led to over 600,000 Palestinians being expelled, followed by Israeli laws preventing their return and allowing land confiscation. This status quo has persisted despite a UN resolution urging Israel to allow Palestinians to return to their lands. Ironically, the Israeli occupation of Palestine and its genocidal activities began the same year the Genocide Convention was ratified, in 1948.

Following the 1967 failed uprising and military action by Arab states, Israel advanced its settler colonial project and the de-nationalisation of Palestinians. Palestinians were increasingly expelled and segregated from the greater Israeli population. The rise of armed resistance from the occupying Israeli state led to the wrong belief that all Palestinians were security threats, justifying their expulsion. The apartheid state thus evolved into a genocidal one aimed at total expulsion and de-nationalisation of Palestinians.

Over the years, Israel has ramped up its genocidal acts. With the turn of the millennium, it began isolating Palestinians from the greater Israeli society. In 2005, Israelis left Gaza, which was turned into an enclave to hold, segregate, and control every aspect of Palestinian lives. Leading up to 2023/2024, Israeli political and public sentiments aimed at re-colonising Gaza and the West Bank in pursuit of an alleged holy greater Israel. The passage of the Jewish Nation–State Basic Law on July 19, 2018, made Israel’s objectives towards reclaiming the whole of Palestine as Israel clear, making the current conflict inevitable.

Since the current war's onset in October 2023, Israel has initiated an ethnic cleansing campaign against Palestinians under the guise of national security, subjecting them to collective punishment. These atrocities have been widely documented by various sources including news media, social media, UN independent experts, scholars, and states.

 

ii) International Law and the Palestinian Genocide

Despite widespread evidence of horror in Gaza and the West Bank, UN member states have repeatedly voted for a ceasefire and the recognition of the Palestinian state, yet refrain from intervening in the conflict. This is largely due to the veto power of the United States, which unconditionally supports its ally, Israel. This has allowed Israel to act with impunity, ignoring an ICJ order of provisional measures against it in the case instituted by South Africa. This situation, marking 76 years of occupation and genocide, ironically coincides with 76 years of the Genocide Convention, highlighting its ineffectiveness. With over 190 UNGA resolutions on the Palestinian question and 45 condemning Israel, little impact has been made towards a permanent solution.

 

This inaction follows a pattern observed in previous genocides since the Genocide Convention's ratification, including the Indonesian mass killings (1965-1966), the Bangladeshi genocide (1971), the Cambodian genocide (1975-1979), the Sikh genocide in India (1984), the Guatemalan genocide (1960-1990), the East Timor genocide (1970s), the Rwandan genocide (1994), the Bosnian genocide (1992-1995), the Amhara genocide in Ethiopia (1990s and 2020-2022), the Darfur genocide (2004-2007 and ongoing), and the Rohingya genocide (2017). In all these instances, the world watched without intervening.

Currently, the Palestinian genocide and the Sudan genocide by RSF forces continue unabated. We have transitioned from inaction (watching genocide happen) to action (documenting genocide happen). Despite the Genocide Convention's responsibility to protect, no state has intervened, and the US consistently vetoes any UN joint action. This is despite the ICJ's pronouncements that the prohibition of genocide is a peremptory norm (jus cogens), creating a universal obligation for all states to prevent and punish genocide.

Therefore, international law, while providing for punishment, neither prevents genocide nor offers active protection for people subject to genocide. This critique is well encapsulated by Velickovik, who states, “The magic of international law is that it turns every fiasco into a prelude to its own success story. Yes, these awful things happened, but look how we punished it, look how we learned from it.”

International law fails to preserve people and their way of life, providing only the legal jargon to contextualise and analyse atrocities without offering intervention. Survivors are left to await trials and proceedings that may or may not occur, resulting in a victory of law for law; not for justice, and certainly not for Palestine or thousands suffering under genocidal states.

 

iii) Strategic and Tactical Legal Intervention in the Ongoing Genocide

Punishment is not an adequate measure in the context of genocide. Genocide is a series of events that occur over time, making the argument of unforeseeability untenable. An appropriate response should seek to either prevent or stop an ongoing genocide. This section explores the Communist Party of Kenya and Kenya Palestine Solidarity Movement (KPSM) perspective on the ongoing genocide against innocent Palestinians by the Zionist entity -Israel.

 

1. Universal Jurisdiction

Universal jurisdiction allows for the prosecution of perpetrators of crimes regardless of where they are committed. This principle underpins the Rome Statute of the International Criminal Court (ICC). Clearly, Kenya, alongside countries like South Africa and Germany, has committed to detain and prosecute individuals subject to ICC arrest warrants. However, universal jurisdiction is limited if perpetrators remain in their home countries, as seen with genocidaires like Slobodan Milošević who stayed in Serbia. Furthermore, universal jurisdiction does not enable states to intervene and stop ongoing genocides.

