By Greg Rampinelli
Craig Mokhiber was Director of the New York Office of the High Commissioner for Human Rights. He resigned on October 28, 2023, due to what he calls the UN’s failure in Gaza. The letter can be found here: https://www.documentcloud.org/documents/24103463-craig-mokhiber-resignation-letter.
Mokhiber’s Accusations
In the letter, he accuses Israel of genocide against the Palestinian people in Gaza and of seizing and reassigning homes in Jerusalem based solely on race. He also says violent settler pogroms are accompanied by Israeli military units. Moreover, he claims that Apartheid rules “across the land”. In addition, he accuses “western corporate media” of continuously “dehumanizing Palestinians to facilitate the genocide, and broadcasting propaganda for war and advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, and violence.”
Accusation: Israel is committing genocide
Mokhiber does not mention the Hamas attacks of October 7, 2023, in which Hamas fighters brutally murdered some 1400 Israelis. It was this which triggered the Israeli counterstrikes and invasion of Gaza.
Article II of the Genocide Convention defines genocide as follows.
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
- Killing members of the group;
- Causing serious bodily or mental harm to members of the group;
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
- Imposing measures intended to prevent births within the group;
- Forcibly transferring children of the group to another group.
To qualify as genocide, the intent to destroy a group, in whole or in part, is essential. Mokhiber provides no evidence that Israel is trying to destroy the Palestinians in Gaza. It is trying to destroy Hamas, an organization recognized as terrorist by much of the world. There are, of course, enraged Israelis who would contemplate that. Hamas, by the way, still wants to destroy the State of Israel and establish an Islamic state “from the River to the Sea”. What that would mean for the 7 million Jews in Israel is easy to imagine.
Israel is conducting air and ground operations in the Gaza Strip to root out and destroy Hamas. Israel claims it is targeting military targets only. Urban warfare is very bloody, and Gaza is densely populated. In the battle for Mosul against ISIS, between 9000 and 11000 civilians died, according to the Associated Press. Those civilians who have not fled northern Gaza, where fighting is currently concentrated, are in danger of being killed in the military operations. While the civilian losses are horrific, they are not evidence of genocide.
The letter accuses Israel of genocide, not of war crimes. Mokhiber would stand on firmer ground if he had accused Israel of war crimes. Crimes occur in all major wars. Civilized countries try to avoid them and punish the perpetrators when discovered. But is Israel committing war crimes?
The International Committee of the Red Cross states these principles of International Humanitarian Law, which commanders must ensure are followed:
Distinction: You must always clearly distinguish between combatants and civilians or the civilian population as such. Combatants may of course be attacked unless they are out of action, i.e. they are hors de combat. Civilians are protected from attack but lose that protection whenever they take a direct part in hostilities for the time of their participation.
Proportionality: When military objectives are attacked, civilians and civilian objects must be spared from incidental or collateral damage to the maximum extent possible. Incidental damage must not be excessive in relation to the direct and concrete military advantage you anticipate from your operations.
Military necessity: “the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy” and that “for this purpose it is sufficient to disable the greatest possible number of men.” It allows for whatever reasonable force is necessary, is lawful and can be operationally justified in combat to make your opponent submit.
Limitation: Weapons and tactics that are of a nature to cause unnecessary suffering or superfluous injury are prohibited. It applies, for example, to weapons designed to cause injuries that are impossible to treat or that result in a cruel and lingering death.
Good faith: The military should show good faith in their interpretation of the law of armed conflict. Good faith must also be observed in negotiations between opponents and with humanitarian organizations.
Humane treatment and non-discrimination: All people must be treated humanely and without discrimination based on sex, nationality, race, religion or political beliefs. Those who are out of action (hors de combat), such as surrendering combatants, air crew parachuting from downed aircraft, the wounded, sick and shipwrecked, prisoners of war and other captives and detainees, must be identified as such and treated humanely.
Regarding civilian infrastructure, Hague IV states:
Article 25: The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.
Article 26: The officer in command of an attacking force must, before commencing a bombardment, except in cases of assault, do all in his power to warn the authorities.
Article 27: In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes.
It is the duty of the besieged to indicate the presence of such buildings or places by distinctive and visible signs, which shall be notified to the enemy beforehand.[2]
Hospitals, schools, and the like must be spared unless they are being used for military purposes. If a school is used to store large amounts of ammunition, for example, it becomes a legitimate military target. Power stations are legitimate military targets if enemy forces are drawing power from them. The principles of proportionality and military necessity apply, but these are judgment calls.
Israel’s military operations are clearly causing massive civilian casualties. Israel is not carpet-bombing Gaza: It selects its targets based on its understanding of military necessity. But in an urban environment, “collateral damage” is inevitable. If civilians share an apartment block with a Hamas commander, Israel can attack the commander, which will cause civilian casualties. This is not a war crime, unless it is militarily unnecessary or collateral damage is unproportional, which is subjective. We will probably not know until after the war whether Israel committed war crimes, but war crimes are common in such wars, and are not genocide.
