08/11/14 – Marjorie Cohn – The Scott Horton Show

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All right, you guys.
Welcome back to the show.
I'm Scott Horton.
This is my show, The Scott Horton Show.
And our next guest is Marjorie Cohn of the Thomas Jefferson School of Law.
And I believe formerly the director of the Center for Constitutional Rights.
Right, Marjorie?
No, formerly the president of the National Lawyers Guild.
Oh, the National Lawyers Guild.
Man, I screw these things up sometimes.
But we do work with CCR.
Okay, great.
All right, and you do great work and you write great articles, too.
I sure love reading them.
This one is at Jurist, which actually is extra little thrill for me because I imagine that this has a very elite and important audience that you're speaking to here as well.
And so I think that's really important.
But so anyway, here it's called U.S. Leaders Aid and Abet Israeli War Crimes, Genocide, and Crimes Against Humanity.
Wow, Marjorie, I know you must be serious to put it that way.
You want to, first of all, I guess take us through which are the laws that you think are being broken and then how?
Yes, and I want to say that the reason that I said that U.S. leaders are aiding and abetting these war crimes, genocide, and crimes against humanity is because in the Rome Statute for the International Criminal Court, an individual can be convicted of one of these crimes if he or she, and I'm reading right out of the statute, aids, abets, or otherwise assists in the commission or attempted commission of the crime, including providing the means for its commission.
And U.S. military aid, which has been approved by members of Congress, George W. Bush, Barack Obama, Defense Secretary Chuck Hagel, that military aid has aided, abetted, and assisted the commission of these crimes by providing Israel with the military means to commit them.
Now, there are three different categories of crimes that we're talking about.
We're talking, and this is right out of the Rome Statute for the International Criminal Court.
One category of crimes is war crimes, one is crimes against humanity, and the other is genocide.
So first of all, war crimes.
There's seven possible war crimes that Israeli leaders and U.S. leaders aiding and abetting them could be convicted of in the International Criminal Court.
And the first one is willful killing.
So I'm going to mention the crime which is specified in the International Criminal Court statute, and then I'll talk about the evidence supporting the allegation of that crime.
So willful killing, Israeli forces have killed nearly 2,000 Palestinians, more than 400 children, and more than 80% of them civilians.
Israel used 155-millimeter artillery, which according to Human Rights Watch is utterly inappropriate in a densely populated area because it's considered accurate if it lands any place within a 50-meter radius.
The second war crime is willfully causing great suffering or serious injury to body or health.
Nearly 10,000 people, 2,500 of them children, have been wounded.
UNICEF said the Israeli offensive has had a catastrophic and tragic impact on the children in Gaza, and about 373,000 children have had traumatic experiences and need psychological help.
And UN Relief and Works Agency for Palestine Refugees said there's a public health catastrophe going on.
Most of the medical facilities in Gaza are non-operational.
The third war crime is unlawful and wanton, extensive destruction and appropriation of property not justified by military necessity.
At least 60,000 Palestinians have lost their homes because they've been destroyed by the Israeli forces.
And the damage to sewer and water infrastructure has affected two-thirds of Gazans.
The reconstruction of Gaza is estimated at $6 billion.
In addition, Denis Kucinich wrote a piece saying that Israel shrunk Gaza's habitable landmass by 44% by establishing a three-kilometer no-go zone for Palestinians.
So 147 square miles of land will be compressed into 82 square miles.
And Oxfam described the level of destruction as outrageous, much worse than anything we have seen in previous Israeli military operations.
The fourth war crime is willfully depriving a prisoner of war or a civilian the rights of fair and regular trial.
Nearly 2,000 Palestinians were arrested by Israeli forces just in the month of July alone, according to the Palestinian Prisoners' Center for Studies.
And these prisoners included 15 members of the Palestinian Legislative Council, about 240 children, dozens of women, journalists, activists, academics, and 62 former prisoners previously released in a prisoner exchange.