 

2. The Rome Statute (International Criminal Court)

The Rome Statute theoretically enables the ICC to issue arrest warrants and order member states to detain and deliver perpetrators for trial. This has been successful in very peculiar cases, peculiar in the sense that those seen to oppose imperialism such as Laurent Gbagbo and others. However, the ICC, while meant to try war criminals, often functions in practice to further imperialist interests. It has been quick to issue arrest warrants only to countries of the wretched of the earth and persons that have taken a clear stand against US imperialism. This is evident in cases involving the President of Russia, Vladimir Putin, and Laurent Gbagbo of Ivory Coast, but shows reluctance when it comes to war criminals in Israel like Benjamin Netanyahu, or figures like Henry Kissinger, Barack Obama, and George Bush, who have murdered countless people in the interest of Anglo-Saxon imperialism.

In the context of Israel, South Africa’s referral to the ICC regarding Palestine may yield results if arrest warrants are issued. However, international law lacks a standing army and relies on state cooperation in a world where the US government has appointed itself as the world police.

The Communist Party of Kenya (CPK) takes a firm stand that, while we support the processes at the ICC and ICJ to hold those responsible for war crimes legally accountable, we must go beyond the legal limitations of such international bodies. Our clear objective is the total liberation of the Palestinian people and the decimation of the Zionist project—Israel. This requires a multifaceted approach that extends beyond the courtroom to achieve true justice and freedom for Palestine. This is a debate we must advance in all spheres.

 

 

3. Provisional Measures and Orders by International Tribunals

In the case South Africa instituted against Israel, the ICJ issued provisional measures ordering Israel to cease its occupation and genocidal activities. However, enforcement remains an issue as Israel has ignored the court’s orders. While arguments for a standing army for international tribunals arise, the question remains—what happens in the interim? As long as US hegemony reigns, it will be almost impossible to arrest war criminals that it perceives as advancing its interests. It should be clear, even in the legal arena, that only through the defeat of US imperialism and its Zionist project, which impedes global peace, can total liberation be achieved—not just for the Palestinian people but on a global scale. We hold the correct view that Palestine is indeed the weakest point of US imperialism, in whose ruins a new society shall blossom.

 

4. Self-Determination under International Law

The doctrine of self-determination allows people to fight for independence and break away from colonial states. It is based on decolonisation principles and recognises the legitimate struggle of people under colonial occupation. This is reflected in the ICCPR and ICESCR, which Israel has signed. Furthermore, United Nations General Assembly Resolution 37/43 reaffirms the right of peoples under colonial and alien domination to struggle by all necessary means, including armed struggle, for their self-determination and independence. Therefore, Palestine has the legal basis to take up arms in their fight against Israel’s apartheid colonial state. The current armed resistance in Palestine against Israeli occupation forces is a manifestation of this principle. It is important to note that the violence of the oppressed and the oppressor are not the same: the former is moral and the latter is immoral. While a complex legal discussion, it provides a legitimate mechanism for Palestinians to defend themselves.

 

iv) Recognising the Role of the Iranian Government and People

The Communist Party of Kenya Legal League acknowledges and commends the heroic role played by the Iranian people and their government in supporting the rights of the Palestinian people to statehood. Iran's outstanding anti-imperialist credentials and steadfast support for Palestinian liberation are exemplary. This meeting in Tehran, organised by the Iranian government, provides a critical platform to bolster global anti-Zionist efforts across socio-economic and political arenas.

 

v) The Role of the Communist Party of Kenya Legal League

The Communist Party of Kenya Legal League is an integral part of the Kenya Palestine Solidarity Committee (KPSM). Through the league, the party challenges the Kenyan state in judicial and political spheres to highlight the cause of Palestinian liberation. The meeting in Tehran has given new impetus to building a global anti-Zionist offensive on all fronts.

 

Vi) The Fallacy of the Two-State Solution

The Communist Party of Kenya and the Kenya Palestine Solidarity Movement take a clear and correct position that the only viable solution is a single democratic state, named Palestine, with its headquarters in Jerusalem. This state would provide a platform for Arabs, Africans, and Jews to coexist under a popular democratic government. Additionally, we firmly believe that victory against settler colonialism can only be achieved through struggle and resistance. History has repeatedly proven this stance to be correct, especially in the case of the Palestinian people. Those who have pursued the misguided policy of negotiation with the Zionist and US imperialism have only faced humiliation, as the Zionist entity is solely interested in land theft and domination. We cannot appeal to the consciousness of the oppressor, as they lack even a modicum of morality.

 

Conclusion

The situation in Palestine is rapidly deteriorating, and the UN and its member states have largely taken a backseat. The people in Gaza, an open-air prison, are subjected to an unparalleled humanitarian crisis. Although we demand urgent action from the UN and its member states, we are conscious of the role of the evil US empire in dictating its will at the UN and UNSC through abstract, illegitimate veto powers. We know the havoc caused by deploying peacekeeping forces in places like Congo, Rwanda, and Haiti; these so-called peace missions were only serving imperialist interests. Comrades, the most logical course of action, even as we pursue all legal avenues, is to intensify political action and support the resistance axis in West Asia, not just through verbal solidarity but materially. The world cannot sit back and watch another holocaust happen. It must act, and Iran is leading the way.

 

From the River to the Sea! Palestine Shall be Free!

Michael Olukoye, May 15, 2024, 14:40, Nairobi, Kenya

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