Mokhiber also accuses Israel of seizing and reassigning homes in Jerusalem based solely on race. He gives no specifics, but he might be referring to cases such as that of Ghaith-Sub Laban. https://apnews.com/article/israel-palestinians-jerusalem-old-city-evictions-east-c53ae70f2fa76e4b1f4b528bca4ff35e
Her apartment used to belong to Jews, who were forced to flee when Jordan conquered East Jerusalem in 1948. Israel annexed East Jerusalem after the Six-Day War in 1967, and decided to return property to Jews who were expropriated in 1948. Germany did something similar after reunification in 1991. Of course, this principle does not apply to Palestinians who were forced out of their homes in Israel in 1948, who are not allowed to return, so it seems unfair. But it’s not genocide.
Mokhiber claims that settler pogroms are accompanied by military units. He gives no specifics. Israeli settlers in the West Bank have attacked Palestinian civilians, and Palestinian civilians have attacked them. It is a problem, but violence is not one-sided. Jewish settlers have also attacked Israeli soldiers https://www.nbcnews.com/news/world/israel-palestinians-jewish-settlers-storrm-town-pepper-spray-soldiers-rcna53240. If Mokhiber has specific cases of Israeli settlers being accompanied by Israeli military units when attacking Palestinians, he should cite them.
Accusation: Apartheid rules “across the land”
Does Israel practice Apartheid? If we define Apartheid as in South Africa (or the U.S. South under Jim Crow), it does not practice Apartheid in Israel itself. Arab Israelis are citizens and have essentially all the rights that Jewish citizens have. There are currently nine Arab members of the Knesset plus one Arabic-speaking Druze member. As there are 120 members of the Knesset in total, Arabs are underrepresented, but they are present. An Israeli Arab, Khaled Kabub, was appointed to Israel’s Supreme Court in 2022.
As of March 2023, Israel’s population stands at approximately 9.73 million. Jews make up the majority at 73.5% (about 7.145 million individuals).[3] The Arab community, spanning various religions excluding Judaism, accounts for 21% (around 2.048 million). An additional 5.5% (roughly 534,000 individuals) are classified as “others”. This diverse group comprises those with Jewish ancestry but not recognized as Jewish by religious law, non-Jewish family members of Jewish immigrants, Christian non-Arabs, Muslim non-Arabs, and residents without a distinct ethnic or religious categorization.[4]
Regarding education, more and more Arab-Israelis are attending college, both in absolute terms and proportionately. In 2021, they were about 17% of all students in Israel, somewhat less than their 21% share of the population. https://che.org.il/en
Israeli Arabs, both Christian and Muslim, can serve in the Israeli Defense Force, but are not subject to conscription.
Israel is an explicitly Jewish state, established to be a homeland for Jews worldwide, so there is some discrimination, especially regarding immigration. Israeli Arabs may very well experience discrimination in employment and housing, which is a common experience of minorities everywhere, but this is improving. This is not Apartheid.
If Mokhaber is referring to the West Bank, he could make a much stronger argument. The West Bank is still occupied, and its residents are not Israeli citizens, except for the settlers. Israel considers them an unfriendly, possibly enemy population, and keeps them under control for security reasons. The solution is to end the Occupation, but this requires a peace agreement. Ehud Olmert’s proposal of 2008 was the best chance yet to achieve this.
Western “corporate media” continuously dehumanizes Palestinians
Is he talking about Fox News?
In my opinion, much of the western media is very sympathetic to the plight of Palestinian civilians, but not to Hamas. The media outlets I watch try to present both sides and are somewhat skeptical about Netanyahu and the Israeli military’s account. This is a matter of perception, of course. Both sides accuse the media of bias toward the other side.
Here’s an interesting anecdote about an NBC journalist who took Hamas’s side in the October 7 attacks: https://www.nationalreview.com/news/nbc-journalist-arrested-by-israeli-police-for-cheering-on-hamas-during-horrific-terror-attack/
Mokhiber’s Solution
To remedy the problem, Mokhiber recommends the following:
- One state based on human rights
- Return and compensation for Palestinian refugees
- Disarmament of Israel’s nuclear, chemical and biological weapons
One-state based on human rights
The UN in 1948 established a Jewish state and an Arab state in the British Mandate of Palestine west of the Jordan River. Since the Balfour Declaration of 1917, Palestine was supposed to become a homeland for the Jews, where they could be safe. The Holocaust showed that a Jewish state was essential. Jews have been safest in western Europe and the U.S., but even there, anti-Semitism is rising. A Jewish state is needed now as much as before.
The conflict between Arabs and Israelis prior to 1948 showed that a unitary state would be filled with conflict: One side would dominate and oppress the other. This is what Mokhiber accuses Israel of doing. If the unitary state were dominated by the Arabs, would they suddenly treat the Jews fairly? Recent history shows they would not!