Now, this is something that is not widely known, but Israeli forces executed many prisoners after arrest, no trial, either by directly firing on them, refusing to allow them treatment, or allowing them to bleed to death.
And more than 445 prisoners are being held without charge or trial under administrative detention, and that is also illegal.
And Marjorie, I'm sorry, just a quick point of fact here.
This is in Gaza, or this is people abducted in the West Bank as well?
In the West Bank as well.
And there are also reports that have come out.
Max Blumenthal wrote a piece on August 8th in Alternet saying that Israel is pursuing a shoot-to-kill or shoot-to-cripple policy against demonstrators.
And so not only are they arresting people and letting them die if they were wounded, but over the last six months, the army has started firing at protesters' knees, at femurs, or aiming at their vital organs.
And Blumenthal is quoting Dr. Rajai Aboukhalil, who is a resident physician who is working in Gaza.
And he says that there are dum-dum bullets which are being used, which are banned under customary human rights law because the ammunition is designed to cause extreme damage to tissue by expanding outwards upon entry, thereby preventing the bullet from exiting.
And Dr. Aboukhalil said, you can't extract it.
It goes in and explodes and expands outwards.
If you try to remove it, you could harm the muscle or bone.
So if it hits the bone, you just have to keep it there.
The fifth type of war crime is intentionally directing attacks against the civilian population, civilian objects, or humanitarian vehicles, installations, and personnel.
A joint declaration of over 150 international law experts said the civilian population in the Gaza Strip is under direct attack.
And this violates the principle of distinction, which forbids deliberate attacks on civilians or civilian property or objects.
Israeli forces bombed 142 schools, 89 of which were run by the UN, including six UN schools where civilians were taking refuge.
And Israeli forces shot and killed fleeing civilians.
Now, they said, well, we gave them warnings first.
But warnings have to effectively give civilians time to flee during the bombing.
And even if they do give warnings, that does not relieve Israel from its legal obligations not to target civilians.
Israeli forces repeatedly bombed Gaza's only power plant and other infrastructure which are, quote, beyond repair, unquote.
Israel bombed one-third of Gaza's hospitals, 14 primary health care clinics, and 29 ambulances.
And according to Amnesty International, Israel is targeting doctors.
At least five medical staff were killed.
Tens of others were injured.
The sixth war crime is intentionally launching attacks with knowledge they will cause incidental loss of life or injury to civilians or damage to civilian objects or long-term severe damage to the natural environment if they're clearly excessive in relation to the anticipated military advantage.
The principle of proportionality forbids disproportionate and excessive civilian casualties compared to the claimed military advantage gained in the attack.
And Israel is using, once again, what is called the Dahiyeh Doctrine, and according to the UN Human Rights Council or Goldstone Report, the Dahiyeh Doctrine involves the application of disproportionate force and causing of great damage and destruction to civilian property and infrastructure and suffering to civilian populations.
So that Dahiyeh Doctrine directly violates that proportionality requirement.
So responding, ostensibly responding to Hamas's rockets with 155 military artillery is disproportionate.
And although nearly 2,000 Palestinians, over 80% of them civilians, have been killed, 67 Israelis, all but three of them soldiers, have been killed.
Also, the coordinates of all UN facilities were repeatedly communicated to Israeli forces, according to the U.S. State Department, and Israel nevertheless bombed them multiple times.
The seventh war crime- Now, I'm sorry, Marjorie, let me stop you there.
We're actually a little bit over, but let's take this break, and then when we come back, we can pick back up with number seven here, and then follow-ups.
Okay.
All right, thank you very much.
Hold on, it's Marjorie Cohen from the Thomas Jefferson School of Law, writing here at jurist.org.
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All right, you guys.
Welcome back to the show.
I'm Scott Horton.
This is my show, The Scott Horton Show.
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Right now, I'm in the middle of talking with Marjorie Cohen from the Thomas Jefferson School of Law, and this article is at jurist.org.
