Gaza, genocide and international law

by Candice Bodnaruk

Countries around the world are being held to account for their support of Israel since the International Court of Justice provisional ruling in January that Israel is committing “plausible`genocide in Gaza.

The Genocide Convention was the first human rights treaty adopted by the United Nations General Assembly on December 9.

The word “genocide” was first coined by Polish lawyer Raphael Lemkin in 1944. The term consists of the Greek prefix “genos” meaning race or tribe, and the Latin suffix “cide” meaning killing.

Although Lemkin developed the term “genocide” partly in response to Nazi policies of systematic murder of Jews during the Holocaust, it was also a response to previous instances in history of targeted actions aimed at the destruction of particular groups of people. Later, Lemkin also led a campaign to have genocide recognized and codified as an international crime.

The Article II of the UN Convention on the Prevention and Punishment of the Crime of Genocide outlines Genocide as the following:

In the present convention, genocide means of of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such:

(a) killing members of the group
(b) causing serious bodily or mental harm to members of the group
(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
(d) imposing measures to prevent births within the group
(e) forcibly transferring children of the group to another group

Canada ratified the Genocide Convention in 1952.

The convention established on state parties the obligation to take measures to prevent and punish the crimes of genocide including by enacting the relevant legislation and punishing perpetrators, whether the perpetrators are constitutionally responsible rules, public officials or private individuals.

The obligation to prevent genocide is considered a norm of international customary law and is therefore binding on all states whether or not they have ratified the Geneva Convention.

As signatory to the Geneva Convention, Canada is obligated to not only not commit genocide, but also to prevent genocide (Article 1), and an obligation to try persons charged with genocide in a competent tribunal of the state in the territory of which the act was committed or by an international penal tribunal with accepted jurisdiction.

The International Court of Justice (ICJ) Ruling

The ICJ ordered Israel to comply with six provisional measures to safe guard the right of Palestinians in Gaza to be protected from genocidal violence.

The order is binding on Israel and formalizes the international legal obligation of other countries that are parties to the UN Genocide Convention, including Canada.

The court stated that Palestinians face imminent risk of genocide and other countries have an international duty to prevent genocide.

Statements by the United States and Canada that Israel is abiding by law of war cannot shield Israel or its allies from their legal obligations under the Genocide Convention- including to prevent genocide.

Canada and UNRWA

Canada’s decision to suspend funding to the UNRWA could also be considered an example of complicity in genocide. According to the Genocide Convention, any country’s actions that knowingly contribute to the further deterioration of Gaza would violate the obligation to prevent genocide and would amount to complicity in genocide.

Moreover, because the ICJ found a serious risk of genocide in Gaza, continuing to export arms to Israel would also be illegal.

Canada exported $28.5 M in military goods to Israel in the first three months after October 7. Many of these component parts are first exported to the U.S.

The Export and Import Permits Act forbids permits to be issued if there is a “substantial risk” that military goods would be used to commit or facilitate serious violations of international humanitarian law or human rights law. Therefore, continuing these exports would be inconsistent with Canada’s obligation to prevent genocide

The Recent NDP Motion in Parliament

A recent NDP motion called on Canada’s Liberal government to halt future arms exports to Israel. It passed on March 18 by a vote of 204-117. All but three Liberal MPs voted against the motion. All NDP, Bloc Quebecois and Green Party MPs supported the motion. All Conservative MPs voted against it.

The final motion in Parliament no longer called for the total suspension of all trade in military goods and technology with Israel, instead it called on Canada to “cease the further authorization and transfer of arms permits to Israel to ensure compliance with Canada’s arms export regime”..

Canada and Military Cooperation with Israel

The Israeli Air Force has trained in Canada and Canada has a `border and security agreement`with Israel.

Since 2007, twenty Canadian troops have been training Palestinian Authority security forces to act as subcontractors of the Israeli occupation.

Both Canada and Israel have military attaches in each other countries and top military officials visit each other regularly.

The Coalition for Canadian Accountability in Gaza recently stated that arms sales are not the only form of direct Canadian assistance to the Israeli military. The CCAG is suing the federal government on behalf of several Palestinian Canadians. The organization points out that there are several registered Canadian charities, like the Heseg Foundation, run by former Chapters CEO Heather Reisman and her husband, Gerry Schwartz, that are directly involved in recruiting Canadians to the Israeli military. According the the Canada Revenue Agency, registered charities are prohibited from supporting another country’s military and back in 2020 the federal government did investigate people for violating the Foreign Enlistment Act as Canadians were being encourage to join the Israeli military at that time.

Recently Nicaragua announced it was taking Canada, Germany, the Netherlands and the United Kingdom to the International Court of Justice for continuing to arm Israel.

Israel’s Right to “Self-Defence”

Since October 7 there have been countless media reports that Israel’s actions in Gaza are justified because of their right to self-defence. Specifically, Article 51 of the UN Charter refers to the right of a state to use force in response to an armed attack. However, the right to self defence has certain conditions and limitations. Canada has supported Israel’s right to “self-defence against terrorism”, while ignoring the fact that Israel is an occupying power and has certain obligations under international law to the population it occupies (the Palestinians).

Yet Israel repeatedly uses self-defence as a key response for war, however self-defence does not apply to an occupying state’s wars against those people it occupies.

Norman Finkelstein has argued that “Israel has no legal mandate to use force against the Palestinian self-determination struggle because no legal benefit can be derived from an illegal act”.

He goes on to explain that Israel cannot pretend to the right of self-defence if the exercise of the right itself traces back to the wrong of an illegal occupation and denial of self-determination of the of the Palestinian people.

Update

On May 24 the World Court or International Court of Justice (ICJ) ordered Israel to immediately end its current military assault on Rafah. To date, 1.4 million Palestinians have have been sheltering in Rafah in southern Gaza. This decision marked the third time this year that the panel of judges issued preliminary orders to alleviate humanitarian suffering in Gaza. The orders are legally binding yet the ICJ has no police to enforce them. Israel has also stated it has no intention of stopping and to date continues its attacks, targeting refugee camps and hospitals in Gaza’s southernmost city.