As for “based on human rights”, where do we find that in the Arab world? That is totally unrealistic. A unitary state in Palestine would turn the Israeli-Palestinian conflict into an internal one, a civil war. Is that a good solution?
Many Palestinians want a unitary state because they believe they would dominate it. According to the Arab Center in Washington, D.C., the estimated number of Palestinians at the end of 2021 was about 14 million: 5.3 million in the State of Palestine (3.2 million in the West Bank and 2.1 million in the Gaza Strip), 1.7 million in the 1948 territories, and nearly 7 million in the diaspora (6.3 million live in Arab countries and 750,000 in foreign countries). https://arabcenterdc.org/resource/brief-report-on-the-population-of-palestine-at-the-end-of-2021.
There are 7 million Jews in Israel. Even if none of the Palestinians in the diaspora returned, the number of Palestinians would equal the number of Jews in a unitary state. Israel/Palestine would no longer be a Jewish state and would not be safe as a homeland for the Jews.
Far-right Israelis also want a unitary state “from the river to the sea”, but they want it to be Jewish, with the Arabs expelled.
Both Jews and Palestinians have legitimate historical claims to the land. Palestine “from the river to the sea” was the land of Israel in biblical times. Even after the Bar Kochba revolts in 136 A.D., Jews remained the majority of the population. Eventually, the land became Arab and Muslim, but Jews maintained a significant presence in the land. Palestinians, of course, have also lived there for centuries. If they cannot live together in peace in a unitary state, a two-state solution is best, as the UN envisioned in 1948. Ehud Olmert’s plan of 2008 would have been a good solution, but the Palestinians rejected it.
Return and compensation for Palestinian refugees
During the 1948 War, 700,000 Palestinian Arabs fled Israel. Since the surrounding Arab countries refused to assimilate them but insisted on return, the descendants of the original refugees are also considered to be refugees. Accordingly, about 5 million Palestinians are considered refugees. If they all returned to Israel, it would no longer be a Jewish state and not a safe homeland for the Jews.
At the end of World War II, millions of Germans fled eastern Europe to what remained of Germany. They were assimilated. Do they have legitimate claims to return to their ancestral lands?
Reasonable compensation of Palestinian refugees would be appropriate, and Israel has offered that as part of a peace agreement, but a right of return, if fully exercised, would destroy Israel.
Disarmament of Israel’s nuclear, chemical and biological weapons
Israel has never admitted to having nuclear weapons, but it is very likely that it has them. Israel probably does not have chemical or biological weapons, although it could make them. As long as Israel is threatened, by Iran, for example, it will not voluntarily give up its nuclear weapons. That would be national suicide. The United Nations realistically cannot make that happen.
Conclusion
Hamas’s attack on Israeli civilians on October 7, 2023, was horrific. It murdered some 1400 peaceful, unarmed civilians in shockingly brutal ways. And given the chance, it will do it again. Ghazi Hamad, a senior Hamas official, told the Lebanese Broadcasting Corporation on October 24, 2023: “We must teach Israel a lesson, and we will do it again and again. The Al-Aqsa Deluge [the name Hamas gave its 7 October onslaught – ed.] is just the first time, and there will be a second, a third, a fourth. Will we have to pay a price? Yes, and we are ready to pay it. We are called a nation of martyrs, and we are proud to sacrifice martyrs.”
For the peace of Palestine and the security of Israel, Hamas must be destroyed, just as the Nazis had to be destroyed in World War II.
An opinion poll of Palestinians conducted by Birzeit University, Ramallah (West Bank) showed that some 75% of Palestinians support the Hamas-led slaughter of Oct. 7. Likewise, 75% of Palestinians seek the annihilation of Israel. They want a Palestine “from the river to the sea.” This position is distinct from a position of supporting a Jewish-Arab state from the river to the sea, or the so-called “one-state solution,” which only 5.4% of Palestinians support. Another 17.2% support the two-state solution.
Right-wing Israelis cite this to support their own preference of a Jewish state from the River to the Sea, but that would require the ethnic cleansing of Palestinians from their ancestral home, which is morally unacceptable. The current situation in the West Bank is morally unacceptable and will continue to breed terror attacks. Palestinians need a greater degree of self-rule so they can develop economically and socially. But they need to give up their dream of driving Israel into the sea.
One option would be for Egypt to take over the Gaza Strip and Jordan the West Bank. Israel would probably welcome that, but neither the Palestinians nor Egypt and Jordan want that. The most feasible solution is a two-state solution with a demilitarized Palestinian state subject to some kind of outside monitoring. Prime Minister Olmert’s proposal in 2008 would have been a fair solution. Perhaps it can be resurrected.
If Mokhiber really wants peace in Palestine, he should support a negotiated two-state solution. In the meantime, he and other “human rights activists” should try to be more even-handed. Israelis don’t consider the United Nations a neutral actor. In that, I believe Israel is right. If the UN cannot condemn the Hamas atrocity of October 7, 2023, without reservation, it has lost all moral authority.