U.S. leaders aid and abet Israeli war crimes, genocide, and crimes against humanity.
And we're going to have to do some follow-ups about the U.S. role and some of the other points of fact here.
But we're going down the list here, and you're doing really great here.
We're on number seven under the category of war crimes.
Marjorie, please continue.
Yes.
This war crime is called attacking or bomb, and these are war crimes that are set forth in the International Criminal Court statute.
Attacking or bombarding undefended towns, villages, dwellings, or buildings, or intentionally attacking religious, educational, and medical buildings which are not military objectives.
On July 20th, Israeli forces virtually flattened the small town of Kuzaa.
One man counted 360 shell attacks in one hour.
And Israeli forces bombed 142 schools, one-third of Gaza's hospitals, 14 primary health care clinics, and 29 ambulances, and unknown numbers of homes of Gazans.
And completely destroyed 41 mosques, and partially destroyed 120 mosques.
Now the second category of crimes is genocide.
And the genocide is, you can be convicted of genocide if, with the intent to destroy in whole or in part, a national, ethnical, racial, or religious group.
Palestinians, primarily civilians, and Palestinian infrastructure necessary to sustain life were deliberately targeted by Israeli forces.
So that is the intent part of it.
And then the intent, with that intent, the commission of any one of these three acts.
Number one, either killing members of the group, and Israeli forces killed nearly 2,000 Palestinians.
Or number two, causing serious bodily or mental harm to members of the group, Israeli forces wounded 10,000 Palestinians.
Or number three, deliberately inflicting on the group conditions of life calculated to bring about its destruction in whole or in part.
Israeli forces devastated Gaza's infrastructure, knocked out Gaza's only power plant, destroyed homes, schools, buildings, mosques, and hospitals.
And the third category of crimes that are punished in the International Criminal Court are called crimes against humanity, and I'm going to talk about three of them.
First, the commission of murder as part of a widespread or systematic attack against any civilian population.
Israeli forces relentlessly bombed Gaza for one month, killing nearly 2,000 Palestinians, more than 80 percent civilians, and they intentionally destroyed Gaza's infrastructure, knocking out its only power plant, destroying homes, schools, buildings, mosques, and hospitals.
The second crime against humanity is persecution against a group or collectivity based on its political, racial, national, ethnic, or religious character as part of a widespread or systematic attack against any civilian population.
Israeli forces killed, wounded, summarily executed, and administratively detained Palestinians, Hamas forces and civilians alike.
Israeli forces intentionally destroyed the infrastructure of Gaza, which is populated by Palestinians.
And then the third crime against humanity is the crime of apartheid, and in order to commit the crime of apartheid, you have to commit inhumane acts in the context of an institutional regime of systematic oppression and domination by one racial group over another racial group with the intent to maintain that regime.
Ali Hayek, who was the head of Gaza's Federation of Industries, which represents 3,900 businesses that employ 35,000 people, said, after 30 days of war, the economic situation has become like dead.
It seems the occupation intentionally destroyed these vital factories that constitute the backbone of the society.
That's his quote.
Israel maintains an illegal barrier wall that encroaches on Palestinian territory.
The International Court of Justice, or the World Court, found that it was illegal.
Israel builds illegal Jewish settlements on Palestinian land.
Israel keeps Gazans caged in what many call the world's largest open-air prison.
Israel controls all ingress and egress to Gaza, limits Gazans' access to medicine, subjects Palestinians to arbitrary arrest, expropriates their property, maintains separate areas and roads, segregated housing, different legal and educational systems for Palestinian and Jews, and prevents mixed marriages.
And only Jews, not Palestinians, have the right to return to Israel-Palestine.
Now I also discussed another crime which is not included in the statute for the International Criminal Court, but it is considered to be a war crime because it is a grave breach of the Fourth Geneva Convention, and that's called collective punishment.
Collective punishment means punishing a civilian for an offense he or she has not personally committed, and it forbids reprisals against civilians and their property.
So ostensibly to rout out Hamas fighters, Israel has wreaked unprecedented devastation on the people of Gaza, killing nearly 2,000 people, more than 80% civilians, and destroying much of the infrastructure of Gaza, and this constitutes collective punishment.
On August 5th, veteran Israeli military advisor Giora Eiland advocated collective punishment of Gaza's civilian population, saying, quote, in order to guarantee our interests versus the other side's demands, we must avoid the artificial, wrong, and dangerous distinction between the Hamas people, who are the bad guys, and Gaza's residents, who are allegedly the good guys, unquote.
And that is precisely the strategy Israel has employed in this war.
Also, Israel's occupation of Palestinian lands constitutes collective punishment.
Israel maintains effective control over Gaza's land, airspace, seaport, electricity, water, telecommunications, and population registry, and Israel deprives Gazans of food, medicine, and fuel and basic services.
So that is the evidence supporting the request to the International Criminal Court prosecutor to investigate Israeli leaders and military commanders, as well as for war crimes, genocide and crimes against humanity, under the statute of the International Criminal Court, as well as U.S. leaders who have funded and made possible the commission of these crimes.
All right.
Now, I'm sorry, we don't really have time to get into the prospects for actual indictments and prosecutions here.
I mean, that could be a whole other interview, in fact.
But this is one hell of an indictment that you have just read through here, Forrest Marjorie.
It's really something else.
It really, all the different pieces together really put it in context, and especially, as you contrast it with the mandates of these international agreements and the federal laws that Congress has passed enforcing American participation with these international agreements.
I guess I would just like to go back over, really, I mean, I have a few, but the most important thing to go back over, and we're already over time, so I'm sorry, real quick here, but I guess I'm only just learning now that genocide does not necessarily, at least in the law, does not necessarily require an attempt to eradicate an entire ethnicity of people, like all Arabs, but even just a nationality, even if it's a tiny little nationality like the Palestinians in Gaza, if their entire ability to continue to exist as the Palestinian community there in Gaza is destroyed, that amounts to genocide under the letter of the law.
In other words, even if half the Jews in the world are in Israel and half the Jews are somewhere else, if someone really tried to obliterate Israel, that could be considered a genocide, too, an attack on an entire nation of people, something like that.
Is that correct?
Well, it doesn't, they don't have to actually succeed.
They have to have the intent to destroy, in whole or in part, so it doesn't have to be the whole thing, intent to destroy in whole or in part a national, ethnical, racial, or religious group.
Right, it's that or is what's important there.
Pardon me?
It's the or in that list, it doesn't have to be an ethnicity.
Yes, in whole or in part, and so in conjunction with that intent to destroy in whole or in part a group based on their race or religion or nationality, only one of the following acts needs to be committed, killing members of the group, and Israel has killed nearly 2,000 Palestinians, causing serious bodily or mental harm to members of the group.
Israel has wounded 10,000 Palestinians, or deliberately inflicting on the group conditions of life calculated to bring about its destruction in whole or in part.
And now, is your evidence about their intent just the results, or do you have something better about their declared, I guess, the Dahiyya doctrine, you call it?
Yes, there have been statements that have been made by Israeli leaders about destroying the Palestinians.
The fact that so many Palestinians have been killed, the fact that Israel bombed the infrastructure necessary to sustain life, they deliberately targeted that infrastructure, shows the intent to destroy in whole or in part the Palestinians.
All right, I'm so sorry that we're out of time.
Thank you so much for coming back on the show, Marjorie, I appreciate it.
My pleasure, Scott.
That's the great Marjorie Cohn, everybody, formerly with the National Lawyers Guild, now at the Thomas Jefferson School of Law and at jurist.org.
You can find the spotlight today on antiwar.com.
U.S. leaders aid and abet Israeli war crimes, genocide, and crimes against humanity.
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